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					                                               Constitutional Law                                                  1
I. Judicial Review

Section 1: Early Challenges
  • Under the Supremacy Clause, the constitution is the Supreme law of the land, and therefore federal law trumps state law
     and the constitution trumps federal law.


                     Marbury v. Madison - p.1
                          Rule: USSC could override and strike down Congressional legislation that it found contrary to the
                               Constitution.
                          • The USSC is the ultimate interpreter of the Constitution, and has the power, under the supremacy
                               clause, and Article VI § 2, to review acts of Congress which are repugnant to the Constitution and
                               find them unconstitutional.
                                        (Article VI §2: This Constitution, and the laws of the United States which shall be made in
                                            pursuance thereof, and all treaties made, or which shall be made, under the authority of
                                            the United States, shall be the supreme law of the land; and the judges in every State
                                            shall be bound thereby, anything in the constitution or laws of any State to the contrary
                                            notwithstanding.)
                               i. The constitution is the supreme law of the land and paramount law.
                               ii. It is the duty of the court to day what the law is and the court, not the legislature, makes the
                                       determination as to whether a specific act of Congress is in conflict with the Constitution.
                               iii. While there is criticism of the decision, that nowhere in the Constitution is it stated that the
                                       courts are to decide constitutionality of the acts of Congress, this assumption seems logical.
                                       Congress‟ acts to correspond to passing laws that are in the interest of the majority, and it is
                                       the court‟s role to determine constitutionality and protect the rights of minorities, who are
                                       naturally at a disadvantage based on the inherent weakness of our governmental structure. "It
                                       is the province of the courts to decide what the law is." Someone has or say something to
                                       congress as they might not care or know what the law is. They are the check against absolute
                                       power of congress
                                       Facts: Just before President Adams was to leave office, the Federalist Congress passed two
                                            acts which authorized the appointment of more federal judges and justices of the peace.
                                            Adams made the appointments, which Congress confirmed. The new midnight judges'
                                            commissions were signed by Adams and sealed by the Secretary of State (Marshall).
                                            However, by the time anti-Federalist Jefferson took office, several of the commissions
                                            remained undelivered. Jefferson ordered his new Secretary of State, D Madison, to
                                            withhold delivery, contrary to § 13 of the Judiciary Act of 1789, which authorized the
                                            Supreme Court to issue writs of mandamus, in cases warranted by the principles and
                                            usages of law, to any court appointed, or persons holding office, under the authority of the
                                            United States." P Marry and other frustrated midnight appointees petitioned the Supreme
                                            Court to compel Madison to deliver the commissions.
                                       Issue: Does the Supreme Court have the power to declare congressional acts
                                            unconstitutional?
                     Holding: D Yes, and there is no political question that the courts cannot answer.
  • The federal statute to grant the writ was declared unconstitutional because the issuance writs of mandamus in this case
     was contrary to Article III. § 13 of the Judiciary Act is unconstitutional, which gave the USSC original jurisdiction to issue
     writs of mandamus.
  • The Constitution, on the other hand, limits the Court's original jurisdiction to only designated cases (i.e., affecting
     ambassadors, other public ministers and consuls and those in which a state shall be a party); in all other cases, the
     Supreme Court has only appellate jurisdiction.
  • The Constitution defines and limits the powers of the legislature. The legislature cannot alter the Constitution, which itself
     provides that it is the Supreme law of the land, by an ordinary act. To hold otherwise would render the Constitution only
     an absurd attempt to limit legislative power.
  • If an act of the legislature is repugnant to the Constitution, the Court must determine which of these conflicting rules
     governs the case.
  • The Constitution, if it is to have any meaning at all, must prevail. Art. III, § 2 provides that the judicial power of the United
     States is extended to all cases arising under the Constitution. A case arising under the Constitution cannot be decided
     without examining the instrument under which it arises. Courts cannot be permitted to look into some parts of the
     Constitution and not others.
  Notes: The power of the Court to declare acts of Congress repugnant to the Constitution is not exclusive; other branches of
     government are not absolved from their responsibility to assess the constitutionality of legislation governing their
     performance. Nor does Marry v. Madison hold that the act before the Court for review, if found unconstitutional is void in
     all contexts. Since the Court is asked to pass on arguments presented by two adverse parties before it, its decision is
     limited to the facts of the case. However, there may be instances where a law is not only unconstitutional as applied but
     is void on its face.
  • In this instance the court could have original jurisdiction or remand it to a lower court before it comes up once again to the
     USSC.
  • USSC is the check against absolute power of Congress. The "It is the province of the courts to decide what the law is."
     Someone has to say something to Congress as they might not care or know what the law is.

                                             Michael M. Wechsler
                                              Constitutional Law                                                2
  • Protector of the minority interests: We worry that the rights of minorities could be easily overlooked because they lack
     some legislative power that is inherent in our system and the courts' job to step in and right those areas which are
     skewed by Congress
  • There is a good argument as in Article III the congress can and may expand certain roles of congress but it is not
     addressed in the decision.
  • Another good argument: We aren't saying that the USSC can't be a forum of original jurisdiction, we are just saying the
     court can issue a writ of mandamus in addition to the other things a court can do, and that is what §13 is saying. In a
     case where a court has original jurisdiction, one of the things a court can‟t do is issue a writ of mandamus.
  • While Marshall could have recused himself, he wanted to establish that judicial review is possible and law, and in doing so
     he dances around the main issue therefore he got the best of both worlds - he was able to make a decision and assert
     the strength if the judiciary.
     1. The judiciary has the right to step on to strike down laws as unconstitutional; and
     2. Marshall avoids the collision with the Jefferson (opposing) administration by ruling against Marry, and he could keep
        his job as chief justice without getting impeached.


Cooper v. Aaron - p. 15
 Rule: State officials may not disobey federal court orders that are based on the Supreme Court‟s interpretation of the
   Constitution. “The federal judiciary is supreme on the exposition of the law of the Constitution.”
 Facts: An Arkansas federal court ordered desegregation of the public schools on Little Rock. The governor and state
   legislature claimed that state officials had no duty to obey federal court orders even when those orders were based on
   the USSC‟s interpretation of the Constitution.

US v. Carolene Products - footnote 4 - p.17
 Rule: In constitutional questions dealing with non-fundamental constitutional rights, such as economic regulatory
    legislation, there is a presumption that the governmental action was proper and constitutional, and that there is a rational
    basis between the act of legislature and the objective of the legislature.
 Footnote 4 says the test is stricter when dealing with fundamental rights guaranteed by the Constitution, such as issues
    that deal with the first ten amendments.
 Facts: Congress‟ Filled Milk Act prohibited the shipment in interstate commerce of skimmed milk filled with any fat or oil
    other than milk fat as this was held to be deceiving to the public who would likely think that the filled milk was actually
    pure milk. Carolene sued on the grounds that it was taken from them without due process of law. (The courts were
    holding on a constant basis that laws like this were unconstitutional as taking away property without giving the citizen his
    day in court.) But J. Stone said that he upheld the law as long as Congress has a rational basis for it, the courts do not
    posses the power to question that law as Congress has 'legislative wisdom' as they have the budget to spend to
    determine if the law is as accurate as it seems. Therefore, there is no violation of the Due Process clause of the 5th
    Amendment protecting the general public from fraudulent substitutions of milk products by prohibiting its shipment in
    interstate commerce.
 • Footnote 4 explains the scope of federal jurisdiction, and in Carolene it raised for the first time the question as to what is
    the standard for judicial review. In footnote 4, J. Stone said that the test would be different if it interfered with a protected
    right, such as a statute dealing with one of the first ten amendments. The court might have to narrow the presume of
    constitutionality and to give much greater scrutiny to decide whether the law was valid, thus the stricter test. This footnote
    established the two tiered test for different issues of constitutionality of governmental actions.
 • Protection of Minorities by USSC: J. Story realized that there was an inherent discrimination against minorities in our
    governmental system. Statutes are made on a non-level playing field and there is a need for minorities to be protected
    from these inherent inequalities - e.g. the Jim Crow laws made in the South under legislature. This was overturned
    because there was no compelling governmental interest in racial segregation in city schools. We worry that the rights of
    minorities could be easily overlooked because they lack some legislative power that is inherent in our system and the
    court‟s job to step in and right those areas which are skewed by Congress.




                                            Michael M. Wechsler
                                              Constitutional Law                                                3
Reviewing governmental action as to whether it is constitutional

  There are 3 tests, and we must always ask whether the statute on its face in derogation of the Constitution.

    1. Strict Scrutiny: Used when the statute deals with limiting a fundamental right such as freedom of speech, and the first
       10 Amendments of the Constitution. Government victory is very rare as fundamental rights are essentially paramount.
       • Compelling State Interest: This is a narrowly tailored test whether the statute that limits personal freedom serve a
          compelling state interest?

  2. Middle Level Scrutiny

  3. Rational Basis: Used when the statute deals with limiting a non-fundamental right. The court reviews whether the
     government or administrative agency‟s judgment in question was proper and its decision has a rational basis.

    1. Presumption of Correctness: There is an unwritten presumption that agency‟s decision was correct and constitutional,
       and is accorded heavy weight and a burden to be overcome by those challenging that decision.

         a. legitimate state interest: Does the action serve a legitimate state interest?
         b. rational relation: Is there a rational relation between the objective of the state action and the action taken in
            question.

    2. Preponderance of evidence: Opponents need much more than 51%, or a preponderance of the evidence showing that
       the agency‟s decision was incorrect or arbitrary and capricious. P must show that the agency acted:

      1. Arbitrary and Capricious: P must show that the agency‟s decision was arbitrary and capricious, almost like a flip of
         the coin to decide. Whether “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the
         law.”

      2. Lack of Evidence: The courts may take the position that the fact finding by the agency was inadequate as a matter of
         law. There is no evidence to show that the Agency abided by any fair and reasonable procedure. (e.g. no documents
         in Scenic Hudson showing inquiry into feasibility of the plan). Note that the courts cannot question the fact findings,
         but it may challenge the sufficiency of the findings as a matter of law.


USSC Review of State Court Decisions

  It seems to be that the USSC can review any state court decision and all its issues once a federal question is present.
  • Appellate JD: Determined and limited by Congress. Just because a federal issue is present in a case, does not entitle the
     USSC to review the case. It cannot decide political questions, and the issue must arise from the federal question, not just
     indirectly related.
  • Must be a justiceable Controversy: No advisory opinions by USSC. The federal judiciary can only adjudicate issues that
     are justiceable.
There are limits as to what you can bring to the USSC for review.
  1. Requires a federal question or a question that arises under the constitution for matters of appellate jurisdiction (NOT
     original jurisdiction).
  2. The USSC will not hear an issue which only has a question of state law.
  3. The USSC will also not hear questions that only address an issue of fact.
  4. Under appellate jurisdiction it can only answer questions of federal law, but does not answer issues of fact.

Exceptions:
  1. State v. state matters: If NY and NJ are disputing sovereignty over Ellis Island, which is federal property, the USSC is the
     proper forum for adjudication (the matter is currently pending).
     • The USSC has both original AND exclusive jurisdiction over such matters and this is the only exception to where the
        USSC will entertain questions of fact.




                                            Michael M. Wechsler
                                             Constitutional Law                                              4
Martin v. Hunter‟s Lessee - p. 21
 Rule: USSC could override the decisions of the state courts, even the highest state court. (see Article III §2)
 • The USSC‟s appellate jurisdiction extends to state court judgments that involve federal law.
 Facts: P Martin, a British subject resident in England, inherited vast Virginia landholdings from his uncle, Lord Fairfax.
    Virginia confiscated the land of those who were on the wrong side of the law and the war. VA sold the land to Hunter.
    There was a treaty with Britain and the US that land could not be confiscated for those citizens who were merely on the
    losing end of the war and the law. P Martin sought to eject D Hunter's lessee from the land. The Virginia District Court
    ruled for Martin on the basis of anti-confiscation clauses in the treaties of 1783 and 1794 with Great Britain. The Virginia
    Court of Appeals reversed on grounds that the 1796 act of compromise between the Fairfax claimants and the state
    settled the matter against Martin and that the state's title had been perfected before the treaties. The Supreme Court,
    without discussing the compromise, reversed and remanded relying on the treaty of 1794. On remand, the Virginia court
    ruled that insofar as the Judiciary Act extended the Supreme Court's appellate jurisdiction to state courts, the Act was
    unconstitutional. Martin appealed.
 Issue: May federal courts hear appeals brought from state court decisions?
 Holding: Yes. Federal courts may hear appeals brought from state court decisions. The USSC agreed with the District
    Court that Martin was entitled to the property, (but the Virginia courts defied it).
 • USSC is the supreme court of the land to interpret constitutionality and decisions of lower courts involving federal
    questions and constitutionality. It is plain, that the framers of the Constitution did contemplate that cases within the
    judicial would, arise in the state courts which would then be of original jurisdiction, in the exercise of their ordinary
    jurisdiction [pointing to the supremacy clause]. Under the constitution the states have been stripped of some of their
    highest attributes of sovereignty. If the courts of the United States can review and strike down state legislative acts,
    surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power.
    Furthermore, state judges are not absolutely independent of federal law; they are sworn to uphold the constitution, the
    supreme law of the land over the state laws (and this VA statute confiscating lands).
 • Need for Uniformity: In addition, it is necessary that the Supreme Court act as final arbiter in order to maintain uniformity
    in the application of the law throughout the nation. Reversed Judgment of the district court affirmed).
 Notes: As an historical note, Mr. C.J. Marshall recused himself in the first, remanded case. Marshall also had a great
    financial interest in the outcome because he and his brother had organized a syndicate which had purchased, from
    Martin, 160,000 acres of the land in question.
 • The key here was the power of the USSC to override that of the states.


Cohens v. Virginia - p. 24
 Rule: Sustained the Court's appellate jurisdiction under § 25 of the Judiciary Act to review state criminal proceedings for
    constitutionality, even above the state‟s highest court, and is generally viewed as reaffirming and "supplementing" Martin.
 Facts: Appellants were found guilty in a Virginia court of selling lottery tickets in violation of state law. Their defense was
    that the lottery was organized by the City of Washington, under a congressional statute authorizing the lottery. On appeal
    to the Supreme Court, they were met with the contentions that the Court had no jurisdiction to review a state criminal
    case and, in any event, Congress had no power to permit the sale of lottery tickets in a state which prohibited such sale.
    On the jurisdictional point, Virginia argued that federal courts cannot take original jurisdiction over criminal cases, since
       that rightfully belongs to the courts of the state whose laws have been violated and consequently, the Supreme Court
       has no jurisdiction at all.
 Holding: P, The USSC has power to review criminal cases under its appellate jurisdiction of cases that are of original
    jurisdiction of the states when they involve a federal question. As in Marbury, Marshall, C.J., used the occasion to
    express a broad view of the Court's powers, but decided the case on a narrow ground in favor of the Jeffersonians—the
    federal statute authorizing a lottery had no effect outside the City of Washington.
 Notes: The case was decided at a time when the state autonomy and states' rights generally were being boldly proclaimed.
    Two years earlier, most southern and western states had vehemently denounced the decision in McCulloch u. Mary land
    invalidating a state tax on the Bank of the United States. Indeed, in disregard of McCulloch and in defiance of a federal
    circuit court injunction, the state auditor of Ohio had enforced his state's tax on the Bank by entering its vaults, seizing
    whatever specie and notes he could find, and conveying them to the state treasurer. See 1 Warren, supra, at 514-30.
    And only a year before Cohens, in the hot debate which finally resulted in the Missouri Compromise, "constant fears were
    expressed by Southern statesmen lest Marshall's broad views of the 'necessary and proper' clause of the Constitution
    might support Congressional interference with the States on the subject of slavery," 2 Warren, supra, at 2-3. "The final
    settlement" of the existence and powers of the Bank of the United States and the extension of slavery in the new states
    "were felt to depend largely upon the future trend of the Supreme Court," id. at 4.
 • C.J. Marshall: We think a case arising under the constitution or laws of the United States, is cognizable in the Courts of
    the Union, whoever may be the parties to that case.




                                           Michael M. Wechsler
                                              Constitutional Law                                                 5
Section 2. Political Questions

  • In Marbury J. Marshall raised the question whether the issue of the land being confiscated by the state was a "political
     question" - one which the courts have no power to decide. Therefore he decided it on different grounds, on the judiciary
     act focus. So the court did not decide political questions here, it just said that this is not a political question.
  • Political questions are such as ones dealing with whether we recognize a foreign country, whether a war is valid, whether
     it is over etc.. The court ducks all these issues as political questions.

A political question could be decided as nothing in Article III to prevent it from being decided or the court from not being
decided. As per the judiciary Act the court doesn't decide the question. This is a rule of judicial comity, of voluntary refraining.
- Finality belongs to the executive branch
- There are no judicially manageable standards

Measuring Rods: Factors whether an issue is a political question (baker v. Carr):
 1. Whether the issue is committed to another governmental branch. Whether the issues involve a power to make the
    decision has been expressly granted to another branch of government by the Constitution.
 2. Whether judicial standards exist for handling the issue, or if a decision would require a policy determination clearly
    outside judicial discretion. Whether the judiciary can make a decision and fashion an appropriate remedy - whether there
    exists judicially manageable standards.
 3. Whether there is great need for uniform pronouncement on the issue (and if a decision by USSC was made it not would
    produce an embarrassing diversity of pronouncements on the issue by various governmental departments).

Criticism: Should and act of Congress simply be final, or an act of state legislature not revocable by the federal courts? The
  courts are there to set it aside. It is the same as if the president violated the constitution. So where is it written on stone that
  these questions above are political questions and not to be answered by the court?
A: The court takes the position not to make a "train wreck" in some scenarios by intervening. It may intervene but not when it
  would cause a major havoc out of the entire affair.

Specific Areas Defined as Political Questions (enumerated in Baker v. Carr)
1. Foreign Relations: Government needs a single voice
2. Duration of Hostilities: Need for finality of declarations of war as a pressing need.
3. Validity of Enactments:
   i. Whether the issue is committed to another governmental branch.
   ii. Whether judicial standards exist for handling the issue and fashion an appropriate remedy - whether there exists judicially
       manageable standards.
   iii. Whether there is great need for uniform pronouncement on the issue (and if a decision by USSC was made it not would
       produce an embarrassing diversity of pronouncements on the issue by various governmental departments).
4. Guaranty Clause: As in Luther v. Borden, the power to decide the validity of a state charter is left to the Executive. The
   court cannot intervene in issues involving this clause. Also see Georgia v. Stanton.

  Analysis for “political questions:”
    1. Is this the kind of theory to be left with executive and legislative (e.g. war decisions)
    2. Do we have judicially manageable standards? These 2 questions are very much linked together.




                                             Michael M. Wechsler
                                              Constitutional Law                                                6
Pacific States TelCo v. Oregon - p. 26
  Rule: Cases that present political questions are not cognizable by the judicial power, but solely committed by the
     Constitution to the judgment of Congress. The USSC has no power to review these issues.
  Facts: The Oregon government allowed people to pass "initiatives" where the people could legislate. These usually appear
     in the west coast states, such as proposition 187 in California regarding illegal aliens. If the majority of those who voted
     agreed with the legislation then this will bypass the legislature and go straight into law. In this case, such people made
     law that affected the tax liability of a number of telephone corporations.
  The telephone company affirmed a defense that the Guaranty Clause of the Constitution assures a Republican form of
     government in Article IV §4. (This form of government is supposed to assure us that fit parties are elected by the masses
     and that factions are less likely to gain control) D asserts that to have such initiatives to pass law and bypass the
     legislature (the elected officials) would be instituting a different form of government, contrary to the Constitution‟s
     guaranty of a republican form of government which consists elected officials of the people who make the law.
  The D also argued that it was denied equal protection of the law, only in that the state of Oregon would be taxing here in a
     manner inconsistent with all other states, by this initiative. (The court decided that this really was just an extension of the
     original question as to whether the state has a valid republican form of government.)
  Holding: For the USSC to decide here that there is no republican form of government, would require the USSC to declare
     that a state should have its charter as a state revoked. This would create severe problems and a serious “train wreck” as
     it would have to declare that a number of states, which had provisions such as these, to have their charters revoked as
     states and everything reworked from scratch. This case follows the leading decision in Borden, infra.
  • The state asserted that there is no conflict here because the elected officials are supposed to carry out the will of the
     people as their agents. Therefore, conceptually there is no difference as the law should have been passed by legislature
     as the people wanted it as such
  • Additionally, there was no claim of denial of equal protection: of the laws under the 14th Amendment, such as
     a. some corporations would be taxed by this law but not others.
     b. Denial of right to a day in court to fight the tax as the statute was simply enacted
        • The court said that if this argument was asserted, then there would have been a justiceable issue for the court to
           review - but D made no such argument, only that there was no republican form of government and the state had no
           right to exist as a state, a non-justiceable political question for the USSC.
        • The issue here is the same as in Luther, but here the court makes a discernation as there is not as much at stake
           here, merely the taxing of a corporation. There is no threat of overthrowing the balance of the entire county as there
           was in Luther. The question merely became "is the initiative valid?" - but the court said that it does not deal with
           matters that arise under the Guaranty Clause.'' Equal Protection Clause issue: Valid issue but the court said that this
           whole issue is too closely woven into the Guaranty Clause issue, without which it would not present a political
           question.


    Luther v. Borden
    Rule: The court may not decide a political question and it is left to Congress and the Executive to make those decisions
      and enforce them. The USSC may not declare that a state does not have a republican form of government guaranteed
      by the Constitution in this context.
    Facts: During the Civil War the government of RI made a law requiring the ownership of real property in order to vote.
      This was an egregious example which led to Door's rebellion, where they overthrew the RI government to get rid of this
      property requirement that was terribly inequitable. The result of the law was that it only allowed a few individuals, real
      property owners, to elect governmental officials. The result was two separate governments in RI, the old, and Door's
      regime. Luther was arrested by the marshall and sued for trespass since the state government wasn't the old one, or
      the marshall's, but his - the new one.
    Issue 1: Which government was the correct one and legitimate?
    Issue 2: In this instance with two governments, can we say that RI did not have republican form of government as
      guaranteed by the constitution in the Guaranty Clause of Article IV §4, therefore the USSC should revoke its charter?
    Holding: The court ducked this hot potato and didn't decide the issue because as per Article IV §4, it is not a matter for
      the courts, but for Congress. There were no real criteria for the USSC to make such a determination. As per the act of
      1795, It is the president‟s decision to call out the troops to put a stop to matters of danger, and to allow judicial review
      would constantly leave the branches playing a ridiculous game of tug of war. The power of the judiciary does not
      extend this far. For the USSC to decide here that there is no republican form of government, would require the USSC
      to declare that a state should have its charter as a state revoked. This would create severe problems and a serious
      “train wreck” as it would have to declare that a number of states, which had provisions such as these, to have their
      charters revoked as states and everything reworked from scratch.
    Notes: This is also the procedure when activists try to secede a state from the US.




                                            Michael M. Wechsler
                                             Constitutional Law                                                7
Baker v. Carr - p. 30
  • The court claimed the incorrectly assumed argument of a political question being presented for the court as a reason not
     to decide.
  Rule: A cause involving state legislative reapportionment presents no nonjusticiable "political question," even though it does
     involve an issue related to the Guaranty Clause which presents a nonjusticeable issue. (Therefore, do NOT make a
     Guaranty Clause argument or else be prepared for dismissal as a nonjusticeable political question.)
  Facts: Although the Tennessee State Constitution allocated representation on a population basis, no reapportionment law
     had been passed since 1901 despite the population growth and changing demographics. P Baker, and other members
     of the Tennessee electorate, alleging that 37% of the voters elect 20 of the 33 Senators while 40% of the voters elect 63
     of the 99 House members, brought an action in federal court to have the apportionment scheme declared in violation of
     the 14th amendment's equal protection clause (all should be fairly represented and protected by the laws). The action
     also sought equitable relief including, if necessary, a court-ordered reapportionment plan. The state argued that this was
     a political question as in the Pacific States TelCo v. Oregon case.
        • P made an Equal Protection Clause argument, not a Guaranty clause argument that this is not a republican form of
           government with the lack of reapportionment, because this argument would be ditched as a political question as it
           had been disposed of in earlier cases in Luther and Pacific States TelCo.
  The district court dismissed the suit, ruling that apportionment cases can involve no federal constitutional right except one
     resting on the Guaranty Clause (of a republican form of government per Article IV, § 4] and that complaints based on that
     clause have been held to present political questions which are nonjusticeable. Baker appealed.
  Issue: Are questions involving state legislative reapportionment political questions and nonjusticeable as they are beyond
     the authority of the USSC?
  Holding: No. Not all cases involving “politics” are political questions. Factors to be weighed are:
     1. Whether the issue is committed to another governmental branch
     2. Whether judicial standards exist for handling the issue
     3. Whether there is great need for uniform pronouncement on the issue.

    Political Questions:
    1. Foreign Relations: Government needs a single voice
    2. Duration of Hostilities: Need for finality of declarations of war as a pressing need.
    3. Validity of Enactments:
    4. Guaranty Clause: As in Luther v. Borden, the power to decide the validity of a state charter is left to the Executive. The
       court cannot intervene in issues involving this clause. Also see Georgia v. Stanton.

  • While the court could have decided as in Luther and Pacific States TelCo that an issue involving the Guaranty Clause of
     Article IV §4 and is a non-justiceable political question, it refrained from doing so and decided the question here was an
     issue involving the Equal Protection Clause of the 5th Amendment. The court said that the issue here is “the consistency
     of the state action with the Federal Constitution.” The court distinguished this case from Pacific States TelCo as there we
     were simply dealing with s corporation being taxed, an economic issue. Here we are dealing with the denial of a
     fundamental right of the right to vote, Essentially votes were not equal because of the lack of any reapportionment.
  • The nonjusticiability of political questions is primarily a function of the separation of powers. It is the relationship between
     the judiciary and coordinate branches of the federal government, and not the federal judiciary's relationship to the states,
     which gives rise to the a political question." Thus, for instance, most questions touching foreign relations are political
     questions. Not only do such questions involve standards defying judicial application, or involve the exercise of a
     discretion committed to the executive or legislature, but they also, as a rule, uniquely demand single-voiced statement of
     the government's views. However, there may be foreign policy cases where the government has taken no conclusive
     action precluding judicial review. (see political questions, supra)
  • Holding: Here there is no question decided, or to be decided, by a political branch of government coequal with this court,
     nor is there a risk that our government will be embarrassed abroad or that grave unrest will exist at home if a court takes
     issue with Tennessee as to the constitutionality of her action here challenged. The court is not asked to enter upon policy
     determinations for which judicially manageable standards are lacking. Judicial standards under the equal protection
     clause are well developed. Accordingly, since there is no political question involved here to deny the district court's
     jurisdiction, the cause is remanded for trial. Reversed.
  Concurrence: (Douglas, J.) Some questions are beyond judicial competence as where the performance of a duty is left to
     the discretion and good judgment of an executive. No such situation, however, presents itself here.
  Concurrence: (Clark, J.) The court, instead of remanding the case, should have awarded relief. While judicial intervention
     into this matter should not be treated lightly, Tennessee's apportionment is a crazy quilt without rational basis. There is
     no other relief available to the people of the state if the USSC doesn’t intervene; Tennessee has no initiative and
     referendum.
  Concurrence: (Stewart, J.) The merits of this case, regarding whether states must make an apportionment that has
     approximate equality, are not before the court now. We have just determined that the statute of appropriation here is
     completely arbitrary and capricious and therefore invalid and must be reworked by the state.




                                            Michael M. Wechsler
                                             Constitutional Law                                                 8
  Dissent: (Frankfurter, J.) This claim at bar is essentially a Guarantee Clause claim masquerading under a different label.
    The gist of the complaint is the same (a Guarantee Clause issue) and the court can‟t use the 14th Amendment as an
    option and ignore Article IV §4. In order to sustain public confidence in the court's moral sanction, the court must be
    completely detached from political entanglements.
  Dissent: (Harlan, J.) The complaint should have been dismissed for "failure to state a claim upon which relief can be
    granted" as none exists under the 14th Amendment. Thus, the issues of a political question" or justiceability need not
    have been reached. The Tennessee legislature, like the United States itself, is the compromise, or embodiment, of
    competing political philosophies. To assume that political power is a function exclusive of numbers is to disregard the
    practicalities of government.

    Kentucky v. Dennison: The USSC, under the guise of the political questions doctrine, held that a federal court could not
      compel the governor of a state to order extradition of a prisoner to a sister state. However, as a result of Baker v. Carr,
      some commentators have suggested that the broad prohibitions on suits against states by either the federal
      government or private citizens has been, if not destroyed, seriously weakened. Today, the political question doctrine
      has significant application in probably only a handful of extraordinary situations (i.e., cessation of hostilities, recognition
      of Indians as a tribe, etc.).

    Georgia v. Stanton: This occurred during the civil war, during a reconstruction period and the occupation of Arkansas.
     Georgia argued that there was no republican form of government as this was being denied by a military occupation.
     The court, however, said that they wouldn't hear that argument as in Luther and said no decision on the question of the
     Guaranty Clause not being adhered to as it presented an unanswerable political question. The rationale is because
     what would we do in all the other states when there are problems? Are we to strike down their statehood because they
     don't conform exactly to a republican government? This would create a severe “train wreck” and is best left in the
     hands of Congress.

Powell v. McCormack - p. 40
  Facts: P Powell was excluded from his seat in Congress due to allegations of misconduct, despite having met the
    requirements for Congressional membership as stipulated in Article I §2 - that he was elected by the people of his state.
    He brought an action seeking declaratory judgment and backpay.
    D argued that:
       a. Constitution grants the House the power to determine the qualifications of its members in Article I §5;
       b. This is a political question in that judicial resolution would cause an embarrassing and impossible conflict between
          the coordinate branches of federal government.
  Issue: Is this a political question?
  Holding: No. The federal courts may interpret the scope of the Constitution and grant of authority and responsibilities to
    coordinate branches of government. While the constitution says that the House is the sole determiner of qualifications
    and that is specific language, the court construed it to say "this person was elected" and the constitution says you have
    to abide by it. The House cannot simply say he cannot have the seat that he should be entitled to as the elected official
    by the people of that state.
  Notes: Why did the court act here and not as in the other cases? There seems to be a really heavy collision in this case of
    Powell than any of the others as for the court to answer the question will be directly against what the rules are supposed
    to be in the House?
  The key is that the people elected him which is what our government is to stand for, and you just can't exclude him
    because you don't like his creed, religion or race? How can the court not step in if congress or House decides the
    qualification of its members and decide to refuse blacks? It simply cannot and there is no political question, especially
    one dealing with such a fundamental right.
  Analysis for “political questions:”
    1. Is this the kind of theory to be left with executive and legislative (e.g. war decisions)
    2. Do we have judicially manageable standards? These 2 questions are very much linked together.

    Nixon v. US
    Rule: In general, the court will not intervene in the affairs of specific powers granted to other branches of government, but
      in cases involving a blatant violation of rights, the court may find a way to decide the case is not a political question as
      in Baker v. Carr.
    Facts: A judge was being impeached, and the Senate acts as a trial jury to decide the case by a two thirds vote of Senate
      required for impeachment. However, only a committee of the Senate heard the issue P argued that the whole Senate
      should have been there. The court said that this was a political question.
    Q: What if the Senate flipped a coin to decide the judge's guilt or innocence or that they didn't lie an earlier decision of
      his?
    A: The court made its decision limited to its special facts, and could be like Powell where of congress really found a
      blatant violation of rights, then they would have found a way to find that this issue was not a political question.




                                            Michael M. Wechsler
                                             Constitutional Law                                               9
Goldwater v. Carter - p. 42
 Facts: D, the President of the United States, terminated a treaty with Taiwan. Several Congressmen claimed that D
    deprived them of their constitutional role with respect to a change in the supreme law of the land.
 Issue: May the Judiciary question the allocation of power between the President and Congress before those two
    government branches reach an impasse?
 Holding: No, this is a nonjusticeable political question that the court, more compelling than Coleman (question of time for
    amendment to stay open) as it involves an issue of foreign relations and there is a need for uniformity and the court
    should not intervene. The USSC should not settle a dispute between coequal branches of government (Legislative v.
    Executive), each which has resources available to protect and assert its interests, resources not available to private
    litigants outside the judicial forum.
 Concurrence: (Powell, J.) The Court should not decide cases that are not ripe for review, i.e., where the issues are not fully
    crystallized and the controversy is not concrete. Similarly, the Court will not address political question cases (although
    this case falls outside that category).
 A suit is nonjusticiable as a political question if:
    (1) the issues involve resolution of questions committed by the Constitution's text to a coordinate governmental branch;
    (2) there is a lack of judicially discoverable and manageable standards for resolving the case, or if a decision would
        require a policy determination clearly outside judicial discretion;
    (3) judicial intervention would produce an embarrassing diversity of pronouncements on the issue by various
        governmental departments.
 Concurrence: (Rehnquist, J.) This case is "political" because it involves both the President's authority in foreign affairs and
    Congress' authority to negate presidential actions.

Gilligan v. Morgan - p. 44
The students at Kent State University sought relief from the use of fatal force by the Ohio National Guard in suppressing
  civilian disorders. The court reversed the Court of Appeals which instructed the Federal District Court to evaluate the
  National Guard‟s training patterns, as the Guard is under the discretion of Congress under Article I §8 which grants to
  Congress the responsibility for organizing, arming and disciplining the Militia. Thus, this was a nonjusticeable political
  question for the court as there was a separation of powers issue, as the USSC cannot decide an issue that deals with a
  power enumerated in the Constitution to another branch of legislature, as that presents a political question.


Section 3. Congressional Regulation of Judicial Power

  • In 1914 Congress granted the USSC the power to review state court decisions.
  • Article III §2 states that all cases not falling within the original jurisdiction of the USSC , the USSC shall have appellate
     jurisdiction as to both law and fact, subject to regulations made by Congress. the obvious question is “to what extent can
     Congress curtail the jurisdiction of the USSC?” Article III states that subject to such exceptions as congress determines/
     Congress has the power to change jurisdiction as stated in Article III. We have to interpret the words of Article III because
     Congress could be limited by courts meddling in its issues and they will seek to limit the courts power rough legislation.
  • Article III §1 provides that federal judicial power is vested in the USSC, and in the inferior federal courts that exist if
     Congress chooses to create them (which obviously it has).

    a. Original jurisdiction: USSC's original (trial) jurisdiction is derived from Article III §2 and is limited mainly to
       controversies between two or more states.
       1. Self-Executing Provision: Congress may neither enlarge nor restrict the USSC‟s original jurisdiction. Also cases
          involving ambassadors, ministers, consuls, agencies.
       2. Concurrent Jurisdiction: Congress may give concurrent jurisdiction to lower federal courts.
       3. Controversies between two or more states: USSC spends most of its time in this area. There is no practicable forum
          for many state v. state cases except in federal court, and USSC has original, but not necessarily exclusive
          jurisdiction in such disputes.

    b. Appellate jurisdiction: Article III §2 also gives the Supreme Court appellate jurisdiction over the cases listed.
      1. Federal Question: Involving the Constitution, acts of Congress, or federal treaties; In state court decisions the
         federal court may determine whether a state law is in compliance with the Constitution, or their interpretation of a
         federal law, but the federal court may not adjudicate issues dealing with questions of state law.
      2. In which the United States is a party;
      3. Between a state and citizens of another state;
      4. Diversity of Citizenship: Between citizens of different states.




                                           Michael M. Wechsler
                                             Constitutional Law                                             10
Certiorari: The process by which the Supreme Court determines which cases it will hear. Because the Court has full
 discretion in granting or denying certiorari, the Court now has full control of the nature and number of cases it hears.

Standards for Granting Certiorari

  Preliminary Requirements for Certiorari
    1. The case must be based on federal law.
    2. The "four vote" requirement: four of the nine Justices must cast votes approving a grant of certiorari.

  The Court will grant certiorari in any of the following instances:
    1. Conflicts between different federal courts of appeal.
    2. Conflicts between the highest courts of two states.
    3. Conflicts between a state's highest court and a federal court of appeals or the Constitution.
    4. A state court or federal court of appeals decision involving an important question not yet settled by the Supreme Court.
Note conflict with above from Gilberts***

Ex Parte McCardle - p.49
• Congress may make and limit their power. Congress may take away some powers in a limited fashion that it gave away
previously but not much more, and today there are additional barriers to overcome before Congress can do this again.
  Rule: Although the Supreme Court derives its appellate Jurisdiction from the Constitution, the Constitution also gives
     Congress the express power to make exceptions to that appellate jurisdiction. What Congress grants as a power to the
     USSC it may also take away.
  Facts: After the Civil War, Congress imposed military government on many former Confederate States, and D McCardle, a
     Mississippi newspaper editor, was held in military custody on charges of publishing libelous and incendiary articles
     because he didn‟t want to believe the war was over. McCardle brought a habeas corpus writ, the right of someone to
     have the validity of his jailing reviewed by the court, based on a Congressional Act of 1867. This Act also gave authority
     for appeals to the Supreme Court. There were only Circuit and USSC at the time. He lost in lower court and went to the
     USSC. While the USSC was deciding it, Congress passed a law that the judiciary had no right to allow these kinds of
     appeals and the law was repealed as Congress passed an act in 1868 that repealed that much of the 1867 Act that
     allowed an appeal to the Supreme Court from the circuit court for both past or present cases.
  Issue: Does Congress have the power, under the Constitution, to make exceptions to the appellate jurisdiction of the
     Supreme Court?
  Holding: Yes. The appellate jurisdiction of the Supreme Court is not derived from acts of Congress but is conferred by the
     Constitution with such exceptions and regulations as Congress shall make - Congress shall make lower courts if it so
     desires. The exceptions in this case are express. That part of the 1867 Act giving the court appellate jurisdiction in
     habeas corpus cases is expressly repealed - what congress giveth, Congress may taketh away. The effect here is to take
     away the court's jurisdiction, dismissing the cause. When a legislative act is repealed, it is as if it had never existed
     except as to transactions past and closed.
  • This act closed the door to appeals for both P and D, regardless of outcome, and is a “neutral” act of legislature by
     Congress. This was not the case later in U.S. v. Klein, infra.
  • Additionally, the USSC said that McCardle wasn‟t denied any possibility of a trial, just this one method as he still could
     petition the USSC directly under its original jurisdiction. The Act of 1868 affects only such appeals from circuit courts
     brought under the Act of 1867. McCardle lost his right to appeal here even though it said that he could go to the USSC
     for a writ without appeal and ask with the right of old law to ask to decide on the merits. However, McCardle didn‟t do it
     because the USSC didn‟t want to decide the case and knew that it was futile to do so.
  Notes: USSC said that Congress can take away an ordinary thing that it granted earlier. Congress giveth and Congress
     may taketh away. Berger mentions all that Congress did here was to take away one option for the USSC to hear the
     appeal.
  • McCardle is a clear example of judicial restraint. The authority of Congress to control the jurisdiction of the Supreme Court
     is not unlimited. This was proved in Marbury v. Madison where the court, faced with an encroachment by Congress on its
     original jurisdiction as granted under the Constitution, merely declared the congressional act unconstitutional. But here,
     the court backed away from confrontation with Congress due to current-day political crises that followed the Civil War.
     Thereafter, the court sought to limit congressional power by the power of judicial review announced in Marbury. The court
     held on several occasions that certain congressional attempts to delimit its jurisdiction were unconstitutional attempts to
     invade the judicial province. Such congressional actions were considered a violation of the separation of powers.
  • Today, it is doubtful that McCardle would be sustained. This was retroactively taken away - how could Congress give the
     right to appeal, as the USSC is deciding the issue and then it is taken away? This is a big 1st Amendment question here,
     not a small issue! The right to appeal was created for this reason specifically. The court, however, held that this was
     permissible.
  • Due Process: While Congress can repeal such powers, it cannot do so discriminatorily, such as in McCardle to have an
     act that stated that no appeals for black people, as that would be violative of due process and contrary to the
     Constitution.




                                           Michael M. Wechsler
                                              Constitutional Law                                                11
  • Article III sets forth jurisdiction if the USSC. Article III says that the USSC has appellate jurisdiction over US federal courts.
     Congress can add to the list but not take it away. The court did it to avoid the question of Georgia v. Stanton, that
     McCardle will argue that his arrest was only because of the occupation that was based on the reconstruction. If you did
     what he did in NY it would be fine, but you couldn‟t do it in Mississippi for violating federal law if you did so. Therefore
     McCardle would challenge the reconstruction law of the federal states that didn‟t exist anywhere else in the country.
     There was no way that this was a political question. So they had to look another way so Congress tried to short circuit the
     courts jurisdiction. The court said that Congress had the power for court to take away the jurisdiction as per Article III
     subject “to such exceptions that Congress may make.”

    US v. Klein: It is tough to see McCardle as being decided the same way today as US v. Klein seriously limited
     McCardle, and seems to stand for a proposition that congress cannot simply taketh for the sake of limiting, but it must
     be a neutral limitation of Congress - not to decide the merits of USSC cases under the guise of limiting its jurisdiction.
     His property was taken from him during the war as he was pardoned. He won in lower court and the government
     appeals. During this time, Congress passed a law that the court has and had no jurisdiction in cases dealing with
     pardons by the executive. He argued that at least in McCardle neither the government nor McCardle could appeal to
     the USSC no matter the outcome. Over here it was only if the government lost and a rebel won would the court have
     had no jurisdiction. So McCardle has never been overruled, but would probably not be valid today.



Section 4. Discretionary Review by the USSC

Items that are most likely to be selected by the USSC:
   1) Conflicts between circuits dealing with a federal question.
   2) Conflict among the highest state courts in dealing with a federal question
   3) If a state court or US court of appeals decide differently for how the USSC decided a case earlier.
   4) The federal issue is conclusive of other decisions being decided. (A state court or federal court of appeals decision
     involving an important question not yet settled by the Supreme Court.)

Can we tell what cases the justices will vote upon? Somewhat but not really in this example, with a situation that is dealt with
be affirmed a reversed as law of the land which you didn‟t like, you keep it as a decision only of that circuit and the rule does
not apply to the other circuits and not the law of the land. Only if the USSC decides it does it become the law of the entire US
and not just that district.

Certiorari is the process by which the Supreme Court determines which cases it will hear. Because the Court has full
  discretion in granting or denying certiorari, the Court now has full control of the nature and number of cases it hears.

Standards for Granting Certiorari

In the past, USSC review as an appeal was matter of right and usually disposed of with a “summary disposition,” which had
   little precedential value as it did not issue an opinion. In 1988, virtually all reviews by the USSC are done by writ of certs.

    • Note that a denial of cert is not a decision on the merits, just that four justices did not want to review it, therefore denial
       of cert is not precedent that can be cited in other cases.

  Preliminary Requirements for Certiorari
    1. The case must be based on federal law.
    2. The "four vote" requirement: four of the nine Justices must cast votes approving a grant of certiorari.
    3. The issue must be a case or controversy, and not a moot issue as the court does not give advisory opinions.
    4. The parties must have standing.

  The Court will grant certiorari in any of the following instances:
    1. Conflicts between different federal courts of appeal.
    2. Conflicts between the highest courts of two states.
    3. Conflicts between a state's highest court and a federal court of appeals or the Constitution.
    4. A state court or federal court of appeals decision involving an important question not yet settled by the Supreme Court.




                                            Michael M. Wechsler
                                             Constitutional Law                                              12
Maryland v. Baltimore Radio Show - p.55
 Rule: While an appeal may meet all technical requirements for a writ of certiorari, if fewer than four justices wish to hear the
    appeal, the writ will be denied.
 Notes: While an appeal may meet all technical requirements for a writ of certiorari, if fewer than four justices wish to hear
    the appeal, the writ will be denied. While a case may raise an important constitutional question, the record may be too
    unclear, making it more desirable for lower courts to further illuminate the maker. Practical considerations preclude the
    Supreme Court's indicating its reasons for denial of a writ. Different reasons may have moved different justices not to
    want to hear the case. Also, it would simply be too time consuming. It should be added that a justice's failure to note a
    dissent from a denial of a petition does not imply that only the justice who notes his dissent thought the petition should be
    granted.
 • Certiorari is a discretionary maker with the court. Under the “Rule of Four," four justices must vote to hear the case. When
    four justices so vote, the whole court will hear the maker even though five justices did not feel the case was worthy of
    their time. Denial of a person for writ of certiorari has nothing to do with the merits of the case. But summary disposition
    of an appeal - appeals are makers of right - is a disposition on the merits.

    Johnson v. Texas: A flag burning case. You can pass Constitutional Amendments where you can deal with the problem
      instead of Congress legislating like it tries to do under Article III where Congress can make exceptions. Some say there
      should be a gatekeeper court between the appeals court and the USSC to act as a guard to filter out the cases. Some
      say that of there ate disputes between circuits, this middle court should resolve it. But do we really want a lower court
      to decide about what the USSC gets to hear? This method has its pros and cons. The USSC doesn‟t really need a
      gatekeeper as it does its own filtering of cases that it wants to hear, as one can go to the court of appeals as a matter
      of right, but to get to the USSC one must petition for cert. 4 justices are required for the case to be heard, not 5 of the 9
      on the court.




                                           Michael M. Wechsler
                                              Constitutional Law                                              13
Limitations on Judicial Power

I. Advisory Opinions

Muskrat v. U.S. - 1215
 Rule: The constitution limits judicial power to cases and controversies, the courts cannot issue advisory opinions to
   Congress on the constitutionality of legislation. To do so would not allow the issue to be properly litigated, which is best
   done with 2 parties with adverse interests.
 Facts: Congress passed legislation allocating certain lands to specified members of the Cherokee Nation. Congress later
   enacted a statute that increased the number of Native Americans entitled to share in the final distribution of Cherokee
   lands and funds. Congress decided to give the minors shares which reduced the adults‟ share and all the individual
   interests were reduced as it would essentially dilute their interests (same land, more slices of the pie to distribute).
   However, the legislation authorized original allottees to bring suits against the United States in the court of claims with
   appeal to the Supreme Court in order to determine the validity of the subsequent allotment. These suits were to be given
   priority, and attorney's fees were to be paid out of government-held tribal funds if the subsequent legislation was
   overturned. The court of claims upheld the subsequent legislation, and Muskrat, an original allotted, appealed.
 Issue: May the federal courts review the constitutionality of legislative acts when such review is sought outside the context
   of actual litigation?
 Holding: No. The Constitution limits judicial power to cases and controversies, the federal courts cannot issue advisory
   opinions to Congress on the constitutionality of legislation. The parties must have adverse legal interests. The
   controversy must be real and substantial. Without this kind of adverse situation, it is believed that the strongest and most
   complete arguments cannot be presented to the court, without which a complete and proper adjudication cannot be
   made. While some state courts will render advisory opinions, the United States Supreme Court will not review such
   decisions.
 • While the United States is the defendant, it has no interest adverse to P Muskrat. There is no assertion of a property right
   or a demand for compensation; the only question is the questionable validity of legislation. As the courts cannot take
   jurisdiction of this case, the judgment must be reversed and the matter dismissed. If Muskrat sued the government and
   the kids, then it might be a genuine case or controversy. The key here is that Article III makes it clear that a court can
   only hear a case if a genuine case or controversy exists.
 Notes: The term "cases" encompasses all types of suits. "Controversies" refers to civil suits only.

  • There must be two adverse parties, which was lacking in Muskrat. We want issues to be properly litigated by two opposing
     sides. One sided arguments don‟t give the issue the proper and complete argument that it deserves.
     • Hypothetical: What about "declaratory statements" to see of a certain statute doesn't apply to you. They not barred by
        the Muskrat rule. You want to put something up but you don‟t know if it is incorrect - not barred by Muskrat because of
        you put it up, the state will sue you. You have the required adversary proceedings as you have two sides
        1. You: The statute prohibiting obscene material is unconstitutional
        2. State: It is constitutional

II. Mootness

A case is moot when the case is over as a practical matter to the parties. e.g. One who brings a writ of habeus corpus and
dies in jail, no longer needs the matter adjudicated because he is dead. We don‟t go through the motions to see how the case
would turn out. Note that sometimes this may be helpful, especially when it deals with an issue that will be constantly litigated,
such as abortion rights.

As per Article III, federal courts will only entertain cases involving controversies that are active and ongoing at the time of
  adjudication, and will not decide issues that are moot, except in very rare circumstances.

  1. The issue is capable of repetition, yet evading review.
     Roe v. Wade: P, pregnant woman attacks constitutionality of a state anti-abortion law. She brigs the suit as a class
       action in which she is the named P and the other pregnant women desiring abortions are unnamed members. By the
       time the case reaches the USSC, the P woman is no longer pregnant, the issue moot.
     Rule: Since pregnancy will certainly be complete by the time the usual appellate process is complete, the issue will never
       be properly adjudicated. Thus this issue is capable of repetition but evading review, thus not moot for judicial review.

  2. Defendant voluntarily, but not permanently has taken a position that holds the issue at abeyance.

  3. There are collateral consequences to the defendant‟s action which when considered. prevent the issue from being moot.




                                            Michael M. Wechsler
                                              Constitutional Law                                              14
De Funis v. Odegaard - p. 1217
  Rule: Federal courts will only entertain cases involving controversies that are active and ongoing at the time of adjudication,
    and will not decide issues that are moot, except in very rare circumstances.
  Facts: P was denied admission to law school. He sued in state court, asserting that the school's admissions procedures
    and criteria had a quota system that discriminated against him on the basis of race in violation of the Fourteenth
    Amendment's Equal Protection Clause. The trial court granted the requested mandatory injunction, under which the
    school then admitted P. Eventually the case was appealed to the Supreme Court, by which time P was near completion
    of the law program as he was in his last year, with no risk of denial of registration by the school.
  Issue: May federal courts adjudicate cases when the circumstances have changed, rendering the litigated issues obsolete?
  Holding: Maybe, but not here. Federal courts will only entertain cases involving controversies that are active and ongoing at
    the time of adjudication. A case becomes moot, and thus ineligible for judgment on the merits, once the controversy
    between the parties ceases to be definite and concrete and when a court's decision would no longer affect the litigants'
    rights.
  Dissent: Disposal of this case as moot disserves the public interest; the suit involves constitutional issues that deserve
    adjudication because they concern vast numbers of people and organizations. Dismissal of the case will also result in
    undesirable repetition of litigation. Finally, the majority is merely transforming principles of avoidance of constitutional
    decisions into devices for sidestepping resolution of difficult cases.


III. Standing and Ripeness

Standing: Who may assert certain contentions. A P must have a significant stake in the controversy to merit his being able to
be the one to litigate the issue. This individual will be able to argue the issue most effectively than a semi or disinterested
party.
Ripeness: When these claims may e asserted.

The gist of the question of standing is whether the party seeking relief has “alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.”

Rescue Army v. Municipal Court -p. 1219
  Rule: Judicial comity or “self-restraint” is shown when a case can be decided on grounds other than a Constitutional issue.
    The court does not have time to indulge in unnecessary acts. In addition, the USSC will not allow a case, that is already
    decided or decideable on other grounds, be allowed to be adjudicated by two parties that are no longer adverse, as it will
    not present the best forum for debating the issue.
  • "The court won't administer the death penalty to a statute if it can avoid doing so." When there is a confrontation with
    other branches of government, the judiciary will restrain itself in order not to have too deep a conflict and cause major
    train wrecks - minor ones are questionable grounds for decision making.

  Notes:
     • Court says it wont decide a constitutional question if:
        1. P has no standing
        2. Moot issue
        3. Case can be decided on another ground
     • Hypothetical: e.g. statute prohibiting erotic speech. It doesn't define "obscene" etc., but it is ambiguous. D argues: 1. I
        don't sell erotic book, 2. The statute is ambiguous. If the court can decide the case that D doesn't own or have the
        material, it doesn't have to go to the question/issue number 2, which is the constitutional question here.
  • The courts can't really have Congress enforce their decrees and the court doesn't want to make "train wrecks" by
     constantly challenging statutes validity if it doesn‟t have to deal with that issue.




                                            Michael M. Wechsler
                                              Constitutional Law                                                15
Frothingham v. Mellon -p.1222
  Rule: A citizen may sue the government regarding a statute only if they are in immediate danger of sustaining some direct
     injury as result of its enforcement, rather than suffering in a general fashion.
  Facts: In two cases joined by the Court, Ps challenged the 1921 Maternity Act which offered matching federal grants to
     states that provided funds for social services aimed at protecting mothers' and infants' health. This was increasing P‟s tax
     burden, and this was depriving her of her property without due process of the law. She sued and was backed by states
     such as NY and MASS, which were also being disadvantaged by the statute. P argued that it was not in Congress' power
     to legislate some thing that was left to the states, as to power was given to Congress specifically within the Constitution.
  Issue 1: May the Supreme Court exercise jurisdiction over a case in which a state, suing on its own behalf or on behalf of
     its citizens, challenges a federal statute as violative of the state's powers of local government reserved to the states?
  Holding: Insofar as a case depends upon the assertion of a right on the part of a state to sue on its own behalf, the Court is
     without jurisdiction because the question presented for adjudication is not about rights of persons or property, or rights
     actually invaded or threatened, but abstract questions of political power, of sovereignty, of government. Further, state
     citizens are also federal citizens, and when representation on behalf of citizens becomes appropriate, it is not a state's
     duty or power to enforce the citizens' rights in respect of their relations with the federal government.
  Issue 2: May the Supreme Court exercise jurisdiction over a case in which a taxpayer challenges the administration of a
     federal appropriation statute as violative of due process?
  Holding: Because a taxpayer's interest in the moneys of the Treasury - partly realized from taxation and partly from other
     sources - is shared with millions of others, her interest is comparatively minute and indeterminable, and because the
     effect upon future taxation uncertain, the administration of a statute likely to affect a vast number of taxpayers is
     essentially a matter of public and not of individual concern. Therefore, a suit of this character cannot be maintained. If
     this suit were allowed to be adjudicated, then any citizen can sue regarding any statute, therefore one may sue only if
     they are in immediate danger of sustaining some direct injury as result of its enforcement, rather than suffering in a
     general fashion.
  Notes: If she sued that her own taxes had been imply assessed, then s would have standing as she has a direct and
     complete interest in the outcome of her own tax assessment.
  • Her objection to Congress' ability to legislate in this area was that it is spelled out on Article I §9, that Congress' ability to
     legislate regarding the fact that states can use police power to promote health and safety and welfare, as that is the
     states' job as per the enumerated powers in the constitution conferring a police power to the states - see Article I §8
     which enumerates all the powers of Congress. This is the tax and spend power. e.g. Congress could not legislate about
     divorce because there is no Congressional power to do so that is granted by the constitution. She said this was
     something left from the states to do.
  • Frothingham leaves it to taxpayers to go complain to legislature. It is not really good because we thought it was an option
     to prevent taxpayers from having legislature make union statutes.
  • Hypothetical: What if tax money was spent on a church? If the money was spent , even $100 on building a church, you
     would have standing to sue. This case and issue led to Flast v. Cohen.

Doremus v. Board of Education - p. 1220
 Facts and Holding: A challenge by municipal taxpayers that their taxes were going to schools which had Bible reading. A
    state court held that this was not an establishment of religion. The court said that there is no allegation that the activity
    was support by any tax or appropriation or that Bible reading itself adds to the cost of running the school. The taxpayer
    only has standing when there is a “good-faith” pocketbook action.”
 Dissent: J. Douglas says that there is very rarely such a strong controversy as there is here within the meaning of Article III
    “case or controversy” requirement, and pocketbook should not be dispositive of the issues.


Flast v. Cohen - p. 1221
  Rule: Overruled Frothingham, a taxpayer may have standing to challenge a federal expenditure, but he must establish (1) a
    logical link between his status as a taxpayer and the type of legislative enactment attacked, and (2) a nexus between that
    status and the precise nature of the constitutional infringement alleged.
  Rule: In order for there to be a case or controversy as per the Article III requirement, there must be:
    1. questions presented in an adversary context (and not a political question)
    2. in a form capable of resolution through the judicial process
  Facts: As a federal taxpayer, P Flast sought to enjoin federal expenditures that use federal taxes to finance instruction in
    parochial/religious schools, alleging violation of the 1st Amendment's Establishment and Free Exercise Clauses by
    reason of the fact that it allegedly constituted compulsory taxation for religious purposes. A three judge federal district
    court held that under Frothingham v. Mellon, federal taxpayers lacked standing to challenge federal expenditures. Flast P
    appealed
  Issue: Does an ordinary taxpayer have standing to challenge the constitutionality of a federal appropriation law?
  Holding: For a taxpayer to have standing to challenge a federal expenditure, he must establish:
    (1) a logical link between his status as a taxpayer and the type of legislative enactment attacked.
       You have to show that the money being spent, here as per Article I §8 under the tax and spend power, (which satisfies
         nexus 2 as the specific power being violated) has some connection to your status as a taxpayer. Here Congress
         discerned between money for Congress to spend on tax, and spending for a regulatory program. The court found
         that it was as under the tax and spend power spent on taxes, not a regulatory statute in which the taxpayer would no
         longer have the adequate nexus established.
    (2) a nexus between that status and the precise nature of the constitutional infringement alleged.


                                             Michael M. Wechsler
                                             Constitutional Law                                              16
       The money had to be spent by Congress in direct violation of explicit section in the Constitution, here being Article I §8,
          the Establishment Clause, in specific, the Tax and Spend power. Flast argued that the money was spent in violation
          of that provision, as opposed to Frothingham‟s argument, which was that the spending unnecessarily raised her
          taxes, and which was a legislative power that was left to the states.
  The taxpayer, in establishing the logical link:
     (1) will be a proper party to allege the unconstitutionality only of exercises of Congressional power under the taxing and
       spending clause of Art. 1 § 8; it will not be sufficient to allege an incidental expenditure of tax funds in the
       administration of an essentially regulatory statute. The direct link is a spending under tax and spend, not something
       incidental.
     (2) The nexus must show that the challenged enactment exceeds specific constitutional limitations imposed upon the
       exercise of the congressional taxing and spending power, and not simply that it generally goes beyond the powers
       delegated to Congress by Art. 1, § 8.
  Flast met this test by showing a possible violation, specifically of Article 1, § 8 which deals with the ability to spend for the
     general welfare; and by showing a possible violation of an expressed limitation of the establishment clause on
     congressional taxing and spending. Reversed.
  CONCURRENCE: (Stewart, J.) The case holds no more than that a taxpayer has standing to challenge a specific federal
     expenditure in violation of the establishment clause.
  CONCURRENCE: (Fortas, J.) There is no reason to suggest that this decision makes it possible to attack congressional
     expenditures, other than those in violation of the establishment clause, solely on the litigant's status as a taxpayer.
  CONCURRENCE: (Douglas, J.) The Court's test is not durable. Rather taxpayers should be able to act as Private attorney-
     generals in order to object to any violation of the first amendment.
  Dissent: (Harlan, J.) Standing requires the representation of an infringed private interest. P's case, however, represents the
     public interest. Individual litigants have standing to speak for the public interest when Congress has personally
     authorized such suits, and that should be the standard for suit here.
  • The fact that a P is attacking essentially a “regulatory” program, only indirectly related to a specific power, should not
     make it any lesser of a case. The court cannot and does not believe that regulatory programs are any less destructive of
     the 1st amendment than of specific grants or showings of specific power.

  Notes: The Frothingham case involved the challenge of a federal statute providing funds to states undertaking programs to
     reduce maternal and infant mortality. Frothingham, a wealthy Boston society matron and a federal taxpayer, argued that
     the effect of such appropriations was to increase the burden of future taxation and thereby take her property without due
     process of law. That was the way she framed her argument. However, the due process clause does not protect
     taxpayers from a general increase in taxes. The Court said that her interest was minute as her tax payments were
     combined with millions of others, and that the effect of such appropriations upon her was remote. According to this court,
     Frothingham failed part 2 of the 2 nexus test when she actually attempted to assert the state's interest in legislative
     prerogatives and not a federal taxpayer's interest.
  • The nexus test is very shallow and doesn‟t really work - see Church case infra. There will be issues that are a case or
     controversy that citizens should be able to sue, but will not be litigated because they do not pass both nexus test. The P‟s
     case should not be barred because there might be a hypothetical P at large, that is “appropriate,” who might possibly
     bring such suit.

• Harvard law review: Points out the serious flaws with nexus one. If a commemorative Christmas stamp is issued violating the
Establishment Clause, the taxpayer may not have a sufficient link between his status as a taxpayer and the action of
Congress in derogation of the specific right. This “spending” for the stamp might be merely incidental and not a direct
expenditure of the tax and spend power of the Establishment Clause. The stamp, regardless of what is on it, will be issued
and that is the main expenditure. In addition, the real problem is regarding review of federal agencies. There may not be a
specific clause such as the Establishment Clause to identify the public as that special class of Ps that can bring suit.

This case showed that the nexus test was really a farce, as pointed out by the dissent in Frothingham. The government was
giving away an old abandoned property to a Church. This was done by using Congress‟ power of xxx**xx, not tax and spend.
Therefore, even though this is a constitutional wrong, even if one cent was given to the Church, and no taxpayer has
standing as he fails nexus 2, there is no nexus between his standing as taxpayer and the constitutional provision violated,
being

What if there was an issuance of a commemorative postage stamp? This would not add anything to the cost of conducting
the postal system. The question is whether we are making a suit substantial enough to be a case or controversy because of
the right being violated, or because of expenditure, such as the government giving away property to a Church.


Congressional Power to Create Standing

    Standing Requirements:
        1. Zone of Interest: P must be within the type of interest and class of Ps that Congress intended to protect.
        2. Injury in Fact: There must be some actual injury - party must be “aggrieved” as per APA.
             APA §10: “A person suffering legal wrong because of an agency action, or adversely affected or aggrieved by
                agency action within the meaning of a relevant statute is entitled to juridical review thereof.”
             • Article 3 requirement of “a case or controversy.”
             • May be non-economic injury such as environmental or aesthetic harm (Sierra Club)

                                            Michael M. Wechsler
                                                 Constitutional Law                                                    17
               • Does not have to be a continuous harm (e.g. only in daylight hours)
               • Traditionally required general showing of harm, even through an environmental group (Sierra Club)
               • Recent trend is courts require more than vague allegations (Lujan).
          3. Proximate Cause: The agency action proximately caused P‟s injury
          4. Redress: The court can make redress through the litigation of the issue

2. Standard of Review

     A. Hard Look Doctrine: The court is to take a hard look as to whether the administrative agency‟s judgment in question
       was proper.

          1. Presumption of Correctness: There is an unwritten presumption that agency‟s decision was correct, and is
             accorded heavy weight and a burden to be overcome by those challenging that decision.
          2. Preponderance of evidence that the agency was wrong: Opponents need much more than 51%, or a
             preponderance of the evidence showing that the agency‟s decision was incorrect. P must show that the agency
             acted:
               1. Arbitrary and Capricious: P must show that the agency‟s decision was arbitrary and capricious, almost like a
                  flip of the coin to decide. Whether “arbitrary and capricious, an abuse of discretion, or otherwise not in
                  accordance with the law.” 5 USC §706
               2. Lack of Evidence: The courts may take the position that the fact finding by the agency was inadequate as a
                  matter of law. There is no evidence to show that the Agency abided by any fair and reasonable procedure.
                  (e.g. no documents in Scenic Hudson showing inquiry into feasibility of the plan). Note that the courts cannot
                  question the fact findings, but it may challenge the sufficiency of the findings as a matter of law.

• In Sierra Club, there is a creation of standing by the APA, which authorized judicial review by persons who suffer legal wrong or adversely
affected or aggrieved. A representative of the public is allowed to challenge an action by a federal agency so long as one of the members of
that agency has been aggrieved. Sierra was a test case to see just how far the allowance of environmental clubs could go and still have
standing - as done in Scenic Hudson for its members.

Sierra Club v. Morton - p. 226
  Rule: One can sue for recreational aggreivance, only if they or their members use those facilities. Environment clubs will
     not have sufficient standing to sue if it or its members are not “injured in fact.” The party seeking review must be amongst
     the injured and have a direct stake in the outcome. The club does not have standing as a “representative of the public.”
  • An association may have standing to seek relief from injury or as its members' representative, but it must allege that they,
     or any one member, are suffering immediate or threatened injury.
  • Economic loss is not necessary to prove injury required for standing to bring suit, even a loss of right of use.
  • Aesthetic, conservational and recreational harms are sufficient interest for standing, but the Ps must be aggrieved.
  Facts: Disney was granted a permit by the Secretary of the Interior to build a huge ski resort in Mineral valley of the Sierra
     Nevada Mountains, adjacent to Sequoia National Park. P claimed it was an area of natural beauty and would seriously
     affect the wildlife. However, unlike Scenic Hudson, the club assumed an injury and acted for the rights of the public -
     none of its members used the trails in Mineral Valley.
  This was a test case to broaden standing to see if the court would allow citizens to sue when the environment was injured,
     even though no direct injury to the P. Basis was APA §10 “A person suffering legal wrong because of an agency action,
     or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to juridical review
     thereof.”
  Holding: D. The P must show some type of actual injury or specific use of the resources being denied or else the P has no
     standing. The courts will not allow a vague allegation of injury to satisfy the requirements for standing.
  Notes: Dissent by J. Douglas states the interesting proposition of allowing environmental clubs to bring suit on behalf of
     inanimate objects, such as mountains and rivers. Same ideology as corporations having suits brought on their behalf.
  • Cases have gone back and forth in regard to standing requirements and have not been consistent. Recent cases include:


Trafficante v. Metropolitan Life Insurance - p. 1227
    The tenants of an apartment complex had standing to complain that the owner racially discriminated in renting in violation
       of the Civil Rights Act of 1928. The tenants claimed general types of damages such as losses fro, not living in an
       integrated community, missed business and professional opportunities because of it, etc.. However, the court found
       that the Ps had sufficient standing as the language of the Act was intended to be as broad as possible and that the role
       of citizens as “private attorney generals” was not uncommon.

US v. SCRAP:
 Rule: A group will not have standing as “representative of the public,” but will have standing if they sue for an injury even
    which they are aggrieved to a small extent.
 • If litigants fail to show injury to themselves from government action, then Article III §2 will be a barrier, which requires for
    there to be a case or controversy.
 • Economic loss is not necessary to prove injury required for standing to bring suit, even a loss of right of use.
 Facts: One year after Sierra Club, a student organization was found to have requisite standing for suit regarding
    government regulations that made it more expensive to ship scrap metal than original metal. P claimed that it was an
    environmentally unsound policy and the litter of tin cans in all areas affected their enjoyment of the specific areas of the

                                                Michael M. Wechsler
                                            Constitutional Law                                             18
    litter - the hunting, hiking and fishing trails of Washington that the Ps would use. Ps objected to the law was because of
    the more expensive cost to ship these scrap metals than new ones, which made companies not want to recycle.
  Holding: The court held that there was standing, and most scholars believe that this was as far as a stretch as can be made
    for standing.
  Dissent: The allegations don‟t satisfy the requisite threshold for requirement of injury that would present a justiceable case
    or controversy. The injuries are so remote, speculative and insubstantial, that they have as little standing as a taxpayer
    to assert their claims here when the pocketbook loss they suffer personally is trivial.


U.S. v. Richardson - p. 1229
  Rule: Powell: If there is no specific provision by government that a person can be a private attorney general, to have
     requisite standing, he must allege some particularized injury that sets him apart from the man on the street.
  Facts: The federal taxpayer asserted that the CIA Act, which contends that CIA appropriations and expenditures not be
     made public and grant of money is given to Congress under the war power, violates Article I §9, the “Statement and
     Account Clause,” that requires that a regular statement of account of receipts and expenditures of all public money shall
     be published. Without this information he would not have such material to make such an informed decision in the
     upcoming elections.
  Holding: The federal taxpayer had no standing to contend that the CIA Act, which contends that CIA appropriations and
     expenditures not be made public, violates Article I §9 that requires that a regular statement of account of receipts and
     expenditures of all public money shall be published.
  The court says that this harm to P is that kind of general harm discussed in Frothingham and Flast, of which a taxpayer
     cannot sue. In addition, to allow a taxpayer to sue here is not something that the framers of the constitution could ever
     have anticipated, as to allow a taxpayer to see these receipts would be to put the country in severe jeopardy - everyone
     could see who and where the secret agents are. Just because there is no specific remedy for the citizen to sue, should
     not give him the justification to give him the requisite standing. If the citizen feels that a wrong is being committed, he
     must go about it in the ordinary route, although slow and cumbersome, and like other dissatisfied citizens, should vote for
     an opposing representative in the next election.
  Dissent: (Stewart): If the Statement and Accounts Clause gives taxpayer a right to see expenditures, it seems logical that
     he has standing in regards to the non-adherence to this duty once he is denied the review.
     Dissent: (Brennan): P plainly alleged injury in fact that his right as a citizen to know how Congress was spending the
        public‟s money was essential to him as a voter and in making an informed decision. While the claim would fail on the
        merits, P had the standing to assert them.
  Notes: Is there a second nexus? Why couldn't we make a Flast argument here and why is this too general? His complaint
     seems specific iv that it is a violation of Article I §9 and that should affect him like Flast.''
  • Is there a first nexus? This wasn't a question of tax and spend clause. The CIA gets its money grants from what area? The
     War Power - this is closely related to war as we need to know what activities threaten our country, etc..
  • Second Nexus? The claim that the money is not being accounted for here is different that Flast that there was a violation
     of the spending of some power. This decision seems to say that some taxpayers are more equal that others (Flast said
     that this was OK - not everyone had to be taxed exactly the same).




                                           Michael M. Wechsler
                                              Constitutional Law                                                19
Schlesinger v. Reservists Committee to Stop The War - p. 1230
  Rule: Article I §6: One cannot hold office under the US and hold anther Federal position at the same time, e.g. mail
    dispatcher and a General in the US Reserves.
  Facts: Ps asserted that members of Congress could not also serve in the reserves as their positions were incompatible as
    per the Incompatibility Clause. If they were allowed to do so, their positions would be tainted. This is a technical violation
    of the Constitution. If a person has two positions, there could be potential for conflicts of interest. This is especially the
    case when one of the positions is war related. While this a concern to the anti-war P, there would be a practical problem.
    Voting was really a bigger concern. They would vote in civilian government roles in ways that they wouldn't have to go to
    Vietnam, rather than what might be the best interests of the country and to their other position.
  The Ps test for standing was not the same as Flast and irrelevant because this was an assertion by the citizen against the
    War Clause, not the Tax and Spend such as in Flast. Thus for standing according to Flast, the P had standing only if the
    court found that his interest as a US citizen was sufficient.
  Holding: P lacked standing as citizens to intend that the Secretary of Defense‟s permitting members of Congress to have 2
    incompatible positions, to be members in Congress and in the Armed Forces Reserve, violated the Incompatibility Clause
    of Article I §6.
  The court says that the P's case fails both nexus tests.
    1. This is not anything to do with spending at all, possibly regarding war power.
    2. Despite incompatibility, it is not a specific ban to how Congress spends money like the religion issue is.


Valley Forge Christian College v. Americans United for Separation of Church and State - p. 1232
  Facts: Exercising its power under the Constitution's Property Clause (Article IV, § 3), Congress leased surplus government
     land to D at no cost - it was an old military hospital. Ps brought a federal suit, as taxpayers, claiming that the
     government's transfer of land to a religious institution violated the First Amendment's Establishment Clause.
  • Reasserts the rule established in XXXX that merely because if they don‟t have standing, then no one would have
     standing, is not a sufficient reason to find standing (they should vote differently with the rest of those dissatisfied and in
     theory it should bring about the necessary and desired change of leadership in office.)
  Issue: Under what circumstances may federal courts recognize the standing of plaintiff taxpayers who claim an allegedly
     unconstitutional use of federal tax funds?
  Holding: In this instance Congress disposed of the surplus not with the Tax and Spend Power, but by the Property Clause
     of Article IV §3 cl.2. Therefore there is no nexus as taxpayer for the citizen to have standing to assert his claim as per
     nexus one. Additionally, the court in Flast only allowed taxpayer suits against specific acts of Congressional power, but
     this was a decision of the HEW, not Congress specifically.
  In addition, the court says that the injury here is not an injury that is a personal injury suffered by the Ps as a consequence
     of the alleged constitutional error, other than that of a psychological consequence of a decision that is merely a
     disagreement with an act that is proper. This is not overruling SCRAP that monetary injury is not necessary, but that here
     there really is no substantial injury of any kind.
  • Standing requires both actual injure to the plaintiff and the probability that the requested relief will cure the alleged wrong.
     Taxpayers, however, cannot attain standing to sue on the allegedly unconstitutional expenditure of public funds to which
     they contribute as taxpayers unless (1) the complaint is directed at an exercise of Congress' taxing and spending power
     and (2) the complaint is based on an alleged breach by Congress of a specific constitutional limitation imposed upon the
     exercise of that power.
  Dissent: (Brennan): The court erred when it said there was no standing because there was no injury in fact.
  • The Establishment Clause was enacted to prevent the use of tax monies for religious purposes. The taxpayer was the
     direct and intended beneficiary of these moneys and the prohibition of financial aid to religion - no one religious group is
     to be established by the US government. The fact is that this is the one most specific limitation on Congress‟ Tax and
     Spend Power, that they cannot tax or use money to further religious institutions. The HEW is a branch of Congress set up
     by Congress and acts for it. It is difficult to see ever that Congress itself will be the body to make the expenditure, but
     usually indirectly through its powers granted to it to set up these smaller components of Congress.
  • Second, the court makes a mistake by distinguishing this case from Flast because it makes no difference whether the
     grant was in the nature of a gift of property or cash for a facility. The relationship is the same as the “gift” had value and is
     the same as giving its worth in cash.
  • The majority risks deciding difficult questions of substantive law obliquely in the course of opinions purporting to do
     nothing more than determine what the Court labels "standing." The Court's opinion is a stark example of the unfortunate
     trend of resolving cases at the "threshold" while obscuring the nature of the underlying rights and interests at stake.
  • For the Court to hold that standing depends on one Constitutional clause, rather than on another, is to trivialize the
     standing doctrine.
  Notes: This is a very dangerous ruling, as government could turn over virtually any building to a religious institution and no
     P could be able to challenge it. Here this is exactly a claim as in Flast, but supposedly it didn‟t meet the nexus test.
  • The court held that prong 2 of the nexus test was met as it is the same allegation as in Flast, and also a violation of the
     Establishment Clause. However, it failed prong one as it wasn't money. P's lawyer said: "Well where did they get the
     money for the land?" Obviously the spending is of US money. Despite this, a narrow majority found that giving money is a
     violation, but not giving property that they don't need anymore (although the two are really the same thing). This is a
     disposition of government property. This is a direct violation of the Constitution of the Establishment Clause violation. If
     the Constitution can't give $3 or even $1 to a church, how can they give property?




                                             Michael M. Wechsler
                                           Constitutional Law                                             20
Warth v. Seldin: Court found wide assortment of Ps who sued for zoning that was discriminatory did not have standing.
   None had lived in the zoned area nor had they specifically requested housing in the area in question.
Rule: The question of standing (whether the litigant is entitled to have the court decide the merits of the dispute or of
   particular issues) has two limitations:
   (1) when the asserted harm is a "generalized grievance" shared substantially by all or a large class of citizens, that harm
      alone does not normally warrant exercise of jurisdiction as P must allege a distinct and palpable injury to himself
      (SCRAP); and
   (2) even when plaintiff presents "a case or controversy," generally he still must assert his own legal rights and interests,
      and cannot rest his claim to relief on the legal rights or interests of third parties.
• Standing in no way is determined by the merits of the P‟s contention, but it may turn on the nature and source of the claim
   asserted (Flast) or the actual and threatened injury may exist by virtue of statutes that create standing.
• But For causation is required to show the nexus between the harm and the allegedly improper act of government.
Facts: Warth P and other individuals and various organizations resident in the Rochester, New York, metropolitan area,
   sued the town of Penfield D, adjacent to Rochester, and the members D of its zoning, planning, and town boards. Warth
   P claimed that the town's zoning ordinance effectively excluded persons of low and moderate income from living in
   Penfield D in violation of the first, ninth, and fourteenth amendments, and federal statutes. The exclusionary zoning made
   larger plots of land, which obviously cost more and low income individuals could not afford it. The district court, the court
   of appeals affirming, dismissed the complaint for lack of standing as no Article III case or controversy exists. Warth D
   appealed.
Issue: Does the question of standing (whether the litigant is entitled to have the court decide the merits of the dispute or of
   particular issues) have any limitations?
Holding: Yes. The question of standing (whether the litigant is entitled to have the court decide the merits of the dispute or
   of particular issues) has two limitations: (1) when the asserted harm is a general grievance shared substantially by all or
   a large class of citizens, that harm alone does not normally warrant exercise of jurisdiction; and (2) even when plaintiff
   presents a Case or controversy," generally he must still assert his own legal rights and interests, and cannot rest in his
   claim to relief on the legal rights or interests, of third parties.
The court said that they still couldn't defeat the zoning anyway, and we couldn't say "but for the problem of the exclusionary
   zoning they could have moved to Penfield." They could not say that the zoning practice itself was what prevented them
   from moving into the neighborhood. They couldn't afford it.
As for the claims of the individual petitioners who assert standing as persons of low or moderate income and as members
   of minority groups, the fact that they share attributes common to persons who may have been excluded from Penfield D
   is an insufficient fact from which to conclude that they themselves have been excluded, or that Penfield D has violated
   their rights. There has been no personal injury alleged. They have not alleged that their inability to find housing in
   Penfield D reasonably resulted from Penfield's own alleged constitutional and statutory violations, or that if the court
   affords relief, their inability will be removed.
As for the petitioners who assert standing on the basis of their Rochester taxpayer status on grounds that Penfield's failure
   to offer lower cost housing places the burden on Rochester, their asserted injury is conjectural and lacks any apparent
   line of causation between D Penfield's actions and the alleged injury. Any increase in Rochester taxes results from
   decisions of Rochester officials, non-parties, not from Penfield's actions. The Rochester individuals assert no personal
   right, but the rights of third parties. The only relationship existing between them and the excluded prospective Penfield
   residents is an incidental congruity of interest.
As for the petitioning associations, Ps Metro-Act , Home Builders and Housing Council, an association may have standing
   to seek relief from injury or as its members' representative, but it must allege that they, or any one member, are suffering
   immediate or threatened injury. Metro-Act, as to its claim of standing as a Rochester taxpayer and as a representative of
   members who are Rochester taxpayers or lower income persons, lacks standing for the same reasons as do those same
   individuals previously discussed. As to Metro-Act's claim based on its representing the 9% of its members who are
   Penfield residents, the harm was indirect, and thus Metro-Act was only raising the rights of third parties. As for Home
   Builders, it can only have standing if it alleged facts sufficient to make out a case or controversy had the members
   themselves brought suit, but its claim that various members lost business opportunities and profits by not being able to
   build is not a common claim, and requires individual proof of injury and damages. Finally, Housing Council, which
   includes 17 groups involved in development of lower cost housing fails for the same reasons as did Home Builders.
   Affirmed.
Dissent: (Douglas, J.) It would be a better practice to decide the question of standing only when the merits have been
   developed. Here there is sufficient documentary evidence of harm and the court should proceed and decide on the
   merits.
Dissent: (Brennan, J.) It was a “glaring defect" to view each set of plaintiffs as if it were bringing a separate lawsuit. The
   interests were intertwined. The facts which the Court says must be alleged in order to get into court reverts to a form of
   fact-pleading, long dispensed with in federal court.
Notes: The dissent says that the court is saying that no standing exists because the zoning is only 3 years old. What would
   the difference be of the zoning is the same today? They could reapply for a permit today! In addition, how could the
   people show that the zoning is creating the bias itself. The ONLY reason that these people cant afford the property to
   begin with, is because the zoning itself is what is making the property so prohibitively expensive to afford.
• The court here is really reluctant to confront the powers of Congress. The USSC by a narrow margin, decided not to do
   so in this case, but did take a strong position in Arlington Heights. The USSC is really ducking some of the issues here
   and also is hesitant to make rulings about local areas that affect the whole. There is some element of the "ducking the
   hot potato" but that isn't all it here.



                                         Michael M. Wechsler
                                              Constitutional Law                                               21
    Arlington Heights: Allowed P organization to challenge discriminatory zoning laws. Found that builder had acquired a
      specific site to be and that was sufficient for proof of injury. The difference from Warth is that here the Ps also had a
      builder with a live project and the exclusionary zoning itself is what was preventing them from going on with the project.
      This case also had a P that actually worked in the Arlington Heights district but he could live there because there was
      no affordable housing. The USSC agreed to hear the case here.

Simon n. Eastern Kentucky Welfare Rights - p. 1240
  Rule: Speculative injuries will not be sufficient for a P to have standing to assert a claim. For a P to have standing, the
     injury must be relatively immediate and present a substantial and definite harm that is resultant form the allegedly
     improper act of congress.
  • The alleged improper action of Congress in a Constitutional claim must proximately cause the harm with substantial
     probability as per P‟s assertions as required by Article I (use a but-for analysis).
  Facts: Hospitals were allowed to deny services to indigents and still receive favorable tax treatment as public hospitals. P
     Challenges an IRS tax revenue ruling that presents us with an issue that is similar to Sierra Club. P claims that the rules
     change is illegal because it is inconsistent with the previous law as it gave a tax exempt status to hospitals that don‟t
     want to treat the poor, the indigents. Previous statute said that hospitals mist serve all people. Now hospitals wont serve
     the poor people because they get their tax exempt status regardless of whether or not they do so.
  Holding: The court said no, that there is no proof of any connection that the hospitals are now not serving the poor because
     they now have the ability to get tax exempt status without treating the poor. It is too speculative a connection and
     therefore the Ps were held to have standing.
  Dissent: There is no question that the appellants had requisite interest in the outcome of this case as per Sierra Club. This
     is a disturbing decision, as additionally, it seems as though legislature intended for there to be allowances for a citizen to
     bring suit. This seems to disallow Congress from enacting citizens‟ suits provisions in cases where standing may be
     questioned by the court.
  Notes: There must be a showing, as in Warth that there is some connection of harm due to the act. But for the act, the
     harm would not occur. The court states here that one cannot positively state that hospitals will or are not treating
     indigents because of the IRS ruling. In addition, to say that this harm will occur as a result of the ruling is too speculative.


Allen v. Wright - p. 1241
  Rule:
    1. In order for there to be standing, the harm may not be too speculative and questionably caused by the allegedly
       improper behavior by government, and additionally:
    2. The P‟s must prove a “but for” harm and causation as per Warth v. Seldin, as well as the fact that the court‟s decision
       will remedy the harm.
  Facts: Ps challenged the tax-exempt status of private schools that practiced racial discrimination. They argued that
    (a) they were harmed directly by the mere fact of government financial aid to discriminatory private schools and
    (b) federal tax exemptions to such institutions thwarted efforts to integrate public schools.
  Issue: May federal courts hear cases where an alleged injury is not personal, not fairly traceable to the defendant's unlawful
    conduct, and not likely to be cured by the relief sought?
  Holding: No, as a litigant must have "standing" to invoke the power of a federal court. Standing is established when the
    plaintiff alleges personal injury that is fairly traceable to the defendant's allegedly unlawful conduct and that is likely to be
    redressed by the requested relief. In a suit against a government agency not to enforce specific legal obligations whose
    violation works a direct harm, but to seek a restructuring of the apparatus established by the Executive Branch to fulfill its
    duties, the separation of powers doctrine counsels against the recognition of standing.
  The court felt that there was only a limited causation factor of the IRS‟ outcome and the ability for minorities to enter private
    schools. the reasons for the lack of standing due to “speculation” of the causation element is because P had to show:
    1. There were a sufficient number of racially discriminatory private schools receiving tax exemptions in P‟s communities
       for withdrawal of those exemptions to make an appreciable difference;
    2. A significant number of schools would change their policies if threatened with a loss of the tax exempt status granted
       by the IRS; and
    3. A significant number of parents would transfer their children to those racially discriminating private schools that
       changed their policies as a result of a potential ruling in P‟s favor.
  The majority asserts that the Ps did not allege any of these elements.
  Dissent: (Brennan, J.) The Court relies on generalities about the separation of governmental powers and ignores the real
    issues and the nature of the injuries suffered. The Court's denial of standing reflects an insensitivity to the historical role
    of federal courts in eradicating public school segregation. Requirements of causation and direct injury are met. Ps have
    identified communities containing enough racially discriminatory tax-exempt schools to make an appreciable difference in
    public school integration.
  Dissent: (Stevens, J.) This case meets the causation requirement for "standing." When a subsidy makes a given activity
    more or less expensive, resulting in an increase or decrease in the ability to engage in the activity, injury can be fairly
    traced to the subsidy for the purposes of determining "standing." Considerations of tax policy, economics, and pure logic
    all confirm the conclusion that Ps' injury in fact is fairly traceable to the government's allegedly wrongful conduct. In other
    words, if the government withholds the tax exemption status, the cost of these private schools which are racially
    discriminatory will go up and demand will drop, reducing their competitiveness to other non-segregated schools and this
    is obviously a result of economics and therefore confers standing of the Ps.



                                             Michael M. Wechsler
                                             Constitutional Law                                             22
*** Separate more standing from other reasons to duck the issues.*** Ask him about this Section*****
   Notes: In many instances where the court does not want to clash with a decision and statute of Congress, it will claim:
   1. The policy of Judicial Comity and restraint for competing with another branch of Congress, as Congress has more money
      and legislative wisdom in creation of legislative statutes.
   2. Separation of Powers as an excuse for Judicial Comity, as the Judiciary has no place to continue to turn over the acts of
      a separate branch of government and the power given to them under the Constitution.
   3. The allegedly improper law is merely regulatory in nature and a taxpayer will have to show a more direct harm. In all
      regulation some will win and some will lose.
   4. The injury is too speculative in nature and P cannot prove a but-for relationship to the harm.
   5. The harm requires some type of “pocketbook” injury, but injury may be alleged for non-economic harms.
   6. The issue is moot.
   7. The issue is a political question.

  The Dissent‟s Positions is usually;
  1. Go to the merits and let the court decide the issue, especially when the outcome will not favor the P.
  2. The P has a claim that deals with a fundamental right granted by the Constitution. That in and of itself should make P‟s
     standing more probable.
  3. If there is any monetary loss to the citizen, and it deals with either a fundamental right or limitation and is not merely
     “regulatory” he should have sufficient standing.
  4.

  A. Causation Requirement: Warth, Eastern Kentucky and Allen. It is only a given in terms of one directly affected by an
    agency action. But for indirect actions of an injury suffered as a result of the impact of government action on third parties
    not before the court will the causation/relief issue arise.
  B. Congressional Power to create standing and Article III requirement of case or controversy: SCRAP and Trafficante both
    extended to the limits the standing requirement. On the other end of the spectrum, Eastern Kentucky, Warth and
    Richardson all try to limit the power of Congress for prudential reasons:
    a. Warth: Making abut-for causation and discerning a difference between the general harm suffered by the public and the
       distinct harm suffered by the P.
    b. Eastern Kentucky: requires a “distinct and palpable injury.”
  The big question is whether the Article III requirement of case or controversy can be overcome with a citizen‟s suit
    provision. The only way to possibly rationalize not allowing standing is that legislative history is quite influential on
    decisions not to create standing when a questionable bases for it exists.




                                           Michael M. Wechsler
                                              Constitutional Law                                                23
Lujan v. Defenders of Wildlife - p. 327 supp.
  Rule: In suits against the government, if Ps do not show actual injury to themselves, then the case will be dismissed under
     Article III, despite a citizen‟s suit provision as it would violate Article III‟s requirement of a case or controversy.
     ••••••••••???????
  Rule: Affirms Sierra Club that Congress can broaden the categories of injury that may be alleged in support of standing is
     fine, but not abandoning the requirement that the party seeking review mist himself have suffered an injury in fact.
  Facts: Under the Endangered Species Act of 1973, the Secretary of the Interior was instructed to promulgate regulations
     under this act. The Act contained a "citizen-suit" provision, which provided that "any person may commence a civil suit on
     his own behalf to enjoin any person, including the United States and any other governmental instrumentality or agency. . .
     who is alleged to be in violation of any provision...." and act as his own private attorney general. The Act requires that
     federal agencies consult with the executive branch to ensure that any action funded by the agency is not likely to
     jeopardize endangered species.
  Issue: May the public interest in government observance of the Constitution be converted by statute into an actionable
     individual right, and that the citizen can be held to have standing to sue even when he has no discernible harm suffered
     but the statute may confer standing in seeming derogation of Article III‟s requirement of case or controversy?
  Holding: It is the Court's duty to decide cases or controversies regarding individual rights. It is the duty of Congress and the
     Chief Executive to protect the public interest in government observance of the laws. The citizens suit provision actually
     violated Article III because the citizen can just sue without needing a case or controversy.
  Congress can expand an "injury" but can't say that one agency must confer with another. There is no case or controversy
     because there is no specific injury. Here there was no specific injury to the taxpayer, and the citizens suits provisions are
     useable both if P is not injured, even in a very broad fashion, this is contrary to Article III's requirement of a required case
     or controversy.
     a. By converting the undifferentiated public interest in executive officers' compliance with the law into an individual right,
        Congress transfers this duty away from the executive, and this violates the separation-of-powers doctrine. Congress‟
        act to confer this kind of power of executive officers‟ compliance with the law into an individual right in essence allows
        Congress to transfer from the President to the courts, the Chief Executive‟s most important constitutional duty, which is
        to “take care that the laws be faithfully executed” as per Article III.
     b. P‟s injury is too speculative that when he travels to Egypt it will affect him in his pursuits of observance and study of
        those species, or that the law in Egypt will affect the world as a whole, including him as a species may be lost.
     Concurrence: Congress has the power to broaden injury and define it and articulate chains of causation that will give rise
        to a case or controversy where none had existed before. However, in exercising this power, Congress at the very least
        must identify the injury that it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. This
        minimal requirement is not met as citizens suit provision here purports to confer the right to any citizen of the US, but it
        does not allege that there is any injury to any person by virtue of any alleged violation.
     Dissent: There are circumstances where Congress‟ citizen‟s suit provisions are insubstantial connected to the prevention
        of any substantive harm that it cant be said to work any conceivable injury to any individual litigant. However it is for the
        courts to use judicial restraint and defer to Congress‟ legislative wisdom.
  Notes: P environmental organization found to lack standing to challenge the D Secretary of Interior Lujan‟s national zoning
     policy because this was an attack on broad based policy, and not a specific area that was injured. Court rejects SCRAP
     as being confined to its specific facts.
  • Nothing in this contradicts the principle that the injury required by Article III may exist solely by virtue of statutes creating
     legal rights, the invasion of which creates standing.” Warth v, Seldin.

Hypothetical: P gets hit by a bus: Does that confer the right on the people to sue? Do they have standing?

Why do we worry about standing?
   1. If the parties are not really interested parties them the issue may be litigated halfheartedly and the ones who are really
      aggrieved may not be able to litigate fully and properly. Remember, if the suit is brought by those who may not really
      be aggrieved, it is still res judicata even though it wasn‟t litigated as fervently as those who were not part of the suit and
      really were injured. ***Read about whether res judicata for passengers hurt or just for others.****
   2. To avoid having the court get involved with issued of government, e.g. McCormick, it will hesitate to get involved.
       • There is a reluctance of the court to declare a statute or an act of Government unconstitutional and give it a death warrant.

Why have standing - courts can’t hear a case without it?
   a. We want to ensure that the Article III case and controversy requirement - as per Warth v. Seldin - the language in the
      Constitution in Article III must mean something. Courts have now read into Warth that the language means that the
      litigants must have standing. Warth: We the court cannot hear a case unless there is a genuine case or controversy.
      SEE WARTH.
   b. Judicial Comity: Judicial Prudence: Expenditure of judicial resources unnecessarily must be curtailed or else the courts
      would be even more overburdened.




                                             Michael M. Wechsler
                                              Constitutional Law                                              24
Orr v. Orr:
  Facts: Alabama had a law that husbands would have to pay alimony to the wife despite the financial positions of the parties.
     This was challenged by males as being unconstitutional because it is gender discrimination by awarding the females
     alimony regardless of financial position and the merits of that case. The Court recognized that the statute helped serve
     an important governmental objective, namely, compensating women for discrimination during marriage. But an outright
     ban on alimony awards against women was not substantially related to the worthy objective.
  Holding: The Court observed that the relative financial need of the parties was already required to be considered as part of
     the divorce process, so that there was no need to use sex as an automatic "proxy for financial dependence."
     Furthermore, the only women who would be given extra protection by the statute were those who were not financially
     needy; thus the statute's main effect was at odds with its stated purpose.
  Notes: The Court in Orr also sounded another note which has been repeated in other reverse-sex-discrimination cases.
     The Court warned that even sex-based statutes which were designed to mitigate past discrimination carried the "inherent
     risk of reinforcing stereotypes about the 'proper place' of women.... " Here, a gender-neutral statute, under which both
     needy men and needy women could be given alimony, was a superior way of protecting all parties.
  • Difficulty of verifying "benignness": Observe that it is not always so easy to verify whether discrimination that is claimed to
     be "benign" really is. For instance, a legislature which takes the general view (as Alabama's apparently did) that women
     invariably need to be protected may, although claiming that it is helping them by special legislation, in actuality be
     reinforcing a negative and untrue stereotype of them



B. Assertion of Third Parties

  Review:
  Taxpayers who are asserting local rights such as in the case with the school bibles,
  Taxpayers that are asserting federal rights made by federal government that affect their taxes.
  Requires a two nexus test that must be met.
  Reservists and Richardson the test was not met.

  As in these cases as well as Warth v. Seldin was issue of others asserting others‟ rights while you are bringing your own. In
    this section we look at the rights of 3rd party assertions.

The argument in these cases are that the rights of a third party are being directly violated and the D plays some part in the
“crime.” He wants to assert that he cannot be convicted of a crime because the constitutional rights of the third party, which
he aided in some way, were violated in some fashion. Normally one cannot assert the rights of a third party in court or he
would have no standing, but this is another example where we make exceptions because of the interests of justice and the
violation of a fundamental right.
     • Most Important: The proximity of the relationships between the parties was too close for their rights to be separated.
     • The rights of the third party will be diluted and adversely affected unless those rights are considered in this suit or they
        may not arise.
     • the argument of the third party will not be diluted as this D‟s sentence also hinges upon the validity of the statute which
        violated the third party‟s rights.


Barrows v. Jackson - P.1243

  Rule: The rule of practice which denies standing to raise anther‟s rights can be dispensed with when it is outweighed by:
  1. the need to protect the fundamental rights of a third party, which would be denied by permitting an action to be
     maintained; and
  2. that party would not ever have their argument heard by the court.
  3. The proximity of the relationship of the D and 3rd party makes their rights too intertwined to separate.




  Facts: Jackson D sold her home to non-caucasians despite the fact that her property was subject to a restrictive covenant
    limiting ownership to Caucasians only. Barrow's property was under the same covenant. When Jackson D breached the
    covenant, Barrows P sued in state court for damages. Jackson D defended by claiming it would be a case of
    unconstitutional state action for the courts to enforce the covenant against non-caucasians, as held in Shelly (see Supra).


                                            Michael M. Wechsler
                                              Constitutional Law                                               25
    Jackson D received judgment whereupon Barrows P appealed, contending that Jackson D lacked standing to invoke the
    rights of non-parties as a defense.
  Issue: Can the rule of practice which denies standing to raise another‟s rights be dispensed with when it is outweighed by
    the need to protect the fundamental rights which would be denied by permitting an action to be maintained?
  Holding: Yes. The rule of practice which denies standing to raise another's rights can be dispensed with when it is
    outweighed by the need to protect the fundamental rights which would be denied by permitting an action to be
    maintained.
        1. The state court‟s adjudication might result in denial of the third party‟s fundamental constitutional rights;
        2. The third party would have no opportunity to present his grievances.
    Here, Jackson D is the one who has the power to continue to use her property to discriminate or not, and, thus, the law
        should permit her to resist enforcement of wide-condemned restrictive covenants as per Shelly. However, the problem
        here is that there is no Black party before the court that is being discriminated against directly (only white homeowner
        suing another), so it would seem that D could not make the discrimination argument.
    However, this is a unique action in which it is the action of the state court which might result in a denial of constitutional
        rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their
        grievance before any court.
    If the court would take sanctions against Jackson and force him to pay for breach of contract, then a state action that
        upholds or enforces this restrictive contract, then equal protection of the Blacks would be denied as people like
        Jackson will either not sell to Blacks, or sell at a higher price, and since the Black family is not a party to the case
        (because P didn‟t want to be ruled against as in Shelly) they would never have a chance to get their case heard.
  Notes: Some have argued that while one party may not be in a position to initiate a proceeding, once the judicial machinery
    has begun working, the Court has an affirmative duty to avoid any unconstitutional judicial action. It has been suggested
    that since Jackson D had personal standing in that she was being sued for damages, she should then be able to raise
    the rights of third parties. But it is unclear whether that can be said where rights which are not fundamental are involved.

       Shelly v. Cramer: held that racially restrictive covenants were unenforceable by injunction against Black purchasers
         because if the state took such action and enforced the injunction, it would be denying the Black people equal
         protection of the law as per the 5th amendment.


Griswold v. Connecticut - p. 1244
  Facts: A state statute barred the use of any contraceptive. The prosecution was against a supplier, not a user.
  Holding: Birth control clinic officials convicted of abetting married persons in violating the same stature barring use of
    contraceptives, had standing to assert the constitutional rights of married persons, the third persons not brought into
    court directly. The proximity of the relationships between the parties was too close for their rights to be separated.
    • The rationale of the court was that certainly the official who is to be convicted as an accessory should be able to argue
       that the statute which he allegedly assisted the family in breaking, was unconstitutional. Note that here the D is not the
       party that bought the contraceptives, just an accessory and it is like the Barrows case where the party whose rights
       were violated, the Blacks there and the parents here, were never brought into court.
    • The proximity of the relationship of the D and 3rd party makes their rights too intertwined to separate.


Singleton v. Wulff - p.1244
  Rule:
  The 2 factors the court takes into account for assertion of third party rights:
       1. Is the relationship of the non-party/litigant and the third party whose rights the litigant seeks to assert, close enough
          in proximity and inextricably bound to allow the litigant to assert the rights of the third party?
    2. Is it likely that the third party will be able to appear before the court?

  "Jus tertii" or standing of non-parties/litigants for assertion of third party rights may be granted if:
    (1) the non-parties' rights are inextricably bound up with the activity the litigant wishes to pursue;
    (2) the plaintiff is no less effective a proponent of third-party rights than the third parties themselves; and
    (3) there is a genuine obstacle to the non-parties' representing their own interests.

  Facts: Ps, a group of physicians, challenged a Missouri statute that denied Medicaid benefits for abortions that were not
    medically necessary. Although they had a direct interest in the case's outcome, Ps did not claim they had a constitutional
    right to perform abortions, but argued that their patients had a right to terminate pregnancy.
  Issue: Is the doctor patient relationship in this instance close enough in proximity that it would make sense to allow the P to
    assert the rights of third parties? (Under what circumstances may the Supreme Court grant standing to those asserting
    third-party rights?)
  Rule: Access to Supreme Court review traditionally requires direct injury to the plaintiff; the litigant may not ordinarily claim
    standing to vindicate third-party rights. The Court hesitates to permit assertions of "jus tertii" (third-party rights) because
    non-parties may not want to assert those rights, non-party rights may be unaffected by the litigation's outcome, and third
    parties are often the best proponents of their own interests. The court uses two factual elements to determine whether
    the general rule against assertion of third party rights should apply in a particular case:

       1. Is the relationship of the non-party/litigant and the third party whose rights the litigant seeks to assert, close enough
          in proximity and inextricably bound to allow the litigant to assert the rights of the third party?

                                            Michael M. Wechsler
                                            Constitutional Law                                               26
      • If the right of the third party (e.g. the right to have an abortion) is so intertwined with the activity that the litigant
         seeks to pursue (to perform abortions with Medicaid coverage regardless of the medical necessity), then we know
         that deciding the issue together would not be substantially different than having decided the issues separately.
      • If they are so intertwined, then the litigator will be as good a proponent of the third party‟s right as the third party
         would have been (the doctor will be as string an adverse party for Medicaid for abortions regardless of medical
         necessity as would have been the woman).
  2. The ability of the third party to assert his own right.

Therefore, "Jus tertii" standing may be granted if:
  (1) the non-parties' rights are inextricably bound up with the activity the litigant wishes to pursue;
  (2) the plaintiff is no less effective a proponent of third-party rights than the third parties themselves; and
  (3) there is a genuine obstacle to the non-parties' representing their own interests.

Notes: Application is as follows:
  a. Test 1 : Closeness of the relationship: A woman cannot safely secure an abortion with out the aid of a physician, and a
     poor woman cannot easily secure an abortion without the physician‟s being paid by the state.
  b. Test 2: A woman cannot be expected to bring suit every time she requests an abortion. By the time she gets a decision
     from the court, the time in which she could have safely received an abortion has long passed. It is “capable of
     repetition yet evading review.”
  • EXCEPTION: Note that while the court is very reluctant to allow parties to assert third party rights, test 2 is one method
     in which USSC can take cases even when there is no standing for mootness or lack of ripeness, in order to put to rest
     recurring issues that require resolution and won‟t be resolved.
     • The case will arise quickly
     • There is an imminent danger (you don‟t need to wait for your head to be cut off to sue)
     • The issue is likely to recur without resolution

  Craig v. Boren
  Facts: Ps, a beer vendor and a male between the ages of 18 and 21, brought an equal protection suit challenging a
    statute proscribing the sale of beer to males under age 21 and females under 18. The vendor claimed standing as a
    third party asserting the rights of males aged 18 to 21 who couldn‟t buy beer and he couldn‟t sell it to them and do
    regular business, which is how he asserted that he was affected and had standing.
  Issue: When may federal courts recognize the standing of one who asserts the rights of third parties?
  Holding: Federal courts will not recognize the standing of a plaintiff who represents the constitutional rights of third
    parties ("jus tertii"), unless:
       (1) there would be a clear, adverse impact on the third parties' rights if the plaintiff were not granted standing, and
       (2) the relation between plaintiff and third party is such that the plaintiff adequately represents the third party's
         interests
  Under this test the Court held that the vendor had standing.
  Dissent: The Court should not veer from the rule that a litigant may only assert his or her own constitutional rights or
    immunities. Third-party standing is limited to cases where the relationship between the claimant and third party was not
    simply the fortuitous connection between vendor and potential vendees but the relationship between one who acted to
    protect the rights of a minority and the minority itself.




                                          Michael M. Wechsler
                                              Constitutional Law                                              27
Laird v. Tatum - p. 1247
  Rule: For a private individual to invoke the judicial power to determine the validity of executive or legislative action, he must
    show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action.
    • For action to amount to having an unconstitutional chilling effect on first amendment rights, there must be more than a
       mere fear that the government.
  Facts: In 1967, the Army began a surveillance program on lawful civilian political activity as it was during the time of the
    Vietnam War and there were movements opposing the war. Army intelligence agents attended public meetings, wrote
    reports, and filed such reports in Army data banks. By 1970, the Army greatly reduced the scope of the surveillance to
    only those disturbances which had the potential of going beyond the control of state authority. The records were
    destroyed after a short period of time after a disturbance if nothing was wrong and no permanent files were kept on the
    individuals. Tatum P brought a class action seeking declaratory and injunctive relief that his rights were being invaded by
    such surveillance. Laird D, the Secretary of Defense, claimed that Tatum P lacked standing to seek such relief.
    P: Invasion of 1st Amendment rights because you are “chilled” and will be afraid of speaking freely at a meeting as you
       are never sure if the person in the back taking notes is going to report you and distribute the information that you are
       an anarchist to the police and other local authorities.
       • Standing Issue: We must have standing because what if a person on the block lost his job because the foreman
          heard from a local policeman that he attended one of these anarchist meetings, and therefore was fired. This is a
          realistic effect and P should have the right to challenge the statute.
    D: The government voluntarily reduced the surveillance. The main arguments were that they didn‟t show any specific
       threat of future harm as what injury did the Ps suffer? What is this information collecting any different than what a
       reporter would collect?
       • Speculative: (Court of Appeals): The injury is too uncertain, and speculative. There must be a present effect on their
          lives.
       • There is no chilling effect as the government must draw he line for the sake of national security. You could also be a
          paranoid that a law on the books will snare you for a letter complaining to your local newspaper/
       • It must be an objective standard, and there must be a chilling effect objectively.
  Issue: For a private individual to invoke the judicial power to determine the validity of executive or legislative action, must he
    show that he has sustained or is immediately in danger of sustaining a direct injury as a result of that action?
  Holding: Yes. For a private individual to invoke the judicial power to determine the validity of executive or legislative action,
    he must show that he has sustained or is immediately in danger of sustaining a direct injury as a result of that action.
    Here, there was no specific illegal action by the Army against Tatum P. Nothing detrimental was done to him or
    contemplated, and even if some Army action were foreseeable, it would not present a presently justifiable controversy.
    • For action to amount to having an unconstitutional chilling effect on first amendment rights, there must be more than a
       mere fear that the government, armed with the fruits of lawful activities, might take some other action in the future
       detrimental to the individual in question. As Tatum P could not show any concrete injury, it was error for the court of
       appeals to grant Tatum P relief. Reversed.
    • Allegations of a “subjective” chill are not an adequate substitute for a claim of specific present objective harm of a threat
       of specific future harm; this would preclude P fro, having standing and as per Article III, no advisory opinions by the
       federal courts.
  Dissent: When the Court's refusal to pass on an Act's constitutionality would itself have an inhibitory effect on freedom of
    speech, the Court should act. One should not need to have to wait until he loses his job for him to have standing to sue.
    The P was one of the targets of massive surveillance, not merely casual as the agents were posing as newsmen and the
    like, and were circulating reports between state and local police.
  Notes: This case has been criticized. Just because the possible injury is more conjectural, it would seem that the chilling
    effect is still present. A person's fearing the Army's collection of information and dispensing it to other government
    agencies, particularly the FBI and CIA, when much of the information could be based on conjecture and hearsay, would
    have second thoughts before attending a controversial political meeting just for the sake of curiosity or research or active
    participation.

       O‟Shea v. Littleton - p.1249
       Rule: An issue must be ripe for adjudication or else no case or controversy exists and Ps have no standing to bring
          suit.
       Facts: Black and white residents protested racial discrimination obtained a federal injunction against state judicial
          officers alleging a deliberate pattern of illegal bail, sentencing and jury fee practices against them due to their race
          and exercise of first amendment rights.
       Holding: USSC reversed saying the issue is not ripe for adjudication. Ps had not standing to brig suit as no case or
          controversy exists. There was no real or immediate threat of repeated injury as the Ps have not pointed to any
          imminent prosecutions contemplated against any of them and they naturally do not suggest that any one of them
          expects to violate valid criminal laws. The lack of immediate danger to Ps does not satisfy the “case of controversy”
          requirement.
       Notes: Questionable decision. Contrast with Doe v. Bolton.
       • Note judicial comity, courts do not like to intervene, strike down statutes and interfere with the workings of another
          branch of government.

         Rizzo v. Goode: Philadelphia Police Force, similar to O‟ Shea where they were engaged in acts of racial
           discrimination and harassment. The court held that they would not get involved as they would not be able to
           supervise the police force.


                                            Michael M. Wechsler
                                              Constitutional Law                                              28
       Doe v. Bolton - p. 1249
       Rule: One may have standing even though not threatened with immediate danger when there is a reasonable certainty
         that they will be prosecuted by a statute that is unconstitutional, and does not have to wait until the danger has
         already set upon him.
       Facts: Physicians with pregnant patients, who sought declaratory judgment against a statute that made it criminal to
         perform abortions, on the rationale that this statute deterred them from practicing their profession in violation of their
         constitutional rights.
       Held: Physicians had standing despite the fact that none of the physicians has ever been prosecuted or is in immediate
         danger of prosecution. They should not be required to wait until they are in trouble to assert their rights.


Poe v. Ullman - p. 1250
  Rule: A plaintiff lacks standing to invoke Supreme Court review when challenging a law simply because it exists. Federal
     judicial power may strike down legislation only at the instance of one who is himself immediately harmed, or immediately
     threatened with harm, by the challenged action
  • There must be an immediacy of the threat in order to raise a justiceable issue that is a case or controversy.
  Facts: In combined appeals, Poe P and others brought actions for declaratory judgment in state court challenging the
     constitutionality of Connecticut anti-contraception laws. Under those laws, the use of contraceptive devices and the giving
     of medical advice in the use of those devices was prohibited. The Connecticut Supreme Court ruled that the statutes
     were applicable to married couples and doctors even when there was a serious threat to the health or life of the female.
     Poe P was a doctor who prescribed such devices that were available all over Connecticut. P feared that Ullman D, the
     state Attorney General, would prosecute any violation of the law, even though the anti-contraception law dated back to
     1879, and only one prosecution had been brought under it in 1940.
  • A question arose as to whether the case was ripe for hearing by the Supreme Court.
     P: This is merely a test case to show that the state would uphold challenges against a clinic.
        • This is the same chilling effect as in Tatum by the mere presence of the statute on the books. The prosecution has
           the best of both worlds; the prosecutor says that there is no need to worry about prosecution and therefore no
           chilling effect, but he can choose when he wants to prosecute.
     D: The prosecutor said he wouldn‟t prosecute as there is an “unwritten law” that they would not prosecute for this type of
        offense as is indicated by previous history. However, he did say that there was no guarantee as he had sworn to
        uphold all the laws of the state.
  Issue: May a state declaratory action receive federal review if the case does not retain the essentials of an adversary
     proceeding, involving a real, not a hypothetical, controversy?
  Holding: No. A state declaratory action may not receive federal review if the case does not retain the essentials of an
     adversary proceeding, involving a real, not a hypothetical, controversy, which lies in the sound discretion of the court.
     Connecticut enforcement policy shows practical nullification of the anti-contraception statute. The judicial process is most
     securely founded when exercised under the impact of a "lively conflict between antagonistic demands, actively pressed,
     which make resolution of the controverted issue a practical necessity." Mere existence of a state penal statute would be
     an insufficient basis on which a federal court could determine its constitutionality if there is no threat of enforcement. If a
     prosecutor agrees not to prosecute, there can be no adversary proceeding. Dismissed.
  Concurrence: Until there is a definite and concrete threat of prosecution, the Court should not exercise its power of
     constitutional adjudication.
  Dissent: (Black, J.) The Court should grant standing so that it can decide the case's constitutional issues.
  Dissent: (Douglas, J.) The Court went outside the record in finding tacit agreements not to prosecute. The law was never
     nullified in practice. The 1940 prosecution sought to compel compliance. The state reenacted the statute twice since
     1940, and attempts to repeal it have consistently failed. It is still the center of a controversy.
  Dissent: (Harlan, J.) There is no lack of "ripeness" when plaintiffs have stated that they intend to disobey the law. There is
     no circumstance except detection or prosecution to make remote the particular controversy. This is not a feigned,
     hypothetical, or friendly suit such as lacks an adversarial nature.
  Notes: The decision gathered the support of only a plurality of the Court. The Court has been criticized for requiring an
     actual threat of enforcement to raise a case or controversy, and here they were really ducking the issue waiting for a real
     case to arise before they would have to make a decision. The court restrained itself because at the time there were still
     many religious thinkers around and it would have been a big blow to take the anti-abortion statutes off the books.

       Epperson v. Arkansas: There was no record of enforcement of a forty year old statute that made teaching of evolution
         unlawful, and after the school adopted a textbook teaching evolution, and a biology teacher sought a declaration that
         the statute was unconstitutional and an injunction against her dismissal. The court held for the school and
         schoolteacher.




                                            Michael M. Wechsler
                                              Constitutional Law                                              29
II. National Legislative Power

11th Amendment: Acitizen of one state cannot sue another state in the federal courts. While there is no specific prohibition that a
citizen cannot sue his own state, it is construed as such ******* This is because of Martin v. Hunter‟s Lessee, where the states did
not like the result. In that case the state couldn‟t just onerturn the treary that the US had with Britian and the states had to abide by
it. However, the 11th Amendment was enacted and it has been construed to also bar a citizen from suing his own state.

How do we use the federal courts for justice when the state commits a wrong?

Ex Parte Young - handout
  P claimed that the Minnesota Attorney General violated the rights of corporatons by limiting the charges that the railroad
     companies could enact. The railroads were the main sources of transportation at that time. One railroad company went to
     court that their rights were being violated as the statute deprived it of property without due process of the law 5th Amnedment.
     They sued the attorney general who ws in the position to assert the laws.
  If you are in state office, the state would say that this is really a suit against the state. The attorney general Young wasn‟t
     discriminating; he was just doing his job as a state official.
  Holding: P is merely suing an offical of the state, the same way that you can sue someone who commits a tort. (Howeverm this
     wasn‟t really the same situation) It is the states, as per the 14th Amendment, that can‟t deprive us of equa protection, yet the
     court said that the 11th Amendment doesn‟t reach here as they sued the state‟s agent, not the state.
  Howevwer, while this case would seem to open the door for litigants to sue the state for monetary damages, Edelman ruled that
     such suits mist be for declaratoury judgments of injunctions, and not for damages. However, they can sue the officer of the
     state personally, e.g. for committing brutality on a prisoner, but they cannot sue the state.


Section 1. Sources and Nature of National Legislative Power

A. What does the Constitution allow Congress to enact under its powers?
B. What does the Constitution allow Congress to enact under its powers?
C. Individual rights of privacy and free speech.

A. Federalism: the national government is comprosed of elected officials that are representatives of the states, being voted into
office by the citizrns of the states so as to reflect their views in the legixlature.

B. Power of the federal government: The power to act is limited to:

    1. Enumerated Power: An act by federal government is limited in its jurisdiction to powers specifically granted to it by
       the Constitution in Article I §8. There is no general police power.
         • Necessary and Proper Clause: Implied powers are granted to the federal government to do what is necessary nad
            proper for carrying out its specific objectives. The test for these powers sre:
         • Tax & Spend: Congress has the power to tax and spend for the general welfare of the US citizens, but it must be
            for the general welfare.
    2. Not Violative: The act may not be in violation of any specific limitation of federal power as per the Constitution.


C. Comparison with State Power
    i. Inerent Police Power: The states, not Congress, have police Power, as the states can legislate anything that is in
        regard for the fealth safety and welfare of its citizens, subject to not violating the federal constitution or its state
        constitution.
           • Rule: An action by the state is valid under federal law unless it violates some specific limitation imposed by the US
              Constitution, as well as federal law that overrides the state (of power granted to the federal government).
    ii. 10th Amendment: The powers not delegated to the US by the Constitution are reserved to the States respectiverly of
        to the people.”


D. The Enumerated Clause: Artice I §8: Lists the enumerated powers of Congress specifically. Federal government is
  limited by these enumerated powers with the exception of extensions applied by the Necessary and Proper Clause.

    i. Tax and Spend Clause: lay and collect taxes
    ii. provide for the general defense of the country
    iii. borrow monery on the credit of the US
    iv. Commerce Clause: regulation of commerce with foreign nations and among the several states (interstate commerce)
               Foreign Affairs: There is nothing in the Constitution that says that Congress can regulate foreign affairs (power
                  to regulate commerce in Article I §8) but it is implied by the nature of the union and the impracticabiliy of each
                  state dealing in their own foreign affairs. This power is reserved to Congress and not to the states.
    v. regulation of immigration and bankruptcy
    vi. extablishment of post offices
    vii. control issuance of patents and copyrights

                                            Michael M. Wechsler
                                           Constitutional Law                                            30
    viii. declare war
    ix. The Necessary and Proper Clause: Make all laws which shall be necessary and proper for carrying into execution
       the foregoing powers and all other powers vested by the Constitution. The government has the implied power to use
       means reaonably relates to those ends in achieving them.
          • The Necessary and Proper Clause relates to every enumerated Power in Article I §8.
          • Standard: Congress can do what is reasonable, and not what is “absolutely necessary.” (McCulloch)
          • Congress may not, however, under the pretext of executing its powers, pass laws for the accomplishment of
             objects not entrusted to the government.

E. Dormant Commerce Clause: **********


Action by the federal government is reviewed by the judiciary on 2 basis:
  1. Federal Government can only assert those powers specifically granted to them by the US Constitution
  2. Federal action cannot violate some specific check on Federal power, such as the Constitution.

  The early years were a dispute as to just how string a role the national governmetn should be allowed to play. In many cases
    there were disputes between the states and the federal government as both jockeyed for power.


1. SOURCES OF LEGISLATIVE POWER

                                     1
    A. McCulloch v. Maryland - p.65
        Facts: Maryland imposed a tax on banks not chartered by the state, the state brought suit to recover the tax.
        Holding: Maryland‟s tax on the US bank was unconstitutional. Congress had the power to lay and collect taxes and
          also regulate the commerce amongst the several states as per the Enumerated Clause. The Necessary and
          Proper Clause allowed Congress to create a bank to achieve these means of regulation.
        Rules:
            1. Congressional power derives from the Constitution and states have subordinate power.
                 • The federal Constitution and the laws made pursuant to it are supreme and control the constitutions and
                    the laws of the states and cannot be controlled by them. The power of the federal government emanated
                    from the people and not from the states.

             2. Grant of congressional power need not be specific, but may be implied.
                 a. The Constitution does not state everything. This would make the Constitution into a legal code. A result
                    of stating only specific powers is that Constitution can adapt to a changing society.
                 b. Necessary & Proper Clause: Particular powers could be implied from the explicit grant of other specific,
                    enumerated powers, such as the creation of a federal bank.

             3. Necessary & Proper Clause: The government has the implied power to use means reasonably related
                to those ends in achieving the goals of the enumerated powers in Article I §8.
                  a. no requirement that they must be “absolutely necessary,” only reasonable
                  b. Expanded Congressional power

             4. Modern Rule: Judicial Comity: The courts will not strike down a congressional action so long as Congress has
                employed a means that is:
                  i. not specifically prohibited by the Constitution; and
                  ii. rationally related to objectives that are themselved within constitutionally enumerated powers.

        Notes: The success of federalism depends upon maintaining the balance between the need for the supremacy and
          sovereignty of the federal government and the interest in maintaining independent state government and curtailing
          national intnusion into intrastate affairs. The U.S. federal structure allocates powers between the nation and the
          states by enumerating the powers delegated to the national government and acknowledging the retention by the
          states of the remainder. The Constitution expanded the enumerated national powers to remedy weaknesses of the
          Articles.




                                          Michael M. Wechsler
                                            Constitutional Law                                            31
2. THE NATIONAL COMMERCE POWER: The Commerce Clause: Article I §8 cl.3: Congress shall have the power “[t]o regulate
   Commerce with foreign nations, and among the several States, and with the Indian tribes.”

    Development of Basic Commerce Clause Concepts
    In the early stages of the US, the Articles of Confederation gave no power for Congress to regulate across the states the
       flow of commerce. This caused many internal and external problems for the states. There was no uniformity in dealing
       with foreign commerce, and worse, each state was levying tariiffs on each other. There was no way,however, for
       government to properly enforce the rulings, which is why the courts were reluctant to rule against the states. However,
       the governmetn realized the need to break down these barriers and create the “new” constitution. Article I §8 gave
       Congress the power to regulate commerce in an enumerated clause.


    a. Test for Commerce Power
        i. Substantially affects commerce (interstate)
        ii. Rational relation of Congress action towards the objective desired

    • Judicial Restraint: The court will rarely intervene, especially when the nature of the action is commercial
    • 10th Amendment Limitation: “The Powers not delegated to the US by the Constitution, nor prohibited by it to the states,
       are resevred to the strates.” This is a rare limitation and check on Congress extending itself too far, but today seems
       merely an altruism.
    • Carrot but not Stick: Affectation of a state is not improper for acts of Congress, but if the action prevents the state‟s
       lawmaking process - such as requiring the states to enact a legislative program, this is impermissible. The government
       may, however, gove incentives in terms of funding for implementation as incentive for the states to adopt a federal act.
       “You may use the carrot but not the stick.”




                                  2
    A. Gibbons v. Ogden - p. 73

        Facts: Ogden was granted a state monopoly for exclusive steamship charters between NY and NJ, and sought to
          enjoin a competitor.
        Holding: The monopoly was unconstitutional and interfered with Congress‟ federal licensing statute, right to regulate
          interstate commerce as per the Enumerated Clause. Supremacy Clause: Congressional law trumps the state.
          Congress has the plenary power, under the commerce clause, to regulate commerce within one state which
          affects other states.
        Rule:
             1. The Commerce Clause gives Congress plenary power to:
                 i. broadly regulate all kinds of interstate commerce, including navigation; and
                 ii. commerce within one state which affects other states.
                       • The Commerce Clause does not give Congress the power to regulate commerce within one state that
                          does not affect other states.
                       • No area of interstate commerce is specifically reserved for state control, although the states can
                          regulate intrastate for activites that may affect interstate commerce.

             2. Supremacy Clause: Article 6: State law that is inconsistent with a federal statute that is a proper
                exercise of a federal power will be trumped by the federal law. The state monoply conflicted with the
                federal statute. Eradication of state granted monopolies.

        Notes: Marshall‟s opinion was so broad that it was difficult to find powers under state control. Marshall's great
          opinion in Gibbons, by failing to clearly hold that Congress had exclusive power over interstate commerce, left
          unsettled the important question of whether the states, in the absence of federal regulation, retained any
          concurrent power.




                                          Michael M. Wechsler
                                            Constitutional Law                                               32
• Following cases deal with 2 types of federal legislation premised on the Commerce Clause:

  A. Economic Regulatory Laws
    1. Interstate Act
    2. Sherman Anti-Trust

  B. Police Power Regulations (direceted at moral and general welfare)

The USSC was not as generous to Congress after Gibbons.


    B. Insurance is considered commerce

         Paul v. Virginia - p.76
         Old View: Ruled that insurance is not an article of commerce, despite its interstate implications. Overruled in next
           case.

         US v. SouthEastern Underwriters:
         Modern View: Insurance contracts may be regulated by the federal government as interstate commerce. Insurance
          companies were violating the Sherman Anti-Trust Act bby collusion to fix high insurance rates, and Congress was
          given the power of authority through the Commerce Clause to regulate it and combat the problem.



II. EXTENDING THE REACH OF CONGRESSIONAL POWER


When an activity is “evil,” the Commerce Power is usually broadly construed to allow regulation.
   a. National economic problems dealt with by regulation of local aspecus that may be neither commerce nor among the
      several states such as labor relations or wages in local factories, or the quantity of a crop produced on a farm;
   b. Disfavored local activites such as gambling (The Lottery Case), prostitution, distribution of unhealthful foods, or harmful or
      improperly labeled drugs;
   c. Socially undesireable activities such as discrimination based on race, sex or age, and activities harmful to the environment.


A. US v. Knight [1895] - 10th amendment power

             1. Direct v. Indirect theory of affecting interstate commerce
                  • The fact that the refined sugar was eventually sold in commerce was irrelevant since the manu operation's
                     relation to commerce was only incidental and indirect. What was needed was a direct logical relationship
                     with commerce

             2. Overruled by modern test “substantial effect on interstate commerce”

             3. Regulation of manufacture was reserved to the states by the 10th a and hence beyond the commerce power

             4. This case did not deal with scope of federal power but rather question of state authority in the face of
                Dormant Commerce Clause

                                                                                 3
         B. Houston, East & West Texas Ry v. US (Shreveport Case) - p.81
             Facts: While the distance between Houston and Dallas and Shreveport, LA are the same, the cost was
               substantially higher to ship to and from points outside of Texas. The difference in rates charged was
               substantial and injuriously affected Shreveport commerce. The ICC wanted to regulate and freeze shipping
               prices as railraods were monopolies.
             Holding: Congress may regulates intrastate activity that affects interstate commerce so long as the intrastate
               activity substantially affects interstate commerce.

             Rules:
                 1. Congress has control over intrastate matters having such a close and substantial economic effect
                    to interstate commerce, that it is necessary or proper to exercise the control for the effective
                    government of that commerce.
                      • Under this theory, court looks at whether the practical economic effects of the activity upon ic were
                         quantitatively substantial
                      • Includes control essential to the security of interstate traffic, the efficiency of interstate service, and
                         the maintenance of conditions under which interstate commerce may be conducted fairly.



                                           Michael M. Wechsler
                                           Constitutional Law                                              33
                 2. Test: Does the intrastate activity have a quantitatively subtantial effect on interstate commerce?
                    As long as the ultimate objective is to protect interstate commerce from the substantial negative
                    effect it may be valid federal regulation.
                      • This case grants Congress the power to put an end to harmful competition between the several
                         states.
                                4
                 3. Swift v. US : Current of Commerce: Articles are considered in commerce if sent from one state with the
                    expectation that they will end their transit after purchase in another state.

                                                            5
        C. Champion v. Ames (The Lottery Case) - p. 78
            Facts: Champion was indicted for conspiracy to violate the Federal Lottery Act, prohibiting importing, mailing, or
              transporting from one state to another any lottery ticket. The indictment charged shipment by Wells Fargo
              Express of a box containing lottery tickets. Champion challenges the constitutionality of the Act.
            Holding: for the purpose of guarding the morals of the people and protecting interstate commerce, Congress
              prohibit the carrying of lottery tickets or other deleterious merchandise in interstate commerce.
            Rules:
                 1. Under the Commerce Power, Congress has the power to prohibit, as well as regulate, all interstate
                    movement or transportation.
                     • Rationale: The bar is not for mere transport, but prevention of use at destianation.

                 2. Congress may even regulate a “non-harmful” product that affects interstate commerce on an “evil
                    manner.” This incudes the ability to control/illegalize transport of stolen goods over state lines.

                 3. This case illustrates Congress‟ “indirect police power”
                     • Narcotics: Congress can regulate the flow of narcotics, or any other items of extrem danger such as
                        explosives. Congress cannot simply regulate things that are not harmful if not interstate commerce.
                        The question in this case is whether these lottery tickets that were on a train, would really be of any
                        danger to the passengers.
                     • Food: Government seized adulterated eggs after they had arrived in the state of destination to
                        prevent the harmful food from being consumed.


• Power to regulate over railroads: The Interstate Commerce Act of 1887 was the first time Congress decided to regulate interstate
   commerce. It needed to regulate the railriads, as they were the only forms of transport and they had tremendous economic
   clout. Congress felt a need to intervene because the railroad was a monopoly and chargedd unconscionable rates and was a
   Sherman Anti-Trust violation issue. Once Congress saw that the USSC would tolerate such acts, Congress began to tighten the
   reigns and pass more statutes.


III. REGULATION OF NATIONAL ECONOMIC PROBLEMS THROUGH THE COMMERCE POWER


    1. LIMITATIONS ON COMMERCE POWER PRIOR TO 1936

                                                                     6
        A. Hammer v. Dagenheart (The Child Labor Case) - p.82 - OVERRULED in Darby
            Facts: A congressional act prohibited the shipment in interstate commerce of the product of any mine or quarry
              which employed children under the age of 16. Can Congress pass a law that prohibits the shipment
              transportation of goods in interstate commerce when the evil is intrastate (unlike Lottery case where the
              goods shipped were the evil travelling interstate).
            Holding: Court struck down the act prohibiting excessive child labor regulation dealing with it through commerce.
            Rules:
                 • In those cases, the use of interstate commerce was necessary to the accomplishment of harmful results.
                    Regulation over commerce could only be accomplished by prohibiting the use of interstate commerce to
                    affect the evil intended. The goods, which travel in interstate commerce, are not the evil sought to be
                    remedied as in The Lottery Case. It was only the child labor that was evil. Overruled in US v. Darby.
                 • Congress has no power to require states to exercise their police powers to prevent possible unfair
                    competition.
                 • The making of goods and the mining of coal are not commerce, nor does the fact that these things are to
                    be afterwards shipped or used In interstate commerce make their production a part of such commerce.

                 • Dissent: Modern View: As long as the Congressiional regulation falls within a power specifically
                    goven to Congress from the Constitution, the fact that it effects a local activity should not render
                    the statute unconstitutional.



                                          Michael M. Wechsler
                                              Constitutional Law                                              34
                  • Example of early severe limitations of Congress due to the 10th Amendment, the powers reserved
                     to the states, to show that it is not merely an altruism.


    2. THE GREAT DEPRESSION YEARS


A. Carter v. Carter Coal - p. 86 - Step back to 10th Amendment power (overruled in Darby)
              Facts: The Bituminous Coal Conservation Act of 1935 inclded minimum wage and amaximim hour requirements
                for coal miners. The effect of wages and labor regulation of the coal industry affected the railraods as they
                used coal for engines.
              Holding: Employment\labor relatonships involving “production” of goods do not have a sufficiently direct effect
                on interstate commerce so as to fall within congressional authority.Production is purely a local activity and
                may not be rgulated in commerce even if the goods produced are eventually moved between states. The
                court instituted a “direct/indirect” test where Congress can only regulate the local activity if it directly affects
                interstate commerce.
              Rule: Overruled: The 10th Amendment is a significant bar to Congress to legislate local activities that affect
                national concerns unless they direclty cause that effect on interstate commerce.
              Dissent: Modern View: The degree of the effect of certain types of local actibity on interstate commerce
                should also be considered when determining the scope of commerce power granted to Congress.
                Overruled by Darby.


    3. MODERN PROGRESSION POST 1936:
        While the Carter case was labeled indirect, there were a number of problems with the decision:
              1. Unfair competitition to the states due to lower wages in one state
              2. Strikes would directly affect the price and this was happening on a constant basis. Coal was the most
                  important industry but low wages caused strikes which was the main reason coal was slow moving.
        The decision paralyzed Congress from dealing with a national problem and Holmes thought this was ridiculous.
          Roosevelt threatened a proposal to add judges to the USSC for every one over 70, and while never implemented,
          it lit the fire under the court and later gave Congress the power it needed to deal with national problems. The court
          was finally willing to follow J. Marshalls advice and interpret the Commerce Clause as a plenary power without first
          considering what subhect matters the justices would first like to reserve to the states.

         a. Modern View:
             a. The USSC interprets the Commerce Clause as a complete grant of plenary power.
             b. The old concepts of direct/indirect effect on commerce have been discarded.
             c. The court returned to J. Marshall‟s view that “Commerce amongst the several states” means affecting
                states that are greater than one or interstate commerce.
             d. Local activites that substantially affect interstate commerce are under Congressional control.
                  • The Broad Commerce Clause: This power permits Congress to attack an evil directlu at its source,
                     provided that the evil bears a substantial relationship to interstate commerce.
             e. Rational Basis Test: The court will defer to legislative wisdom if there is a rational basis upon which
                Congress could find a relation between its regulation and commerce.
                  • right to make labor laws
                   • right to organize in unions (Darby)
                  • Pharmaceutical regulation - even intrastate as rationally related to Congressional power.
                  • Racketeering and loan sharking (Perez)There is a presumption that it is linked to interstate commerce.

         b. Modern Rules:
             NLRB Rule: The federal government may regulate any activity, including single state activities if the
               activity bears a close and substantial relationship to or effect on interstate commerce.
             Necessary and Proper: Congress may regulate under a combined Commerce Clause and Necessary and
               Proper Clause analysis of intrastate activities which otherwise have no effect on commerce of the
               regulation is Necessary and Proper to the regulation of Interstate commerce.

                                                                                                   7
         A. NLRB v. Jones & Laughlin Steel - p. 90 (Substantial Economic Effect Theory)
             Facts: The National Labor Relations Board found that Jones & Laughlin Steel D had engaged in Unfair labor
               practices" and issued a cease and desist order to Jones & Laughlin to stop using discriminatory and coercive
               practices to prevent union organization at two steel plants in and around Pittsburgh. The company operated
               factories inseveral states and exports 75% of its goods out of state. Jones & Laughlin contended that the
               order was an unconstitutional exercise of the Board's authority since the plants were not engaged in interstate
               commerce, being totally manufacturing facilities.
             Holding: A work stoppage at the manufacturing portions of a large, integrated multistate corporation have a
               substantial affect on interstate commerce, and fall within the constitutional meaning of the term “activities


                                            Michael M. Wechsler
                                            Constitutional Law                                              35
               affecting commerce” so as to allow federal regulation under its Commerce Power; it may give power to an
               intermediate board/agency.
             Dissent: The opinion of disgruntled employees striking and affecting interstate commerce is only a remote and
               indirect effect on interstate commerce and not subject to federal regulation. Manufacture and production are
               purely local activities, even if the raw materials come from another state and the finished goods are shipped
               across state lines.
             Rules:
                  1. Under the Commerce Clause, Congress has the plenary power to regulate any activity, even
                     intrastate production, if the activity has an “substantial economic effect” on interstate commerce -
                     even if it is regulating an intrastate activity.

                  2. The test is on the effect on interstate commerce, not the source of the interference.

                  3. 10th Amendment limitation rejected: There is no practical distinction between manufacturing and the
                     in commerce theories if they both will have a substantial effect on interstate commerce.

                  4. Goods do not have to be in the current of commerce: Unlike the theory in Swift, it is irrelevant whether
                     the activity being regulated occurs before, during, or after the interstate monement, so long as there is a
                     substantial economic effect upon interstate commerce due to the activity.


B. Wickard v. Filburn - p.99 (Cumulative Effect Theory)
            Facts: A federal marketing quota limited the amount of wheat that individual rmers were allowed to raise
               because prices had dropped so low due to the depression, combined with a production surplus. the quota
               went further to limit the amount of wheat which would be consumed on that farmer‟s very own farm. In effect,
               the farmer would have to buy wheat for his own cosumption that was excess. D claimed that the small excess
               that he took was indirect and insubstantial to the whole, and therefore not under the power granted to
               Congress in the Commerce Clause.
            Holding: Since so many of farmers would commit this “insubstantial” excess, the result would be a substantial
               effect on the price of wheat. P‟s own effect on the matket by his decision to consime wheat grown himself
               might be trivial. But taken together with that of many others similatly situated, is far from tricial. Home grown
               wheat competes with wheat in commerce, and the regulation of homegrown wheat is reasonably related to
               protecting that commerce.
            Rule:
                  1. Cumulative Effect Theory / Regulation of a Class: Even when the indivdual‟s effect on interstate
                     commerce is minute and indirect, as long as when taken together with those similarly situated “as
                     a class,” there is a substantial effect on interstate commerce, Congress has the power of
                     regulation through the Commerce Clause and may do that which is reasonably related to
                     protecting that commerce.

                 2. Wickard analysis: case by case: We view the regulated‟s acts in relation to the whole as its
                    cumulative effect.
                      i. If the activities of the whole have a substantial effect on interstate commerce, Congress has
                          power to regulate that activity.
                      ii. The regulation must have a rational basis to the goal for it to be valid. Even though the rest
                          area was small and the value of food it bought from out of state had an insignificant effect on
                          interstate commerce, the conduct in the aggregate clearly had an effect on interstate
                          commerce.
             Notes: The court will not likely revert to the Hammer position.

                               8
         C. US v. Darby - p.94 - Overrules Hammer: Products of labor violations under Commerce Power

             Rule: Overrules Hammer.
                 1. Congress has the power to regulate wage/labor conditions: the hours and wages of workers who are
                    engaged in the production of goods destined for Interstate commerce and can prohibit the shipment in
                    interstate commerce of goods manufactured In violation of the wage and hour provisions.

                  2. Congress has the power to exclude articles, produced locally, from commerce when their use is
                     destined to be interstate, and its use perceived to be injurious to the public health, morals, or
                     welfare.

                  3. The 10th Amendment not a limitation to Commerce Power: 10th Amendment no longer an
                     independant limitation on Congressional authority over interstate commerce, and is almost a truism.




                                           Michael M. Wechsler
                                              Constitutional Law                                                36
                  4. Congressional motive irrelevant: Congress is limited only by any specific check on its power and
                     Congressional motivefor its action is irrelevant so long as the activity is affecting interstate commerce.
                     Motive may be relevant if it affects a fundamental right (Lopez)

                  5. Reasonable menas to achieve objective: Congress may impose direct prhobitions and limitations on
                     interstate commerce, and may choose the means reasonably adapted to the attainment of the permitted
                     end, even though they may involve control of intrastate activities. Criminalizing certain employer conduct
                     was a reasonable control though implementing the prohibition of interstate shipments of such goods
                     produced under the substandarad conditions.

                       i. Protection of commerce from unfair state competition: from competition by goods made under
                           substandard labor conditions (we cannot allow one state to have an unfair advantage due to the fact
                           that it saves money by not complying with safety standards).
                       ii. Bootstrapping - On its face, congress may attack any problem [including ones of local concern] by
                           prohibiting all interstate activity associated in any way with it. Then they would implement another
                           ban on local activity could be prohibited as a means of implementing the ban on interstate
                           transactions. Congress would not even have to justify the relationship of the national economic
                           problem with the regulated local activity.
                       iii. Under Darby, prohibition sanctions on interstate commerce are self-validating and do not require
                           any independent nexus to national commercial problems.

              Facts: Darby D was a manufacturer of finished lumber, and a large part was shipped in interstate commerce.
                 The purpose of the Fair Labor Standards Act was to prevent the shipment in interstate commerce of certain
                 products produced under substandard labor conditions, and punished the shipper of shipment in interstate
                 commerce of goods produced in violation.
              Holding: Congress has the power under the Commerce Power to
                    (a) prohibit shipment in interstate commerce of goods produced in violation of the wage/ hour provisions of
                      the Labor Standards Act and the power to
                    (b) prohibit employment of workers involved in the production of goods for interstate shipment in violation of
                      the wage/hour provisions of the Labor Standards Act.
              • Both prohibitions are a constitutional exercise of Congress' commerce power. Although manufacturing itself is
                 not interstate commerce, the shipment of goods across state lines is interstate commerce and the prohibition
                 of such shipment is a regulation of commerce. Congress has plenary power to exclude from interstate
                 commerce any article which it detemmines to be injurious to public welfare, subject only to the specific
                 prohibitions of the Constitution.
              • Congress has detemmined that the employment of workers in substandard conditions is a form of unfair
                 competition injurious to interstate commerce, since the goods so produced will be lower priced than the goods
                 produced under adequate conditions.
              Notes: This case overruled the earlier case of Hammer v. Dagenhart, which held unconstitutional an attempt by
                 Congress to exclude articles made by child labor from interstate commerce.


• Control over transactions being related to intangibles

  1. Insurance: US v. South-Eastern Underwriters: Insurance is regulatable by Congress as it is a national activity.Insurance
     contracts, while local in nature, have interstate effects and are sold nationally; therefore it is logical to say that these contracts
     are regulatable by Congress under the Commerce Clause.
  2. Public Utilities & Holding Companies: North America v. SEC: The Broad Commerce Clause: This power permits
     Congress to attack an evil directly at its source, provided that the evil bears a substantial relationship to interstate
     commerce.The centralized mangement is a method that affects the operations in other areas and states, and all is controlled
     by stock ownership.




                                             Michael M. Wechsler
                                             Constitutional Law                                                37
B. REGULATION OF POLICE PROBLEMS THROUGH THE COMMERCE POWER

The commerce power offers an independent basis for the enactment of federal criminal laws

  A. The tests are identical to those used to analyze the validity of any federal regulation under the commerce power.
  B. To be a proper subject for a commerce-based statute, an activity must :

    1. rational basis and linked to interstate transactions; or
    2. have a substantial effect on interstate commerce; or
    3. be an activity which is necessary & proper to regulate in order to effectuate the commerce power

  Rational Basis Test: The court will defer to legislative wisdom if there is a rational basis upon which Congress could find a
    relation between its regulation and commerce. The court applied this to policing activities as well.
      • Pharmaceutical regulation - even intrastate as rationally related to Congressional power.
      • Racketeering and loan sharking (Perez)There is a presumption that it is linked to interstate commerce.
      • Shipment of gambling devices
                        9
        A. Perez v. US - p. 106
            Rule:
                1. There is a presumption that a local activity will have an effect on interstate commerce, but that
                   becomes an irebuttable presumption if Congress can show a rational relation of the activity to its
                   affecting interstate commerce. This case extended the Commerce Clause powers to certain criminal
                   statutes.

                  2. Wickard analysis: The loan shark is a member of a class, that taken together, affect interstate
                     commerce

                  3. Statutory interpretation
                       1. USSC will uphold the Constitution of a criminal statute affecting local activities if congress shows a
                          clear intent but the more local is the activity the more likely the court will conclude that congress did
                          not intend to reach those activities
                       2. Congress will not be presumed to have pushed its powers to their outer Constitution limits unless it
                          has manifested a clear intent to do so.

             Facts: Perez was convicted of loansharking pursuant to Title II of the Consumer Credit Protection Act tha made
               it a federal crme to loan shark.
             Holding: A class of intrasate activities that may likley affect interstate commerce, may be properly regulated by
               Congress without proof that the particular activity against which a sanction was laid had an effect on interstate
               commerce. • It was rational for Congress to conclude that interstate activity affected interstate commerce by
               financing criminal organizations operating in other states.
             Dissent: There is no discernible difference between loansharking and other crimes. All classes of criminal
               activitry may affect interstate commerce, but what must be judged is the individual activity with which the D is
               charged.




                                            Michael M. Wechsler
                                           Constitutional Law                                              38
V. PROTECTION OF OTHER INTERESTS THROUGH THE COMMERCE CLAUSE


1. CIVIL RIGHTS LEGISLATURE USING THE COMMERCE POWER


    A. ******Argument against the use of the Commerce Power rather than the 14th Amendment for Civil Rights
         i. ****** 14th Amendment is less of a stretch than using the Commerce Clause for regulation of Civil Rights.
The court must defer to a congressinal finding that a regulated activity affects interstate commerce if there is any rational
  basis for such a finding.


                                                                10
            a.Heart of Atlanta Motel v. United States - p.108
                Rules:
                1. The power of Congress to promote interstate commerce also includes the power to regulate the
                   local incidents, including local activities in both the states of origin and destination, which might
                   have a substantial and harmful effect upon interstate commerce.

                     i. No commercial/non-commercial distinction: The commerce clause embraces all transportation
                        whether or not commercial in character. The fact that Congress was legislating against a moral
                        problem does not make Title 11 less valid as long as it affects interstate commerce..

                 2. Motive Irrelevant: So long as the action affects interstate commerce, an act of Congress will be held as
                    valid even if the act is for moral purposes, and may be regulated by Congress under the Commerce
                    Clause.


                 3. Court use of a plenary power such as the Commerce Power, the test is:
                     i. Whether Congress had a rational basis for finding that racial discrimination by motels
                         affectred commerce; and
                     ii. if it had such basis, whether the means selected to eliminate that evil are reasonable and
                         appropriate.

                 Facts: Hotel discriminated against blacks and would not give them lodging. 75% of occupancy was from out
                   of state guests, much advertising. Government passed §201(a) of Civil Rights Law, which disalowed
                   dicrimination for accomodations of equal enjoyment of reqources of places of public accomodation. Does
                   Congress have the power to create such an act?
                 Holding: Congress, through its commerce power, may prohibit racial discrimination by motels serving
                   travelers, regardless of how "local" their operations may appear so long as there issome effect on
                   interstate commerce. desite the D claims of deprivation of liberty and property under the 5th and 14th
                   Amendment, the court recognized Congress' argument that the discrimination discouraged travel by
                   blacks as they could not find lodging. Black people are a part of Interstate Commerce, and this gave
                   Congress the power to pass the act.
                      •The Act does not deprive the Motel of liberty or property, and thus a taking, under the 5th amendment.
                         Congress had a rational basis for finding that racial discrimination by motels affected commerce.
                 Notes:
                      • Discrimination by private persons is not a claim of equal protection clause because there is no state
                         of federal action *****(is it state of state and federal). Without a state action, the “machine” is not
                         plugged in.
                      • What the states cannot do is deny equal protecton of the law, or deny due process. There are 2
                         components - the Due Process clause is in the 5th Amendment for fedral government, and the 14th
                         Amendment adds this to the states, that they cannot deny equal protection of the laws.
                      • Darby argument that Congressional motive is irrelevant.

                     • Maryland v. Wirtz - While Congress has in some instances left to the courts or to administrative
                       agencies the task of determining whether commerce is affected in a particular instance, Congress
                       has the power to declare that an entire class of activities affects commerce. This is a Wickard issue,
                       and Congress has the right to regulate purely local activities as long as there is a substantial effect
                       on interstate commerce, even as a class of similarly situtated persons. The only question for the
                       courts is then whether the class is 'within the reach of the federal power.' As long as the action,
                       affects interstate commerce it may be regulated by Congress under the Commerce Clause.


            b. Katzenbach v. McClung - p.110 - Ollie‟s BBQ - (Tremendous extension of reach of congress to intrastate
              activities)
                Rule:

                                          Michael M. Wechsler
                                   Constitutional Law                                             39
             1. Rational basis presumption: Merely because Congress does not show actual proof that the
                act affects interstate commerce, so long as there is a rational basis between the regulatory
                scheme and Congress‟ objective, a statute will be presumed valid and the courts must defer
                to congressional judgment.

             2. Wickard analysis: case by case: We view the regulated‟s acts in relation to the whole.
                 i. If the activities of the whole have a substantial effect on interstate commerce, Congress
                        has power to regulate that activity.
                 ii. The regulation must have a rational basis to the goal for it to be valid. Even though the rest
                        area was small and the value of food it bought from out of state had an insignificant effect on
                        interstate commerce, the conduct in the aggregate clearly had an effect on interstate
                        commerce.

         Facts: P operated in a restaurant 11 blocks from an interstate highway. It would serve blacks only for take
            out. 50% of the meat purchased by the restaurant was form out of state.
               • There was no evidence that the restaurant served interstate customers.
               •P claimed that if it were required to serve blacks, it would lose a substantial amount of business.
         Issue: Whether congress had a rational basis for finding a chosen regulatory scheme necessary for the
            protection of interstate commerce.
         Holding: Wickard analysis, that other restaurants, similar to Ollies that discriminated, decreased spending
            in reference to interstate commerce by blacks. It arises from unavailability of accomodations, both
            sleeping, eating and other, which dissuaded blacks from traveling interstate and contributing.
         Concurrence: Civil Rights legislature may also be asserted under the 5th and 14th Amendment. ********
         • The means it selected to eliminate that evil are reasonable and appropriate, and taking away the right to
            profit by discrimination is not a taking.
         • Unsure as to how Lopez would affect this case, but at the very least, there is a notion of commecial activity
            which it would be likely to fall under Congressional legislative capacity.

    c. Hodel v. Virginia and Hodel v. Indiana - p.114
        Rule:
            1. The court must defer to a congressinal finding that a regulated activity affects interstate
               commerce if there is any rational basis for such a finding; legislative wisdom is inferred in
               rational Congressional findings.

             2. “If interstate commerce feels the punch, it does not matter how hard the squeeze.” (so long
                as the connection is rational)

         Facts: Congress made the Surface Mining Act which required those who mined to restore the lands, even
           those operations purely interstate. No mention of severe effect on interstate commerce.
         Holding: The Act is valid as there is a rational connection to its affect on interstate commerce, and therefore
           the court must defer judgment to legislative wisdom. If surface mining is not regulated, then agricultural
           land will disappear and the nation will have no food. This was even upheld in a case where there was little
           current evidence of repercussions on any significant portions of the nation‟s agricultural farmlands.

               11
d. US v. Lopez - supp. p.4 - Retreat to police power reserved to the state
    Rules:
         1. There must be practically some commercial activity involved
             • If non-commercial activity, then it tere must be some obvious connection to interstate commerce or it
                will be struck down.

         2. Intrastate regulation will extend as far as Wickard: Congress may regulate against a class of
            individuals whose intrastate activities affect interstate commerce, but not much further.
                   i. Likely upheld if connection to interstate commerce: A statute is more likely to be upheld that
                        regulates an item that either moved or moves in interstate commerce at some point in its life,
                        or an item that deals with interstate commerce.
                   ii. Congressional actions that are not likely to be upheld are those which may pertain to outright
                        bans of items with no reference to whether they ever traveled in interstate commerce;
                        prohobition of awards in personal injury cases for any injury; criminalizing federally those
                        harassing anone visiting an abortion clinic; federal law of divorce as it affects their finances
                        and other agreements; federal educational cirriculum as it pertaisn to US education v. those of
                        other countries and affects commerce; there is no sufficient connection to interstate
                        commerce, and this is left to the states.

         3. Substantially affecting interstate commerce, not merely incidental.



                                  Michael M. Wechsler
                                           Constitutional Law                                              40
                     a. Channels of Interstate Commerce: Congress may regulate those items that travel ot are related to
                        interstate commerce, even interstate activities.
                     b. Instrumentaltities of Interstate Commerce: Congress may regulate those items that are part of
                        use in interstate sommerce even though the paarticular item in question is not - e.g. requirements on
                        trucks for federal permits.

            Facts: Congress made it a federal crime for any individual to knowingly possess a firearm at a place that the
              indicidual knows, or has reasonable cause to believe, is a school zone.
            Holding: USSC struck down the statute because it had very little connection to interstate commerce - you can
              create virtually any connection to interstate commerce and bootstrap all intrastate activities to being under the
              Commerce Power. There was also no jurisdictional nexus where Congress regulates against those items that
              moved in, or otherwise affected, interstate commerce. This was beyond what Congress did with Civil Rights
              acts and the connection of restaurants to interstate commerce. Here the gunmovements were not of
              commercial nature.
            Notes: Congress could prohibit the shipping and purchasing of a gun, but not mere posession as there is not a
              sufficient nexus to commercial nature of interstate commerce.
                • Note that this case like ****** also questions just how far the door will swing oopen for Congress to
                   legislate on these issues of local police power and justifiy their intervention through the Commerce
                   Clause.


Analyzing Exam Questions

   1. Enumerated Power: Does the congressional statute fall within an enumerated power?

       a. Check Article I §8
       b. Look at the Commerce Clause first as it encompasses a broader variety of congressional action than any other
          enumerated power.

   2. Court Analysis:
       i. The court takes a dererential view on the issue of wheher a particular action falls within the commerce power. So
          long as a regulated activity substantially affects interstate commerce, the regulation will be found to fall
          within the commerce power.

            a.Intrastate activity - use the Wickard analysis:

                • The court examines the activities of all of those similarly situated are analyzed as a class, as to whether
                   their actions as a whole have substantial affect on interstate commerce.
                • Congress may ban interstate activity to deal with local problems (quasi police power)
                • Non-commercial activities: While motive may not be all important, Lopez has recently put a check on the
                   expanded congressional power in the previous enaction of civil Rights statutes, and requires commercial
                   activity to fall under congressional regulation. If there is no substantial effect on interstate commerce and
                   the activity is not commercial in nature, it may be beyond Congress‟ ability to legislate as per Lopez.
                • However, a juisdictional hook will validate a statute - one that prohibits the activity or its passage in
                   interstate commerce.

       ii. Congress regulating the states - the 10th Amendment is a weak limitation on congressional Commerce
           Power.

            • So long as there is a rational relation and basis to the objective of Congress and its action, the court
               will usually defer to congress‟ legislative wisdom and not question the act of Congress.
            • Congress may not compel the states to enact a regulation - “the federal government may use the carrot,
               but not the stick.”




                                         Michael M. Wechsler
                                            Constitutional Law                                              41
3. THE TAX AND SPEND POWER


A. REGULATION THROUGH TAXING


    • The court will not allow Congress to legislate where it is not within their power where their motive and action is disguised
       by some other action. Congress wanted to get around Hammer, where the court struck down child labor laws.
       Therefore, Congress tried to regulate child labor by taxing it.
    • Modern view: Most tax laws are valid and not disguises, but if the tax is a penalty for another action, not for Congress‟
       defined objective, it may be struck down.

    1. Article I §8 grants Congress the power “to lay and collect taxes, duties, imposts and axcises, to pay the debts
       and provide for the common defense and general welfare of the United States.”


        A. The courts will simply not allow Congress to accomplish its motives by using the tax power as a disguised penalty
          on citizens that act contrary to what congress wants to accomplish, but could not accomplish by other means.

             • Taxes may not be imposed as a penalty for one‟s departure from a detailed and specified course of conduct.
             • Excise taxes may not be unduly burdensome so as to discouraged the taxed activity.


        B. Power to spend is coupled with the power to tax


    2. General Welfare

        A. Madison view: “power to provide for the welfare” to be read in reference to the enumerated powers. Power to
          spend is confined to the enumerated powers.

        B. Hamiliton view: power to spend is not limited by enumerated powers

        C. The view that the clause grants power to provide for the general welfare, independently of the taxing power has
          never been accepted; this means that congress can regulate and spend. *********


B. REGULATION THROUGH SPENDING

Congress may tax or spendas per the enumerated power to do so, so long as the purpose is for the general welfare.


    1. US v. Butler - p.116 - Overruled by Steward
        Rule:
             1. USSC rejected the contention that congress had an independent power to provide for the general welfare
                apart from the power to tax and spend. Congress may not regulate in a particular area merely on the ground
                that it is thereby providing for the “general welfare,” only that the taxing and spending is done for the genral
                wefare and not some provate organization. Overruled as the ability for Congress to tax and spend is not
                limited just to the enumerated powers, only that the taxing and spending is done for the general
                welfare. ***********

             2. Congress is expressly empowered witht he ability to tax and spend for the general welfare.

        Facts: Congress enacted the Agricultural Adjustment Act of 1933, to raise farm prices by cutting back on agricultural
          production. The Act authorized the Secretary of Agriculture to make contracts with farmers to reduce production
          acreage in exchange for benefit payments. A processing tax on producing farmers was imposed in order to
          finance this action. The regulation of local productivity was ostensibly left ot the states, so Congress tried to
          bypass this by taxing for “the general welfare.”
        Holding:
             • The act invades reserved rights reserved to the states as per 10th Amendment. Accomplishment of an
                unpermitted end may not be accomplished under the pretext of the exertion of powers which are
                granted.Congress may not use taxing to regulate areas that are traditionally in local control and left to the
                states, under the guise of “providing for the general welfare through.” The court felt that congress could not
                make these contracts with the farmers to purchase compliance with its goals and tax others for doing so.
             • The government further argues that whatever might be said against the validity of the plan if compulsory, it is
                Constitutionally sound because the end is accomplished by voluntary compliance. USSC rejected this view.


                                           Michael M. Wechsler
                                     Constitutional Law                                             42
      that compliance was not voluntary but really coercion that the amount offered was sufficient to pressure the
      farmer to comply. If the farmer did not accept he would receive less for his crops.
    • Conditional appropriations unconstitutional as no binding effect: The court distinguished the act from a
      conditional appropriation of money, which would be valid. What was invalid about the act was the fact that the
      farmer contractually binds himself to obey the regulation. The use of contracts in this way would tend to nullify
      all constituional limitations upon the legislative power. The government could therefor contract itself around
      the constitution. Overruled in Steward.
Dissent: The tax is for the general welfare - the country is in a state of great depression and this regulation is
  necessary to keep the economy afloat. This is more the modern view, and the prsident was worried that the USSC
  would not let Congress extend itself to regulate cimmerce at a time when the nation was in dire economical straits.

                               12
2. Steward Machine v. Davis - p. 119 - “Congress may use the carrot but not the stick”
     Rule:
         1. Congress may use the spending power to induce incentives (carrot but not the stick). Congress
            now had a broad definition of the spending power.

         2. Congress may tax and spend for the general welfare, but may not merely regulate for the general
            welfare. Therefore the congressional regulatory scheme must be related to some other power.
            ***************

         3. If states accept the federal monies (take the King‟s schilling), they must accept any federal strings
            which come attached to that money. 10th Amendment limits are almost a truism.4
          (The state chose to participate in the federal program and as a condition of receiving the grant, freely gave
            its assurances that it would abide by the program's conditions)

         4. A federal unemployment insurance tax statute which provides for credit for contributions made to state
            unemployment funds is valid since:

              a. Congress enacted it primarily to safeguard its own treasury;
              b. the proceeds of the tax are not earmarked for a special group but go into the general treasury
              c. for the general welfare of the country which the stae can cooperate with.

Facts: The Social Security Act imposes an excise tax on employers of eight or more based on the wages paid. The
  proceeds go into the general treasury. However if a taxpayer has made contributions to a state unemployment
  fund, such contributions can be credited against the federal tax, provided that the state law has been certified by
  satisfying certain minimum criteria. During the depression of the 30s, the states were unable to give the requisite
  relief to the needy. P Steward Machine Co. paid a tax. State was trying to induce states to set up their own
  unemployment programs.
Holding:
    • Purpose is justified and is for the general welfare of the states
      • Unlike the tax in Butler, the proceeds from the federal unemployment tax are not earmarked for a special
        group but go into the general treasury.
    • The condition is not linked to an irrevocable agreement. The state may choose to repeal its unemployment law,
        thereby temminating the credit; further, the credit condition is not directed to achieve an unlawful end but an
        end, the relief of unemployment, for which the nation and states may lawfully cooperate.
    • The statute does not call for a surrender by the states of powers essential to their quasi-sovereign existence,
        inderogation of the 10th Amendment. The condition requiring that the state laws meet the Social Security
        Board's criteria is suitable to assure that those who look to the laws for protection receive that protection.
    • Congress may use the carrot philosophy. Here the federal government saw the need for the unemployment
        fund and therefore created one for all the people, and gave credit to the states that joined in the act. The court
        held as per the dissent in Butler, that the “coercion” argument was not coercion - e.g. enact an unemployment
        plan or face the consequences - they participated voluntarily.




                                    Michael M. Wechsler
                                              Constitutional Law                                              43
C. 10TH AMENDMENT LIMITS ON CONGRESS‟ POWER

• For a long stretch of time after Carter, the USSC did not invalidate a single federal statute on grounds that it violated state or
   local government sovreignity. This led most to believe that the 10th Amendment was a mere altruism.



    1. Maryland v. Wirtz- 1968

         A. Court upheld wage requirement to state ee

         B. There was no exemption in the Constitution. The federal govt could act to achieve the proper goals of its
           enumerated powers in a manner that might overrule important state interests


    2. National League of Cities- 1976 surprise from court

         Holding: Court held that the 10th Amendment barred Congress from making federal minimum wage and overtime
           rules [FLSA] applicable to state and municipal employees. The court struck down the statute as affecting an area
           that is affecting a “traditional state function” - e.g a plice station ad fire station are.

              • Congress may not exercise power in a fashion that impairs the state's integrity or their ability to function
                 effectively. The act was valid for private employers, and just affected state employees,
              • Compliance would have cost the states and muni subdivisions substantial sums, and the rule would strip
                 states of discretion to decide how they wished to allocate a fixed pool of funds available for salaries
              • The court did not disturb basic Commerce Clause analysis in any respect, only the court was not holding that
                 wages and hours of state employees were not commerce nor that they did not effect commerce. It was just
                 immunizing state from such regulation

         Epilogue: In no USSC case after NLC did the court rule that a federal law could not be applied to state
           because Constitution it interfered with autonomy


                                                       13
    4. Garcia v. San Antonio Metropolitan Transit - p. 135 - The 10th Amendment as a limit to Congress‟ Power - 5-4
       - ruled that the 10th Amendment is not really a bar to Congress.

         Rules:
             • This case deals with Congressional regulation of the state in the capacity of an employer, not as the
                state as the unit of government. It stands for the fact that USSC says 10th Amendment is not a bar
                brcause the states and cities are treated equally in the private sector.
             • Obliterated distinctions of “traditional state functions”

              1. If Congress has a Commerce Clause right then the 10th Amendment is not a bar.

                  a. If the federal regulation is valid as applied to a private party it is also valid as to the state. Garcia
                     appears to mean that once congress regulates states, the fact that it is a state being regulated has no
                     significance. the barriers towards Congressional power are those that lconstitutionally that are not related
                     to state limitations.

              2. Sufficient restraints on the exercise of the commerce power to protect the states' sovereign interests
                 are provided by procedural safeguards inherent in the structure of the federal system established by
                 the Constitution and should not be provided by judicially created limitations on federal power.

                  a. Therefore anytime a state argues that these items are limits of Congress and reserved to the states, the
                     matter is outside the scope of judicial review unless there is a constitutional question on other grounds.
                  • States have exclusive controls over electoral qualifications for its 2 state senators for Congress and their
                     representation in Congress shows the states have retained power.
                  • There are sufficient checks on Congress for federal regulatins that affect local and state government, as
                     every congressman is elected by some state and election control is general power of the state, which
                     gives the states fair representation in Congress.
                  • The mass transit system is federally funded by the federal government with tremendous amounts of
                     money, and Congress‟ donationprevents the risk of having their functions handicapped by Congress.
                     This provided an additional balance, even though Cogress could have

         Facts: Garcia P appealed from a decision holding that National League of Cities barred the application of the FLSA
           (minimum wage act) to SAMTA D, a municipally owned and operated mass transit system, on the grounds that


                                            Michael M. Wechsler
                                        Constitutional Law                                              44
      application in the present case would trench on a “traditional governmental function" as per the Hodel/NLC test to
      determine if it is an unconstituitional invasion of Congress on state rights. Is this Act barred by the 10th
      amendment and a power left to the states?

    Holding: There is no workable standard to provide us with an answer as to what is a specific power left ot the states,
      and determination is impracticable.
        • There are still safeguards inherent in the structure of the federal system against federal legislature which
           impairs state sovereignity.
             1. state voters elect senators
             2. state has role in pres elect by means of electoral college

    Dissent: The majority made 10th Ammendment limitation meaningless, and a mere altruism.
        1. Today's decision effectively reduces the tenth amendment to meaningless rhetoric, an “atruism,”
           when Congress acts pursuant to the commerce clause, and it ignores the use of the familiar balancing test in
           detemmining the existence of a commerce clause transgression. It also ignores reality in holding that the
           states' role in electing the President and congressional members will protect states' interests. The opinion
           stands the tenth amendment delegation of power to the states on its head and appears to relegate the states
           to the trivial role that opponents of the Constitution feared they would occupy. Intra-city mass transit is a type
           of service local governments traditionally provide. The state interest in regulating labor conditions is
           compelling. This is just the type of situation that should be immune from federal legislation regulation.
        2. NLC had a workable standard while Garcia does not
        3. Federal structure does not protect state sovereignity. The Court today retreats from its constitutionally
           mandated duty of reconciling the dual concerns for federalism and an effective commerce power. State
           autonomy is a relevant factor in assessing the means by which Congress may exercise the commerce power,
           and it requires the Court to enforce affirmative limits on federal regulation of the states to complement the
           judicially crafted expansion of the commerce power. It seems that Grcia says that once it is within Commerce
           Power, the states have no power.
              • Could Congress change a state captital if it decided that its location affected interstate commerce?


5. New York v. United States - p. 12
    Rule: Congress may not compel states to enact and enforce federal regulatory programs. States are not mere
       subdivisions of the US. Congress has the power to encourage the states to provide for the disposal of the
       radioactive waste generated withi their borders, but the Constitution does not confer upon congress the
       power to compel the state to do so.
    • Congress cannot force thse states to wear the albatross and cannot have it both ways, by forcing a state to act and
       take no political responsibility. No “heads I win tails you loe” legislature upon the state.

    Facts: Congress tried to force the states to adopt radioactive waste disposal programs. Federal Act states that the
      states must make its own arrangements for disposition of low level radioactive waste generated in its own state by
      1996 - it put a gun to the state‟s head. It may provide either in state or out of state disposal, may make pacts with
      other states, and Congress gave the states three incentives to do so:
        i. Participating states would receive federal funds
        ii. States that did not wnact some disposal program would be denied access to disposal sites in states that
            enacted the plan by 1996, pay double at sites if not by 1990.
        iii. States that did not make a program by 1996, would take title automatically of the waste upon request by the
            in state genrator, and would be liable for any ensuing damage.
    New york ahd difficult time with suits by citizens against state in areas that NY wanted to dispose of the waste, and
      NY sued that the Act was unconstitutional.

    Holding: Violation of 10th Amendment. Congress has not held out the threat of exercising its spending power or its
      commerce power; it has instead held out the threat, should the states not regulate according to one federal
      instruction , of simply forcing the states to submit to another federal instruction. A choice between 2
      unconstituionally coercive regulatory legislature techniques is no choice at all.
        • Option i was valid and congress can always use incentives - the carrot but not the stick.
        • Option ii was valid as denial of access to out of state disposal facilities is within the power of Congress to
           regulate interstate commerce.
        • Option iii was unconstitutional

        ---> Garcia does NOT apply here - Garcia applies to where Congress passes a generally applicable federal
           lawmaking act and regulated the state as all other provate parties and employers - all are included. The 10th
           Amendment does not entitle the stated to an exekption merely because it is a state that is being regulated.
           Only when the federal government tries to force the states to anact or adot legislation or regulation, and it is
           directed at the states and not part of an overall regulatory scheme, wil the 10th Amendment be a bar. This is
           aimed directly at the states, not in employment capacity, as in Garcia it was on the state as an emplyer..

    Dissent: Everyone is passing the buck, and if the court does not allow Congress to force NY to take care of its own
      waste, some other state will be forced to take the waste and its sovreignity wil be impinged.

                                      Michael M. Wechsler
                                       Constitutional Law                                              45
    Notes: Options of regulation:
        • Spending Power as incentive: Congress can withhold federal funding that has something to do with the
           problem (e.g. not Medicaid) until the state takes care of its problem.
        • Threat of regulation: Congress could prohibit the shipment of waste accross state lines and thereby force the
           states to deal with their own problems.
        • Congress, by careful use of its enumerated powers, san achieve practically any regulatory end without running
           afoul of the 10th Amendment.


US Term Limits v. Thornton - p. 21

    Rule: The states cannot change requirements for candidates for office except minimal time manner and
      place restrictions that are not biased to a particular candidate. Electoral requirements are spelled out in
      the Constitution and may only be amended, not legislated.
    Facts: Arkansas claimed a “ballot access limit” that uou were limited to 2 terms as senator and 3 for the house as
      they didn‟t want a “monopoly” of incumbemnts and wanted to make it more “fair” for opposing candidates. Article I
      §2 and §3 spell out the requirements of age, citizenship, residency in the state.
    Issue: Can the Arkansas add to the State Constitution an addendum that prohibits the name of an otherwise eligible
      candidate for Congress from appearing on the general slection ballot if that candidate has already served three
      terms in the House of Representatitves or two terms in the Senate?
    Holding: The term limit requirement of Arkansas is unconstitutional ans the fundamental principale of our
      representative democracy is that the pwople should choose whom theu please to govern them. (Powell v.
      McCormack). Aarticle I §10 spells out the enumerated powers of Congress, and says that only remaining powers
      are reserved to the sates. The states have no ower in this area, as they don‟t in international treaties.

        1. If Congress cannot add to qualifications for candidacy for Congress, obviously, neither can the states (as per
           RI case wherer there was a land ownership requirement to run for office). Not every power is specifically
           written down in stone, but as in Powell, the individual who is elected by the people has the constitutional right
           to represent them. If you meet the threee qualifications set forth in Article I, you are not able to be excluded
           from Congress on other grounds.
        2. Arkansas tried to use a second constitutional provision: The state has the right to manage tine and place of
           elections, but this was not completley unbviased. To make a candidate a write in is akin to giving him the
           death blow before the election, as that is not apt to happen and is a tremendous bias agains the candidate.




                                      Michael M. Wechsler
                                               Constitutional Law                                              46
DISTRIBUTION OF FEDERAL POWERS : SEPERATION OF POWERS



SECTION 1. PRESIDENTIAL ACTION AFFECTING CONGRESSIONAL POWERS



                                           Powers Delegated to the Branches of Government

   Executive - President - Articel II §2                             Legislative - Congress - Article I - §8

     1. Carry out the laws (not make them)                                1. Fiscal
     2. Appointments of fedral executive officers, USSC judges,           2. Bankruptcy
          cabinet, with advice and consent of the Senate                  3. Eminent Domain
     3. Commander in Chief of the Armed Forces (he can                    4. Taxation
          commit troops but not declare war or limit freedom of           5. Aliens and Naturalization
          speech)                                                         6. Interstate Commerce
     4. Treaty power with 2/3 Senate                                      7. Elections
     5. Veto power against congressional bills, overrideen by             8. War and National Defense
          2/3 majority vote of both houses. Article I §7                  9. Civil Rights Wnforcement
     6. Privilege of immunity: executive privilege: Complete right        10. Post Offices
          to refuse disclosure of information except if for               11. treaties
          President‟s criminal trial                                      12. D.C
                                                                          13. Regulation of lower courts below USSC




   Appointments Clause:
   The President shall nominate, and with the advice and consent of the Senate, shall appoint Ambassadors...judges to the USSC
     and all other officers of the US.” “The Congress may by law vest apointment of such inferior officers as they think proper, in the
     President alone, in the Courts of Law, or in the Heads of Departments.”

   1. Congress may not appoint federal officials that are:
   i. Principal officers: top level officers (cabinet members, ambassadors); the President nominates a candidate and the Senate
      decides whether to approve the nomination as per the Constitution. Congress may not take away the President‟s right of
      appointment.

   2. Congress may never appoint officials, but may delegate appointment of lower level federal officials, that as per Artice II §2 are
       “inferior officers,” and Congress may limit the President‟s poewr od appointment. Congress may not make the appointments, but
       may allow
   i. President;
   ii. Judiciary;
   iii. Heads of Departments (cabinet officials
   which may bring this power within the Executive.


   2. Power to appoint & remove subordinates

                     1. Appointments clause- Article 2 §2: president has the power to appoint high level federal officers
                        [ambassadors, public ministers, cabinet members, USSC judges...].
                          A. This is subject to senate confirmation

                     2. Congress may not appoint federal officials
                         A. Congress can't limit the pres's power to appoint high level officers
                         B. Congress can limit the President‟s right of appointment of lower level officers

                              1] congress may give power of appt to
                                   i. Pres
                                   ii. Judiciary
                                   iii. Heads of deparment [cabinet officials]

                     3. President has the right to remove appointees




                                              Michael M. Wechsler
 Constitutional Law   47




Michael M. Wechsler
                                       Constitutional Law                                            48
                                          14
A. Youngstown Sheet & Tube v. Sawyer - p. 146
    Rule:
        1. The President, as leader of the executive branch, is bound to enforce and “carry out the laws” within
           the limits of the authority expressly granted to him by the Constitution and he cannot make the laws, a
           power left to Congress, the lawmaking body.

         2. Much of the Presiden‟t powers are implied as per Article II, that action being part of the executive
            sphere, that action will not be rendered unconstitutional merelu by the fact that it doesn‟t fall within
            any specific power provision, but the USSC will decide if it conflicts with a legislative power, which
            are enumerated.

         3. Red Light / Green Light Test of J. Jackson:
             The power of the President to act can be viewed as three separate categories of circumstances.
                 1. Green Light: The President's power is at its maximum when he acts pursuant to express or
                    implied congressional authorization.
                 2. Yellow Light: In the absence of a congressional grant of power - congress is silent, the
                    President acts solely on the basis of his powers as specified in the Constitution. There may
                    be concurrent power to both branches, an area also where distribution of power is uncertain.
                    Such as in the Civil War when the President took away the writ of habeous corpus.
                 3. Red Light: When the President acts in contravention of congressional action, as Congress
                    has specifically forbid this action. the President may act only where it can be shown that:
                      i. Congress has exceeded its constitutional powers; and
                      ii. the President is acting in his own sphere of authority.

    Facts: During the Korean War, President Truman issued an executive order to seize the steel mills for operation
       under federal direction, an attempt to avert a nationwide strike and continue needed production. Congressional
       approval was not requested and President tried to go over Congress.
         1. Truman justified this action as valid under his power as Commander In Chief & President
         2. Executive immediately informed congress after it did this. Congress did nothing. But it had previously refused
            to handle labor disputes in this manner
    Issue: May the President, relying on a concept of “inherent powers” and in his capacity as Commander-in-Chief,
       make an order which usurps the lawmaking authority of Congress on the basis of a compelling need to protect
       national security?
    Holding: No. There is, admittedly, no express congressional authority for these seizures, and so, if any authority for
       the President's act can be found, it must come from the Constitution. While the President has the power as
       Commander In Chief and acting in the “theater of war.” the taking of private property to stop a labor dispute was
       well beyond this power of the President as Commander in Chief. The only power of the pPresident here is to see
       that the laws are carried out - he has no power to make them like he did here in performing a legislative act, a
       reserved pwer of Congress. The presidents pwers dpo not lie in something indirect like steel mills.
    • Congress has the exclusive Constitutional authority to make laws Necessary and proper to carry out the powers
       vested in the con. Only congress can use the Necessary and Proper clause.
    CONCURRENCE: (Jackson, J.) “The Red Light Green Light” Approach: The power of the President to act can
       be viewed as three separate categories of circumstances (see above)
    Here, the Commerce Power is the specific right of Congress to regulate interstate commerce, and therfore the
       President had the red light unless Congress gave him the power to do so. The same way that Congress has the
       red light for pardons given by the President.
    DISSENT: The executive is the only branch of government that may, by design, act swiftly to meet national
       emergencies. This decision emasculates that necessary power. The majority's opinion has left the President
       powerless to act at the very time the need for his independent and immediate action is greatest


B. Dames & Moore v. Regan - p. 151 - Implied Aquiescence of Congress
    Rule: The President may “make law’ under limited circumstances when he has the yellow light (but never the red,
      adn rarely the yellow).
    Facts: President Carter suspended all contract claims in federal courts against Iran by American creditors as part of
      a settlement with the hostage situation. Claims were later settled by an international tribunal.
    Holding: The court said this is a green light situation.Suspension upheld as Congress had acquiesced to the
      Executive‟s actions in prior similar circumstances. the acquiesence was viewed as an implied authorization of the
      President‟s actionl usually settled by Congress.
    Note: The holding was limited in scope - the President does not have the power to settle or suspend all claims -
      onnly where the settlement is necessarily incident to the resolution of a major foreign policy dispute, and wherer
      Cogress has acquiesced in that type of Presidential action.




                                      Michael M. Wechsler
                                             Constitutional Law                                              49
Section 2. CONGRESSIONAL ACTION AFFECTING PRESIDENTIAL POWERS


    C.INS v. Chadha - p. 156 - Seperation of Powers

         Rule:
         1. A valid piece of legislature must:
              i. pass through both houses of Congress, and
              ii. be signed by the President, or else it is violative of the Constitution.

              2. There may be no one or two house vetos to any legislature as that would be unconstitutional as it
                 bypasses the President. The President‟s veto acts as a boost of the voting requirement from 1/2 to 2/3 vote
                 in both houses (overrides Presidential veto). Veto power acts as an important check on other houses and a
                 fundamental of the seperation of powers.

              3. The test for what is legislative is defined in Artocle I §7. It i the purpose and effect of such legislation,
                 and the issue is whether or not something is legislature will determine the validity of a one house
                 veto.

         Facts:
         • In an attempt to maintain more control over the President and regulations promulgated by the federal agencies,
            congress would use the legislative veto. Congress would use this provision when it granted power to the President
            or an executive agency to promulgate regulations with the force of law. Before the proposed reg becomes law it
            must be approved by congress, either 1 house or both.
         • Congress has right to establish rules of naturalization & immigration [Article I §8]. Congress can allow an alien who
            would normally be deportable to remain by means of private bill. Congress delegated to Attorney general the
            authority to suspend deportation of aliens. However congress retained power to veto, with only one house
            necessary for the veto against the Attorney General‟s decision. This could have been done by either house by
            passing a resolution. The resolution was not treated as legislature and hence was not passed to the senate for
            approval or the president. [house passed reslution]. Chadha overstayed his student visa and the Attorney General
            allowed him to stay, but the House said NO.
         Holding: The Legislative Veto for the Act is unconstitutional, because to be valid legislation, it must pass through
            both houses of Congress and be signed by the President. The circumvention of this process and the one house
            veto denies the President his constitutional right to participate in the lawmaking process and v iolates the
            seperation of powers doctrine.
         • the court defined this act as legislature because it altered chadha‟s natural rights. Not every act of Congress must
            be bicameral, , but to alter a citien‟s status is in effect creating law.

              A. the 1 house veto provision violated
                   i. Presentment Clause: giving the President the opportunity to veto the bill.
                   ii. Bicameral requirement: Both houses must pass the bill 1/2 at a minimum, not just one.
                   iii. Seperation of powers structure of Article I, II and III.

              B. The resolution was legislation in character, purpose, effect.
                  i. House took action which effected rights, duties, and relations of persons outside the legislature. Absent
                      the resolution, Chadha would remain in the US. Since Congress took action to change the status quo,
                      this was legislature and was a passage of law.
                  ii. Since the resolution was really an act of legislature, the USSC ruled that it had to conform with the
                      Constitutional mandates of bicameral passage followed by presentment to the President.
                  iii. The fact that it is a convenient shortcut in controlling adm action is not persuasive

           Dissent: This wasn‟t any lawmaking process. This is a mere delegation of powers to a lower executive agency which
             is valid. the legislative veto is accepted for legislative “type” function or else Congress would be completely
             overburdened by stuff like this and would not have the time to deal with larger national issues. This is why it should
             have the right to delegate power and authority to other agencies. This is not a sword that really affects the
             Executive‟s power in any substantial way. In addition, Congress should have the power to check its agencies as
             well, and also this is no more lawmaking than is the President‟s veto either. this ruling, in essence, has made all
             legislative type vetos unconstitutional.
******** Isn‟t this correct? this isnt legislature?




                                            Michael M. Wechsler
                                       Constitutional Law                                               50
       Notes:
       examples: Impoundment of funds by President
           A. Constitution gives congress the power to lay and collect taxes, pay debts, provide for defense & general
              welfare. Nothing in Constitution refers to the President‟s power to spend or refuse to spend funds.
           B. Nixon had impounded funds when he thought spending would increase spending or taxes. This resulted
              in conflicts which were normally resolved through the political process
           C. Impoundment control act of 1974
                 1] if pres wishes to terminate a program, impoundment is allowed only if:
                 congress adopts a new statute rescinding the prior appropriation. If congress does not do so withi 45
                    days, pres must spend the $
                       2] if the pres wishes to defer the spending of appropriated funds, either house may enact a
                             resolution compelling the expenditure of the funds
           - this is probably unconstitutional under Chadha

            Buckley v. Valeo
            Facts: A federal statute authorized a Federal Election Commission compowed of congressional appointees
              to make investigations and keep records regarding federal elections. The comission, however, was also
              empowered to devise federal election rules and to penalize those who violated the act or commission
              regulations - thus also carry out and executing the laws that were made. Separations of Powers problem?
            Holding: Yes, as Congress is given explicit and plenary authoirty to regulate a field of activity, not the right
              to appoint those responsible for the administaration of the statute. Congress may create the offices for
              such officials, and provide methods of appointment, but the appointees may not be appointed by
              Congress as per Article II. the rights of the appointees of this office were Executive in function, and could
              therefore only be appointed elsewhere.



D. Myers v US

   Rule:
       1. President has the unrestricted power to remove any official that he appointed except federal judges
            a. The Presidential selection of administrative officers is essential to the execution of the laws by him, so it
               must be his power of removing those for whom he cannot continue to be responsible.

       2. The President cannot fire the heads of administrative agencies, which are created to carry out
          legislature made by Congress, unless he has just cause - they are supposed to take positions at odds
          with him and are a check on powers.

   Facts: Johnson became President upon Lincoln‟s death and inherited his cabinet. He disagrees with Stanton, so ge
     dosmossed gim. Congress made an Act that authorized the President to appoint and remove postmasters.
   Holding: The President can dismiss any of the cabinet officials that he has appointed, without approval from the
     legislature. Even if he merely doesn‟t like them, as he does not need a reason. He appointed, he can also
     dismiss. This includes high ranking officials and other executive officers that act as his “alter ego.”
   Dissent: For Congress to allow the President the uncontrollable power of removal involves an unnecexxaru and
     indefensible limitation upom the Constitutional power of Congress to fix the tenure of sucj offices. It has been
     Congress‟ practice to control the exercise of removal power. Holmes adds that the President is supposed to see
     that the laws get executed, and that he should not have any more power than Conress sees fit to leave in his
     hands in order to carry out that power.


   E. Humphrey‟s Executor v. US
       Rule:

       • The President cannot fire the heads of administrative agencies, which are created to carry out
          legislature made by Congress, unless he has just cause - they are supposed to take positions at odds
          with him and are a check on powers.

       • Congress may completely limit or blick the President‟s right of removal of quasi-legislative and quasi-
          judicial officers, but Congress may give the President explicitly conferred right of removal (Weiner).

       Facts: President Roosevelt removed Humphrey, a Hoover employee, from the position of appointee to head the
         federal trade Commission.
       Holding: The President‟s absolute power of removal over government officials is restricted to those whose
         positions are units of, and subordinate to the executive department. This removal power does not extend to
         officials in quasi-legislative agencies, such as aministrative bodies created by congress in order to carry out a
         statute‟s legislative policies.


                                      Michael M. Wechsler
                                        Constitutional Law                                               51
        • In Myers we are deeealing with the Postmaster, an executive office, where the Presdent could dismiss him at
           any time. The President has the right to appoint even with out the consent of Congress, the cabinet officials,
           executive officers, and it would be a violation of the Constitution for Congress to usurp that power.
        • US v. Humphries shows its limits. When you are talking about a regulatory comission it is a whole different ball
           game. They are NOT cabinet positions. If the Secretary of Inferior is at odds with the President, the President
           has the power to fire him if he refuses to follow the President‟s policies. But with a regulatory agency, they are
           supposed to take positions contrary to the President’s - a check on his power. If the President doesn‟t like the
           way the stock exchange is being regulated, he can‟t just fire the head of the SEC unless the President can
           show JUST CAUSE. This is what distinguishes this case form Meyers.


F. Morrison v. Olson _ Special Prosecutor is Inferior Officer
    Rule:
         1. A Speial Prosecutor is an “Inferior Officer,” and as per Article II §2, may be appointed by one other
            than the President, as delegated by Congress.

        2. It is within the power of Congress to appoint the Judicial branch, not the Executive, to appoint a
           Special Prosecutor to investigate and prosecute crimes by high executive officials. (This power restricts
           the right of the Executive to fire such a Special Prosecutor or else the Prosecutor would have no power to do
           justice if under the President‟s power, and this ensures the Prosecutor is doing a good, honest job.)

        3. Congress may limit the Presidential right to remove, and deprive the Executive the power to appoint
           even “purely executive officers” so long as the removal restrictions are not of such a nature that they
           impede the presidential ability to perform his Constitutional duty. The special prosecutor was appointed
           to see if he was performing that constitutional duty, and this would impede the President‟s powers, and this
           may be tolerated.

        4. Officers below the cabinet level are usually held to be “Inferior” as per Article II §2, and may be
           appointed by one other than the President (but not Congress).

    Facts: Congress enacted the Ethics in Government Act which allowed the Attorney General to apply to a special
       federa court to appoint indepenent counsel, a “Special Prosecutor,” to investigate and prosecute violations of
       federal criminal laws by the Executive Branch upon reasonable grounds that further investigation is warranted.
       Only the Attorney General could remove this counsel for “good cause.” This was done as Nixon was firing anyone
       in the justice department who would try to investigate Watergate.
    Holding: the authority of congress in creating a quasi-legislative or quasi-judicial body cannot be subject to Executive
       control, or else they would not be able to perform their duties properly. article II §3 gives the Judicary the right to
       appoint “inferior officers” and this was the case. These are not executive level officers of cabinet where the
       President has at will power to terminate.
    Issues: Does this power interfere with the president‟s power when it limits his dismissal of the Prosecutor only for
       good cause
    Holding:
    1. No separation of Powers problem: This case is not like Bowsher and Myers, an attempt by Congress to gain a
       rlole in the removal of executive officials othe than its established powers of impeachmeny and conviction.The Act
       clearly puts the power in the Executive Branch, only that it is limited to fire the Prosecutor only for good cause -
       thus the Executive Branch retains ample authority to assure that counsel is performing the statutory
       respnsibilitlies. There is no requirement of Conressional approval. This case is more like Humphrey‟s Executor,
       rather than Myers or Bowsher.
    2. No substantial interference with the Executive‟s power: While in Myers there is precedent that the President has
       control over executive officers nad their firing, that is not controlling here; the key is to see that Congress does not
       interfere with the Preesident‟s exercise of the executive power and that he can effectively perform his duties to
       take care that the laws of the land are faithfully executed. This is not merely a queston as to whether the
       Prosecutpr is quasilegislative. The court feels that the limitation does in no way interfere with the President‟s
       constitutional duties.
    • The Act does not violate the Separation of Powers Doctrine as it does not involve an attempt by Congress to
       inrease its own powers at the expense of the Executive Branch.
    Dissent: The court has acoided the inevitable conclision that a statute is void for vesting purely executive power in
       one who is not the President. Because te independent counsel is hnot subordinate to anothe fficer, he is not
       inferor, and his appointment other rhan by the President with the Denate‟s consent is unconctitutional.
    Note: This case does not rule that Congress may make a rule giving the Judiciary the power to appoint Execuive
       Officers in the Cabinetlevel, such as the Secretary of Defense. This case dealt only with an inferior officer, and the
       former example would probably be struck down.


G. Bowsher v. Synar
    Rule:



                                       Michael M. Wechsler
                                             Constitutional Law                                               52
         1. Congress may only make the laws, not carry them out as that is the job of the Executive Branch and
            exactly what is imbued in the Separation of Powers Doctrine. The opposite situation of Chadha but the
            same principle.

         2. Congress may not reserve to irself the power to remove an executive officer.

         Facts: the Balanced Budget and Emergency Deficit Control Act set an annual maximum deficit amount for federal
           spending and gave the US Comptroller General the authority to facilitate enforcement of the Act by deciding where
           to make the budget cuts. This was a hot potato that no one wanted to decide - where the money gets cut. He was
           getting the power to make decisions without feeling the political heat, because he was not elected by the people,
           and the legislature set it up that way. No problem about worrying about being unpopular come election time like
           the other elected oficials.
         Issue: Does Congress breach the separation of powers doctrine by conferring on an official the power to execute
           legislation while retaining sole right to remove that official?
         Holding: Congress is limited to enacting legislation and passing new legislation, not to execute it. It is a violation of
           the separation of powers doctrine for Congress to delegate the power to executeand administer law to an official
           and for Congress to reserve to itself the exclusive poewr over that official‟s removal. This would be an
           unconstitutional intrusion into the Executive‟s function, and is a similar issue like in Chadha, where the court
           wanted to retain control so they left some of the strings attached.
              The problem here is:
              1. Congress may not vest executive powers within itslef or its agents as they are limited to a legislative role. The
                 power to make the budget cuts is executive - carrying out the laws of the land.
              2. Since Congress could remove the Comptroller General - the crucial factor in determining what Branch of
                 government he belongs to, he was part of Congress and therefore legislative, not executive in nature - yet his
                 powers were executive.The grounds for removal of the Comptroller General are so broad that Congress could
                 really come up with any reason as to why it wants to fire the comptroller General - for “inefficiency.” this easily
                 shoew s that he is subservient to Congress, the wrong branch of government. Once congress makes and
                 enacts the legislation, its role ends.
              3. Concurrence: states that the removal power isn‟t what made the Attorney General a Congressional officer, but
                 the majority of his powers were as such. In fact, the budget cutting should be seen more as legislative - but
                 the problem is a Chadha problem, that the Congress could not delegate its legislative duties to change law to
                 an inferior branch of governmetn - it must pass through both houses and then be signed by the President.

****** What is the difernce between make and carry out law? Isn‟t budget cuts making it? ask about chadha and the whole
   section.




Summary:

Buckley: Congress may not appoint Executive officers
Bowsher: Congress may not remove Executive officers
Morrison v. Olson: Congress may give the Judiciary the right to appoint all but the top level executive officers and may limit the
  President‟s right to remove such officers.




                                            Michael M. Wechsler
                                           Constitutional Law                                              53
SECTION 3. THE WAR POWER


   Foreign affairs & use of armed forces

       1. Traditionally the President is considered responsible for conducting the us foreign affairs

           A. He is given greater authority with regard to foreign affairs than Congress

                1. Commander In Chief
                2. Treaty Power
                3. Appoint ambassadors

       2. Theories of Presidential power to act during wartime without Congressional Approval

           1. Sudden Attack Theory: The attack on the Mainland US: The President has the power to defend the
              sovereignty and integrity of the nation and to respond to an armed arttack immediately without consent from
              Congress. This also would apply to preemptive strikes - such as pearl harbor where the President has no time
              to wait for congress to ratify a declaration of war.
           an absence of an armed attack restricts this power greatly.
           2. Neutrality Theory: Protect American citizens and interests abroad. The executive, when he deployed troops to
              foreign nations, was doing so as a “neutral” policing authority and was to be completely neutral.
           3. Collective Security: The President can sign pacts with foreign nations that each will come to the aid of the
              other. This could justify almost any unilateral presidential use of armed force abroad, a result contrary to the
              constitution. In cases involving whether the President may send troops to allies without Congressional
              approval is largely determined by the potential of irreparable harm to the vital interests if the Executive needed
              to wait for congressional approval. Note that this is NOT like a declaration of war just because of the treaty.


       WARMAKING ROLES
         As in the Steel Seizure case, J. Jackson gave us the Red Light Green Light test. When there are powers that
           are specifically in the zone of congress or the President, both are able to ignore any attempt to restrict that
           power by the opposing branch. If it is in the twilight area of concurrent power, either the President or
           Congress can act in the absence of initiative by the other. If both attempt to act in ways that their wills conflict,
           te deadlock must be resoved in favor of Congressional action through valid legislation.

           • The Constitution did not spell out any of the specific ways that Congress and the President should act in yellow
              light situations, in the twilight areas, There is no formula as every war presents a unique situtation. There are
              presumptions:
                 1. When a decision in foreign or military affairs demands speed and decisiveness, there is a presumption
                    that it is within the exclusive power of the President.
                 2. All other decisions are within the power of Congress.

                • When the decision involves asignificant amount of the nation‟s moral and human and physical resources,
                  congress has more power, but when there is a clear need for speed and hastem the President will have
                  the scales tip in his favor.

       2. Curtiss-Wright
           Rule: Congress may delegate certain wartime legislative abilities to the President, and can alsi be constitutional
             to govern foreign affairs, as he has the seperate power to do so in Article II. The question is how much farther.

                1. The President is the Constitutional representative of the US and the sole organ of federal
                   government in the field of international relations as per the plenary power in Article II. The special
                   needs of negotiations make a grant such as this one not constitutionally broad like in
                   Youngstown.

                2. Broader powers will be given to the President for international affairs than in domestic affairs,
                   especially due to the President‟s plenary power to deal with international relations.

                3. The President, not Congress, has the better opportunity of knowing the conditions in other
                   countries. (confidential sources of info that are made to the President and not let loose in Congress, so
                   President can make a better decision as to whether these cuntries are really in conflict)

                4. Treaty power Article II §2
                     A. President has the power to make treaties
                     B. 2/3 of the senate must ratify

                                         Michael M. Wechsler
                                    Constitutional Law                                              54

    Facts: A joint resolution of Congress authorized the President to legislate, and ban the sale of arms to South
       American countries at war.
    Issue: May Congress delegate legislative power to the President when diligation is required for the handling of
       foreign affairs?
    Holding: Yes, as delegation of certain legislative powers to the President can be constitutional when necessary
       to govern foreign affairs.
    • This case is a J. jackson Green light situation and harmony with Congress. If Congress had a contrary intent,
       the President‟s Power to make international power would be less broad, similar to J. jackson‟s Concurrence in
       Youngstown, supra.
    • The parameters of constitutionality of the President‟s legislative power differ when external, rather than
       internal affairs are at stake, and the President could have done this without the resolution. The President has
       power in foreign policy area that exists seperate of Article II of the Constitution.
    Note: This holding is limited to its specific facts, and does not reveal as to how far the President can go in
       wartime when congress has not given him the right to do so in the first place. The President has the power of
       Commander In Chief, and if there was a sdden attck, he could commit troops, and then submit declaration of
       war to Congress. But how mch further? President Johnson committed 50,000 troops to Vietnam without
       declaraton of war - a serious question.



    War Powers Act
       • The President as per the War Powers Act is to consult with Congress in every possible instance before
          committing troops to hostile situations. Congress then declares war and supports it with the army and
          navy.
       • In the absence of any declaration of war, the Presidentmay send troops but must sibmit an explanation
          within 48 hours to the Speaker of the House.
       • within 60 days after the President has reported to Congress, if he does not receive congressional
          approval, he must terminate the use of the armed forces unless congress extends the period. Note that
          this presents a Chadha problem where no action of congress is like Congressional veto to the
          President‟s action.


3. US v. Nixon - p. 178 - Executive Privilege
    Rule: The USSC‟s ability to administer justice is paramount to any privilege rights that derive from the
       supremacy of each branch. It is not logical to read Article II powers of the President as giving him an absolute
       privilege, as to do so would seriously impair the court‟s role as stated in Article III, and it defers to the
       paramount interest of allowing the courts to administer justice.
    • The court, not the President decides what the law is and just how far the privilege goes.
    • The privilege for confidentiality of Presidential communications in the exercise of Article II powers means that
       each branch‟s privilege extends from the Constitution.
    • Prvvilege is qualified, and is outweighed by the need to develop all the relevant facts in a criminal trial,
       especially where military, diplomatic and national secrets are not involved.
    • Sanctions against president for violation? Court would say it's a political question.
    Facts: President Nixon filed a motion to quash a federal court subpeona directing him to produce tape
       recordings and documents of his conversations with aides and advisers. Nixon asserted absolute executive
       privilege against complying with the subpeona and also claimed that the separation of powers doctrine
       precluded judicial review, and the power of the Special Prosecutor.
    Holding: The USSC‟s authoruty to interpret claims of powers allegedly derived from the enumerated
       constitutional powers includes the authority to assess the validity of a claim of privilege. Neither the separation
       of powers doctrine nor an absolute Presidential privielge of immunity when that privilege conflicts with the
       courts‟ ability to administer justice.




                                  Michael M. Wechsler
                                              Constitutional Law                                               55
THE STATE POWER TO REGULATE

The Constitution limits state powers:
    • they cannot coin money
    • they cannot enter into treaties
    • may regulate interstate commerce, but not if it conflicts with federal law. It may regulate some under its police power
       such as motor vehicles that enter from out of state, the state must protect the health, safety and wefare of its citizens.
    • Article I §10 spells all the powers out

Dormant Commerce Clause Regulation
The Constituion flat out states in Article I §9 that states are prohibited from imposing any export duties. Homever, the Constituion
  sats nothing about whether the states may exercise similar opower in areas of Congressional control. There is no preemption of
  states to legislate unless there is a conflict with federal law that would make them incompatible. In these circumstances, the
  state law would be inferior to federal law.

There is no simple test, although there are some indicators:
1. Freedom to the states: If Congress remains silent on an issue, the states are completely free to regulate on the issue until
   Congress acts.
2. Some areas of Congressional power are exclusive and specifically left to federal government.
3,. Middle Ground: There are interests that are in regard to local and of national priorities, and the state has the right to legislate
   for lacal concerns.

However, Congress has the right to allow the states to legislate in a certain area - e.g if the court strikes down a state law that
  interferes with interstate commerce, Congress can pass a law to allow the state to legislate in taht particular area.
Conversely, Congress can also pass a law that any state law that conflicts with a certain of its powers is preempted and
  invalidated.


Gibbons v. ogden: Congressional silence was present, butr the state‟s grant of an exclusive license was in direct conflict with the
  federal government‟s Commerce Power, that is to be interpreted broadly.


         1. Cooley v. Board of Wardens - p. 184
             Rule: The right of the states to regulate area that are in commerce is in the Police Power, and defer to
               Congress in areas of conflict that are within Congressional Powers, such as exclusive right of
               Congress to regulate Interstate Commerce.

                   1. Cooley doctrine delineates the nature of the subject matter of the challenged regulation as the
                      determinative factor in reviewing its validity

                       A. The state was free to regulate in the absence of congressional preemption those items of
                         Interstate Commerce that were of such a “local” nature as to require different treatment from
                         state to state. “Local” v. “National” distinction later dismissed from analysis.
                       B. If the item is such that national uniformity is necessary, than congressional power is
                         exclusive.

                   2. Congress can't delegate to one state the power to legislate federal law/standards for whole
                      nation.

              Facts: Pennsylvania law required ships entering or leaving the Port of Pennsylvania to engage in a local pilot to
                 guide them safely through the harbor. Acongressional statute provided thta “all pilots in the bays, inlets, rivers,
                 harbors, and ports in the US sall contivue to be regulated in conformity with the existing laws of the states,
                 and such laws as the states enact for such purposes. Does this grant of commerce power to Congress
                 automatically deprive the states of regulatory powers in the area of commerce as there is no specific grant of
                 power to the states in the Constitution?
              Holding: No, the grant of commerce power to Congress is not exclusive, and states may regulate certain
                 subjects of interstate commerce that do not require a uniform system of regulation. The right of the states to
                 regulate area that are in commerce is in the Police Power, and defer to congress in areas of conflict (when
                 Congress legislates Interstate commerce laws). In fact, Congress specifically left this area to the states, and it
                 can do so.
              • The court sustained the act, a Pennsylvania law which required ships entering or leaving the port to engage a
                 local pilot, on the basis of a distinction because those subjects of commerce which demand a uniform rule
                 thruout the country and those which permit the diversity of treatment in order to meet local needs. Court found
                 that pilotage in local harbors was a subject for local control
              Note: The court makes reference to local and non-local issues. There is no longer this test, and we do the
                 commerce clause test if there is a conflict with federal government. the problem of distinctions such as this is


                                            Michael M. Wechsler
                                   Constitutional Law                                               56
      that it becomes impossible to determine whether many actions are truly “local” yet affecting the Commerce
      Power, a paramount issue.
        • States have some power to regulate commerce through its police power.
        Modern Law:
              1. the regulation must be for a legitimate state end.
              2. the regulation must be rationally related to its objective.
              3. The burden on interstate commerce and any discrimination must be outweighed by the state‟s
                 interest in enforcing the regulation.




2. Southern Pacific v. Arizona - p. 189 - Balancing Test of “undue burden” - Dormant Commerce Clause
    Rule:
    1. Dormant Commerce Clause Test: A court's determination as to whether a state law is unconstitutional
       for imposing an undue burden on interstate commerce is based on a balancing test:

             The burden on interstate commerce v. the need for the law by the state.
                 i. If there is an “undue burden” placed upon interstae commerce by state law, the law is
                        invalid. This is NOT a rational basis test.

    2. Discrimination/Protectionism: A state statute is more likely to be struck down as unconstitutionsal or
       placing an “undue burden” on interstate commerce when there is an issue of discrimination or
       protectionism in the state law. Here the law discriminated against out of state railroads and they would have
       hade a difficut burden complying with Arizona law when they got to its borders.

    3. Need for National Uniformity: When a state statute will conflict with regulations of adjoining states, it
       is more likely the court will strike down one of the statutes on the grounds of need for national
       uniformity which outweighs the interest of individual states. e.g. safety requirements on trucks may vary
       state to state and sdifficult burdens in adjoining states would make interstate commerce impossible.

    Facts: Southern Pacific D violated an Arizona P safety law prohibiting passenger and freight trains having more
      than a specified number of cars from operating within its borders (long trains, high number of cars). A trial
      court refused to impose the statutorily prescribed fine. It held the law unconstitutional on the ground thatThe
      Arizona Supreme Court reversed, finding the law bore some reasonable relation to safety. This law was
      passed because of safety concerns - the slack movements on long trains was terrible - when started to move
      there was severe whiplashing effects.
         • D argues that he law imposed an unreasonable burden on interstate commerce and was unconstitutional,
            as it had no reasonable relation to safety and noted that any safety advantage was more than outweighed
            by additional accidents caused by the increase in the number of trains occasioned by the small car length
            requirements. When the long trains got to the border of Arizona, by law, they would have to uncouple the
            train to make it shorter to comply with Arizona law.
    Holding: Statute struck down. In order to determine whether a state law must be struck down for imposing an
      unreasonable burden on interstate commerce, the court must balance the burden the law places on national
      interstate commerce interests against the state interests served by the law. The court found that the national
      interest outweighed the state's marginal safety interest. Thus, the law violates the Dormant commerce Clause
      and is unconstitutional.
         • Discriminatory Burden: Court realized that this would discriminate against out of state railraods and
            intrastate shippers will feel less of a burden as all out of state shippers that pass through Arizona will
            probably have to comply if they ever go through Arizona during their travel route. Ther is no political
            check against this here.
    DISSENT: (Black, J.) The courts should not act as a Super-legislature by making their own judgment of the
      validity of the reasons for passage of a particular law. Furthermore, it is a matter for legislative, not judicial,
      determination as to whether the safety gains warrant passage of a law despite possible offsetting dangers
      which it might bring about.
    DISSENT: (Douglas, J.) Courts should intervene only where the state legislation discriminates against interstate
      commerce or is out of harmony with laws which Congress has enacted.
    Notes: The Dormant Commerce Clause is “dormant” in that the it is dormant in that if Congress wakes up and
      legislates, it can give dirrect power to the states specifically, or even restrict them. If there is an undue birden
      on interstate commerce, the dorman clause kicks in. The court interpreted the "dormant commerce clause"
      which is the flip side of the commerce power. There are limits built into commerce power that limit the ability
      of the states.


3. Baldwin v. Seelig - p. 192




                                  Michael M. Wechsler
                                   Constitutional Law                                              57
General Rule: A statute will be struck down if it is an attempt by one state to isolate itself from a problem
 common to many by erecting a barrier against the movement of interstate trade.

    1. Article I: States cannot impose economic barriers against out of state imports: It is violative of the
       Commerce Clause: The states must sink or swim together during bleak economic times and may not
       provide prtotectionist economic interstate tariffs.
         • This is the case when it is done for protection of economic purposes, but discrimination against out of
            state importers may be allowed for purposes of bona fide health and safety regulations (see later)

    2. States are allowed to subsidize in state producers as this is not out of state discrimination.

    Facts: Depression in the 1930s. Vermont had no minimum sales price and milk was dirt cheap. NY statute which
       set minimum prices to be paid by NY dealers to NY producers. The statute also prohibited retail sales in NY of
       out of state milk, if the milk had been purchased at a lower price than the ones set for purchases in NY. The
       purpose of the statute was to make sure that the NY farmers could make an income. When New York then
       refused to license him to sell it, Seelig brought an action seeking injunctive relief and charging an
       unconstitutional interference with interstate commerce.
    Issue: Can a state attempt to regulate intrastate prices by prohibiting the importation of less expensive goods in
       interstate commerce?
    Holding: No. A state violates the commerce clause when it attempts to regulate intrastate prices by prohibiting
       the importation of less expensive goods in interstate commerce. Neither the power to tax nor the police power
       may be used by the state of destination with the aim and effect of establishing an economic barrier against
       competition with the products of another state or the labor of its residents. Such is a violation of the theory
       upon which the Constitution was framed - that the peoples of the several states must sink or swim together
       and that the mutual jealousies of the states cannot be permitted to result in customs barriers and other
       economic retaliation.
    It does not matter what form the milk is in and what containers; there cannot be a state barrier to interstate
       commerce used as a protectionist clause.
    Notes: The underlying principle in this case is that one state may not, in its dealings with another, place itself in
       a position of economic isolation. Such a tenet is essential to maintenance of a union of states, which is why
       Baldwin is still recognized as authority.


4. Dean Milk v. Madison - p. 193 - Balancing Test: Are there “less burdensome alternatives?”

    Rule: Even in the case of a bona fide health regulation, if the regulation burdens interstate commerce,
     and there are less burdensome alternatives in which to accomplish the regulation‟s objective, the
     regulation will be struck down as violative of the Commerce Clause.

    Facts: Madison, Wisconsin, passed an ordinance prohibiting the sale of any milk as pasteurized unless it had
      been processed and bottled at an approved pasteurization plant located with five miles of Madison's central
      square. Dean Milk P, an Illinois-based concern selling milk in Illinois and Wisconsin, had pasteurization plants
      in Illinois 65 and 85 miles from Madison. The plants were licensed and inspected by Chicago health
      authorities and the milk labeled using the rating standards recommended by the U.S. Public Health Service.
      Dean Milk brought suit challenging the ordinance as imposing an unconstitutional burden on interstate
      commerce.
    Holding: Local health and safety regulations which have the effect of discriminating against interstate commerce
      violate the commerce clause where reasonable nondiscriminatory alternatives adequate to conserve local
      interests are available. The ordinance at issue here clearly discriminates against interstate commerce, and
      other reasonable nondiscriminatory alternatives are available to protect the health of the people of Madison.
      For example, Madison could inspect pasteurization plants beyond the five-mile limit now served and charge
      the expenses to those selling such milk in Madison. It could also prohibit the sale of milk not produced in
      confommity with standards as high as those it enforces. The existence of such alternatives renders this
      ordinance unconstitutional.
         • In addition, the ordinance also discriminated against all other out of city, but in state producers, which did
             not impress that it was a non-discriminatory ordinance, but a protectionist one for the city.
    DISSENT: The lower court found this was a good-faith attempt to safeguard public health and it has not been
      proved that the "altemativesz would not lower health standards.
    Notes: There have been many instances where states or other localities have attempted to impose local
      standards more stringent than the uniform national standard for grading certain commodities. The courts have
      consistently found such a practice unconstitutional.
    • Madison could have put int law that the producer pays cost of inspection, but it will perform the inspection.


5. Philadelphia v. New Jersey - p. 198




                                  Michael M. Wechsler
                                     Constitutional Law                                                   58
    Rule: A state law which discriminates against interstate commerce is invalid unless there is a clearly
       legitimate state purpose involved which outweighs the burden on Interstate commerce.
    Facts: A New Jersey statute prohibited bringing into the state any solid or liquid waste which originated or was
       collected outside the state. P Operators of private landfills in New Jersey and cities in other states such as
       Philadelphia that had agreements with them for waste disposal brought an action challenging the
       constitutionality of the statute, contending that it invalidly discriminated against interstate commerce. The New
       Jersey Supreme Court upheld the statute, ruling that it advanced vital health and environmental objectives
       with no economic discrimination against interstate commerce. Philadelphia appealed.
    Issue: Is a state law which discriminates against interstate commerce invalid unless there is a legitimate state
       purpose which outweighs the burden on interstate commerce?
    Holding: Yes. Where simple economic protectionism is effected by state legislation, a virtually per se rule of
       invalidity has been erected. But where other legislative objectives are credibly advanced and there is no
       patent discrimination against interstate trade, this court has adopted a more flexible approach.
          • Quarantine laws are valid: If there is a quarantine law against items such as diseased meat, that will
             protect the health, safety and welfare of the citizens, the law may be upheld.
          • If the law has a valid objective, it will still be struck down if is an attempt by the state to isolate itself from a
             problem commen to many by erectin abarrier against the movement of interstate trade. The New Jersey
             statute is discriminatory both on its face and in its plain effect. On its face, it imposes on out-of-state
             commercial interests the full burden of conserving the state s remaining landfill space.
    • Rationale for holding: there is no health reason as there is no difference between garbage from Pennsylvania
       and garbage from New Jersey in the landfill - unless there was as diseased meat epidemic out of NJ state.
       There was none, and this was an attempt by NJ to conserve its landfill space, and that is unconstitutional as it
       violates the Commerce Clause by impeding witht he flow of interstate commerce.
    DISSENT: New Jersey should be free under our past precedents to prohibit the importation of solid waste
       because of the health and safety problems that such waste poses to its citizens.
    Notes: The Supreme Court has consistently found parochial legislation of this kind to be constitutionally invalid,
       whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to
       allegedly ruinous outside competition, or to create jobs by keeping industry within the state, or to preserve the
       states financial resources from depletion by fencing out indigent immigrants.

         CHEMICAL WASTE V. HUNT
         State can't charge a higher tipping fee for out of state shippers because state isn't.California wouldn't let
           immigrants with less than 50 dollars into state. Be it people, goods or services, you can't discriminate.

         BREARD V. ALEXANDRIA
         Louisana had right to regulate door to door salesman becaue the interst of protecting peace outweighed the
           benefit of commerce.



6. Hughes v. Oklahoma - p. 201
    Rule: A state may prohibit scarce resources, such as removal of wildlife, if it does so without discrimination
      towards out of state residents.
    Facts: D Hughes was arrested for transporting minnows over the Oklahoma state line for sale in Texas.
      Oklahoma statute prohibits the transporting or shipping of minnows for sale outside of the state which were
      procured within the waters of Oklahoma. D was convicted and appeal was affirmed stating that the wild
      animals and fish are property of the state and subject to police powers. The state can regulate their use
      through ownership and prevent depletion through commercial exploitation. State also claims this is not a
      violation of the commerce clause of the Constitution.

    Holding: D, reversed. The state‟s statute is a discriminatory conservation. It is not an unbiased conservation of
     resources because it does not prohibit its citizens from removing minnows but prohibits foreign residents from
     removing them. A state may prohibit removal of wildlife if it does so without discrimination.

         Modern Principle: The state may evenhandedly effectuate a local public interest that indirectly affects
            interstate commerce, so long as the there is a legitimate local public interest and that given the degree
            and nature of the local interest involve does not place excessive burden on interstate commerce. A local
            public concern that is of limited degree and nature so as to burden interstate commerce is ineffective.
            This concept has been echoed in Geer and Douglas v. Seacoast Products which stated that Virginia
            could not make fishing laws prohibiting residents of other states from fishing their waters, but allowing
            their residents to fish by virtue of the legal fiction of the “state‟s ownership” of these wild animals. The
            exploitation of a local resource is determined by whether the state has properly exercised its police power
            in conformity with the federal laws of the Constitution.
         • Did away with notion that animals belonged to state. Minnows, milk, no difference what item.


7. Maine v. Taylor - p. 202


                                    Michael M. Wechsler
                                             Constitutional Law                                              59
         • Quarantine laws are valid if there is a legitimate state interest and there is no practicable lesser alternative
           available. The interest of the state outweighs the burden on interstate commerce.

         • Maine law prohibited importation into Maine of live Baatfish that competed with Maine‟s native Batfish industry.
           However, there was a biological concern for the discriminatory statute - it was really a quarantine statute and
           permissible, There was no easy way to prevent the flow of parasites, so there was no practivcal lesser alternative.


         8. Reeves v. Stake - p. 205 - The state as a market participant

         Rule: The state is not subject to commerce rules when it acts as a participant, not as a regulator.

         Facts: During a serious cement shortage, the state owned company gave preference to in state orders over out of
           state orders. The company was allowed to do this as the state, acting as a market participant, not as a market
           regulator, and may discriminate against interstate commerce and sell its products on a preferential basis to its
           state residents.
         Dissent: When the state becomes a participant in commerce, the commerce Clause continues to function and the
           state cannot do what it did here by impeding the flow of interstate commerce.



PRIVILEGES AND IMMUNITIES CLAUSE: ARTICLE IV §2

The Privileges and Immunities Clause (Art. IV, § 2: provides that the citizens of each state are entitled to all the privileges and
  immunities of citizens of the other states.

    • Fundamental matters: This has been interpreted to mean states may not discriminate invidiously against citizens of
       other states with regard to employment and similar "fundamental" matters. Thus states may not favor their own
       residents for employment, Hicklin v. Orbeck, 437 U.S. 518 (1978) (Alaska oil), or the practice of a profession, Supreme
       Ct. of N.H. v. Piper, 470 U.S. 274 (1985).

    • Whether a privilege or immunity is "fundamental" is different from whether a right is fundamental under the Due Process
      Clause or Equal Protection Clause. Employment, for example, is not considered a fundamental right requiring
      strict scrutiny under the Equal Protection Clause.

    • Non-Fundamental matters: Not all distinctions between citizens and non-citizens of a state violate the Privileges and
       Immunities clause. A huge disparity in the cost of an elk-hunting license was held not violative of the Clause in
       Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978), since sport hunting was not a privilege or
       immunity "bearing upon the vitality of the Nation as a single entity." The court upheld $225 fee non-residents paid to
       hunt elk, while local residents paid $10. This disparity was allowed because the court factored in the regulation and
       preservation of elk, and the local residents pay state taxes to finance it. Out of state residents could be required by the
       state to make similar appropriate contributions for preserving the elk if they wish to hunt it

    • A state may charge a little more for college tuition to out of state residents for the same reasons as Baldwin, but not too
       much more or else it will be seen as discriminatory.




PREEMPTION - SUPREMACY CLAUSE: ARTICLE VI (Article IV §8)

    A federal law preempts a state law where:
        (1) Congress has fully occupied the field or
        (2) the federal and state laws conflict.

         Rule: If Congress has not occupied the field the states may legislate with regard to the subject. But even
           here, if the federal and state statutes are in conflict, the federal law, under the Supremacy Clause, is
           supreme and preempts the state law (at least to the extent their provisions actually conflict).

         • Constitutional law governs over federal law, which governs over state law.

         • Differentiation from Dormant commerce Clause
               • This is different than the Dormant Commerce Clause - which is used in cases where there is no federal law or
                  Congress has been silent in regard to the law. Preemption is where Congress legislated.
               • In Dean Milk case, the railroad case, there was no federal legislature, and the only question there was
                  whether the state could valisly legislate on the issue. Preemption focuses on whether there is federal law that
                  overrides the state and precludes the state from enacting legislature.

                                            Michael M. Wechsler
                                        Constitutional Law                                              60

    Ham and Eggs Argument for Commerce Clause and Preemption
       1. The state statute unduly burdens interstate commerce
       2. the state statute is preempted by federal law


        Is the state always preempted?
        • If Congress touches the matter than the states are slways preempted.

             1. If Congress intended to preempt the states, the court will find that the states are prempted.
             • We look at the statutes and many say that the are intended to preempt local and state law.

                  e.g. Aliens had to register with the states to work. Challenged the preemption by federal law with
                    naturalizatio, but the federal government hadn‟t really stated about this, but the court said that
                    Congress has totally entered this arena, or they have this right.
                       - also subversion, no US government
                       - usually international law

             2. If Congress didn‟t occupy the field, could there be preemption?
             • Yes, as when there are conflicting law between Congress and the state, such as the minimum wage. Here
                Congress didn‟t fully lccupy the area and the Supremacy Clause makes the Federal law trump the state
                law.

        Therefore, the questions we ask for preemption are:
            1. whether Congress actually entered the field; and
            2. Is there a conflict between federal and state law?

    • Certain subjects, such as foreign policy, are inherently dominated by federal interests, so that the states are simply
       preempted from legislating about them at all. See Pennsylvania v. Nelson, 350 U.S. 497 (1956) (state may not
       make sedition a crime). In other areas where both Congress and the states may legislate, Congress still preempts
       if its legislation occupies the field. Hines v. Davidowitz, 312 U.S. 52 (1941) (Congress occupied field of regulating
       resident aliens, so state may not require aliens to register annually and carry identification cards).

    • Some federal statutes specify the extent to which Congress has occupied the field. If not, the courts must decide
       based on Congressional intent and the nature of the regulated activity. For example, the federal preemption of
       radiation control in the Atomic Energy Act does not preempt state law from imposing punitive damages in a tort
       action on a defendant which intentionally or recklessly exposed the plaintiff to radiation. Silkwood v. Kerr-McGee
       Corp., 464 U.S. 238 (1984). The Atomic Energy Act did not deal with the punitive damages issue and therefore did
       not preempt the state.

A. Introduction

    1. Safeguards to the Citizens: In order to insure that the individual citizen's rights will not be unduly burdened by the
        powers given to the government on the federal and state levels, the U.S. Constitution provides safeguards to the
        citizens of the United States. They are:

    2. The Bill of Rights, which is applicable to the federal government, but not directly to the state governments; The
         first Ten Amendments to the U.S. Constitution are collectively known as the Bill of Rights. The most frequently
         tested of these are:

        b. The First Amendment, guaranteeing freedom of speech, press, religion, and assembly;
        c. The Fourth Amendment, guaranteeing freedom from unreasonable searches and seizures;
        d. The Fifth Amendment, which guarantees due process of law, freedom from double jeopardy, and the right
             against self-incrimination; and
        e. The Sixth Amendment, which guarantees the rights to counsel, to a speedy and public trial, and to
             confrontation.
        f. The Thirteenth Amendment, which proscribes involuntary servitude;
        g. The Fourteenth Amendment guaranteeing due process and equal protection; and
        h. The Fifteenth Amendment, which prohibits infringement of voting rights based on race or color.

14th Amendment

        The Fourteenth Amendment states that:"No state shall make or enforce any law which shall ... deprive any
            person of life, liberty or property without Due Process of law...."




                                      Michael M. Wechsler
                                      Constitutional Law                                              61
       • In discussing Due Process, one is dealing with the procedure to assure fairness and neutrality in actions taken
            by the government.
       • The term "liberty" denotes not merely freedom from bodily restraint but also the right of the individual to
            "contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to
            establish a home and to bring up children, to worship God according to the dictates of his own conscience
            and generally, to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness
            by free men." Board of Regents v. Roth, 408 U.S. 564 (1972).

       As a result of the Fourteenth Amendment, most of the Bill of Right's protections are applicable to action
           by the States. To wit:

       • First Amendment freedom of the press, freedom of religion, freedom of association;
       • Fourth Amendment freedom from unreasonable search and seizure;
       • Fifth Amendment freedom from double jeopardy, self-incrimination;
       • Sixth Amendment right to counsel, right to confrontation, the right to a jury trial in serious criminal
            cases (but not the right to be indicted by a Grand Jury), right to a speedy trial; and
       • Eighth Amendment prohibition against cruel and unusual punishment.

       Thus, the only provisions of the first eight amendments that have not been incorporated into the
          Fourteenth Amendment are the Second and Third Amendments, the Fifth Amendment's Grand Jury
          Indictment Clause and the Seventh Amendment.

       • Note that the concepts of due process and equal protection apply to individual persons, aliens and
           corporations within the meaning of the Fourteenth Amendment, but self incrimination protects only persons
           and not corporations.
       • Note also that under the Fourth and Fourteenth Amendments, both persons and corporations are protected
           from unreasonable searches and seizures by state or federal officials.
       * Note that the constitutional limitations and prohibitions apply to state and/or federal activity and not to purely
           private activity. Thus, an illegal entry, such as burglary or trespass, by a private citizen is not generally
           unconstitutional. However, Congress may enact legislation prohibiting certain private activity to further
           legitimate federal and/or state goals.

Invoking the Fourteenth Amendment and Substantive Due process

   • To invoke the Fourteenth Amendment, the Court must first determine the existence of "state activity."

   • 14th Amendment only arises when there is state action, and does not erect a shield against private conduct,
        however discriminatory or wrongful.

       This state action has been found where:
       a. The state performs the act through its officials - Brown v. Board of Education;
       b. The state subsidizes private activity - Burton v. Wiltington Pommel Authority;
       c. A private party performs a public function - Marsh v. Alabama; and
       d. The state encourages a private act that would violate due process if done by the State - Reitman v. Mulkey.

            Hypothetical Examples
               a. QUERY: Is a nursing home, which is heavily financed and regulated by the state government,
                    required to give a patient a hearing before transferring the patient to another home with lower
                    standards of care?
               NO, as licensing, regulation and substantial financial support do not make the entity a state agent
                    subject to Constitutional limitations. Blum v. Yaretsky.

                b. QUERY: Is a privately owned school for children with learning disabilities, which is licensed, heavily
                    regulated and totally (100%) supporned by state funds, required to give teachers a hearing before
                    dismissal?
                NO, as the school is not fundamentally different from many private corporations whose business
                    depends primarily on contracts to build roads, dams, ships or submarines for the government. Acts
                    of such private contractors do not become acts of government by reason of their significant or
                    even total engagement in performing public contracts. Rendell Baker v. Kohn.

                c. QUERY: Could a child who was repeatedly beaten by his father, assert a constitutional claim against
                    state social workers and local officials who had received complaints about the father's abuse but
                    took no steps to remove the child from the father's custody?




                                     Michael M. Wechsler
                               Constitutional Law                                              62
         NO, as "[N]othing in the language of the Due Process Clause itself requires the State to protect the life,
             liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a
             limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and
             security. It forbids the State itself to deprive individuals of life, liberty, or property without 'Due
             Process of law,' but its language cannot fairly be extended to impose an affirmative obligation on
             the State to insure that those interests do not come to harm through other means." DeShaney v.
             Winnebago County DES.

• However, where a state official acts in concert with a private person in the seizure of disputed property, it is
     sufficient to characterize that party as a state actor. Thus, where a plaintiff obtained an order of attachment
     from the clerk of the court and had it executed by the sheriff in an allegedly unconstitutional manner, said
     person was subject to liability in a civil rights suit for infringement of a constitutional right.
• In another case, the Court held that there was no state action involved in the sale of goods taken to a
     warehouse for storage after the plaintiff was evicted. The Court rejected the argument that the sale was
     attributable to the state because the state authorized and encouraged it by enacting U.C.C. §7-210. "This
     Court ... has never held that a state's mere acquiescence in a private action converts that action into that of
     the state." Flagg Bros.,lnc. v. Brooks.
• On the state level, New York's Court of Appeals utilized New York's constitution to afford the citizen even
     greater protection than the federal Constitution, holding that a sale of a motor vehicle to enforce a
     mechanic's lien did constitute state action. This holding resulted because the old New York Lien Law did not
     provide the owner-bailor with a hearing opportunity prior to the sale, and therefore was unconstional.




                             Michael M. Wechsler
                                             Constitutional Law                                              63
C. DUE PROCESS

There are two types of Due Process:
a. Procedural Due Process
b. Substantive Due Process


The Due Process Clause has both a substantive and a procedural aspect.

Substantive due process (Lochner, Nebbia): Whether legislation deprives a person of life, liberty or property without
due process of law by interfering with those rights.
Procedural due process: which is a more serious issue in today's world, relates to whether legislation affords an
opportunity to contest charges before a person is deprived of life, liberty or property.

Criminal procedure rests on the procedural due process guarantee, though other specific constitutional provisions (search
and seizure, right to counsel, jury trial) also play major roles. But procedural due process is also important in the civil (as
opposed to criminal) arena.

PDP Exmaples: For example, one may not be deprived of an entitlement without procedural due process - an opportunity to
contest the deprivation. The Supreme Court has so held with regard to the termination of welfare payments, Goldberg v.
Kelly, civil service employment, Arnett v. Kennedy, and forfeiture of property (a house allegedly used in drug dealing), United
States v. James D. Good Real Property.

Note that one is not constitutionally entitled to welfare, or government employment. But one is entitled to not be deprived of
welfare or government employment for an unconstitutional reason (like race or gender), or without a chance to object to the
deprivation in other words, notice and opportunity for a hearing on contested facts.

Limits on PDP: There are, of course, limits on procedural due process.

• Civil service employees need not receive a hearing prior to dismissal; the hearing may constitutionally occur later. Arnett v.
Kennedy, supra.

A hearing must be held prior to suspending a public school student for misconduct, Goss v. Lopez, but not prior to
administering corporal punishment, Ingraham v. Wright. The Court viewed the student's ability to sue in tort for unwarranted
corporal punishment as an adequate substitute. Why isn't this equally true for a suspension?

Although a hearing is constitutionally mandated before depriving a welfare recipient of payments, Goldberg v. Kelly, supra,
the Court has held no hearing is necessary before a denial of disability payments, where the issues are more apt to be
medical and need is not a factor. Mathews v. Eldrid. Valid distinction?

Finally, the Court has required a hearing before a state may suspend the registration and license of an uninsured driver
involved in an accident. Bell v. Burson. The Court reasoned that although driving and owning a car are not constitutionally-
protected rights, the state may not deprive a citizen of these entitlements for being involved in an accident while uninsured,
without proof that the driver caused the accident, so that there is a reasonable possibility of a judgment against the driver.




                                            Michael M. Wechsler
                                              Constitutional Law                                                 64

III. Procedural Due Process: This is the right to your day in court before being deprived of life, liberty or property.

    Determination of Procedural Due Process

         i. The first step in any due process analysis is to determine whether there exists a sufficient "life, liberty or property"
                 interest to trigger due process protection. That is, the court must determine if the interest that is being interfered
                 with falls within the protection of the Due Process Clause.
         ii. If that interest is found, the second step is to determine whether the process used by the government to limit or
                 deprive that interest was a "due" (fair) process.

         iii. The courts have incorporated parts of the First, Fourth, Fifth, Sixth and Eighth Amendments into the "Due
               Process" clause of the Fourteenth Amendment. They term these rights "principles implicit in the concept of
               ordered liberty" or "principles of justice so rooted in the conscience of our people as to be ranked fundamental."
               However, the right to a grand jury has not been incorporated from the Fifth Amendment into the Fourteenth
               Amendment Due Process clause. Nor has the Seventh Amendment, which guarantees a jury trial in all suits at
               common law involving more than $20, been called a "fundamental principle."

    Standard of Measure of PDP

         • Procedural Due Process calls to mind two words: fairness and reasonableness. Thus, before the government
              deprives one of "life, liberty or property," that person must be afforded a procedure that is fair and reasonable.
         • The guarantee of Due Process demands only that the law shall not be unreasonable, arbitrary or capricious and
              that the means selected shall have a real and substantial relation to the subject sought to be attained. Nebbia v.
              New York.
         • When one speaks of "liberty," one immediately thinks of the right to be free from unreasonable searches and
              seizures; the right to a grand jury; the right to have criminal laws that are not vague or overly broad, and to
              require the state to prove guilt beyond a reasonable doubt; the right to a speedy and public trial and the right
              against self-incrimination.


A. Some of the rights encompassed in the "liberty" interest are:
a. The right of a student not to be summarily suspended from school for disciplinary reasons without a hearing. Distinguish
this from the right of the state to suspend a student without a hearing if that student has violated academic rules.
b. The right of a prisoner not to have probation, parole, or "good time" arbitrarily revoked. If there is "some evidence" to
support revocation, albeit meager, Due Process is satisfied. Superintendent, Massachusetts Correctional Institution, Walpole
v. Hill, 472 U.S. 445 (1985). (Prisoners do not have a right to a hearing prior to being transferred from one state to another.)
Olim v. Wakinekona.
c. In line with this, the Court recognized an individual's right to discontinuance of life supporting treatment within the
Fourteenth Amendment Due Process guarantee, but allowed states to require that a patient's wishes on the matter be
established by clear and convincing evidence. Cruzan v. Missouri Director of Health.

B. Some of the "property" interests protected by the Due Process clause ensure:
a. That a litigant cannot use a provisional remedy prior to judgment without Due Process of law;
b. The right not to be terminated arbitrarily from a tenured position;
c. The right not to have welfare benefits arbitrarily terminated without a hearing;
d. The right to adequate notice before a court judgment can be entered; and
e. The right to a hearing when a driver's license is revoked.

• Thus, the Due Process clause limits the state and federal governments' right to arbitrarily and unfairly interfere with one's
"life, liberty and property" interest. However, the Due Process Clause guards against a purposeful abuse of power, not mere
negligence. Daniels v. Williants, Davidson v. Cannon.




                                             Michael M. Wechsler
                                            Constitutional Law                                               65
IV. SUBSTANTIVE DUE PROCESS: The substantive Due Process theory limits the power of the state from regulating
     certain areas of human privacy.


    • Laws infringing in these areas of fundamental human rights are subject to strict judicial scrutiny,

    • where as laws involving economic regulation and most other social welfare (safety and health) related laws require
        the government to demonstrate a mere legitimate governmental interest and that the means being used are
        rationally related to that interest.

    A. The only fundamental rights protected by substantive Due Process are;
        a. The "liberty" interest not to be sterilized - Skinner v. Oklahoma;
        b. The "liberty" interest of a person acquitted by reason of insanity, who has regained sanity, (an automatic basis for
              release in civil insanity confinement) to be released from confinement in a mental institution even though the
              state's doctors did not feel comfortable in certifying him as not being dangerous. Foucha v. Louisiana, 112 S.Ct.
              1780 (1992).
        c. The "liberty" interest of sexual expression; and
        d. The "liberty" interest to terminate pregnancy. Roe v. Wade; City of Akron v. Akron Center For Reproductive
              Health.
        • First Amendment freedom of the press, freedom of religion, freedom of association;
        • Fourth Amendment freedom from unreasonable search and seizure;
        • Fifth Amendment freedom from double jeopardy, self-incrimination;
        • Sixth Amendment right to counsel, right to confrontation, the right to a jury trial in serious criminal cases (but not
              the right to be indicted by a Grand Jury), right to a speedy trial; and
        • Eighth Amendment prohibition against cruel and unusual punishment.

    1. Non-fundamental rights: economic and social welfare regulation; Rational Relation Test:

        a. Economic regulation: Nearly all economic regulation (and most "social welfare" regulation) will turn out to implicate
               only nonfundamental rights, and will almost certainly be upheld under this easy-to-satisfy mere rationality
               standard. So anytime you can't find a fundamental right being impaired, you should presume that the measure
               does not violate substantive due process.
        •If a right or value is found to be "non-fundamental," then the state action that impairs that right only has to meet the
               easy "mere rationality" test.
        • It is very easy for state economic regulation to survive substantive due process attacks. Since 1937 the Court has
               not struck down an economic regulationfor violating substantive due process.
        a. Rational Relation:

             i. Legitimate state objective: The state must be pursuing a legitimate state objective. But virtually any health,
                   safety or "general welfare" goal comes within the state's "police power" and is thus "legitimate".
             ii. Means of State is minimally rationally related to that objective: Second, there must be a "minimally
                   rational relation" between the means chosen by the legislature and the state objective. To put it another
                   way, the court will presume that the statute is constitutional unless the legislature has acted in a completely
                   "arbitrary and irrational" way.
             iii. Strong presumption of Constitutionality: The burden of proof to show the law is unconstitutional is on the
                   P challenger to show that there is no rational relation of the state‟s means to the objective.




    2. Fundamental rights: Strict Scrutiny test:

        i. Narrowly Tailored Statute: The means of the regulation are necessary, and there are no other narrower means
              that could accomplish the objective satisfactorily.
        ii. To Meet A Compelling State Interest: In order to breach the substantive due process of citizens and impinge on
              their rights, the objective of the state must be compelling.
        iii. No presumption of Constitutionality, burden on the government: The court takes a hard look at the statute
              and decides whether the statute is constitutional. Heavier burden on the government to show that the taking
              away of the right of the citizens is necessary and sufficiently narrow.




• The Court recently ruled that the freedom of sexual expression does not include consentual sodomy; an anti-sodomy statute
does not implicate "fundamental rights" involving family relationships, marriage, and procreation. Bowers v. Hardwick

                                           Michael M. Wechsler
                                             Constitutional Law                                              66

1. What is clear today is that:


SUBSTANTIVE DUE PROCESS - ECONOMIC AND SOCIAL WELFARE REGULATION

Issues in Substantive Due Process: Whether the Court may extend protection to rights not sxplicitly protected in the
Constitution by including them with the “funsdamental rights” of citizens.


there must be a state action to plug in the governmental machine to use SDP as an issue.

Substantive Due Process: Focus is on a person wo is deprived of property whter he was given his right to a fair trial.

Criminal Side: Much of the court issues deal with Procedural Due Process
Civil Side: If the state or Congress passed a law stating that all persons accused of negligence or breach of contract would be
liable for damages without a trial, that would be a denial of Procedural Due Process - that the procedure involved on going to
trial was forgone.
However, this severe example isn‟t the problem that arises - usually it occur at the administrative level, regarding agencies
that try to get away with as little procedural due process as they can getaway with - regulation of industry.

Rulr: You cannot take away something that is PROPERTY or LIBERTY without a hearing.


Governmetn employees that have some civil service tenure, adn they cannot be discharged without a hearing. Why? e.g. a
police officer is charged with misconduct. You want to be able to assert that you have the Constitutional requirement of notice
and a hearing. The 5th Amendment says that Congress can‟t deprive us of due process. The 14th Amendment says the
states can‟t deprive us of due porcess of the law. The employter here is state and federal.

The civil service tenure is the statute that provides you with the Procedural Due Process. This civil service tenure is what
makes the job “property.” What about a collective bargaining agreement? No Procedural due process right as there has to be
state action - private people can‟t be charged with a violation of a Constitutional right as there is no protection from someoe
firing you. There may be a contractual violation, but not a Constitutional one.

This provides us with a Constituional guaranty. e/g/Social Security or any type of governkent pension or disbursement,
medicare, medicaid, is not guaranteed by the Constitution as a right, only statutory grants. These things can be abolished
tomorrow. Once there is a statutory entitlement, that entitlement cannot be taken away without due process. e.g. Goldberg v.
Kelly, where someone was taken off of welfare because he was accused of fraud. Since the state requirement on the books
was that the state cannot deprive someone simply based on a charge, it must give him his day in court - asame as with a
driver‟s license.

Note: If public safety requires immediate suspension of a right pending hearing, it must be done.

With state contracts: NOT a state action within the meaning of the Constituion that a Due Process issue should arise - it
doesn‟t/ - There must be state action to plug in the Constitutional machine.



SUBSTANTIVE DUE PROCESS - ECONOMIC AND SOCIAL WELFARE REGULATION

A. Substantive due process generally: There are two quite different functions that the Due Process Clause serves. Most
obviously, it imposes certain procedural requirements on governments when they impair life, liberty, or property. (We'll be
talking about this "procedural due process" area below.) But the Due Process Clause also limits the substantive power of the
states to regulate certain areas of human life. This "substantive" component of the Due Process Clause derives mainly from
the interpretation of the term "liberty" - certain types of state limits on human conduct have been held to so unreasonably
interfere with important human rights that they amount to an unreasonable (and unconstitutional) denial of "liberty".

• Exam Tip: Any time your fact pattern suggests that a state or federal government is taking away some thing or value that
could be considered "life," "liberty," or "property," then entirely apart from the issue of whether the government has used
proper procedures, you must ask the question: Has the government by carrying out this taking violated the individual's
substantive interest in life, liberty, or property?



a. General rule: For now, the important thing to remember is that if the right does not fall within this grouping of "fundamental"
rights, the state must merely act rationally in pursuit of some health, safety or other "general welfare" goal. [163]



                                            Michael M. Wechsler
                                              Constitutional Law                                              67
Example: New York sets up a prescription drug reporting scheme, whereby the names and addresses of all patients who
receive prescriptions for certain drugs must be reported by doctors, and are placed on a central computer. Some individuals
claim that this regulation infringes on their right to avoid government collection of private matters. Held the statute does
infringe on a patient's right to keep prescription information secret. But this right is not "fundamental". Therefore, the statute
will be sustained as long as the state is acting in pursuit of a legitimate state objective, and has chosen a rational means.
Here, these requirements are satisfied. [Whalen v. Roe].




                                            Michael M. Wechsler
                                               Constitutional Law                                             68
         Historical basis for SDP

              Calder v. Bull - “Natural Rights theory” - there are things legislature naturally cannot do

                  Rule: This case was overruled In Marbury, that the legislature cannot change the outcome of cases to fit the
                      way it wants to. There is a definitive separation of powers, and we must allow the litigants to have the
                      substance of their arguments dealt with fairly within the courts, once they get to that arena.

                                   Facts: A state law regarding the general welfare of the population was made but it was set
                                       aside by a court ruling.The state law that was enacted changed the outcome fof the case,
                                       whose outcome they didn‟t like, so they sent it back in for a new ruling. A higher court
                                       would normally deal with changing a result you didn‟t like in an earlier case - you wouldn‟t
                                       go to legislature. But the legislature did this - they changed the law to being about a
                                       different result in the case.

                                   Holding: J. Chase said that this is not a question of proecedural due process, but of
                                       substantive due process. The legislature just cannot do this. This isn‟t procedure like
                                       taking away someone‟s right of having his day court. Legislature should not be able to
                                       make law like this because they are taking away the prize of the winner and his right to
                                       property in the probate courts by passing this law. The majority said that “where does it
                                       say that this cannot be done?” Then came Marbury v. Madison and dealt with due
                                       process and the right of the judiciary to review statutes.

                  Attacking on Substantive Due Process
                      1. Look at State Constitution.
                      2. Look at Federal Constitution.

                  Note: The court has given greater rights against State Constitutions then the Federal Constitution. This is
                      because the states can grant more protection than the federal constitution. If the state wants to extend
                      greater freedom of speech to its citizens, it can do so, but iot cannot decrease the freedom of speech
                      and censor. That would be violative of the Constitution.
14th Amendment

How is it applied to the states?


Ome rights are so substantial to the concept of ordered liberty that they are implicitly stated in the 1st Amendment.

Th states cannot deprive the citiaens of due process - it is the 5th Amendment applied to the states through the 14th
Amendment.
What if the state passes a law depriving us of our free speech?
You argue that the 1st Amendment was incorporated into the 14th Amendment like many of the others, and the state cannot
deprive us of our lifem liberty and law, but the language includes the dirst Amendment. All these constitute an unconstitutional
interference with life, liberty and property, invcalid under the 14th Amendment, therfore the language under the 1st
Amendment applies equally under the states because the 14th Amendment language encompasses the 1st Amendment as
well.All these” due process, doubel jeopardy, life and liberty, and all so fundamental to the concept of liberrty that they gfall
under “due process of law” so the states cannot do them either.

What else is applicable to the state”
Possibly the first 8 Amendments that apply to the federal government - the bill of rights, apply to the states, but we argue that
either the Amendment is so essentia to ordered liberties, or it si not really a fundamental right - these two arguments make up
the arena.

The state cannot subject us to double jeopardy because to do that would be a violation of the fundamental immutable rights of
the people under the 14th Amendment, a deprivation as per Cardozo‟s opinion in Palko v. Connecticut (“Whether the Bill of
Rights Guarantee in question is one of “the very exxence of a scheme of orderd liberty” and wether it is one of those
fundamental principles of liberty and justice which would lie at the base of all of our civila nd political institutional. The state
could appeal in criminal cases where the accused was convicted of a lisser crime than originally charged and effectively try
defendants twice for the same crime, just with a different charge. The Due Process Clause of the 14th Amendment
incorporates those provisions of the Bill of Rights. A statute that sllows the state to sppeal a case there the accused was
convicted on a lesser charge does not vioalte those fundamental principles of liberty and justice whichlie at the base of all our
civil and political institutions. - in cardozo‟s opinion).


Duncan: Trial by Jury: It si so fundamental to the American justice system that it is applicable to the states under the 14th
Amendmnet. Anything else is a serious misdemeanor that does not require a jury.



                                              Michael M. Wechsler
                                      Constitutional Law                                             69

PRIVILEGES AND IMMUNITIES CLAUSE OF THE 14th Amendment - post Civil War

   The Privileges and Immunities Clause: provides that the citizens of each state are entitled to all the privileges and
       immunities of citizens of the other states. “This was to curtail the states such as those in the South, from
       government action against individuals.

   Fundamental matters of Article IV: This has been interpreted to mean states may not discriminate invidiously against
      citizens of other states with regard to employment and similar "fundamental" matters. Thus states may not favor
      their own residents for employment:
      • Where an out of state citizen is disallowed from practicing law in the state
      • Restriction on out of state seamen from catching shrimp in a sea for livelihood (not recreational - Montana Elk)

   At first the 14th Smendment was seen as procedural, but eventually it became known to be a doctrine used against
         substantive due process.
         1. the rise of substantive due process until the Gresat Depression
         2. The doctrine‟s abansonement, at least to economic regulation during the Derpression
         3. The rebirth in a broad number of areas, especially in non-economic interests - the right of privacy.




                                     Michael M. Wechsler
                              Constitutional Law                                              70

A. The Slaughterhouse Cases - p. 214 ******** ??????

    Rule: The 14th Amendment Pribvileges and Immunities Clause yields nothing useful and is a dead letter. It
        merely bars a state from abridging any US citizen‟s rights of national citizenship, such as prohibition of
        interstate travel.

                 Facts: Louisiana passed a law giving a monopoly on slaughterhouses to a company. Butchers
                     not within the monopoly brought an action stating that the statute deprived them of the
                     opportunity to practice their trade. It violated the 13th and 14th Amendment, a denial of
                     the privileges and immunites of citizens of Louisiana.

                 Holding: The court rejected butcher's claim as the majority construed Privileges and
                     Immunities clause literally. States can't enjoin privileges and immunities enjoyed by
                     citizens of the united states. It didn't apply to the citizens of the states.
                     • 13th Amendment only applied to slavery.
                     • 14th Amendment only prohibited states from making and enforcing laws that infringed
                          on the Privileges and immunities of national citizenship, not citizenship of the states -
                          which practicing one;s calling was a part of. The øs only remedy was to turn to the
                          state constitution. The Louisiana statute did not violate any of the privileges and
                          immunities of national citizenship.
                     • Court decided that Due Process Clause provision only guaranteed that states would
                          enact laws according to the dictates of procedural due process. Thus the law did not
                          deprive the butchers of their property or their rights without Due Process Clause. it
                          merely gives the citizens the right to travel interstate, free access to seaports, and
                          the like.
                 Dissent
                     • What good is a privilege and immunity clause if it only protects from the state denying
                          rights of US citizens? If that's all that means, then why did we enact it. Privileges and
                          immunites clause of the 14th amendment is a dead letter and has never been used
                          to set aside state legislation. Court has never used it.
                     • Slaughter house also plead equal protection, but court said it was only enjoyed by freed
                          slaves and as such didn't apply.
                     • Note that the court dismissed the Guaranty Clause claim of a republican form of
                          government because that would be dismissed as a political question that cannot be
                          answered by the courts.
                     • Equal Protection: The court got this claim wrong as well. Anyone can claim equal
                          protection, not just the slaves.
                     • Due Process: Court dismissed this too summarily.




                             Michael M. Wechsler
                                      Constitutional Law                                                71

SDP: ECONOMIC AND SOCIAL WELFARE REGULATION - Non fundamental Rights

   A. Lochner Era - Great Depression - very broad construal of personal liberties
       Lochner era - very broad and usually not done anymore as the court seldom comes inlike a gangbuster to set
           aside economic regulation - must show no rational basis before the court will strike down the regulation.

       1. Lochner v. New York - p. 218
           Rule: To be a fair, reasonable, and appropriate use of a state's police power, an act must have a direct
               relation, as a means to an end, to an appropriate and legitimate state objective.
           • Holmes Rule: Equal protection: As long as there is a rational basis for the law, you cannot use substantive
               due prcoess to assert that an economic or private liberty has been wrongfully taken.
           • Modern view of due process: Reflected here that if the loss is merely economic than the challenger must
               show that the statute/law is irrational and unreasonable for the law to be declared invalid. The power to
               regulate labor conditions is an example of typical police power.

           • This is exactly the point of Carolene Products Footnote 4: As long as the legislature had a rational basis
                for the legislation, regardless of the food, it cannot be challenged by the court.

                          Facts: Lochner was fined for violating a state labor law prohibiting employment in bakeries for
                                more than 60 hours a week or more than 10 hours a day.
                          Issue: Is a state law regulating the hours bakery employees may work a valid exercise of state
                                police power?
           Holding: No. The general right to make a contract in relation to one's business is part of the liberty of the
               individual protected by the 14th Amendment. The court required a very tight fit between the regulation
               and the objective, and here there were other lesser alternative, at least in the court‟s opinion.
                          • Regulation of health and safety was seen as permissible, bu the readjustment of economic
                                power was not - in the viewpoint of the court. Since it was a reorganization of contracts,
                                the court would not allow it to be done.
                          • If the contract is one which the state in the exercise of its police power, relating to the safety,
                                health, morals, and general welfare of the public, the state has the right to prohibit the
                                contract - but the court does not believe that this is the case. It must have a more direct
                                relation, as a means to an end, to an appropriate state goal, before an act can interfere
                                with an individual's right to contract in relation to his labor. The court also found no real
                                threat to the health of bakery workers.
                          • The truth is that the court simply did not like tyhe law so it struck it down.
                          DISSENT: Judicial Restraint: Whether or not this be wise legislation is not a question for this
                                Court. It is impossible to say that there is not substantial or real relation between the
                                statute and the state's legitimate goals. This decision brings under the Court's supervision
                                matters which was supposedly belonged exclusively to state legislatures. There was no
                                freedom to contract here because it was the employers who made ot so - so the court
                                didn‟t restrict tight to contract!
           DISSENT: (Holmes, J.) The word liberty in the fourteenth amendment should not invalidate a statute unless
               it can be said that a reasonable person would say that the statute infringes fundamental principles of
               our people and our law. A reasonable person might think this statute valid - in fact, the workers liked it,
               not the exploiting bajery owners. If the court is going to use it's own concepts of what's right and wrong,
               then lets start with the usary laws that everyone thinks are invalid. Sunday laws, anti-lottery laws etc.
               are all interferences with liberty no different than the N.Y. labor law, and the courts attempt to
               rationalize “natural rights” is futile. we must use a test as to what is rational to decide whether a law is
               valid.
           • The court is substituting its own views for the legislative wisdom of the legislature.


                         Notes: From the Lochner decision in 1905 to the 1930s the court invalidated a considerable
                             number of laws on substantive due process grounds, such as laws fixing minimum
                             wages, maximum hours, and prices and laws regulating business activities.
                         • The court seemed to apply a strcit scrutiny test here to show the validity of the legislation,
                             when it should hav eused a rational relation test as there was no fundamntal right being
                             infringed upon.
           •The modern court claims to have rejected the Lochner doctrine.
           • The court in Lochner has given an unduly broad reading of the word “liberty” in the Constitution.
                         • The court has withdrawn strict scrutiny in most economic areas but has maintained and
                             increased intervention with respect to a variety of non-economic liberties. However, not
                             only economic regulations were struck down under Lochner. That doctrine formed the
                             basis for absorbing rights such as those in the first amendment into the fourteenth
                             amendment concept of liberty.



                                     Michael M. Wechsler
                               Constitutional Law                                                72
    • Lochner‟s broad construal of “liberty” of the people also helped justify on behalf of other non-economic
         rights such as the right to teach in a foreign language. Meyers v. Nebraska. Meyers was to be relied
         upon in the birth control decision, Griswold v. Connecticut. These too also broaden liberty to come out
         with what we feel is the right decision.


2. Nebbia v. NY - p. 224 - (1934) - court adopts Holmes‟ dissent in Lochner

    1. Adoption of „mere rationality test” in non-fundamental and economic issues: The guarantee of
        due process demands only that the law shall not be unreasonable, arbitrary, or capricious, and
        that the means selected shall have a real and substantial relation to the object sought to be
        attained.

    2. Modern position of the Court: Strong presumption propriety of the legislation in the mere
        rationality test, and burden is on the challenger of the statute.

                    Facts: In 1933, the New York Legislature established a Milk Control Board, given the power to
                          fix minimum and maximum retail prices dsue to depression so farmers could eke out a
                          living. The board fixed the price of a quart of milk at nine cents, Nebbia, a storeowner,
                          charged less. Failure of producers to receive a reasonable return threatens a relaxation of
                          vigilance against contamination. The production of milk is a paramount industry of the
                          state, and largely affects the health and prosperity of its people."
                    Issue: Does the federal Constitution prohibit a state from fixing selling prices?
                    Holding: No. The court sustained a scheme which set min prices for the sale of milk.
                    • It was a legitimate exercise of the state's police power.
    • A state is free to adopt whatever public policy may reasonably be deemed to promote public welfare. The
         courts are without authority to override such policies. If the laws passed have a rational relation to a
         legitimate purpose and are neither arbitrary nor discriminatory, the requirements of due process are
         satisfied.
                    • The use of property and the making of contracts shall be free from government interference
                          in general. However, neither property rights nor contract rights are absolute. Equally
                          fundamental with the private interest is the public's to regulate it in the common interest.
                    • The guarantee of due process demands only that the law shall not be unreasonable,
                          arbitrary, or capricious, and that the means selected shall have a real and substantial
                          relation to the object sought to be attained. If an industry is subject to regulation in the
                          public interest, its prices may be regulated
                    Dissent: The Legislative Committee pointed out as the cause of decreased consumption of
                          milk the consumer's reduced buying power. Higher store prices will not enlarge this
                          power, nor will they increase production. This statute arbitrarily interferes with citizens'
                          liberty since the means adopted do not reasonably relate to the end sought, the
                          promotion of the public welfare.
                    Notes: The early attitude of the court had been that the states could regulate selling prices
                          only for industries affecting the public interest. Regulation of prices and rates charged by
                          public utilities, dairies, grain elevators, etc., were upheld, but regulation of the prices of
                          theater tickets or ice were not. Nebbia held that price control regulation was to be treated
                          the same as other police powers and a rational relation to a legitimate goal was all that
                          was necessary. The dissent, representing the court's earlier position, does not want to
                          treat the legislation with the deference exercised by the majority. In its judgment, the
                          method adopted by New York does not rationally relate to its goal. Nebbia represents the
                          modern position of the Court, which is to presume the propriety of the legislation.


3. US v Carolene products 1938

    Facts: Congress passed legislature that prohibited the interstate shipment of filled milk due to consumer
        confusion.

    Rule: Rational Relation standard coupled with presumption of constitutionality. The regulation is not to be
        deemed unconstitutional unless it is of such character so as to preclude the assumption of rational
        basis. The existence of facts supporting the legislative judgement is to be presumed - burden on the
        challenger of the statute to show no rational relation between the states means/law and the state‟s
        objective.

    Footnote 4: There is a narrower scope for the presumption of constitutionality when the legislature
       appears on its face to be within a specific prohibition of the constitution - a stricter scrutiny for
       fundamental right restrictions.



                              Michael M. Wechsler
                               Constitutional Law                                               73
    • Rationale: The fundamental rights of minorities are not adequately protected by our congressional
        structure as they do not have the money and lobbying power to make their voices heard. The
        court‟s role in the instances of strict scrituiny of such statutes that take away fundamental
        rights is to ensure that the rights of minorities are adequately protected.

4. Whalen v. Roe: Law regarding the tracking of prescription drugs on computers so as to prevent fraud and
    abuse of controlled prescription drugs was upheld because it had a rational basis. Having a doctor and
    patient who want to beat the system was sufficient to promote a great ned to regulate, and it was rational to
    do so in this fashion.

5. Duke Power: The Price Anderson Act limited recovery of nuclear accidents to $560 million. People sued that
    there was a substnative due process issue as this is limiting the right to get what they shou;d be
    compenstaed. The court struck this idea down stating that there is trade off - that there is strict liability for
    such an accident, but the automatic reward is limited to this cap.




                              Michael M. Wechsler
                                         Constitutional Law                                              74

Takings

   Eminent Domain: Land Use control governed by the 5th Amendment - “provate property may not be taken for public
        use without payment of just compensation,” to the state through the 14th Amendment‟s Due Process Clause
        (cannot take property without your day in court). While the state and federal governments have th power to take
        land for public use, it must reimburse the owner ust compensation for the property that it needs to take.
   • Critical distinctions must be made between non-compensible regulation as per the state Police Power (land
        regulations) and compensible takings.

   • DEFACTO TAKING: a taking in effect. Regulation of land use resulting in a taking.


   There are 3 limits:

          i. Public Use, substantially advancing legitimate state interests: Land must be taken for public use, and
               must be a complete taking.
               • Most courts give government the benefit of the doubt that the land is being taken for public use.
               • Must show complete deprivation of reasonable investment based expectations or reasonable use of the
                    land.
               • Note that every law regulating land will raise the value of some and devalue others. It is the nature of the
                    beast and is necessary. We cannot expect the government to cover these devaluations.

                   • Berman v. Parker - p. 231 1950 case where substandard store was taken and used to make public
                       housing. Ehrman claimed the store wasa decent department store and not substandard. But the
                       government showed that the condition of his building wasn‟t the issue, his building was fine, but
                       the other 2/3 of the area was urban plight. It needed the land for a public use for an urban renewal
                       program.

                   • Hawaii Housing Authority v. Midkiff - p. 233 Public use construed broadly. This stretched the public
                       housing concept much further. A small group of families settled in Hawaii and nearly all the land
                       was owned by these 70 families. The state legislature enacted a law that some of the tenants
                       sould take the land by eminent domain and pay just compensation, then well it to homeowners.
                       This was allowed because of the unusual and inequitable situation in Hawaii.

                   • Poletown Community Council v. City of Detroit: GM threatened to move its factory out of Detroit
                       unless it moved to a suburb, such as Poletown, which was a one family house area. Government
                       granted a taking of area and claimed it was knocking down substandard housing and keeping a
                       much needed employer of the public in the area, and preserving the waning industries. Residents
                       claimed a de facto taking and a giving the property of one private owner to another private owner
                       (like the reverse eminent domain argument in Boomer.) City won in a bitter 3-2 decision.



          ii. Payment of Just compensation: State must pay for a taking.
               • Must show some actual part of the property has been taken, even if only a piece.
               • Invasion and trespass allowed by other people constitutes a taking.
               • Proof of taking NY P requires government compensation


          iii. Must be a complete, NOT partial taking

                                                      15
              1. Penn Central Station v. City of NY        - p. 234

                   Rule: Landmark preservation will seldom be found as a taking, especially when ther are reasonable
                       investment based opportunities.

                            Facts: Grand Central Station was designated a landmark by the Landmarks Preservation
                                Commission, an 11 member agency, because: 1. Spectacular Architecture, 2. Historical
                                Significance.

                            • Mostly, landmarks needed preservation because:
                            1. Tourism/Economics: Historical monuments bring tourists who spend money in the area.
                            2. Pride of City: Brings a sense of accomplishment and pride to the city, and gives it a
                                 separate aura and ambiance that improves the quality of life for all. It gives the city
                                 personality.


                                        Michael M. Wechsler
                      Constitutional Law                                              75
Issue: Whether a city may, as part of a comprehensive program to preserve historic landmarks and
    districts, place restriction on individual historic landmarks - in addition to those posed by applicable
    zoning ordinances - without effecting a “taking” and requiring payment of “just compensation.” The
    court must decide whether the Landmark Law of NY violates the 5th and 14th Amendment by
    “taking” the owner‟s property, being Grand central Station.

         Q: Isn‟t the placement of the certificate in the law counter-intuitive? We want to protect
              landmarks because the are invaluable.
A: The 5th Amendment prohibits, through the de facto taking provision, the government to regulate
    property unreasonably. This was the same argument in Euclid that the agency‟s prohibition of
    building on the property of the owner by use of zoning laws was unconstitutional. The court found
    that even though the value of the land was reduced it wasn‟t eliminated and no deprivation of all
    reasonable value. The fact that zoning laws reduce the property value is a fact of life. If
    government had to pay for all the reductions it wouldn’t be able to zone at all, something that is a
    necessity. Therefore it cannot be a de facto taking.
         Since Penn Station had a sufficient return from Grand Central, this was not a taking because
              there is no guarantee that a citizen will get maximum return from his investment, only a
              reasonable return.

         Transferred Development Rights (TDR): Penn had the ability to transfer the rights to build high
             above the street in its airspace above the Grand central Station (where it was prohibited
             from building) to any adjoining property. These rights are also freely transferable and may
             be sold. The court and Commission deflect the argument of a taking by using these
             “sweeteners” as a method of compensation.

• Court dismissed P‟s argument of operating losses and deprivation of “all reasonable use of the
    property” because all the P‟s showed was that they were deprived of the property‟s maximum
    profitable use, not a deprivation of reasonable profit and use.

         1. P‟s improperly included other railroad expenses
         2. P could easily increase its revenues by transforming the vacant or under-utilized space for
              significant revenue producing use.

1. Taking: The Court said there was no taking use when the Commission took away their air rights
     above the terminal because:
     1. Air rights not abrogated and freely transferable through the TDR, for Penn to build on adjoining
            land or sell the rights.
     2. You have to take the property as a whole and can‟t separate the air from the land.
     3. There was no taking because the Commission only said that Penn couldn’t build a 50 story
            skyscraper. It never took the right to build away, and it could have applied for another
            structure.
     4. The Landmark Law does not interfere with Penn‟s primary and expected use of the parcel and
            the ordinance allows it to obtain a reasonable return on its investment.
2. Spot Zoning: Penn claimed the landmark designations are arbitrary, and a matter of taste of those
     doing the choosing (note they did not argue that they were improperly designated, only that the
     procedure is unlawful). If the property is of value, then the owner should rightfully see some of the
     return. In Euclid everyone, including the P, could not build a factory in the residentially zoned area.
     But here only Penn Central is limited, not everyone else around. This should be a denial of equal
     protection.
     1. There is a commission of a number of people with specific criteria that must be followed to
          designate a landmark. The fact that Grand Central is of architectural and historical
          significance are significant factors in the designation. Landmark laws are not spot zoning and
          the process is specific to preserve these necessary and priceless treasures.
     2. Penn should have complained about the designation process when they were designated a
          landmark. Their failure to do so bars this argument.
     3. Zoning is a fact of life. Some win, some lose, but the law is and the facts are that Penn central
          did not lose enough to consider this a spot zoning or a taking.




                    Michael M. Wechsler
                                  Constitutional Law                                              76
             • There must be a complete taking, a deprivation of all reasonable investment based expectations. A
                  partial decrease or diminishing returns does not qualify. Penn central Could hav eused the
                  building for many other purposes and there was penty of reasonable use and return - it just
                  couldn‟t build a skyscraper.
             • Holding Rationale: Reasonable return and the use of the TDR‟s showed there was no taking, no
                  deprivation of reasonable use of the land or reasonable return.
             • Diminution in property value would not establish a taking
             • 5th Amendment is designed to bar Government from forcing some people alone to bear public
                  burdens which, in all fairness and justice, should be borne by the public as a whole.


a. Health and safety regulations will frequently be upheld and finding of no taking

    Keystone Bitimunous Coal v. DeBenedictus - p. 242

        •A taking will only be found where all reasonable icome based expectaitions have been taken, and mere
             reduction in value will not qualify as a taking and violation of the 5th and 14th Amendments.
        • When a regulation is done to protect the public from harm, there is more likelihood that a court will not find
             a taking even when investment based expectations are diminished greatly.
        Facts: The state has the right under its Police Power to regulate areas that are for the health, safety, and
             welfare of its citizens. The state passed a law that only 50% of coal could be extracted from certain
             coal mones, to endure that they risk of further excavation would not cause serious serosion danger.
        Holding: The court upheld the law as it has a rational basis, as well as the fact that the P was not deprived
             of reasonable income based expectations. He was able to extract 50% of the coal from under the land,
             plenty to bring him a healthy income. It may have reduced the value of the property, but it is not a
             complete deprivation, thus not a taking.


b. Physical Invasions are always a taking, no matter how small.

    Loretto v. Teleprompter Manhattan CATV
    Rule: Physical invasions are always a taking, no matter how small. There also may be de facto takings when
        there is no actual physical invasion of the property, such as in the airplane cases. The court awarded $1 for
        a cable company to permanently hook up cable to the side of the building.


c. Easements are physical Occupation and require just compensation for takings

    Nollan v. California Coastal Council: Easements are physical occupations, however temporary, and require
        just compensation and area taking. The city required the owner of a beach cottage to allow the citizens to
        use the front portion of his land as a path form one beach to another. This was unnecessary and required
        the satisfaction of the 2 nexus test for the validity of a non-compensible regulation. The regulation was
        struck sdown and this was found to be a taking because this was a physical invasion on land, no matter that
        it was not a permanent continuppus invasion.

d. Total ban of structures due to regulation may deny the owner of all reasonable income based expectation
    and be a de facto taking.

    Lucas v. South Carolina Coastal:
                       Sometimes the government may pay for the land and for people to move elsewhere. Problem
                           with flood plain laws is that sometimes it makes the property virtually worthless as (1)
                           can‟t farm on it and (2) can‟t put a parking lot on it and it is only good for residential
                           purposes. This may be considered a real taking and the question in Lucas c. South
                           Carolina Coastal Council. There the state made a coastal barrier zoning regulation that
                           no one could build a home on a coastal barrier. P sued that this deprived him of all
                           reasonable use of his barren land - what else would he do with it?
    Holding: (Scalia) Remanded to the South Carolina courts as to whether there was a taking. When the state, no
        matter the reason, deprives one of all reasonable investment based expectations, it is a taking. If the state
        had the power to restrict him from building because of nuisance, that is a different issue. The state could
        enjoin his building because it would be a nuisance to the city, and the state may say that it therefore
        wouldn‟t be a taking, but that is up to the S.C. courts.




                                 Michael M. Wechsler
                                   Constitutional Law                                              77
e. ZONING: Two nexus test for zoning and taking

    Dolan v. City of Tigard
        Facts: Dolan had a store on her property, which was near a river. The city issued her a permit to build on
            her land but conditioned it on Dolan‟s willing to convey a 15 foot strip of land to the property to the city.
            The city asked for the trade off because:
            1. Dolan would be building near the river and could be denied as it would be dangerous and a nuisance
                 as it would endanger the land from flooding;
            2. The larger store would increase traffic and a bicycle path would attract bikers and reduce the use of
                 autos, in turn reducing the potential congestion problem.
        Holding: The agreement was a taking. There had to be a nexus test:

        Two nexus test for zoning and taking:

             1. Nexus between the regulation and the public purpose: There must be an essential nexus
                 between the objective of the government, ajd the means of doing so. (There was a nexus of
                 preventing flooding and limiting development on the property, as well as the bicycle path to reduce
                 theautomobile traffic.)
             2. Rough proportionality between the imposition and its purposes: this was not satisfied as the
                 city went well beyond what it had to do in order to achieve its results. They required Dolan to deed
                 over her property. The city should have disallowed her from building, them had her sell, etc.. one
                 step at a time. The city wanted to kill two birds with one stone.


Contract Clause: The state cannot pass a law impairing the obligation of a contract.

    1. Fletcher v. Peck

        Rule: States are constitutionally barred from passing ex post facto laws, bills of attainder, and impairing
            contractual obligations. If the recission of a state law has the effect on any of the foregoing, it is
            unconstitutional and the USSC may act to protect the vested rights of the indiviuduals affected.

                      Facts: In 1975, the Georgia legislature, induced by bribery, conveyed 35,000,000 acres of
                           state lands to private companies. In 1796, the legislature moved to rescind the grant
                           enem though the land had been solk to proivate northern investos.
                      Holding: The third party, Peck, was a bona fide prurchaser of rvalue whose title had properly
                           vested.
                      Are there such things as “natural rights?” Two arguments:
                           No: If the founding fathers had wanted it there, they would have specifically stated laws of
                                “natural rights.” In addition, who is to say what these natural rights are - they are
                                undefiniable and every person says they are something different.
                           Yes: The 9th Amendment states that all rights not enumerated in the Constitution are
                                given to the people, and those encompass the natural rights.




                                  Michael M. Wechsler
                                        Constitutional Law                                              78

SDP: Non-Economic Rights - Strict Scrutiny for Fundamental Rights


    Fundamental Rights - Right to Privacy - Three Areas - Introduction:
       • Challenge to Substantive Due Process doesn‟t tell us what test, but nomally we use the rational basis test,
            unless there is a fundamental right involved.
       • Lochner era - very broad and usually not done anymore as the court seldom comes inlike a gangbuster to set
            aside economic regulation - must show no rational basis before the court will strike down the regulation.
       • Fundamental Right uses strict scrutiny - first announced in Footnote 4 in Carolene Products. We use rational
            basis test unless there is either a fundamental right or suspect classification.
       • Rights of minorities and fundamental rights- both get this test.
       • We have differeing standards as per Carolene - Stone said that when the statute deals with the rights of
            minorities, there is a stricter scrutiy because historically those groups have been denied access to the
            system - there isn‟t a level playing field - they don‟t have the money to access Congressman to take them
            out and lobby for laws, so we need stricter scrutiny. Freedom of speech is something so fundamental to our
            political system, and if we tamper with it the system wont work. This will not allow a level playing field either
            and is basic to oure political system as we cannot have some political candidates being rounded up.
       • Challenge to Substantive Due Process doesn‟t tell us what test, but nomally we use the rational basis test,
            unless there is a fundamental right involved. Here in rights of privacy, there is a fundamenta right involved
            of the ************** Amendment.


        1. Contraceptives

             The Court has given broad construction to this personal fundamental right and has struck down laws
                 prohibiting the distribution of contraceptives except through licensed pharmacists, or to persons under
                 the age of sixteen except by physicians. Griswold v. Connecticut


        2. Abortion
        The constitutionally protected right to decide whether to have an abortion is encompassed within the right of
            privacy "founded in the Fourteenth Amendment's concept of personal liberty" which protects a woman's
            reproductive freedom to terminate her pregnancy before the fetus reaches viability. The joint opinion in
            Planned Parenthood v. Casey replaced Roe v. Wade's "fundamental right" analysis and its trimester
            framework with an "undue burden" test. Roe v. Wade . The Court extends heightened constitutional
            protection only to prevent "unduly burdensome" interference with a female's right of whether to terminate a
            pregnancy. An undue burden exists where "a state regulation has the purpose or effect of placing a
            substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Its opinion also held
            that laws that criminalize abortion would be struck down.

        • The right to an abortion cannot be conditioned upon obtaining consent of the husband or the father, but a
            24-hour waiting period was not held to be an insurmountable burden. Planned Parenthood of Central
            Missouri v. Danforth.Indigents cannot demand that the government provide funds for such abortions.
            Harris v. McCrae;Webster v. Reproduction Health Services.

        The Casey opinion held that the following state regulations did not unduly burden a woman's right to an
            abortion:

        1. requiring a woman to listen to a doctor's lecture designed to discourage abortions;
        2. a mandatory 24 hour delay following the anti-abortion lecture; and
        3. reporting requirements that would make public the name of any physician participating in an abortion.

        • The Court upheld, as not violative of the First or Fifth Amendments, federal regulations under Title X of the
            Public Health Service Act, which prohibit federally funded family planning clinics from providing abortion
            counseling or information to their patients. The Court held that this did not infringe upon free speech or the
            doctorpatient privilege. "[T]he government has not discriminated on the basis of viewpoint; it has merely
            chosen to fund one activity [rather than another]." Rust v. Sullivan

        • Regulations purporting to protect maternal health or potential life, but whose real aim is to intimidate women
            into continuing pregnancies, are as unconstitutional as anti-abortion statutes. Thornburgh v. American
            College of Obstetricians and Gynecologists.

        When unemancipated minors seek an abortion, the Court has held:
        i. a 48 hour waiting period from when a parent is notified until the abortion is performed to allow the parent to
              consult with the daughter and her physician is constitutional;



                                      Michael M. Wechsler
                               Constitutional Law                                              79
ii. a requirement that both parents be notified does not reasonably further any legitimate state interest and is
      unconstitutional (only 50% of the minors in the state resided with both parents) unless the law allows the
      parental notification to be bypassed if the minor can demonstrate to a judge that she is sufficiently mature
      to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best
      interests. Hodgson v. Minnesota; Ohio v. Akron Center for Reproductive Health.

iii. Parents may not exercise "an absolute and possible arbitrary veto over the daughter's abortion decision.
      Hodgson v. Minnesota.

• The right to privacy has not been extended to guarantee consenting adults the right to perform homosexual
    activities. Doe v. Commonwealth's Attorney. However, consenting adults who perform homosexual activity
    in private do have a Fourth Amendment expectation of privacy.

3. Marriage
    • The courts have held that marriage is a "basic civil right," and thus struck down a law proscribing
         intelTacial marriages. Loving v. Virginia. State interference with this right will face strict judicial
         scrutiny.




                             Michael M. Wechsler
                              Constitutional Law                                              80
Historical Issues of Rights of Privacy

    1. Meyer v Nebraska 1923

        Holding: Court invalidated a statute which prohibited schools from teaching languages other than
            English
        Rationale: Court set aside the law on “basic liberties” (similar to privacy rights) grounds, although the
            court applied a rational relation test that didn‟t apply. Teachers had a right to teach and students
            had a right to learn.

    2. Pierce 1925

        Holding: Court struck down statute which required students to attend public schools
        Rationale: Substantive Due Process violation of an individual‟s “liberty.” While these decisions today
            would be grounded in the 1st Amendment, their existance is important to the growth of the right to
            privacy and show a historical recognition of a right to private decision making regarding family
            matters as inherent in the concept of liberty. The state has no right to tell the parents how to
            educate their kids, or not to teach the kids their heritage and language unless the state has a
            compelling state interest.


1) Contraceptives - first area of three

    The Court has given broad construction to this personal fundamental right and has struck down laws
        prohibiting the distribution of contraceptives except through licensed pharmacists, or to persons under
        the age of sixteen except by physicians. Griswold v. Connecticut

        The constitutionally protected right to decide whether to have an abortion is encompassed within the
            right of privacy "founded in the Fourteenth Amendment's concept of personal liberty" which
            protects a woman's reproductive freedom to terminate her pregnancy before the fetus reaches
            viability. The joint opinion in Planned Parenthood v. Casey replaced Roe v. Wade's "fundamental
            right" analysis and its trimester framework with an "undue burden" test. Roe v. Wade . The Court
            extends heightened constitutional protection only to prevent "unduly burdensome" interference
            with a female's right of whether to terminate a pregnancy. An undue burden exists where "a state
            regulation has the purpose or effect of placing a substantial obstacle in the path of a woman
            seeking an abortion of a nonviable fetus." Its opinion also held that laws that criminalize abortion
            would be struck down.

    The following cases state: When you challenge a law on the basis of its interference with one‟s right to
        privacy, you are asserting a denial of right of substantive due process, but the scrutiny must be
        heightened because we are dealing with a fundamental right of privacy.


    1. Skinner

                 Facts: USSC invalidated Oklahoma statute which required sterilization if person has been
                     convicted 3 times of crimes showing moral turpitude, but which did not apply to white
                     collar crimes. The white collar criminals are usually committed by political and powerful
                     people.
                 Arguments:
                 Due Process:
                 Denial of Equal Protection: The punishment was for some criminals and not for others.

        Holding: Procreation is a fundamental right; court applied strict scrutiny test and was the first court to
             follow the Carolene Products rationale of a different test for fundamental rights, as rational basis is
             sufficent only for economic issues such as filled milk.
        • Skinner was a Equal Protection Clause ruling; law discriminated against those who commited larceny
             for it did not call for sterilization for white collar crimes which were same quality offense.
        • Court used due process and equal protection language, but it realized that it wasn‟t really the case - it
             was a permamnent interference with one‟s right to procreate when they get out of prison, so this is
             closer to a fundamental right to procreate, and higher level of scrutiny.

        • Today, USSC would strike such statute down on Substantive Due Process grounds. **********




                            Michael M. Wechsler
                          Constitutional Law                                               81
2. Griswold v Connecticut - 1965

    • The court enunciated the different approaches the court took - and there is a fundamental right of
        privacy and a law that interefers with our right to get contraception must be looked at with greater
        scrutiny, because now we are looking at the fundamental right to procreate.
    MODERN RULE: The right of due process with the plus of the interference with an interference of a
        fundamental right requiring a stricter level of scrutiny.

    Holding: The right to mental privacy, although not explicitly stated in the Bill of Rights, is under the
        penumbra formed by certain other explicit guarantees. As such, it is protected against state
        regulation which sweeps unnecessarily broad.
    Rule: The views of J. Douglas has not prevailed; the court has held that the Right of Privacy in the 14th
        Amendment as per Carolene Products is a fundamental right and requires the strict scrutiny test.

             Facts: Griswold D, the Executive Director of the Planned Parenthood League of Connecticut,
                 and Dr. Buxton D were convicted under a Connecticut law which made counselling of
                 married persons to take contraceptives a criminal offense. None of the users of
                 contraceptives were prosecutes in this case.

    Douglas- statute deprived married persons of the liberty protected by the right to privacy.

             The Court has given broad construction to this personal fundamental right of “liberty” like in
                 Lochner, and has struck down laws prohibiting the distribution of contraceptives except
                 through licensed pharmacists, or to persons under the age of sixteen except by
                 physicians.

             Statute forbade the use of contraceptions and the counselling in their use. D were directors of
                 a planned parenthood assoc and medical director. They were convicted of counselling
                 married persons in their use. No users were charged

    The court continued to reject the Substantive Due Process cases of the first part of century. J. Douglas
        had to repudiate Lochner because he didn‟t want it to reoccur, especially as to how the court
        misapplied substantive due process with a very broad view of liberty - and the outcome of the
        case. Yet he had to justify the decision of the court on the basis that the law infringed “liberty.”
        Douglas had to differentiate this decision from earlier decisions using Due Process Clause.

             In order to justify the decision as one mandated by the Constitution, the majority created a
                  new right to privacy which was established by the “penumbras” of several guarantees of
                  privacy including:
             First Amendment: right to privacy as to association;
             Third amendment's prohibition against the peacetime quartering of soldiers
             Fourth and Fifth Amendment: privacy from government demand for information; prohibition
                  against unreasonable searches and seizures, self-incrimination clause;
             Ninth Amendment's reservation to the people of non-enumerated rights

             The Connecticut law, by forbidding the use of contraceptives rather than regulating their
                 manner or sale, seeks to achieve its goals by means having a maximum destructive
                 impact upon that relationship. Repulsive regulation of marriage: Husband and Wife
                 would have to testify about intimate details - and we could not expect officials to ddearch
                 houses for contraceptive devices and counseling aids.

    CONCURRENCE: (Harlan, J.) The Court, instead of focusing on specific provisions of the Bill of Rights,
       should have instead relied on the due process clause in finding this law violative of basic values
       "implicit in the concept of ordered liberty."
    CONCURRENCE: (Goldberg, J.) The ninth amendment, while not constituting an independent source
       of rights, suggests that the list of rights in the first eight amendments is not exhaustive. This right is
       a Fundamental one which cannot be infringed on the state's slender justification in protecting
       marital fidelity.
    CONCURRENCE: (White, J.) The due process clause should be the test in detemmining whether such
       laws are reasonably necessary for the effectuation of a legitimate and substantial state interest
       and are not arbitrary or capricious in application. Here, the causal connection between married
       persons engaging in extramarital sex and contraceptives is too tenuous.
    DISSENT: (Black, J.) While the law is offensive, neither the ninth amendment nor the due process
       clause invalidates it. Both lead the Court into imposing its own notions as to what are wise or
       unwise laws. What constitutes Fundamental values is indeterminable. Keeping the Constitution “in
       tune with the times" is accomplished only through the amendment process. Similarly, the due
       process clause is to imprecise and lends itself to subjective interpretation. We must amend as the
       correct procedure here.

                        Michael M. Wechsler
                          Constitutional Law                                             82
    DISSENT: (Stewart, J.) The due process clause is not the " guide because there was no claim here
        that the statute is unconstitutionally vague or that the defendants were denied any of the elements
        of procedural due process at their trial. The ninth amendment simply restricts the federal
        government to a government of express and limited powers. Finally, the Constitution is silent on
        the wright to privacy."
    Notes: Although the theory of Substantive due process has declined as a means to review state
        economic regulation - at least since 1937 - the Court, as here, has freely applied strict scrutiny to
        state laws affecting social areas. DISSENT in POE v. ULLMAN.


3. Eisenstadt v. Baird: Extended Griswold to strike down a law not to dispense contraceptives unliss with a
     license of physician and to married persons. Rationale here is that in Griswold the statute was struck
     down because of the irghts of privacy of a marriage. But the fact is that they are 2 adults who have
     rights of privacy and that right must be extended here as well, despite te desire of the state to curb
     premarital sex. The right of privacy is on the indivdual to be fre, not just by a marriage license.

4. Carey:
    Extended Griswold, the statute was very strict and limited the availability of contraceptives. They could
         only get them under Doctor‟s prescription. Therefore intereference with privacy, and any such law
         affecting fundamental rights must be narrowly tailored to meet some compelling state interest.
    Individuous statute: The part that dealt with kids under 16 - they can‟t make choices as well as adults,
         as well as the fact that they cannot make contracts with adults, etc.. and that means that the
         legislature can treat them differently and we can use a modified standard to deal with minors. The
         court doesn‟t really answer the question but the court struck down that the statute part requiring
         minors to obtain contraceptives by going to a doctor, but the majority opinions differed.




                        Michael M. Wechsler
                               Constitutional Law                                                83
2) Abortion


    1. Roe v Wade

        • Established that the right to have an abortion was constitutionally protected fundamental right,
            and thereby requires the strict scritinty test. The states tried to limit this for minors in later
            cases.

        • We introduce right of privacy issue into SDP cases because this tips the scales to strict
            scrutiny of a fundamental right from a SDP question that may require only rational relation
            of a social regulation, and burden on the government.

        • The constitutionally protected right to decide whether to have an abortion is encompassed within the
            right of privacy "founded in the Fourteenth Amendment's concept of personal liberty" which
            protects a woman's reproductive freedom to terminate her pregnancy before the fetus reaches
            viability. The joint opinion in Planned Parenthood v. Casey replaced Roe v. Wade's
            "fundamental right" analysis and its trimester framework with an "undue burden" test.

                  Is this an interference with privacy? Or is this a matter of due process and liberty? We want to
                       add that there is an interference with privacy, because when you place the fundamental
                       right of privacy on the scale, it tips the scale in favor of strict scrutiny and places the
                       burden on the state to show that this law was narrowly tailroed to protect a compelling
                       governmental interest. The burden os on the GOVERNMENT. This is very different that
                       having the burden on the P to show that the law lacks a rational basis of test for non-
                       fundamental rights. We moved from a high hurdle to a low hurdle with fundamental right
                       of privacy being introduced.

        Holding: USSC overturned a Texas statute which banned abortion except when the mother was in
            danger. As long as there is a law that is a narrowly tailored rule to serve a compelling state
            interest, the law will be upheld.
                 - state can require an abortion take place in a hospital, but not all abortions now.
                 - state can completely forbid abortions to protect life of mother as long as law is narrowly
                       tailored.
                 - a state cannot forbid abortions when there is no compelling state interest - the first 2
                       trimesters, as the fetus is not viable and the life of the mother is not in danger and of such
                       substantial interest in the state.
                 • The court held that it violated the Due Process Clause of the 14Amendment in that it
                       infringed on a woman's right to privacy
                 • Right to privacy was part of the liberty protected by the 14th Amendment, therefore strict
                       scrutiny.

        Two Compelling state interests in Roe:
           1. Mother‟s right of privacy: and state interest in the health of the mother
           2. Interest of state in fetus‟ right of the health and survival of the fetus, at leat at the point where it
                becomes viable.

              1] 1st trimester- woman: there is no harm in an abortion in the 1st 3 months. No restriction to have
                   an abortion as her right is fundamental. Note - the state could require minimal safeguards
                   such as requiring the abortionist to be a doctor
              2] 2nd trimester - woman: risk to woman's health increased. Court found a compelling interest in
                   establishing further medical regulationss. These regulations would be under judicial review to
                   determine if they are reasonable and tailored to protect the woman
              3] 3rd trimester - fetus: at this point the fetus has a meaningful life and the state has a compelling
                   state interest in protecting the fetus‟ rights of life and health. Mother: abortion is only allowed
                   here if her life is in danger

        Dissent - As advances in medical technology take place, the technology scheme has started to shift.
            We are only talking about the basic right that was upheld in Roe with the trimester approach. No
            abortion is safe well into the second trimester, so therefore there is no rule here that is narorowly
            tailored to serve a compelling state interest a rquirement that every abortion after the first trimester
            take place in a hospital. In addition, if a fetus is vaible before the second trimester, our medical
            advances seem to indicate that real viability takes place in the second trimester. Therefore the
            right is fine, but the question is when it shoudl be allowed to kick in.




                              Michael M. Wechsler
                          Constitutional Law                                                84
    Criticism: The court does not tell us what rights are protected. It can be argued that the court is using a
         we'll protect it because the Constitution it seems important standard for recognizing fundamental
         privacy.

Note 2 differences:
    1. Right to have an abortion at all.
    2. Right to have an abortion without undue interference from the state.


2. Akron v. Akron Center for Reproductive Health - later overruled

    Holding: A 1978 Akron ordinance regulated abortion with requirements. Court struck down:
         1. all abortions performed after the first trimester be performed in a hospital, preventing outpatient
               clinics and other suspect abortion clinics - (there are appropriate places);
         2. Parental notification and consent for abortions required for minors under 15 without consent of 1
               parent or court order (Ohio juvenile proceedings won‟t give minors a reasonable opportunity to
               get abortions in a timely fashion);
         3. Informed consent of the physician to the patient regarding all abortion risks (this was done to
               persuade a woman not to get an abortion rather than inform her);
         4. a mandatory 24 hour waiting period before the abortion could be performed after consent given
               (merely increases the cost of gtting an abortion requiring two trips to the hospital);
         5. humane disposal of the fetus.
    Affirmed: A state‟s interest in health regulation becomes compelling at approximately the end of the
         first trimester. Even so, the state‟s rgulation may only be upheld if it is readonably designed to
         further that state interest. The Akron regulations at issue do not serve to inform a woman‟s
         decision, but rather place constitutional obstacles in her path.
    Dissent: O‟ Connor - same dissent in Roe: The woman has a right to personal freedom‟s to have an
         abortion so long as the fetus is not viable. The advances inmedical science pushes viability
         bakwards into the second trimester, where the government can nolonger regulate.


3. Planned Parenthood of Central Missouri v. Danforth: The right to an abortion cannot be conditioned
     upon obtaining consent of the husband or the father, but a 24 hour waiting period was not held to be an
     insurmountable burden.


4. Doe v. Bolton:
    Georiga law which was a lesser intrusion and allowed abortion in certain instances, those that were
         “meidcally necessary within the judgement of the physician.” The court however set aside the law
         as it presents undue burdens (e.g. requirement that all abortions take place in a hospital is no
         good as per Roe) and the law here requireing that the abortion be approved by a team of doctors
         is unnecessary; this is a safe procedure and this isn‟t done in an appendectomy.


5. Planned Parenthood v. Casey - p. 300

    The joint opinion in Planned Parenthood v. Casey replaced Roe v. Wade's "fundamental right"
        analysis and its trimester framework with an "undue burden" test. The Court extends
        heightened constitutional protection only to prevent "unduly burdensome" interference with
        a female's right of whether to terminate a pregnancy. An undue burden exists where "a
        state regulation has the purpose or effect of placing a substantial obstacle in the path of a
        woman seeking an abortion of a nonviable fetus." Its opinion also held that laws that
        criminalize abortion would be struck down.


    Missouri didn‟t totally remove the right of Roe, but limited it improtantly in two different ways:
        1. Parental consent for minors required is unconstitutional.
        2. Spousal consent required for abortion is unconstitutional.

    The Casey opinion held that the following state regulations did not unduly burden a woman's right to an
        abortion:
        • requiring a woman to listen to a doctor's lecture designed to discourage abortions;
        • a mandatory 24-hour delay following the anti-abortion lecture; and
        • reporting requirements that would make public the name of any physician participating in an
             abortion.



                         Michael M. Wechsler
                              Constitutional Law                                             85
        As per 1. As per Casey: If the state doesn‟t have the power to say “no you can‟t have an abortion,” the
            state couldn‟t delegate that right to someone else, such as the husband, in a case of a secret
            abortion.

        per 2. Minors: The state was saying that if you were 18 or over you have your ticket punched, but below
            it, you are required to bring parental consent.

                 To challenge that statute you would say that from the viewpoint of the young woman, her
                     parents would kill her if they found out that she was pregnant. Roe allowed the state to
                     regulate abortions and get women to licensed facilities, when before it there were
                     backalley abortions because they were illegal. That would realistically happen here, as
                     these young women wouldn‟t tell their parent‟s and would gl to bak alleys to get it done,
                     because to tgo to a registered clinic, she would have to get parental consent.

                 The state should have the ability to require parental consent in some instances (although here
                     it was an all under 18 requirement and everyone under 18 treated the same). The state
                     can distinguish girls under 18 - what about girls who were not emancipated and those
                     who were? Shouldn‟t we treat someone who is under 18 that doesn‟t live at home the
                     same as one who does? This is a distinction. Age is another distinction - we wouldn‟t treat
                     a 14 year old the ssame as a 17 year old - Maturity. The state may have a greater right for
                     parental consent for an unemancipated immature girls than a mature emancipated one.

                 Constitutionally, there are circumstatnces that would create a barrier even in the case of an
                    immature 15 year old. e.g. a young woman who will get abused at home or has been, and
                    will be abused if she asks her parents for consent to have an abortion. Baird:
                    Massachussetts statute which discussed what may be appropriate - it set down the Mass.
                    statute, and while women could go to a judge if parents refused, so what? The point was
                    that she couldn‟t go to her parents in the first place. Therefore the courts said realistically
                    there has to be a realistic procedure that could be done before she had to go to her
                    parents. To be constitutional, there has to be a statute that would say that if the court
                    finds that the aborition is in the young girl‟s bes interests, despite her matuiry, that would
                    allow her to get an abortion. There is an argument of a distinction without any difference,
                    as the woman is having some serious psychhological abuse, and her this poor young girl
                    has to bare hersrlf in front of court, or even having to give notice to her parents.

                 State law required 24 hour waiting period (rejected in Akron), and spousal consent (rejected in
                     Akron)
                 The court wantd to nail Roe down and did not want future cases to overrule Roe.
                 Q: The Lochner Question: the court had no difficulty in overruling Lochner and its extremely
                     broad view of “liberty” with a dramatic shift. Also the court overturned the “separate but
                     equal amongst the races” rationale of Plessey v. Ferguson. But here there was no major
                     societal change to justify overruling Roe, sp what is the difficulty in overruling Roe?
                 A: This is a life issue, not mere economics as in Lochner, therefore this arena makes positions
                     more difficult to move. In addition, there was severe societal change after Lochner and
                     Plessey, but peole came to expect that the Roe rule would be around to stay.
        • Court upheld Roe rule because unlike other precedents that were overturned and previous cases that
            suggested a departure, people expected the Roe rule to be here to stay.


    6. HL v. Matheson - 303
        The court said that at least with an immature unemancipated minor, a notice requirement is valid, but it
             did not say whether it would be for a mature minor, nor did it deal with a case where parental
             notice might cause a problem. There was a bitter dissent by Marshall that the notice may cause a
             delay until the third trimester.



2a) Funding of Abortions

    1. Maher v. Roe - Harris v. McCrae:

        The state does not have to facilitate abortions; it merely cannot construct a substantial obstacle
            in obtaining an abortion.

        • Not providing public funding does not constitute a substantial obstacle by the state to get an abortion
            that would be unconstitutional.



                            Michael M. Wechsler
                           Constitutional Law                                               86
              Restrictions of funding medicaid abortions. We are talking about indigent people that could
                  not afford abortions. The state is setting up a medical progrram for medically necessary.
                  Is not allowing medicaid for abortions except if medically necessary. The key is to
                  understand what ithe rule was in Roe - whethere this non-funding of abortions was what
                  place an undue burden or restriction for abortions.

            Q: What is the nature of the right that was established in Roe in the first place?
    A good way to approach these cases is not a right to abortion, but right against substantial interference
        agianst obtaining an abortion.

    Maher: Connecticut drew the line that the state would only pay for medically necessary abortions.

1a. McCrae
    Congress prohibited the use of any ferderal funds to reimburse the cost of abortions under the
        Medicaid program except under special circumstances. Federal law that the federal government
        woun‟t pay by medicaid, for any abortions at all except for those for necessity or rape or incest,
        and the states can do what they want.

    • The liberty protected under the Due Process Clause affords protection against unwarranted
         government interference with the freedom of choice in the context of personal rights decisions. It
         does not confer a right to such funds as may be necessary to realize all the advantages of that
         liberty - the state does not have to provide you with a train ticket because you have a right to
         unrestricted interstate travel but you don‟t have the money to do so.
    • Selective subsidization of certain medically necessary abortions does not create a dnostitutionally
         suspect classification. The selective subsidixation pincentive creates incentives to make childbirth
         a more attractive alternative for abortion than for persons eligible for medicaid. The statute is
         rationally related to the measure for protecting human life.
    Dissent: The denial of public funds for certain medically necessary abortions plainly intrudes upon the
         constitutionally protected right of freedom of state interference of personal rights as it in effect
         coerces certain women to have children that she wouldn‟t otherwise have had.

Rationale: To justify these restrictions, we must take the view that the right involve here is the right to obtain
    an abortion and that this is not substantial interference. You can say that there is a right of free speech,
    but the state doesn‟t have to provide a ball, or the right to travel interstate, but the state doesn‟t have to
    buy us a train ticket, same here that the right of privacy protects the right to have an abortion without
    substantial or undue burden by the state does not mean that the state has to subsidize that abortion.

              Woman‟s argument: There is no “right” to medicaid - it is just a statutory entitlement.
                 Government pensions are not constitutionally protected entitlements, only statutory
                 requirements, that if you qualify for the statute, you must get the funds like everyone else
                 and not be discriminated against. this seems like what the government in McCrae, but at
                 least Maher is OK becuase it draws the line distinctly as paying only for medicaly
                 necessar abortions. McCrae, the Congress wont pay for any abortions.

              The state sets up a statutory program: What criteria can the government say that one group is
                  excluded and another is not?
              • Rational basis to the statute unless the statutory program affects a fundamental right (here it
                  does).
              The question is, here ithese people are poor and unable to perform an abortion. If you need
                  medicaid to get it, isn‟t this interfereing with a constitutionally protected right to put some
                  limits on what legislative bodies can do to ensure that minorities are represented and
                  protected - this is the underpinning of the bill of rights. The court rejected the analogy in
                  Harris v. McCrae, which said that the state isn‟t int the business of being a provider.

    The big question here s how far government can go in providing funds under statute and restrict those
        classes of people that have access to it. The court found that denial of access to medicaid for
        regular abortions is not substantial interference by the state of the right to get an aboriton without
        substantial interference (fundamental right).




                         Michael M. Wechsler
                           Constitutional Law                                               87
2. Hodgson - 345

    1. 2 parent notification requirement found invalid
    2. Judicial bypass without notification to parents is valid

              Minn. required the consent of two parents with the judicial bypass exception. The court
                   invalidated it in a 5-4 decision. How do you justify a 2 parent requirement when it wasn‟t
                   required for a whole lot of other things, if anything else that minors have to do? e.g.
                   driver‟s license, medical opertaion, all of these are only one parent requirement.
              What about cases where the parents are divorced and live far away? May be the noncustodial
                   parent was an abuser? This is ridicuous!
              The judicial bypass was valid, and J. O‟ Conner held that the 2 parent requirement was
                   invalid, but the judicial bypass was valid constitutionally without notification of any parent,
                   provided that the court found that the minor was mature and capable of giving informed
                   consent, or if she is immature, that an abortion without notification would be in her “best
                   interests.”
              When unemancipated minors seek an abortion, the Court has held:
              1. a 48 hour waiting period from when a parent is notified until the abortion is performed to
                   allow the parent to consult with the daughter and her physician is constitutional
                   **************;
              2. a requirement that both parents be notified does not reasonably further any legitimate state
                   interest and is unconstitutional (only 50% of the minors in the state resided with both
                   parents) unless the law allows the parental notification to be bypassed if the minor can
                   demonstrate to a judge that she is sufficiently mature to make the abortion decision
                   herself or that, despite her immaturity, an abortion would be in her best interests.


3. Rust v. Sullivan (also see later during section on Free Speech).
    The court in a 5-4 upheld a restriction on federally funded family planning clinic, that not only could they
         not provide abortions, but they couldn‟t even make knowledge of availability of abortions to the
         women that went there. This is more of a free speech issue.
    The Court upheld, as not violative of the First or Fifth Amendments, federal regulations under Title X of
         the Public Health Service Act, which prohibit federally funded family planning clinics from providing
         abortion counseling or information to their patients. The Court held that this did not infringe upon
         free speech or the doctorpatient privilege. "[T]he government has not discriminated on the basis of
         viewpoint; it has merely chosen to fund one activity [rather than another]."



4. Thornburgh v. American College of Obstetricians and Gynecologists: Regulations purporting to
    protect maternal health or potential life, but whose real aim is to intimidate women into continuing
    pregnancies, are as unconstitutional as anti-abortion statutes.



5. Webster - 320:

    A state may prohibit the use of public resources to promote or perform abortions and may
        require physicians to test for viability, abstaining from performing if viability exists.

              Facts: Missouri statute with several components with a preamble that legislature thought that
                  MO life began at conception. The language in the preamble was distinguished and upheld
                  because the Texas law used protectionist language for all abortions.
              Additionally, it prohibited the use of public facilities for abortions and prohibited the use of
                  public funds for abortion counseling. The act also required, for abortions performed after
                  the twenty-week gestational mark, that physicians first test for viability and not perform
                  the abortion if viability existed.
              Issue: May a state prohibit the use of public resources to promote or perform abortions and
                  require physicians to test for viability, abstaining from performing abortions if viability
                  exists? Holding: Yes. MO didn‟t attempt to bar all abortions, especially not after it saw the
                  decision in Roe. MO was “precatory” language of a desire to be as such, but not a legal
                  mandate.
    • A state may prohibit the use of public resources to promote or perform abortions and require
         physicians to test for viability, abstaining from performing if viability exists. Court adopts
         O‟Conner‟s viewpoint that viability may be earlier in a pregnancy due to modern technology that
         determines that a fetus is viable somewhere in the second trimester.


                         Michael M. Wechsler
                       Constitutional Law                                             88
         As to the viability testing requirement, this Court has held from the beginning that states have
             an interest in protecting viable fetuses, and this requirement is a legitimate manner of
             enforcing a state's policy choice in this matter. Further, it is questionable as to whether
             the trimester classification system this court enunciated in Roe v. Wade was a proper
             decision. Also, the viability vs. non-viability issue may not have been a proper analysis for
             this Court to use. For these reasons, the challenged enactments are constitutional.
             Reversed.

• Substantive isues of this case: Indigents cannot demand that the government provide funds for such
    abortions. As in Harris v. McCrae and Maher, this Court has already held that governmental
    entities need not expend public funds on abortions, as the due process clause does not provide an
    affirmative right to governmental aid. The government is only restricted in not being allowed to
    create obstacles because of poverty. The state does not have to help those people get abortions.
    Preventing medicaid funding for a woman trying fo get abortions is not an interference. The court
    followed Harris v. McCrae where the court said the government can deny medicaid for abortions -
    and here that public employees and public hospitals cannot perform abortions. Arguably that is not
    any more of a substantial interference than is the denial of medicaid.

However, there was a factual argument that came out in this decison: Nearly all the hospitals for
   abortionsi n Missouri are performed in one hospital - a private hospital on city land. It is certainly
   logical from the language in the Missouri statute, that this Truman Medical Center should also not
   be allowed to perform abortions as it is on city land, therby under city control and under the
   coverage of the Missouri statute. This would be a substantial intereference if they are prohibited,
   as where will people get abortions in Kansas City if the one game in town is taken away.

• This is a total public funding and a constitutitonal restriction.

         The same argument applies to the use of public facilities. The failure to allow the use of public
             medical facilities leaves the woman with the same choice she would have if the
             government provided no medical facilities at all.

         CONCURRENCE: (O'Connor, J.) As the viability-testing requirements of the Missouri statute
              do not run afoul of Roe's viability requirements, discussion thereof to uphold the law is
              unnecessary.
         CONCURRENCE: (Scalia, J.) Roe should be overruled, and the avoidance of doing so
              explicitly constitutes an abdication of the Court's responsibilities.
         DISSENT: (Blackmun, J.) The Court moves close to removing from a woman the fundamental
              right of whether to terminate a pregnancy. While Roe has not been overruled, the Court
              invites states to enact regulations which would make it difficult if not impossible, for many
              women to obtain that to which they have a fundamental right.
         CONCURRENCE AND DISSENT: (Stevens, J.) There was no need for discussion of viability
              and the trimester analysis, as the Missouri statute did not challenge these aspects of the
              Roe opinion.
Notes: The most significant aspect of this controversial decision is in language which, in effect, was
    dicta. Part Il-D of the opinion, which was joined only by Justices White and Kennedy, would seem
    to indicate the jettisoning of the viability threshold, which would completely undercut Roe v. Wade.
    As this was only a plurality opinion, however, Roe was left surviving, if not intact.

• 20 week viability: The doctor makes the determination as to whether the fetus is viable outside of
     another so as to effect the right ot abort it.
     • Note that the state required a viability test which would require amniocentesis, potentially injuring
         the child. This challenge could be an undue burden.
     • Doctor‟s argument is that this tells the doctor how to practice his profession anfd that he is
         required to do a certain practice.
         • The reasoning of leaving viability to the doctor‟s discretion basically took the teeth out of the
              statute.
         • The statute was only used by the “when necessary” provision that left the decision in
              discretion of the doctor.
         • The second queston is a problem as it seems to require the tests and medicaid procedure,
              but the court flips it to the first question and leaves it to the medical discretion of the
              doctor, and Blackmun‟s dissent says that this limits the Roe ruling.
         The court understood that in Roe they couldn‟t legislate that it specifically prohibits abortions
              in the beginning of pregnancy, only that it can do so later in the pregnancy. The preamble
              means something else. The court says that we don‟t know what they meant and we will
              leave that to their state‟s courts. The court however, invalidated the preamble.
         Some states allow fetus to recover in tort against damages to a fetus. There is no
              countervailing constitutional right of the other side - there is no constitutionally protected
              right to injure a fetus.

                     Michael M. Wechsler
                              Constitutional Law                                                 89
                J. O‟Connor ruled that she is assuming that the Missouri courts wont rule that although private
                     hospital, the hospital is on public land. She felt that this however, would be illegal and the
                     court struck it down.


3) Marriage and Family Arrangements

       The courts have held that marriage is a "basic civil right," and thus struck down a law proscribing
           interracial marriages. Loving v. Virginia. State interference with this right will face strict judicial
           scrutiny.


   1. Village of Belle Terre v. Boraas - p. 352
         Zoning law that no more than 2 unrelated people could live in Belle Terre, a very small neighborhood.
            The neighborhod was next to Stonybrook college and they wanted a family neighborhood not
            fraternity houses. The court said that privacy didn‟t really reach living arrangements. Here it wasn‟t
            an overly narrow distinction.
        Note that the court has not decided whethere the Belle Terre law could be upheld in large communities,
            but other communities have thrown out the Belle Terre rule.


   2. Moore v. East Clevelland:
       Restricted modern day family zoning law to include neices and nephews. The court said that once a
           state starts to come out with a definiton of a family so that 2 kids couldn‟t live together such as 2
           grandchildren of 2 mothers, then the court reasonaed that the village could not arbitrarily cut into
           decisions of the family and their right to privacy. This is an actual invasion of family.


   3. Bowers v. Hardwick

       Rule: The Constitution does not grant a fundamental right to engage in consensual homosexual
           sodomy.

       Fundamental liberties identified by this court and deserving of heightened judicial scrutiny have either
          been liberties implicit in the concept of ordered liberty or liberties deeply rooted in this nation's
          history and traditions. Neither of these formulations would extend the liberty sought in the present
          case. Great restraint should be used when expanding the contours of constitutional due process.
          The fact that the conduct in question occurred in the privacy of the home does not necessarily
          shield it from regulation, as can be seen in statutes punishing a number of other victimless and/or
          sex crimes. The conduct at issue is not a fundamental right, and the state has provided a rational
          basis for the statute.
               Facts: Hardwick P, a gay man, was charged with violating a state law criminalizing sodomy.
                     After a preliminary hearing, the District Attorney decided not to present the matter to the
                     grand jury unless further evidence developed. Hardwick P brought suit, challenging the
                     constitutionality of the statute in that it criminalized consensual sodomy. He claimed the
                     law as administered by the state placed him in imminent danger of arrest and was
                     unconstitutional on a number of grounds.
                     The district court dismissed the claim for failing to state a claim, relying heavily on the
                          Supreme Court decision in Doe v. Commonwealth's Attorney for the City of
                          Richmond, which summarily affirmed a case involving a similar Virginia sodomy
                          statute. The court of appeals reversed, finding that the statute violated Hardwick's P
                          fundamental rights because the homosexual activity was a private and intimate
                          association beyond the reach of state regulation.
               Issue: Does the Constitution grant a fundamental right to engage in consensual homosexual
                     sodomy?
               Holding: No. The Constitution does not grant a fundamental right to engage in consensual
                     homosexual sodomy. None of the fundamental rights announced in previous cases bears
                     any resemblance to the claimed constitutional right to engage in sodomy asserted in the
                     present case. Reversed.
                     CONCURRENCE: (Burger, C.J.) This is a question not of personal preference but of the
                          legislative authority of the state, and nothing in the Constitution forbids the state
                          statute at issue.
                     CONCURRENCE: (Powell, J.) Hardwick P may be protected under the eighth
                          amendment, but he has not been tried, sentenced, or convicted, and has not raised
                          any eighth amendment issues.




                            Michael M. Wechsler
                          Constitutional Law                                               90
                  DISSENT: (Blackmun, J.) The state in the present case is legislating particular forms of
                       private, consensual sexual conduct. The Court's obsession with homosexual activity
                       is diffficult to justify, since the statute's language encompasses non-homosexual
                       conduct. The Court fails to comprehend the magnitude of the liberty interest at stake
                       in this case.
                  DISSENT: (Stevens, J.) The essential liberty to choose how to conduct private sexual
                       conduct surely encompasses the right to engage in nonreproductive, sexual conduct
                       that others may find offensive or immoral. The state cannot justify the selective
                       application of the statute in question, given the conceded unconstitutionality of the
                       statute as applied to non-homosexual conduct. Hardwick (P) at this stage of the
                       litigation has stated a constitutional claim suffficient to withstand a motion to dismiss.
    Notes: Also plaintiffs in the original action were a “Doe” couple, who had alleged that they wished to
        engage in the proscribed activity and were chilled and deterred by the existence of the statute and
        Hardwick's P arrest. The district court dismissed their claim for lack of standing, as the selective
        enforcement of the law left them in no immediate danger, and this judgment was upheld by the
        court of appeals. The “Does~ did not challenge this holding in the present case.


    Stanely v. Georgia:
    Georgia couldn‟t prosecute the defendant and search his living room, and prevent him from watching
        an obscene film in his living room, because although the film was obscene and not protected by
        the 1st Amendment. This that the right of privacy is a fundamental right and he has a right to
        privacy in his living room, although maybe not out in the street. This is the right of family, etc..
    This case could also be decided as the could be a violation of equal protection.


4. Cruzan v. Director MO Department of Health - p. 383 - Right to Die/Live
    Struck down Missouri Law that denied a family from taking a comatose patient off of life support.

    • The court required “clear and convincing evidence” of consent by a comatose person, for
         them to be disconnected. This is because relatives were quick on the gun to get insurance
         money and inheritence. This is a higher standard than that in ordinary litigation.
    • Clear and Convincing proof issue comes in in our case when there is no existance of a living will.
    • “Liberty Interest” : The argument here is the right of privacy to die, or simply the right not to accept
         medical treatment.
    • Assisted suicides can be prohibited by state as this differs in a court‟s refusal to allow medical help to
         prevent a natural death - an intrusion causing premature death.

             While one can execute a living will, by putting someone in charge before they lapse into the
                 coma at their bedside, but that wasn‟t the case here.

             O‟Connor was concerned with the plurality and stated that had there been a proxy named
                 there would have been a constitutionally protected right. A living will therefore must be
                 honored by state of a right not to receive treatment.


5. Shapiro v. Thompson: While the airports charge a departure tax, is this really a restriction on the
    fundamental right to travel as this makes it more prohibitive? The courts have ruled that this isn‟t a
    situation where there is any type of serious obstacle.

    • The court held that CA could not impose a travel fee on people in general for people going into the
        state (this is NOT an AIRPORT departure tax) and struck down on the basis of equal protection.
    • The court also held that the state could not refuse public aid to people from out of state.
    • Note that the right to travel outside the US has not been construed as a fundamental right.




                         Michael M. Wechsler
                                           Constitutional Law                                              91

FREEDOM OF SPEECH
   The First Amendment provides, in part, that "Congress shall make no law . . . abridging the freedom of speech, or of the
       press.... " These rights (plus the accompanying "freedom of association") are often grouped together as "freedom of
       expression."


   This was created as back in England all publishers had to apply for publishing licenses before they could print what they
       wanted to. In the past, our history included states that required the OK with the government prior to publishing, and this
       was unconstitutional.



   1. Content-based vs. content-neutral: Courts distinguish between "content-based" and "content-neutral" regulations
       on expression.

       A. Classifying: A governmental action that burdens expression is "content-based" if the government is aiming at the
           "communicative impact" of the expression. By contrast, if the government is aiming at something other than the
           communicative impact, the action is "content neutral," even if it has the effect of burdening expression.

            a) Content-based: If the government action is "content-based," the action will be generally subjected to strict
                scrutiny, and the action will usually be struck down. We don't look kindly on such types of laws.

            b) Content-neutral: On the other hand, if the government action is "content-neutral," the government's action is
                subjected to a much easier to satisfy test, and will usually be upheld. However, such restriction s on free
                speech are subject to strict scrutiny analysis.
                    i. Narrowly Tailored Statute: The means of the regulation are necessary, and there are no other
                          narrower means that could accomplish the objective satisfactorily.
                    ii. To Meet A Compelling State Interest: In order to breach the substantive due process of citizens
                          and impinge on their rights, the objective of the state must be compelling.
                    iii. No presumption of Constitutionality, burden on the government: The court takes a hard look at
                          the statute and decides whether the statute is constitutional. Heavier burden on the government to
                          show that the taking away of the right of the citizens is necessary and sufficiently narrow.


       B. Analysis of content-based government action:

            a) Unprotected category: If the speech falls into certain pre-defined unprotected categories, then the
                government can more or less completely ban the expression.
                 (1) obscenity
                (2) fraudulent misrepresentation
                (3) defamation
                (4) advocacy of imminent, lawless behavior. Advocacy of illegal conduct: The government may ban speech
                      that advocates imminent illegal conduct. To be banable, the speech must satisfy two requirements:
                      (a) the advocacy must be intended to incite or produce "imminent lawless action"; and
                      (b) the advocacy must in fact be likely to incite or produce that imminent lawless action.
                (5) "fighting words"

            b) Protected category: All expression not falling into one of these five categories is "protected." If expression is
                protected, then any government ban or restriction on it based on its content is presumed to be
                unconstitutional. The Court subjects any such regulation to strict scrutiny:
                     i. Narrowly Tailored Statute: The means of the regulation are necessary, and there are no other
                           narrower means that could accomplish the objective satisfactorily.
                     ii. To Meet A Compelling State Interest: In order to breach the substantive due process of citizens
                           and impinge on their rights, the objective of the state must be compelling.
                     iii. No presumption of Constitutionality, burden on the government: The court takes a hard look at
                           the statute and decides whether the statute is constitutional. Heavier burden on the government to
                           show that the taking away of the right of the citizens is necessary and sufficiently narrow.




                                          Michael M. Wechsler
                                    Constitutional Law                                              92
C. Claims of Unconsitutionality of Statutes

    1. Overbreadth: A statute is "overbroad" if it bans speech which could constitutionally be forbidden but also bans
        speech which is protected by the First Amendment - the statute on its face is unconstitutional because it
        covers too large a category. Overbreadth doctrine lets a litigant prevail if he can show that the statute,
        applied according to its terms, would violate the First Amendment rights of persons not now before the
        court.

    2. Vagueness: A second important First Amendment doctrine is that of vagueness. A statute is
        unconstitutionally vague if the conduct forbidden by it is so unclearly defined that a reasonable person
        would have to guess at its meaning and its application - that he wouldn‟t know whether what he was doing
        would be wrong as per the statute.


D. Time, place and manner regulations: The government frequently tries to regulate the "time, place and manner" of
     expression. This ensures that the pig is in the barnyard not in the parlor.
     Three-part test: A "time, place and manner" regulation of speech or expressive conduct has to pass the three-
           part test summarized above, i.e.
     (1) it has to be content-neutral;
     (2) it has to be narrowly tailored to serve a significant governmental interest; and
     (3) it must "leave open alternative channels" for communicating the information.


    O Licensing: There are special limits on government's right to require a license or permit before expressive
        conduct takes place.

    O No excess discretion: Most importantly, the licensing scheme must set forth the grounds for denying the
       permit narrowly and specifeally, so that the discretion of local officials is curtailed.

    O Fighting words: Expression that constitutes "fighting words" can be flatly banned or punished by the state.
        "Fighting words" are words which are likely to make the person to whom they are addressed commit an act
        of violence, probably against the speaker.

         O Limits: But the "fighting words" doctrine is tightly limited. For instance, the police must control the angry
             crowd instead of arresting the speaker, if they've got the physical ability to do so. No Heckler‟s veto.

    O Offensive language: Language that is "offensive" is nonetheless protected by the First Amendment. (Thus
        language that is profane, or language that preaches racial or religious hatred, is protected.)

         • The public forum: Speech that takes place in a "public forum" is harder to regulate.

O Content-based: If a regulation is content-based, it makes no difference whether the expression is in a public
   forum: strict scrutiny will be given in any event.

O Neutral "time, place and manner": If a regulation is content-neutral, then the fact that the speech does or does not
   take place in a public forum makes a difference. Usually, we're talking about "time, place and manner"
   restrictions here.

    O Non-public forum: When expression takes place in a non-public forum, the regulation merely has to be
       rationally related to some legitimate governmental objective, as long as equally effective alternative
       channels are available.

    O Public forum: But where the expression takes place in a public forum, the regulation has to be narrowly drawn
        to achieve a significant governmental interest (roughly intermediate-level review). It is still necessary (but
        not sufficient) that the government leaves alternative channels available.

         O What are public forums: "True" public forums are: (1) streets; (2) sidewalks; and (3) parks. Also, places in
            which a public government meeting takes place are probably true public forums.

         O Semi-public: There are also "semi-public" forums. These are treated roughly like public forums, except
             that expression there may be regulated to preserve the tranquility that the forum's basic purpose
             requires. Libraries and schools are the best examples of semi-public forums.

         O Non-public forums: Other public places are "non-public forums." Here, government regulation merely has
            to be rationally related to some legitimate governmental objective, as long as alternative channels are
            left open. (Examples: Airport terminals, jails, military bases, courthouses, schools used after hours, and
            governmental office buildings.)


                                  Michael M. Wechsler
                               Constitutional Law                                              93
• Access to private property: In general, a speaker does not have any First Amendment right of access to
    another person's private property to deliver his message. Thus there is no First Amendment right to speak
    in a private shopping center.

• Defamation: The First Amendment places limits on the extent to which a plaintiff may recover tort damages for
    defamation.

O Plaintiff as public official or public figure: Where P is a public official or public f gore, he may only win a
    defamation suit against D for a statement relating to P's official conduct if P can prove that D's statement
    was made with either "knowledge that it was false" or "reckless disregard" of whether it was true or false.

• Obscenity: Expression that is "obscene" is simply unprotected by the First Amendment. For a work to be
    "obscene," all three parts of the following test must be met:

    1.Prurient interest: First, the average person, applying today's community standards, must find that the
        work as a whole appeals to the "prurient" (i.e., sexual) interest;

    2. Sexual conduct: Second, the work must describe or depict in a "patently offensive way" particular types
        of sexual conduct defined by state law; and

    3. Lacks redeeming social value: Finally, the work taken as a whole must lack "serious literary, artistic,
        political or scientific value."

Note: But the mere private possession of obscene material by an adult may not be made criminal.


• Commercial speech: Speech that is "commercial" gets First Amendment protection. But this protection is more
    limited than protection given to non-commercial speech:

O Truthful speech: Content-based restrictions on truthful commercial speech get only midlevel review: the
    government must be: (1) directly advancing (2) a substantial governmental interest (3) in a way that is
    reasonably tailored to achieve the government's objective. (This compares with strict scrutiny of content-
    based restrictions on non-commercial speech.)

O False, deceptive or illegal: False or deceptive commercial speech, or speech proposing an illegal transaction,
    may be forbidden by the government.

• Freedom of association: First Amendment case law recognizes the concept of "freedom of association." If an
     individual has a First Amendment right to engage in a particular expressive activity, then a group has a
     "freedom of association" right to engage in that same activity as a group.

O Illegal membership: The freedom of association means that mere membership in a group or association may
     not be made illegal. Membership may only be made part of an offense if:
          (1) the group is actively engaged in unlawful activity, or incites others to imminent lawless actions; and
          (2) the individual knows of the group's illegal activity, and specifically intends to further the group's
               illegal goals.

O Denial of public benefit or job: The government may not deny a public benef t or job based on a person's
   protected associations. If a person's activities with a group could not be made illegal, then those activities
   may generally not be made the basis for denying the person the government job or benefit.

O Loyalty oath: Similarly, the government may generally not require a job applicant to sign a loyalty oath, unless
    the things the applicant is promising not to do are things which, if he did them, would be grounds for
    punishing or denying him the job.




                              Michael M. Wechsler
                                    Constitutional Law                                             94

Unprotected Speech

   A) Advocacy of Illegal Action

       a) Emerging Principles

           1. Schenk v. US - Clear & Present Danger” test but little 1st Amendment protection

               Facts: Espionage Act that criminalized acts that obstruct those from joining the military. Schenk sent
                   literature to people to convince them not to join or be drafted. Ds were charged with conspiring to
                   violate the statute. Was this speech protected by the 1st Amendment?

               Clear and Present Danger Test: If the words used, and the circumstances in which they are used
                   are of such a nature to present a clear and present danger that they will bring about the
                   substantive evils that Congress has a right to prevent, the speech could be punished as ana
                   ttempt to commit an illegal act.

               • One may be convicted by law of an attempt to commit an illegal act, that may never even come
                   about, if there is a clear and present danger that the illegal act would materialize.

               Holmes: Bad Tendency Test: If we allow Schenk to continue his conduct, then it may influence the
                   minds of many people, thereby yislding a “bad tendency” lf the numbers and thereby cause a
                   problematic result in the end. If the speech has a “bad tendency” to cause panic, then it is not a
                   protected tight by the 1st Amendement.

               Shouting “fire” in a crowded theater is not protected speech - the state could validly be concerned
                  about the panic that such an act would cause. This is an unnecessary cause of panic and
                  punishable.

               Schenk‟s laawyer: Even though this is the expression of “opinion plus” - beyond merely expression of
                  opinion, the opinion could be very different in the eye of the beholder. The court did not really look
                  at the 1st Amendment issue, just whether this action is in conformity with the statute. The future
                  cases will shed light on whether yelling fire is a public right to some extent.
               Vagueness: You don‟t want to be in a Schenk situation where you speak but are so unsure as to
                  whether your speech is a violation of the statute. The statute should be struck down as being
                  unduly vague.


           2. Debs - p. 432

               Debs was a well known political candidate who made a general speech ooposing governmental
                  politics. There was a disturbing conviction as the speech purportedly presented a clear and
                  present danger and the speech had a natural tendency and probable effect to cause anarchy. A
                  second disturbing conviction.

               Vagueness: You don‟t want to be in a Schenk situation where you speak but are so unsure as to
                  whether your speech is a violation of the statute. The statute should be struck down as being
                  unduly vague.


           3. Abrams - p. 438 - Test gets “1st Amendment bite”

               D was inciting the workers ot rise up against the US and he was encouraging the workers in munitions
                   plants and other war machinery plants to rstrike, and passively put down the US war efforts to
                   make bullets that might be used against the Russian Revoution. This also indirectly affected the
                   war against Germany by trying to cause munitions factories to be at a standstill. Like Schenk, has
                   Abrams violated the Espionage Act which makes it criminal to obstruct war efforts?
               Majority upheld the conviction against Abrams.

               Dissent: Holmes switched his position here from other cases - the court here dealt with issues of fact
                   as the jury system wasn‟t working during thses was times as all were keyed up by the wat and the
                   propoganda machine and were eager to convict those “enemies of the state.” there could be no
                   fair trial by jury.
               The only way to see whether the speech is unconstitutional is by examining the facts and to
                   determine whether or not the acts of the actor are constitutionally protected and not within
                   the scope of a constitutional statute. It must be taken within the context in which the words
                   were spoken, and must present an immediate danger.

                                   Michael M. Wechsler
                                Constitutional Law                                              95

        • Like the Lochner dissent, Holmes says that the best test of truth is in the marketplace and we
             should let the words out for it/them to decide and we will see if the speech prevails.

        Criticism of the Holmes Clear & present danger test
             1. Not very protective of freedom of speech
             2. Opinion about threat could convict
             3. Vagueness of the Standard
             4. Ineffectiveness of the speech rewarded by not being within zone of conviction.

        Two types:
           a. Advocacy: Let us meet togethere to discuss the beating of law professors
           b. Incitement: Let us meet to discuss the beating up of law shcool professors and at 3PM. I‟ll start
                to hand out hammers.


b) State Sedition Laws - Criminal Anarchy Statutes


    4. Gitlow v. NY - p. 443

        This case was decided after the war was over and was a criminal anarchy statute that made it a crime
            to advocate or overthrow the government with the force of violence. D was a socialist who who was
            involved in a publication of a Communist Manifesto.

        Holding: The court said that if the state is exercising its tight to police power, the the law is valid. But,
            the state can pass a law, and as long as it does not take away one of our protected tights given to
            us by the constitution such as free speech and right of privacy, it is valid.

        While there did not seem to pose any danger of governmental overthrow, the court upheld the D‟s
            conviction.

        1. The state can designate predetermined types of speech that are dangerous, and the clear and
              present danger test does not arrive.
              The Schenk “Clear and Present Danger” test is only to be applied in cases where the statute
                   prohibits certain acts involving the danger of a substantive evil without any reference to the
                   language itself. This leaves it to discretion of the court as to whether the language is
                   dangerous.
         • In Schenk, there was general language that anything that would obstruct wasr efforts is prohibited,
              but here the language of the statute is specific and here, legislature had already determined that
              such language was dangerous - that language which is to advocate and overthrow the
              government.

        2. No requirement of immediate danger, only imminent danger: The D didn‟t do anything yet, but the
            state can step in as when in Schenk, there is a CLEAR AND PRESENT DANGER that act would
            lead t something violent. A spark can lead to a fire and we don‟t have to wait until there actually is
            a fire to keep the danger a t abeyance.

        MODERN RULE: Where a fundamental right is involved we use the strict scrutiny test to decide
           if the law is valid. Holmes suggests that the marketplace, the majority, may want to accept
           an idea that maybe we should - but at some point the state may have to step in, as per
           Carolene Products. As per the Constitution, a clear and present danger test must be
           adopted for a potential violation of the 14th Amendment‟s application of the 1st Amendment
           as applicable to the states.

            Issue: Where is the line to draw? “Stick „em up” is not protected speech and the question is where
                is the point of ditcinction between words and actual action that we decide?
            A: THE DIFFERENCE BETWEEN ADVOCACY AND INCITEMENT.




                               Michael M. Wechsler
                              Constitutional Law                                              96
5. Whitney - p. 446

        Facts: CA Criminal Syndicalism Act forbade the knowing membership ia any organiztion advocating the
            use of force or iolence to effect political change. Whitney did not deny being a member of the
            Cimmunist Party, but was convicted for attendance at a meeting even though she did not agree
            with the Party‟s advocacy of violent means.
        Holding: D convicted.

        Rule: A state may make criminal any assembly or organization which advocates conduct that
            has been determined to endanger the public welfare, and may prosecute on the basis of
            mere membership, not activity.

        Brandeis: Fear of serious injury alone is not punishable to justify the suppression of a Constituional
            right. You cannot punish someone for accepting the views of someone where you cannot prove
            that the person shared the views of the people that were in attendance. There must be evidence
            of imminent danger to justify this suppression of free speech.

                 • Membership in an organization of great power that poses a real danger must be given great
                     weight. Despite the fact that she could not see the danger when she went to the meeting,
                     she still took part in the meeting of the party and you should know you are representing
                     what you are a member of.

        Brandeis concurrence: D claims that she has a 1st Amendment right of free speech, but that is not
            absolute. It may be curtailed when the speech presents a clear and present danger of an imminent
            threat. Brandeis concurs because the D did not raise the correct issues for appeal. She did not
            claim that there was no clear and present danger, which she should have asserted.
        D claims that this is violative of the liberties of the 1st Amendment. The danger must be concomitant.
            The problem here is like the Salem witch trials. You may talk, but how are we to know whether my
            speech is going to cross over the line until I am in court and being hung out to dry?


c) Communism and Illegal Advocacy


    6. Dennis - p. 453
        • This case signified the setting aside of Holmes/Brandeis opinions, and it allowed many more
             convictions on mere advocacy plus.

        Facts: Ds were convicted of conspiracy for participating in the Communist Party, which characterized
            as an advocate of the use of force and violence to overthrow the US government.
        Q: Can the state punish for advocating a violent overthrow?
        A: The courts do so here. The major decision here ways that we now embrace the Holmes view in
            Witlow and the Brandeis view in Whitney.
        The court was not yet at the stage of making a distinction between advocacy and incitement.

        • The USSC as a federal court has the right to construe a statute of federal government with regard to
            its legislative intent of Congress. Therfore, the USSC can examine the statute here and construe
            the statute as having a narrow application and deem it in a narrow fashion so as to preserve its
            constitutionality.

        • The danger is within the discretion of the judge using the hand formula: gravity of the evil * probability
            of occurrence. The evil was so great, even the smaller probabiblity was not enough to tip the
            scales in favor of the D.

        • The court now uses the “Bad Tendency Test” - you must do more than merely advocay to be
             punished.
                  Q: What is it in Dennis‟ conduct that it says that the government cna punish him ansd where is
                       it that it is more than mere advocacy?
                  A: The court said that Gitlow was an isolated event - the heart of the basis of gvoernment
                       basis and the courts. The difference is that for other cases they have a built in regimented
                       machine that is not hatched in some cellar, and in Gitlow it wasn‟t really a bona fide
                       organization.
        • Distinction is that here we are tallking about a large party that was well organized and not a basement
             group of people who decided that they were opposed to the US. This is the world powerful
             Communist Party that hasd seized control of Eastern Europe and therfore there was a fear of
             subversion within the country. Unlike Gitlow, this wass not a case of a bunch of guys who advocate
             their views togetether, but rathere a huge machine that had tremendous power.


                            Michael M. Wechsler
                             Constitutional Law                                                 97
                Here it seems that they uphold the Dennis conviction yet it is advocacy.
       • Dennis would argue, even the dissenters, that if it is advocacy, still how could Dennis be guilty
           because his organization had more strength. Rule: The more strength your organization has, the
           less protection you sill get from the courts.
       Jackson: He would dissent except that there is the presence of a national conspiract here. Still the law
           requires there to be evidence of an actual incitement.

       Modern Law: A state statute prohibiting advocacy is not constitutional.

                If all that Dennis said was “ let‟s kill all the professors” but he didn‟t hand out any of the tools
                       or do anything, how can this be an illegal act as it is mere advocacy? Is this merely
                       because there were a few people with him? Is pedagogy violative? D: This statute
                       prohibits advocacy which is not actionable and is merely like street corner preaching. J.
                       Vincent says that this goes beyond teaching.


   7. Yates - 463 (decided a few days later)

       Set aside the convictions of the second string Communists. J. Medina said that it had it right in Dennis,
           but wrong in Yates because here this could easily be construed as advocacy, and not really
           approaching the threshhold of incitement. Here the Ds were on a low level of the Communist Party
           and all they did was teach the principles, but there was no danger whatsoever of these people
           putting togethere any sort of danger - there si a line between discussing something, and adocating
           a view. Unless there was a real danger, the state could not make an abstract law and then say that
           if there is dangere some tie in the future, it is able to prohibit such speech now. Tp abstract.


d) Modern Law of Advocacy: Greater Protection of Free Speech


       Brandenburg v. Ohio - p. 471

       Rule:
       1. Imminent Danger danger test for advocacy of of unlawful act or dangerous act.
            (i) advocacy directed to inciting or poducing imminent lawlwess action; and
            (ii) likely to incite or produce such action.

       The Constituion does not allow states to prohibit mere advocacy. Adocacy of of the use of force
           or of illegal acts is only a violation where the advocacy is directed to the incitement, or
           imminent danger that is likely to produce or incite such immediate action.
       2. The USSC has no power to narrow the meaning of a potentially vague/overbroad statute if it is
           a state statute - that can only be done by the state. The USSC only has the power to do so
           for federal statutes.

       Facts: D KKK leader was convicted of “syndicalism” - like the Whitney statute: acts that are intended to
           do violence or crime to accomplish political or industrial reform. Showed cross burning, anti Jewish
           slogans, and said that unless the government protects the white man that they would have to seek
           some vengeance.

       Held: D. Why didn‟t the court do what there was in Dennis and construe the statute narrowly and find it
           consitutional? THIS WAS A STATE STATUTE and the USSC HAD NO POWER to broaden to
           narrow the staute and how to constru it. Unfortunately, they were leftt with a statute that essentially
           prohibited mere advocacy and this is unconstitutioanl and the USSC had to strike it doen. This
           statute was unfortunately too overbroad and the conviction had to be set aside despite the fact that
           they could have used a narrower statute.

       *******
       Q: But didn‟t the D threaten and must have known that his acts aware a crime?
       A: We cannot ppunish when the crime is not correctly defined. TWO ASPECTS OF STATUTES:
       1. Notcie: They give proper notice to the public that the conduct is prohibited
       2. NO Overbreadthj: If so it waill have no real notice that the conduct is not proper and this will have a
            chilling effect that no one will know what conduct is prohibited so everyone will be afraid to act.

       e.g. A state cannot punish satting “no erotic speech” as that statute is overbroad. Although a D can be
            convicted ona narrower statute, and a braod one may be construed more narrowly, it doesn‟t form
            a basis for conviction.



                           Michael M. Wechsler
                                   Constitutional Law                                               98
            ---->>>
            2 QUESTIONS IN CONNECTION WITH FREEDOM OF SPEECH THAT GO TOGETHER LIKE HAM
                 AND EGGS
                    1. VAGUENESS OF THE STATUTE
                    2. OVERBREADTH OF THE STATUTE

            RULE: You can have one but not the other, but you need both to be resolved for a statute to be
               held valid - neither vagueness nor overbreadth.

            e.g. Red Flag violation statute that you cannot hagn a red flag at all. This is too vague :
            overbreadth: If you prohibit the use of a red flag for any purpose then there is a problem with
                 overbreadth becasue some trucks use them because they are the easiest to see and there is a
                 valid purpose and this statute goes too far and is overbroad.
            vagueness: No red flag is very vauge and needs to be more specific as to what it prohibits exactly.


Reputation and Privacy

    Beauharnais - Group Privacy - p. 476

        Rule:
            1. Check to see whether the speech is constitutionally protected speech.
            2. If it isn‟t, check to see if the statute is valid.

        Facts: Sustained a statute that prohibited exhibition in any public place of any publication portraying
            “depravtiy, criminality, unchastity, lack of virtue of class of citizens of any race, color or creed, to
            contempt derision obloquoy or other which is productive of breach of the peace. Court affirmed
            conviction of one who organized ditribution of a leaflet which said to bond together against blacks
            because they are the source of crime, etc.. This was malicious defamation.

        Holding: D. If you are a member of a group, you could not recover for defaamation because the rule is that
            the defamatory material must be “of and concering the P” and a group, unless suffieicntly small, is not
            so specific as to identify these Ps individually by the comment.. You must show that the remarks were
            directed at you, e.g. that the “black boars members are both having affairs” and there are only 2 black
            members of the board.

        Notes: Should this kind of speech be allowed to be made at all? Shoudn‟t the state have a right to create
            statute as the speech could lidely lead to violence? Here the clear and present dnager test does not
            come into play as the legislature tries to “trump” the constitutional and that makes it unconstitutional on
            its face. As in Brandenburg, the first step is to see whether the speech is protected by the 1st
            Amendment as the Constitution is paramount.



Reputation and seditious libel


    NY Times v. Sullivan - p. 480

        In 1964 in New York Times v. Sullivan, the court found it unconstitutional to impose a strict liability burden
             upon that D to prove truth as the First Amendment to the US Constitution provided for the rights of
             freedom of speech and press. "A rule compelling the critic of official conduct to gurantee the truth of all
             his factual assertions - and to do so on the pain of libel judgments virtually unlimited in amount - leads
             to a comparable 'self-censorship.'"

        1. The court interpreted the Constitution as minimally requiring
            i. the P who is a public official to bear the burden of proving falsity by a fair preponderance of
                  the evidence, and
            ii. the standard of proof that he must proveby clear and convincing evidence the actual malice
                  on the part of the D .

        2. The effect of the rule in Times essentially protected the press to the extent that they could publish
            defamatory material up to actual malice, about public officials, with no liability.




                                 Michael M. Wechsler
                                        Constitutional Law                                               99
             In 1966 in Rosenblatt the court further expounded upon the meaning of public official, which includes other
                  government employees, and a later case includes one who runs for public office. The proposed test of
                  a P being a public official was "whether the position in government has such an apparent importance
                  that the public has an independant interest in the qualifications and performance of the person that
                  holds it, beyond the general public interest in the qualifications and performance of all governmental
                  employees." 1967 in the cases of Butts and Walker, the protection given to the press in Times was
                  extended from public officials to include public figures. The court seemed to feel that there was a great
                  deal of importance in allowing the press and individuals to freedom of speech regarding those who
                  exert a great deal of influence in the general populace.

             In 1974 in Gertz, the court decided to set up "broad rules of general application" for defamation cases. The
                  strict liability standard of standard of fault of common law was no longer applicable for cases involving
                  private Ps, matters of public concern, and media Ds, as the Gertz court ruled that it would be
                  unconstitutional for the common and state law to have anything less than a negligence standard of fault
                  for defamation. The state must impose a floor of negligence liability for media Ds, but a state can make
                  that burden level higher. For one to obtain presumed and punitive damages the P must prove actual
                  malice. If he failed to do so, he could prove the state standard of fault, which is negligence by default,
                  and proof of actual damages to recover.

             Beginning in Gertz, through many a long decision, the courts have searched for the elusive definition of the
                 term "public figure." A completetion of this journey is akin to trying to nail a jellyish to a wall. The
                 importance of making a distinction between public and private figure is a crucial one to the P as the
                 standard of fault that must be proved is higher in cases of when the P is a public figure than when he is
                 a private one.This distinction between whom is a public and private figure was made in Gertz.

    1. Vortex (limited): Those who thrust themselves into the public, voluntarily and involuntarily. (Involuntary
      persons thrusted into the contorversy are usually classified as private persons)

    2. Universal (unlimited): of whom there are few ultra-famous individuals.

The court further explains 2 rationales for imposing a greater burden of proof of falsity on public figures:

    1. Self Help ability of Public Persons: "Public officials and public figures usually enjoy significantly greater access to
       the channels of effective communication and hence have a more realistic opportunity to counteract false
       statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and
       the state interest in protecting them is correspondingly greater."

    2. Public Person Accepts Risk of Publicity: "An individual who decides to seek public office must accept certain
       necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might
       otherwise be the case." He who climbs the social ladder should not complain about his fear of the heights he
       attains. The communications media are entitled to act on the assumption that public figures have voluntarily
       exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption
       can be made about private individuals.


An analysis may begin by asking the following questions:

Question 1: Does a public controversy exist?

Just because a controversy is public does not mean the figures are public figures.

    i. Time v. Firestone: Just because many people are curious about the divorces of the wealthy does not make it a
        public controversy.
    ii. Public policy exists over the accrediation of a law school.
    iii. No public controversy regarding a bank's expenditures even the monetary amounts are large.




                                       Michael M. Wechsler
                                        Constitutional Law                                              100
If there is a public controversy....

Question 2:Whether the P's role was such that he was a limited figure in the controversy.

The most important factor, while not essential in determining the status of the P is the second test of Gertz -
 whether the P assumed the risk of his fame by allowing himself t be drawn into public controversey. Note
 that some people, like Johnny Carson's wife, did not allow themselves to be drawn voluntarily into the
 contrioversy yet they were held to be public figures on their own. General purpose or universal public figures
 are rare (such as Reverend Jerry Falwell).

    Kato Kalin is a public figure even though he wasn't 6 months ago.
    William gattes who won 2 national books awards - public figure.
    Johnny Carson's wife: Public figure
    Someone written up in a magazine - Public figure
    Big entertainer - public figure
    Sitcom star - possibly, and depends whether his sitcom is still popular and whether he is recognizeable
    JD Salinger - public figure even though he is a 20 year recluse

Public officials are more easily identified as persons who have substantial responsibility or control over
 governmental affairs. Note that in Milkovich, it addresses the fact that someone may be popular at one time,
 but may no longer be in the public eye so as to constituite a public figure. Lou Carnesecca has long retired
 from St. John's but is still probably a public figure, while Milkovich would arguably not ba a public figure
 since his reign of champions is long gone from recent memory.

Question 3: Is the D a media or non-media D?

Greenmoss seems to indicate that the distinction made between media and non-media D is not a relevant one
 and the standards of fault, burden, and damages are set up as follows in the chart.

    REPUTATION AND PRIVACY

         Beauharnais - Group Privacy - p. 476

             Rule:
                 1. Check to see whether the speech is constitutionally protected speech.
                 2. If it isn‟t, check to see if the statute is valid.

             Facts: Sustained a statute that prohibited exhibition in any public place of any publication portraying
                 “depravtiy, criminality, unchastity, lack of virtue of class of citizens of any race, color or creed, to
                 contempt derision obloquoy or other which is productive of breach of the peace. Court affirmed
                 conviction of one who organized ditribution of a leaflet which said to bond together against blacks
                 because they are the source of crime, etc.. This was malicious defamation.

             Holding: D. If you are a member of a group, you could not recover for defaamation because the rule is that
                 the defamatory material must be “of and concering the P” and a group, unless suffieicntly small, is not
                 so specific as to identify these Ps individually by the comment.. You must show that the remarks were
                 directed at you, e.g. that the “black boars members are both having affairs” and there are only 2 black
                 members of the board.

             Notes: Should this kind of speech be allowed to be made at all? Shoudn‟t the state have a right to create
                 statute as the speech could lidely lead to violence? Here the clear and present dnager test does not
                 come into play as the legislature tries to “trump” the constitutional and that makes it unconstitutional on
                 its face. As in Brandenburg, the first step is to see whether the speech is protected by the 1st
                 Amendment as the Constitution is paramount.

             Old rule and NYT is the current defemamtion standard.




                                       Michael M. Wechsler
                                                  Constitutional Law                                                  101
          REPUTATION AND SEDITIOUS LIBEL
                                                  i
               NY Times v. Sullivan - p. 480

                    In 1964 in New York Times v. Sullivan, the court found it unconstitutional to impose a strict liability burden
                         upon that D to prove truth as the First Amendment to the US Constitution provided for the rights of
                         freedom of speech and press. "A rule compelling the critic of official conduct to gurantee the truth of all
                         his factual assertions - and to do so on the pain of libel judgments virtually unlimited in amount - leads
                         to a comparable 'self-censorship.'"

                    1. The court interpreted the Constitution as minimally requiring
                        i. the P who is a public official to bear the burden of proving falsity by a fair preponderance of
                              the evidence, and
                        ii. the standard of proof that he must proveby clear and convincing evidence the actual malice
                              on the part of the D .

                    2. The effect of the rule in Times essentially protected the press to the extent that they could publish
                        defamatory material up to actual malice, about public officials, with no liability.




i
 The court forced and independant grounds to set asid e the verdict.
RULES OF DEFMATION OF P PUBLIC OFFICIAL:
1. P must prove actual malic and mere negligence is not sufficient.
2. Burden of proof is on the P, not the D. Presumed damages are only once P rpoves the acrtual malice of D.

Why do we worry about 1st Amendment if the speech was actionable as a false hook?
A The issue is whether the first amendment opens up the D to an immediate claim for defamatory falsehood.

The state action here is the court enforcing the Alabama common law of defamation, but this common law rule cannot trump the
constitutional rights of free speech. The zp needed to show a violation of the 1st Amendment. If the private ctizens abridge ieach others;
speech, then there is no violation, only private. To sue under the 1st Amendment right, there must be some state action.

This was a commercial advertisement for people to send money fo r a political campaign. Essentially, we would commit a fallacy to say “if you
pay money for a speech, it is commercial” in relatin to paying money for a newspaper and that makes all ads commecial - not so. It must be
taken in its context.


                                                Michael M. Wechsler
                                                   Constitutional Law                                                     102
                     RULES OF DEFMATION OF P PUBLIC OFFICIAL:
                        1. P must prove actual malice and mere negligence is not sufficient.
                        2. Burden of proof is on the P, not the D. Presumed damages are only once P rpoves the actual malice
                             of D.

                     RULE: When a P is a public official in a defamation case, the D must be shown to have had “actual malice”
                        or “reckless disregard.” It is very difficult burden to reach for Ps and negligence by the D is not enough.


                     Facts: The police chief of a southern town was defamed in an ad run in the NYT and paid for by black
                         clergy. There were small inconsistencies.
                     Held: D NYT that they had a right to publish even some negligent falsehood about public officials so long as
                         theri conduct was not intentional or with reckless disregard for the truth - having entertianed serious
                         doubts as to the validity of the truth.

                     Originally truth was an affirmative defense, and the state action taht was being questioned was the
                         Alabama state law that made defemation a strict liability crime and defense was truth. This was found
                         to be unconstitutional as per the first amendment, even though false.
                     The court finds that the 1st Amendment is implicated here. The press and ourselves must have the right to
                         criticize public officials and thereby have an impact as much as criminal prosecution if we allow these
                         million dllar civil suits.
                                                                                 ii
                         • Such strong laws would have chilling effect on news
                         • The strength of the law would lead to self censorship.

                     Q: If the speech made was a defamatory falsehood, how can this be protected free speech?
                     A: The problem here is the common law defense of proving truth. Sullivan P only had to prove that the
                          speech was “of and concerning the P,” damages were presumed, as well as falsity, and then the
                          burden shifted to the D to prove truth. The burden was placed on the Times that what they printed was
                          true by a mere allegation of falsity, and the question was how could common law constitutionally place
                          the burden of a case on the D.

                     The police chief and others were using this case as a weapon to censor the civil rights groups by using and
                         having presumed damages.

                     • Of and concerning the P: The court also noted that the ruling should be set aside as a matter that it was
                          not of and concerning the P, the criticism was only about the agency. So if you make a general claim
                          about the government, you can‟t be sued by individuals because it is not really “of and concerning the
                          P” and is about a general, not specific, group.

                     The law of defamation constitutionalized in Times was ONLY IN REGARD TO A P THAT IS A PUBLIC
                         OFFICIAL. This was later expanded to a public figure, such as a retired general or a famous football
                         coach and the same NYT burden of actual malice applies.


          How far do we go with the definiton of “public official?” - public figure.

                     In 1966 in Rosenblatt the court further expounded upon the meaning of public official, which includes other
                          government employees, and a later case includes one who runs for public office. The proposed test of
                          a P being a public official was "whether the position in government has such an apparent importance
                          that the public has an independant interest in the qualifications and performance of the person that
                          holds it, beyond the general public interest in the qualifications and performance of all governmental
                          employees." 1967 in the cases of Butts and Walker, the protection given to the press in Times was
                          extended from public officials to include public figures. The court seemed to feel that there was a great
                          deal of importance in allowing the press and individuals to freedom of speech regarding those who
                          exert a great deal of influence in the general populace.




ii
  You cannot just wave the magic wand and a talisman, somehting that is not defamatory and thus not covered by the 1st Amendment. the
state and common law cannot have rules that are contrary to the constitutiona and we must see that the conduct of public lfficials is kept in
check and this is done by criticism and how it wil affect them. The press must have the right to discuss public officials without this terrible fear
of libel --->>> we are now talking about the freedom of the press to operate without a chilling effect, and to placr information into the hands of
the public about the public officials.

                                                 Michael M. Wechsler
                                 Constitutional Law                                              103
Q: WHO IS A PUBLIC FIGURE IN TERMS OF ACTUAL MALICE?

   Gertz v. Welch - p. 491

   GERTZ RULE:
      a. NYT rule does not apply here as this case deals with a private figure P.

       b. The strict liability standard of standard of fault of common law was no longer applicable for cases
           involving private Ps, matters of public concern, and media Ds.

   1. In balancing the 1st Amendment considerations it would be unconstitutional for the common and
        state law to have anything less than a negligence standard of fault for defamation. The state must
        impose a floor of negligence liability for media Ds, but a state can make that burden level higher.
        That would create a chilling effect, and thus deprive the newspapers of printing important
        information, and therby abrisging the free speech of the press.

   2. No presumed damages unless the private P can show actual malice standard. If P can prove actual
       malice, P can also recover punitive damages. If the P can only prove negligence, then he must prove
       actual damages or receive a nominal sum.

   RULE: Court makes a defintion as to who is a public figure:

       1. GENRAL PUBLIC FIGURE: By the nature of their work they are a public figure, e.g a film star.
       2. VORTEX PUBLIC FIGURES / LIMITED PURPOSE PUBLIC FIGURES: One who propels himself into a
           public controversy, but they may be limited public figures for a certain period of time. The court does
           not like to say that involuntary public figure are public figures (Firestone)


       Facts: Gertz was a well known lawyer who was written up in an article that he was the architect in a
           communist frameup, he had a criminal record, all falsehoods. Issue is that he may be a private figure
           and if so, what standard should be used for defamation?

       Holding: P and the new rules regarding private Ps for defamation cases. The court set up "broad rules of
           general application" for defamation cases.
       We must determine in this case whether Gertz would qualify as a vortex public figure. The court did not find
           that Gertz thrusthismself into the public eye, and that he was merely representing someone who
           became a news issue. Howeverm Gertz did not pursue interviews or any other type of media attention,
           and therfore Gertz was deemed a private figure.

           1. Self Help ability of Public Persons: "Public officials and public figures usually enjoy significantly
               greater access to the channels of effective communication and hence have a more realistic
               opportunity to counteract false statements than private individuals normally enjoy. Private
               individuals are therefore more vulnerable to injury, and the state interest in protecting them is
               correspondingly greater."

           2. Public Person Accepts Risk of Publicity: "An individual who decides to seek public office must accept
               certain necessary consequences of that involvement in public affairs. He runs the risk of closer
               public scrutiny than might otherwise be the case." He who climbs the social ladder should not
               complain about his fear of the heights he attains. The communications media are entitled to act on
               the assumption that public figures have voluntarily exposed themselves to increased risk of injury
               from defamatory falsehood concerning them. No such assumption can be made about private
               individuals.

       Gertz is limited to issues of public conern, witha private P
       Does NOT extend to a matter of a private concern with a private P.




                                Michael M. Wechsler
                                   Constitutional Law                                            104
PRIVATE P, NON-MEDIA D - DIFFERENT STANDARD


Dun and Bradstreet v. Greenmoss:
which deals with a different standard in which a private P and a private issue - the rules requiring actual malice to be
    used is only applied in public concern matters. Where the issue is one of private concern , the “ need not prove
    actual malice. this was a small company of privately held stock and ther was no issue of a public figure or issue.
Facts: D&B falsely reported by accident that a small company was insolvent.
Held: P for a strict liability standard. No constitutional limitation in this arena of private P and private concern.


Who is and who is not a public figure?

    Firestone - p. 499
    Everyone knows the Firestone name so is she a public figure to write about the alleged facts surrounding her
        divorce?
    QUESTIONS THAT DETERMINE A PUBLIC FIGURE:
    Whether the P gave any interbiews to the press
        Firestione want to be a private figure and have a lower burden of negligence to meet, so she claimed that
             she was not a vortex public figure. She merley filed her divorce papers and then the reporters
             discovered it on the public record.

         The USSC saif that she was not a public figure because:
             1. She did not thrust herself into the vortex of the public
             2. People knew the name Firestone but did not know her.


    Proxmeyer

         Rule: A recipient of a government grant does not make one a public figure as a government
             employee

         Facts: Proxmeyer was a scientist who received government grants, and “the golden fleece” was a press
             award that identified some of the most ridiculous awarded governemtn grants, of which Proxmeyer
             won.
         Issue: Is a scientist a public figure? Since he received a government grant, oes that now place him into the
             category of being public figure?
         Holding: P and he is private figure. The court said that like Firestone, Proxmeyer is a private figure and is
             not a governmental emplotee.
             • The USSC has never addressed the issue if you are involuntarily thrust into the public eye, wheteherr
                   you become a public figure, but the courts said this is possible.

         RULE: Before we can determine whther a jury verdict in a defamation case isn‟t clearly erroneoous and a
            verdict that cannot be made by rational jurors, we have to see whether the verdict is contrary to the
            constitution.


OPINON IN GERTZ: There is no such thing as a false idea, just false statements. What about statements of
   opinion?

    Oellman v. Evans: mentioned in Milkovich v. Lorraine, stated that opinions were protected, but Milkovich
        overruled and stated that opinion is not automatically protected question of verifiability.
    What if I say ?You are a political activist, not a scholar” as in Oellman? Is it defematory?

    The court discusses the use of hyperbole and merely colorful alnguage as not being defammatory in opinion.
        Saying “emotinal blackmail” may be used to exaggerate a colorful idea and going too far, or calling
        someone who is a scab a traitor. These are colorful hyperbolic language that we all use at times to make
        our points, is not relaly defamatory and protected by the constitution.

    BUT we need to know the context in which these statements were made and the ARTICLE in which the
       statements appeared. We must look at the whole. If this was political op ed, them the statement could be
       defamatory as it may be taken moreseriously. But if the statement appeared in the comics, then the
       statement would not be taken in the same light. But if the statements were made in a regular newpaper
       articel, again the problem arises that people will assume that the hyperbole is actually true because of the
       context of the article.

    The DC found that the speech in Oellman was constitutionally protected.


                                  Michael M. Wechsler
                                   Constitutional Law                                             105

    Milkovich: The hø was a high school wrestling coach, there was a fracas at a meet, and the press seemed to
        infer that the coaach stirred up the fight and then he lied and covered up the facts.

    The court said that this is not constitutionally protected speech as the statement was really defamatory, and not
        merely likely to be taken as “opinion” by the readers.

    RULE: Merely because a wrtier states “In my opinion, X is a liar” does NOT immunize the statement from
       defamation. The question is “is it verifiable that P was truly a liar.” However in Oellman, it is really
       impossible to say either way that he was a scholar not a politician, and not open to verifiability.

    The NY courts take a broader view than most as to what constitutes constiututionally protected speech.

    Masson v. New Yorker - p. 501

    TEST: DID THE WRITER CHANGE THE MEANING OF THE SPEAKER IN THE CHANGING OF THE QUOTE?

    Rule: A MERE ALTERATION OF WORDS THAT ARE TAPE RECORDED DOES NOT AUTOMATICALLY
        PROVE FALSITY - THERE MUST BE SOME CHANGE OF MEANING.

    The writer put quotes around things that he didn‟t say - is this falsity? Not always as there are some liberties that
        we allow the news media to takke and permissible. Journalism could not function if every time you made a
        slight modification or edit that it was considered a falsity. Journalists have the tight to clean up graqmmar
        and syntax.

    Malcom D added the comment that Masson thought that his coleague considered him an intellectual gigolo -
        Masson came up with the analofy to his own past as his girlfriend said tht he is a great guy privately, but he
        embarrassed her in front of her friends.

    This is not colorful writing anymore and it has crossed the threshhold of its meaning. The court found that a
        reasonable jury might find this to be a flasehod and defamatory. Masspn was to be considered a limited
        public figure.


Issue: Do we need this to make a function of free society?

    Time v. Hill - p. 501

        False Light Privacy: This is not absoulute falsehood, but casts a flase light on the P.

        RULE: The NY Times standard applies in false light cases even in non-defamatory issues.

        RULE: Certain statements as a matter of law cannot be defamatory such as hyperbole and are
           protected free speech.

        The story of family held hostage and dramatized and it showed the Ps in a bad light. The court said that for
            false light, the standard is the NY Times atndard as per the 1st Amendment, not as the NY statute was.
            This was a suit on name, portrait or picture of rights of privacy, used in a false light.

        Why do we use the higher Times standard and not the standard of Gertz for private Ps?
        This is because there is no actual dfefamation taking place here, and the blance of interests shifts fro, the D
            to the P‟s side as there is no actual defamation. It is a higher standard for a lwer threshhold of interest.

        The court must play a broader role as to whether some advertisements are defamatory.

        RULE ====>>>>>>e.g. The court can dscide that Hamlet is abscene and the appellate courts cannot just
           justify putting the rubber stamp on lower court decisions and state that the jury found the speech was
           obscene and could reasonably have doone so. the courts must do a review in a practically de novo
           fashion<<<<======




                                  Michael M. Wechsler
                                    Constitutional Law                                             106
    Hustler v. Falwell - p. 503

    Rule:
        1. falwell could not recover because of defamation - no defamation
        2. P could not recover for intentional emotional distress because you cant do an end run around the
             NY Times rule of actual malice and recover for lesser standard. The court realized that people
             would recover all the time by not using a defamation tort because it isn‟t defamation and the P is going
             to try to use intentional emotional distress tort.

         Facts: Parody of Reverned Falwell in Hustler that wasn‟t defamatory because it was just an article to poke
             fun, not seen as editorial. Sued for intentional infliction of emotional distress.
         Held: D that we will not allow øs to choose another claim to do an end run around higher standards of
             defamation. This wasn‟t really defamation but it was an attempt to bypass.


Florida Star - p. 505

    Facts: All the newspaper did was print a true statement - the name of the rape victim‟s name. The state statute
        said that you cannot print the naem of a rape victim. The 1st Amendment protects free speech and the state
        cannot merely prohibit speech of a newspapaer, e.g. you are prohibited from printing the results of an
        aelection, as that would be undonstitutional.

    Held: strangely for the D that it did not pass stricy scrutiny that there wasn‟t a compelling enough interest to
        protec the name of a rape victim.

    The court sait that in 1st Amendment cases, we are dealing with a fundamental right and strcit scrutiny is used :
    1. a narrowly tailored statute that
    2. serves a compelling state interest.

    Q: Can there ever be limits on what the press can print regarding truthful facts?
    A: Yes: Neely states that you cannot print publication of the sailing dates of troop ships during wartime and the
        state has the same rights in this arena.

    Q1: Compelling state interest?
    A: Here there may be a compelling state interest in prtoecting the name of the rape victim, which will aslo
        encourage victims to report rapes.

    Q2: Is the statute sufficiently narrowly tailored, now that we know that it serves a compelling state
        interest?
    A: As the court pointed out, the statute was a strict liability statute. Even if a rape victim gave her name to the
        press to print, the newpaper could be found criminally liable if it printed her name.

    The argument is that the statute is ot narrow enough to limit it because:
    1. this made the statute a strict liability statute and even if the rape victim gave her consent to publish her name
          the newspaper could be found ciriminally liable;
    2. It only applied to the media - and if the town gossip wanted to talk about it and spread the news to everyone,
          there obviously wasn‟t such a compelling state interest (this paert is questionable)




                                  Michael M. Wechsler
                                        Constitutional Law                                         107
                                         ANALYSIS OF DEFAMATION CASES

Question 1: Does a public controversy exist?

Just because a controversy is public does not mean the figures are public figures.

    i. Time v. Firestone: Just because many people are curious about the divorces of the wealthy does not make it a
        public controversy.
    ii. Public policy exists over the accrediation of a law school.
    iii. No public controversy regarding a bank's expenditures even the monetary amounts are large.



If there is a public controversy....

Question 2:Whether the P's role was such that he was a limited figure in the controversy.

The most important factor, while not essential in determining the status of the P is the second test of Gertz -
 whether the P assumed the risk of his fame by allowing himself t be drawn into public controversey. Note
 that some people, like Johnny Carson's wife, did not allow themselves to be drawn voluntarily into the
 contrioversy yet they were held to be public figures on their own. General purpose or universal public figures
 are rare (such as Reverend Jerry Falwell).

    Kato Kalin is a public figure even though he wasn't 6 months ago.
    William gattes who won 2 national books awards - public figure.
    Johnny Carson's wife: Public figure
    Someone written up in a magazine - Public figure
    Big entertainer - public figure
    Sitcom star - possibly, and depends whether his sitcom is still popular and whether he is recognizeable
    JD Salinger - public figure even though he is a 20 year recluse

Public officials are more easily identified as persons who have substantial responsibility or control over
 governmental affairs. Note that in Milkovich, it addresses the fact that someone may be popular at one time,
 but may no longer be in the public eye so as to constituite a public figure. Lou Carnesecca has long retired
 from St. John's but is still probably a public figure, while Milkovich would arguably not ba a public figure
 since his reign of champions is long gone from recent memory.

Question 3: Is the D a media or non-media D?

Greenmoss seems to indicate that the distinction made between media and non-media D is not a relevant one
 and the standards of fault, burden, and damages are set up as follows in the chart.




                                       Michael M. Wechsler
                                            Constitutional Law                                               108
OBSCENITY

   • Not protected
   • may be regulated but the constitution limits the amount

       Standard is the Miller Test: All are judged on the “average person test” as per Roth by ysing the average
           person using contemporatry community standards.

            1. Must be without serious literary, artistic, political, social value (NOT utterly, a level impossible to
                 prove).
            2. Must be patently offensive description of sexual conduct using “community standards”
            3. Prurient interst test inhereited from Roth - does it arouse sexual interest and desire.

            Examples given of hardcore perverted sex acts, patently offensive.

       • Claim that the words are of secondary effect for another purpose, and not mere content (against fires in
            backyard, not prohibition of flag burning.)


            A STATE CONSTITUTION MAY CONFER MORE PROTECTION ON THE CITIZENS THAN THE FEDERAL
                CONSTITUTION. THEREFORE ALWAYS USE THE STATE CONSTITUTION IF YOU ARE FIGHTING A
                STATE STAUTE TO SEE IF IT CONFERS GREATER RIGHTS THAN THE US CONSTITUTION.

            YOU CAN CHALLENGE AN ACT OF THE STATE AND LOCAL GOVERNMENT, AS OPPOSING THE
               FEDERAL GOVERNMENT, AS A VIOLATION OF THE STATE‟S CONSTITUTION, AND YOU CAN GET A
               BROADER READING OF A STATE CONSITUTION IN A FEDERAL COURT THAN UNDER FEDERAL
               LAW IN A FEDERAL COURT. THIS IS BECAUSE THE STATE MUST PROTECT FREE SPEECH IN
               EVERY STATE CONSTITUTION, MAKING THE THRESHOD OF FREE SPEECH NO LESSER, ONLY
               GREATER PROTECTION TO THE CITIZENS THAN THE CONSTITUTION DOES. THE STATE CAN GIVE
               CITIZENS MORE PROTECTION TO INDIVIDUAL RIGHTS THAN THE USSC HAS GIVEN US UNDER THE
               FEDERAL CONSTIUTUTION.

            RULE: THE STATES CAN DEFINE THEIR STATUTES MORE BROADLY UNDER THEIR STATE
               CONSTITUTION AND GIVE MORE RIGHTS RATHER THAN LESS RIGHTS.

            DEFENSE: Always argue:

            1. Overbreadth:
                a. Overinclusive (prohibits all nudity even a baby)
                b. Underinclusive: (prohibits only nudity, but not startling behaviour that would cause accident)

            2. Vagueness

            3. Argue refinement of the Miller standard of community standards which yields to vague a test and is
                too subject to personal whim and feeling.

            4. American Booksellers - The danger of pornography should be a standrard that it is only prohibitable if
                it presents a clear and present danger.

            5. When making an obscenity argument, question whether we should use the clear and present danger
                test of brandenburg.


            In Jacobellis, J. Stewart saif that in regard to obscenity, “I can‟t define it, but I know it when I see it.” How
                 much comfort is there in knowing this?This is a big problem to the public who may not know it when they
                 see it. In addition, the appellate courts must review bot fact and law and cannot just say that a jury in a
                 lower court found the D guilty - they must do a de novo review of all the facts because of the 1st
                 Amendment.

            Originally a publisher needed a license from the Kig of England who was protecting against blasphemous materials. The
                 federal government made bools illegal that today we take for granted, such as Lady Chatterly‟s Lover which is a
                 commonly accepted classic. It was considered obscene in the 1930s because it seemed to be obsce3ne, based upon
                 one passage taken out of context.




                                           Michael M. Wechsler
                                    Constitutional Law                                             109
Roth - First Obscenity case

    RULE: Obscenity is not a protected area of free speech, but it does limit governmental restriction.

    OLD RULE: Obscenity was described as:
       1. Prurient interest
       2. Lacking inherent social value

    MODERN RULE: The Miller test. We look at what the average person considers as obscene.

    • Rejects any clear and present danger test for obscenity.
    • Defines obscenity as not mere sex, but sex protrayed in a prurient, unhealthy manner.
    • The focus here was on the conduct of the individuals - which was dissemination of prurient material and that
        may be prohibited.

    Facts: NY denied a license for the film “Lady Chatterly‟s Lover” because it seemed to condone the idea of
        adultery as proper behavior.
    Held: P that we cannot prohibit ideas, only the expression of those ideas. This case wasn‟t even really so much
        about obscenity per se, but the idea of it. Gertz: No such idea as a false idea. donstitutionally, the state
        cannot be inthe business of “proving truth” when it makes a statute. The state cannot decree that an idea is
        “off limits.”


    Brennan spoke here about the average person because we cannot look at the extremists - One man‟s
        interest is the Church Lady‟s obscenity. It could offend the meek where it involves anythign to do
        with sex.

    Dissent: Such obscenity law really leaves it to the jury to decide if it is offended, with no true guidelines
        to be objective. One jury may find something obscene that another jury wouldn‟t think twice about,
        especially since the standard is so loose.

It is consistent with the 1st Amendment to make it a crime to publish obscenity. But in order to criminalize what is
      obscene, the government must describe what is obscene or what is not considered obscene and constitutional.

         Q: What is “prurient interest?”
         A: Something that arouses the interest in sex. See the Fototnoote on page 515 which says that you cannt
             define it this was as “lust” because lust is a healthy interest in sex. But a “depraved” interest in sex can
             be defined as a prurient interest.

         Can the state prohibit Lady Chatterly‟s Lover? The movie justifies the notion of an extreamarital affait and
             this would advocate immorality. A NYS statute banned it.
         The court said no, that the state can‟t do that. Th censor speech that is not “obscene” - there was no sex in
             any detail, was exactly like Schenk and Debbs attitude that the court has abandoned long ago. The
             state has no business doing so.

         ==>>> If the majority wants something banned, legislature cannot do it because the amjority want it
            as such. The Constitution is very much geared to protect the rights of minorities.

         • The court said that where speech is aimed at children, the state can prohibit such speech, but the
             state cannot prohibit adults on the theory that kids should not see it so we also ban the adults
             to ensure the kids don‟t have access. ====>>>>>>> It is burning doen the house to roast a pig.




                                  Michael M. Wechsler
                                    Constitutional Law                                              110
    Stanely v. GA - 519

    Rule: Laws that criminalize mere possession of obscene material (not children) are a violation of the 1st
        Amendment. We are protecting social standards, not the protection of mens‟ minds.

    Facts: The films P had were obscene - no question about that part. If the films werwe sold in the street there is
        no question that it would have clearly violated an obscenity statute. But the fact here is that the films were in
        the privacy of his living room which is where he viewed them.

    State: If this is obscene material, and it is not protected by the 1st Amendment, what is this different than having
        drugs in your house? There is no question that the police can search and seize narcotics - why not obscene
        material? (Bowers v. Hardwick - what consenting adults do in the privacy of their own house is their own
        business - but Stanely is a 1st Amendment case).

    State: why can‟t the state prohiit obscenity if the state finds it leads to antisocial behavior of its likelihood? Does
        the state need to prove this before it can legislate?

    A: The state statute is invalid despite the material being obscene because this is really drawing on
        thought control, having the state tell him what he can do, and is a 1st Amendment question. The
        state is trying to protect a man‟s mind from the obscenity and they cannot tell him what books he
        can read in his living room and what he cannot.

    Unlike drugs where we are protecting society, here the court was saying that obscenity leads people to immoral
         acts. However, the nexus of that theory was suspect at best. The state may no more prohibit having
         chemistry books due to fear one may create an explosive.

    Exception - the states can prohibi the possession of child porn.


How far does legislature have to go in order to find that something is harmful before the legislature can
   legislate about it.


    PARIS Adult Theatre - p. 521

    Rule: There is a discernation between cases which deal with the privacy of one‟s home, and there is an
        effect on the lives and overall neighborhood and welfare of the people by having obscenity in public.

    Facts: Deals with a theatre on the street which had a sign not to enter unless 21 and ID because adult nudity.
        The theatre showed hard core porn.

    Issue: This case is distinguished. Why can the state prevent Stanely from going into a public theatre for
        obscene movies but not in his living room?
    Held: state - The court balances the rights .
             1. The court believes that having a public theatre infringes upon the rights of others, even though we
                  don‟t force people in the streets ot enter these theatres.
             2. The value of life in a neighborhood deteriorates with these theatres in the streets and this is not the
                  same effect as one who has obscene tapes in his living room. Man has a “zone of privacy” that
                  extends inot his living room, but not into the street.

        Paris was decided on the same day as Miller and used the Miller test.

    There is no constant objection for drugs, as that is very harmful, but with obscenity, the harm is not the same.

    Dissent: J. Berger: Abandons his position in Roth and throws up his hands saying that we cannot ban obscenity
        because there is no adequate way to regulate it. There are many arguments about whether we should
        protect endangered species, but no court is questioning statutes such as drugs. For some reason we are
        not comfortable of the notion of just a film and we need some type of 1st Amendment protection even
        though the material is concedely obscene.
        a) VAGUENESS: The obscenity statute is too vague for one to know when it is truly obscene. One can
             never know until he goes into court.
        b) Weakness of state interest: There is a weak link between obscenity and the need for control, except in
             the hands of minors. The harm is really more speculative than anything else.




                                  Michael M. Wechsler
                               Constitutional Law                                            111
MILLER - 525 - MODERN RUKE FOR OBSCENITY

Standard is the Miller Test: All are judged on the “average person test” as per Roth by using the average
    person using contemporatry community standards.

    1. Must be without serious literary, artistic, political, social value (NOT utterly, a level impossible to
         prove).
    2. Must be patently offensive description of sexual conduct using “community standards”
    3. Prurient interst test inhereited from Roth - does it arouse sexual interest and desire using
         “community standards”

    Examples given of hardcore perverted sex acts, patently offensive.

RULE: In appellate courts there must be practically a full de novo review of all the questions of law AND
   fact, as fact is in issue here. In obscenity cases in appeal, a full review of the facts must be made
   because that is the issue (usually facts are determined by the trial court and the appellate court
   decides questions of law.)

Facts: Miller was convicted under California‟s obscenity law for mass mailing asds for unsolicited pictorial
    brochures depicting men and women in various stages of sexual activity.
Held: The court rejected the Roth test officially of “of prurient interest without any inherent redeeming social
    value,‟ which was used in “Memoirs” book. Memoirs of a Woman of Pleasure” by Masu could not be banned
    unless it was without any redeeming social value.

Q: Does this say that if it has social value that the state cannot prohibit it? Can the test be made broader by the
    government?
A: NO (p. 526) “Utterly” was taken out of context because it made a burden almost impossible to reach by the
    state. One can have a book so terribly obscene with 500 pages of pornography and still stick a world map in
    the back so that the book no longer has “utterly no redeeming social value.”

Therefore the test is as listed above, but not utterly without social value, a burden impossible to prove.

Community standards is important becausethe court recognized the different standards in different states. The
   prosecutor can pick the communities with very conservative standards inorder to bring obscenity cases -
   inother word if the obscene object is a porn magazine that is in 10 states, the prosecutor can be picked in
   any of the states where the community is much more conservative and is better for the prosecutor‟s case.
   With a book, you can prosecute anywhere the book is sold, and usually the place that you are most likely to
   convict. This is as oposed to criminal statutes that may ONLY be brought where the crime actually
   occurred.

Why do we have the “prurient interest and patently offensive” test but not the “utterly lacking redeeming social
   value” test?

These “prurient interest and patently offenxive” tests vary according to locality. It would be entirely inconsistent
    with the 1st Amendment if it had redeeming social value. Redeeming social value is a judgement that is the
    same no matter where you are, but not the first two parts of the test.

J. Brennan Dissent: After he came up with a definition of obscenity in Roth, he says that his own definition is
    too ambiguous and that there is absoultely no clear way to define ir. He throws up his hands and gives up
    compleltely.

    This is a real problem as it would seem that oe would have to wait until he got to court in order to
        know whether of not he was violating the law. If you go 56 MPH in a 50 MPH zone, you are
        speeding even if you were unsure of the fact, as the speedomemter should keep you close indication
        that you may be over the limit - but here there is no “speedometer” or indicator.

    As with Brennan and the 3 other jstices, the concept of a chilling effect on boolsellers is the result
        as a bookseller would have to check and read every single page of every book to make sure that
        they are not obscene.

    The USSC said you must know what context the obscene material was stated as well - we don‟t want a
        situation like Lady Chatterly‟s Lover all over again.

EPILOGUE: There are various questions as to whether the Miller test is working, and some velive that the court
    should deal with this issue similar to how Brandenburg deals with advocacy and incitement using the “clear
    and present danger test.”


                              Michael M. Wechsler
                                    Constitutional Law                                             112
    ====> WHEN MAKING AN OBSCENITY ARGUMENT, QUESTION WHETHER WE SHOULD USE THE
       CLEAR AND PRESENT DANGER TEST OF BRANDENBURG.

    YOU CAN CHALLENGE AN ACT OF THE STATE AND LOCAL GOVERNMENT, AS OPPOSING THE
       FEDERAL GOVERNMENT, AS A VIOLATION OF THE STATE‟S CONSTITUTION, AND YOU CAN GET A
       BROADER READING OF A STATE CONSITUTION IN A FEDERAL COURT THAN UNDER FEDERAL
       LAW IN A FEDERAL COURT. THIS IS BECAUSE THE STATE MUST PROTECT FREE SPEECH IN
       EVERY STATE CONSTITUTION, MAKING THE THRESHOD OF FREE SPEECH NO LESSER, ONLY
       GREATER PROTECTION TO THE CITIZENS THAN THE CONSTITUTION DOES. THE STATE CAN GIVE
       CITIZENS MORE PROTECTION TO INDIVIDUAL RIGHTS THAN THE USSC HAS GIVEN US UNDER THE
       FEDERAL CONSTIUTUTION.

    A STATE CONSTITUTION MAY CONFER MORE PROTECTION ON THE CITIZENS THAN THE FEDERAL
        CONSTITUTION. THEREFORE ALWAYS USE THE STATE CONSTITUTION IF YOU ARE FIGHTING A
        STATE STAUTE TO SEE IF IT CONFERS GREATER RIGHTS THAN THE US CONSTITUTION.

    RULE: THE STATES CAN DEFINE THEIR STATUTES MORE BROADLY UNDER THEIR STATE
       CONSTITUTION AND GIVE MORE RIGHTS RATHER THAN LESS RIGHTS.



Overbreadth in Obscenity - Is banning for children overbroad policy?


Ferber - p. 551

    1. Miller test not used to ban child porn because the focus is not on the thought - it is on the concept of
        protecting children from being a participant. It doesn‟t matter to the children if the porn has any
        redeeming social or other value.

    2. The court read in that a statute that is claimed to be overbroad may be struck down if it is
        SUBSTANTIALLY overbroad, not merely overbroad. We cannot dream up every single hypothetical that
        comes up as lawyers do and then invalidate a statute for the incredibly rare occurrence when a use is valid.
        An overwhelming part of the statute is accomplished here - to close down the traffic by prohibiting the sale
        of such material of children used in obscene acts.

    3. state found that harm to child and de minimis value of child porn was overwhelming factors in
         upholding the child porn law prohibiting possession. This is what allows us to go beyond Miller and
         what make sit not a 2st Amendment violation as in Miller. The focus is on banning distribution.

    4. This law places child porn on the same level as adult porn but pushes the envelope one step further -
        mere possession is prohibited.

    Facts: NY made law that prohibited any performance of sexual acts of children, those under the age of 16.
        Ferber was only selling something that someone else did 100 miles away.

    Held: Not substantially overbroad.
        1. Important government objective.
             a. Permanent damage to childrens‟ future if this material is around (Brooke Shields)
             b. The only effective way for state to prevent this is cut off distribution, that is a ban on possession.

    Promoting the sexual performance of a child is illegal and outlawed. Does it have to be obscene as within the
        Miller test? NO The state statute said it could have no redeeming social value, and the statute said nothing
        about requiring the material to be patently offensive, or prurient interest tests and NY went beyond the Miller
        test here.

    Q: Doesn‟t this statute have to come within the 3 prongs of the Miller test?
    A: The statute here deals with actually usin children in the sex acts - but it does NOT say that it prohibits
        someone who writes about a child. But if the writer used an actual child subject, that would be different, or
        a live model for a drawing. THESE DO NOT have to come within the Miller test to protect children. This
        statute only involves the USE of children.

    At common law the state can actually prohibit the actual exploitation of children or any child labor and
        they can regulate any child labor laws. (Police Power)




                                  Michael M. Wechsler
                                   Constitutional Law                                            113
    The court mentions problems like National Geographic - what about a film in a travel magazine that shows what
        goes on in a nother culture? Can we not argue that this is a vali use and the statute is overbroad? Why not
        create a narrow statute regarding incitement like wit Brandenburg?



Osborne v. Ohio - p. 557

    D was convicted, and court upheld state statute that forbade mere possession of pictures of adolescents
        engaged in sexual acts.
    The couret distinguished this from Stanely, there the court struck down GA law from outlawing the private
        possession of material in privacy of his own home.

    Q: Is this case the same as Stanely that one has the right to use obscene material in the privacy of his own
         living room but not in public?
    A: this is different - the wrong occurred when the pictures were taken whethere you eventually received
         tham and had them in public or private. The problem in Stanely was that there was a claim that his
         mind was being corrupted by the obscene material. The wrong is not that the obscenity would
         corrupt Stanely‟s mind, the wrong is the material itself, and ho w it came about.

    The purpose of the child porn statute was to prohibit the actual conduct -> the state isn‟t concerned with the
        obscene material being a “corruption of the mind fo the reader” as in Stanely, but of the hordes of children
        employed for this. As in Stanely, just because you get it home in your living room, you still aren‟t home free
        and can be arrested with this obscene material.

    Dissent: Ohio‟s statute is overbroad nad vague. It states that “graphic focus” on genitalia is outlawed, and that
        can apply to Michaelangelo‟s David, again subject to serious subjective enforcement, as well as one not
        knowing what is art and what is obscene ars per OH law. In addition, if there is to be an outlawing of
        “graphic focus” wht standard is used - is it community or national?



American Booksellers - p. 567

    The state tried to pass a law that material which shows women in demeaning manner is prohibited, although it
        did not have to be obsccene. The court here tried to push the envelope beyond Miller and define porn as:
        1. women presented that enjoy pain and humiliation;
        2. women presented as sexual objects being cut up, dismembered, etc..
        3. presented as enjoying being raped;
        4. women prsented being penetrated by animals

    The first Amendment prevents laws that restrict materials based upon content unless it passes the strict
        scrutiny test. The 1st Amendment guarantees us to propogate opinions that others may even find
        hateful.


    Depicting women who enjoy being rapes would also be disallowed. Why shouldn‟t the court be able to focus on
        this particular kind of conduct?
        A: The legitimate viewpoint is that the state has no right - only the right to prohibit speech that is not
             protected by the 1st Amendment.

        Holding: D. The statute clearly went beyond the Miller test. The court said that it is a certain viewpoint and
            that the state cannot merely just take one side. This was a celebreated case and the cert was
            denies, but it seems as though the USSC would have feard the case if they disagreed with the
            decision. the reasoing here is that as per Gertz, there is “no such thing as a false idea.” The state
            cannot decree that an idea is false no matter how bizzarre the idea and take a side. ===>>>>>The
            activity must present a clear and present danger.




                                 Michael M. Wechsler
                                         Constitutional Law                                                 114

If the court cant use the 1st Amendment to control such obscene activities (such as movie houses), why not use
     zoning?


    Young - 609 - Skid Row statutes are constitutional

        Facts: The Detroit statute required that adult theatres and bookstores had to be at least 1000 feet apart, 500
            feet from communities to prevent “skid rows” of these stores of obscenity, and to prevent the neighborhood
            from deteriorationg, the population values from going doen, prostitution, etc.. - like Times Square. The court
            said that we don‟t have to pay as much attention at this kind of speech as to others, as “few of us would
            march our sons and daughters off to war??

        Issue: do we really have 2 kinds of speech? Is one kind protected and the other not? Is there a different grade of
            protected speech, a lower level that can get kicked around? Stevens‟ plurality had 3 judges with him and
            Powell was the swingman.

        Holding: Statute upheld:
            1. Just because material may be protected under the constitution for freedom of speech, does not in
                 any way mean that the government cant restrict it with zoning, or for other constitutional
                 reasons.
            2. There is no question of vagueness here because the D admits that they fall within the statute. In
                 addition, the court can narrow the construction of the statute as it does so here.
            3. The ordinance is completely reasonable and we must leave deference to the city as how to
                 confront such serious problems.

        Note that the 1st Amendment did not say that you have a line drawn as to what is protected speech. Where is
            the line drawn? What anout a play that has a subplot with a political dimension? Does that make it political
            speech?
        A: The courts take the view that it is impossible to draw the line between protected and unprotected speech.
            Speech is speech, but what Ohio did was a zoning law to deal with an urban problem. As J. Powell pointed
            out, it was restricting the speech, not a restriction of the number of speakers, just a redistribution as to
            location.

             Dissent:
             1. The state may only uphold a time manner and place restriction on constitutional speech if it passes the
                  middle tier scrutiny, and that it must be content neutral. This is a TM & P restriction but the statute is
                  content based, not content neutral.

        Powell: Doesn‟t sign on to the card with Stevens that some speech is more protected than others.

                  Gitler, Brandenburg, Beauharnais, NY Times ->>> all have inherently protected speech that must be protected.
                        None of this applies to non-political speech. Whu should the government need to control non-political speech?
                        The need for free speech isn‟t really so heavy on non-political speech. Our government wouldn‟t be overthrown
                        in a sports discussion. Should that kind of speech be protected?


    Renton - 615

    A “Time, Place and Manner” restriction is permissible if it passes a middle tier scrutiny:
        1. Substantial governmental interest
        2. With reasonable alternate avenues of communications of the material

    Facts: Had not only to be arms length from each other *the obscene stores” but also not within 1,000 feet of the area
        of schools, one family dwellings, etc.. If so, this was a small town and such an ordinance would seriously curtail
        the areas where these stores could appear. There was only a 520 acre area of land in an industrial area.

    Held: Statute upheld. The state said that just because the land in the 520 acres of available space for these stores
        was not vacant, they can still go to the owner and ask for a lease like everyone else does.

    Note: But could there be a point where it drew the line. If it reached the point that it was impossible to find any land at
        all, that could be the crossing point of Justice Powell‟s line.




                                        Michael M. Wechsler
                                   Constitutional Law                                            115
Ephraim

The NJ statute prohibited nude dancing. There they restricted it entirely. You can‟t just zone out one form of
    protected speech.

NY is now taking the Renton approach, that there can‟t be as many theatres within that one area. They may
    even move them into other areas such as into isolated industrial districts. Tn NY now the state would
    want to know if other real estate was available for these dispaced vendors, and that the satute‟s purpose
    and written purpose is not solely to restrict speech, but the quality of life, as was found in decisons of
    Renton and Young.


Erzoniak - 1007

    This statute was aimed at drive in theatres, that they are not allowed to show nudity in their movies if they can
        be viewed form the street.

    RULE: There is a rule that localities can use land use power to prohibit certain things such as public
       advertisements such as billboards.

    That is valid. But isn‟t this all that Jacksonville is really doing here? Isn‟t this really a land use regulation?
        a. The regulation is too broad
             a. The regulation is too broad because it refers to ALL nudity, including even having a child nude in a
                   film, which would not be objectionable.

        b. The regulation is under and over inclusive
            i. Overinclusive: It applies to a baby in a baby commercial, war victim, and a porn queen alike.
            ii. Underinclusive because because if the city was worried about simple nudity being distracting activity,
                 people would drive into a tree, what about other distracting activity like an act of viokence, kissing,
                 which would do the same, therefore it was also underinclusive.

    What was done here was very different in terms of purpose and scope. This was really an attempt to limit
       speech.




                                 Michael M. Wechsler
                                   Constitutional Law                                            116
Barnes - supp. 174

    Facts: This Indiana statute prohibited nude dancing in public. This statute was not directed at a certain form of
        “expression.” When we talk about “speech” its not necessarily “words” but it is “expression” which is also in
        the act, silent movies as they are expression.

    Is all dancing expression? Is dancing ata a wedding the same as the type in Barnes? Where do you draw the
          line between the two? Running in a baseball game is not “expressive” conduct, and is not under 1st
          Amendment protection. Here in Barnes this is clearly expressive conduct. Not the ballet, but
          expressive just the same. Can Indiana Indianaregulate it?

    This is what goes beyond speech- the O‟Brien test. Like O‟Brien who burned his draft card, he is trying to deliver
        a message. It was just expressive conduct but but not really the same as handing out leaflets in the park or
        even derailing a train to the Vietnam War. This is the kind of a middle tier issue.

    This cannot be designated to limit speech - if this statute prohibits nude dancing, isn‟t this one and the same?
        The Indiana law was not just prohibited to dancing, but also appearing. Although the court analyzes the
        dancing element, it seems to indicate that it deals with nudity in general. If NY passed a similar statute
        today it would not be upheld, e.g. as a prohibition on nude dancing.

    The Indiana statute prohibited nudity across the board. Indiana was trying to limit that such acts are not really
        expressive. While it could be argued that all conduct is “expressive,“ simply because it has an element of
        expression. We must be able to draw the line berween conduct that is expressive and that which is not
        expressive.

    If you walk down the street nude, you may have an “expression” but it is not really a main factor. If NYC has a
         right to prohibit nudity in advertisements outside theatres, NY can also prohibit public nudity as well.

    MAJORITY: If what is being done is not done to limit expression, then it is a valid statute.

    The majority is probably correct - since this statute is enforced all across the line, you would be arrested
        if you walked in the street nude. The statute is not only being enforced agaainst nude dancers of a
        selective group of people. If it were only against nude dancers, that that would limit expression.




                                 Michael M. Wechsler
                                           Constitutional Law                                             117
FIGHTING WORDS

   No first Amendment protection as they are not usually for “expressive” purposes but to promote a conflict.


   • Fighting Words: Those that are likely to cause a clear and present danger of committing an act of violence or an
        illegal act.


   • Words that are of conflict are protected - we desire that kind of forum adn it is protected by the 1st Amendment, but
       not when it crosses the clear and present danger line.


   • The police are to restrain the crowd first to protect the speaker‟s first Amendment right unless his speech crosses
       the clear and present danger line.


   • The modern standard is that the test is in the subjective speaker‟s ears - we have to look at the crowd and see
       whether or not the speaker is going to incite them - he should know.


   • Claim that the words are of secondary effect for another purpose, and not mere content (against fires in backyard,
        not prohibition of flag burning.)


       Chaplinsky - 539

           The right of free speech is not absolute and does not apply to “fighting words.”

           Chaplinsky says that we use a “reasonable person” standard.

           Jehova‟s Witness was “warned to go slow” by an officer, and he deounced organized religion and called the
               marshal a “g-d dmaned racketeer” and “a damned Fascist.” Law that prohibits calling people derisive
               names. If the government can prohibit the assault itself, the government can prohibit the language likely to
               lead to that result.
           Held: P that the law was sufficient;y definitive and not vague, and that fighting words can be prohibited.
           Note: Questionable decision as these words were not really of “fighting” words, but of

           Q: Something is offensive but not necessarily so derisive so as to cause fights. The statute prohibits “offensive
               words.” The court siad that the statute is related to “offensive words with the intent to incite riot.” But note
               that the staute only mentions words that say “offensive words.” But isn‟t this much too overbroad? While it
               seems logical about these wotrds for violence, it does not say it.

           Note Dennis and Brandenburg. The USSC and the federal courts cannot construe state statutes at all, only what
               they say. But the state courts have already construed this statute as such. This is what the NY courts have
               said that it means, and the USSC and federal courts will interpret it that way. There are apeech not
               protected -> obscenity and defamation -> and also now fighting words.

           RULE: We must look at the words to see if they were protected speech.

           What if this case occurred today? Calling someone a “fascist” doesn‟t hav ehte same kind of sting that it had
               during WWII when we were at war with Nazi Germany.
           Rule: The state can‟t prohibit merely offensive words - they can only prohibit words that are likely to
               come to blows.

           What about the notions that thee words are off limits and unprotected?
              a.. By their very utterances inflicting injury
              b. The words tend to incite an immediate breach of the peace
              c. No essential part of any expostition of ideas.

           This is not like the Brandenburg case, who was trying to incite his audience and people to follow him, to give
               them an axe to kill the professor - handing them the tools to commit the crime. But here, Chaplinsky is not
               trying tro get the marshall to go with him.

           The bottom line here is that:
               1. The words incite violence

                                         Michael M. Wechsler
                                   Constitutional Law                                             118
        2. The words will incite violence

    In addition, his speech should be protected today -> is every listener the same?

    Rule: Not every listener should be the same as a policeman should know hot to hit one for fighting
        words as it is a usual on the job type of speech to be expected.
    The marshall here should have shown more restraint, and here he is used to hearing those kinds of words and
        this is really an overreaction.

    or else we allow a “heckler‟s veto” as was allowed here. The police‟s main function should be to control
         the crowd, not the speech of the individual unless his words are fighting words to the crowd.

    Chaplinsky outdated: We have to really think how Chaplinsky applies today -> this probably wont but look at the
       first part, the incitement, the immediate injury.


Terminello - p. 541

    Rule:
    1. Clear and Present Dnager Test used for fighting words: Unelss the words that are harsh words of
         dispute bring about a clear and present danger of violence or illegal act, the speech is protected and
         may not be prohibited.

    2. The state cannot constitutionally prohibit speech that “invites dispute”

    Facts: The speech wasn‟t as bad, but it did incite violence. They were outside of a convention hall and they
        called the people “snakes and bedbugs” to people denouncing Jews and Blacks in the auditorium.
    Held:D as the statute was not constitutional because it forbade words that invited dispute. This is not enough as
        dispute is wanted and constitutionally protected. The thing we don‟t want is a fight.

    The problem here was that the statute was designed to specifically invite dispute. This is was too broad a statute
        as all speech that invites “dispute” is covered, even speech that is disputed in a classroom. The state
        cannot constitutionally prohibit speech that “invites dispute”. The speech was clearly within both halves of
        Chaplinsky, so what is the big deal if the judge charged the jury this way?

        Because we don’t know whether the jury convicted the D because of the judge’s overbroad words or
           another reason. Note that at least in Chaplinsky they felt at the time that the statute was able to be
           anrrowly construed by the state courts and that the statute was capable of that. However, he says that
           especially today many feel that Chaplinsky was wrongly decided as the statute was way too
           overbroad as is the courts didn‟t have the ability to go aheasd and say that this is the way that it
           should be read.


Feiner - 542

    Rule: No heckler‟s veto allowed - the police must do what they can to control the crowd first before a
        speaker‟s words can be called “fighting words” unless they are so unduly harsh that in themselves
        they promote immediate violence or illegal acts.

    This was not a case of an overbroad statute like Termiello. This isn‟t a case of overly broad conduct. It is similar,
        but the government upheld the conviction.

    Tfeiner referred to the President as a “bum” and the American Legion as “the Nazi Gestapo.” He also claimed
         that the Negros didn‟t really have rights and that they should rise up in arms and fight them. The concern
         here was the danger of a riot. Feiner was not speaking to any specific person such as the guy in the
         audience who didn‟t like what Feiner was saying, and then went to the cop and said “you get him or else I
         will.” The person causing the vioenece here was the HECKLER NOT FEINER. If the heckler was absent,
         everything would have been fine. But here, the heckler got a “heckler‟s veto.”

    This is unlike Brandenburg as this had no real immediacy. This was more like “let‟s all go and kill the law
        professors” which is advocacy, but this her e is not incitement as the “let‟s kill the law professors
        and I‟ll hand out hammers at 3 PM.”




                                  Michael M. Wechsler
                                      Constitutional Law                                                   119
   Holding: Conviction upheld - the court found a clear and present danger existed. HECKLER‟S VETO: The case
       here was really decided by a heckler. The majority here is wrong because if this is the case, then there is a
       heckler‟s veto against one‟s right of free speech, and he can deny that speech and whatever speech he
       wants and the speaker will be arrested. The officer here should have protected the speaker from the
       heckler, not the other way around.


Edwards - 544

   Rule: WHOM YOU ARE SPEAKING TO can make a difference. If you are speaking to Hell;s Angels it is
       possible that there will be a lower threshold of wh consitutes a clear and present danger.

   Holding: Prosecution. This case was held as inciteful. This was a civil rights demonstration in the streets of
       South Carolina - small demonstaration, and the demonstrators were asking for equal rights. There was a
       gang or crowd that wanted the demonstrators out of there. Why was the Edwards case not set a side?

   This leaves Feiner as very narrowly construed and confined to its specific facts. Saying the words to a group of
       people ---> THE KEY in this case is WHOM YOU ARE SPEAKING TO can make a difference.


Offensive Words

Cohen - 545

   “ONE MAN‟S VULGARITY IS ANOTHER MAN‟S LYRIC” The government cannot restrict speech that Aunt
      Matilda doesn‟t want to hear.

   A state cannot bar words merely because they are vulgar and want to protect the public morality. - one‟s
       man‟s lyric is another‟s vulgarity.


   Facts: Cohen was wearing a jacket in the courtroom which said “fuck the draft.” We now focus on the most
       offensive word in the English vocabulary. There is no evidence that anyone was aroused or incited to
       violence. This was his mode of expression against the Vietnam War. He was convicted of maliciously and
       willfully disturbing the peace or quiet by offensive conduct.
   Held: Conviction here was reversed. California argued we can prohibit what is obscene, but ONLY what is under
       the Miller test.
       1. This statute was not designed as a TM/P restriction as it could have been for courtroom decorum.
       2. The words were not erotic and “prurient” so not obscenity.
       3. These were not hting words as no one was provoked to violence
       4. There is not a captive audience problem were one could not avert their eyes - they could look
             elsewhere.

              What about in a courthouse? TM & P restriction allowed? Maybe you can say that you cannot eat the jacket in the
                   street, in public, but in the statute, there are no words that define location. The statute applied everywhere, in
                   the state of California. But what about the USE of the word itself? The word itself has no “specific” meaning and
                   isn‟t it more likely like Chaplinnsky that someone would belt him one?
              But here it wasn‟t directed at anyone.

              “ONE MAN‟S VULGARITY IS ANOTHER MAN‟S LYRIC.” The government cannot restrict speech that Aunt Matilda
                  doean‟t want to hear.


   The following cases of speeches to police officers were set aside when the statutes were overborad such as
       “approbrious speech” or “derisive speech” said another way. We needed a narrower statute to limit what
       speech the law applies to.

   J. Powell: The speeches in some if these cases were to cops. is this an objective test? Chaplinsky says that
       we use a “reasonable person” standard. But what about where the person who is addressed - why not
       use a subjective test What about speech to a 5 year old child - which would have a much different effect, or
       even obscene speech to a guy that doesn‟t understand English. We simply should not use an objective test
       across the board and uphold a conviction as if the speech is the same because the result is totally different.
       The recent cases say that the test is more subjective. If the state is only trying to protect us and not
       “cleanse our vocabularies” like it was trying to do in Cohen, then it should be fine. If there is no prohibition
       of of violence, it should not be allowed to prohibit speech.




                                    Michael M. Wechsler
                                  Constitutional Law                                            120
RAV v. ST. PAUL

   Rule:
   1. Majority (most think wrong) Lawmakers may not protect some fighting words more strongly than
       others.
   2. The statute here is overbroad and vague because it says that the speaker knows is wrong - however
       the court can restrict some dangerous hate speech and not others if it feels there is a compelling
       need. However, the court MUST define it with precision.

   Minn. statute made statute “ whoever places on public or private property a symbol, object, appellation,
       characterization or graffitti, including, but not limited to, a burning cross on person's lawn which one knows
       will arouse anger, alarm, etc..”

   Plurality: The first half of Chaplinsky has become shakey. It's overbroad to talk about speech that invokes
       anger, because any conflictive speech could do so.

   Holding: USSC struck it down for being underinclusive, vut if the state banned all fighting words it would be fine.
       Being underinclusive allowed this statute to be content based, as you look at the content of the message
       and then decide if it is outlawed.

   Scalia Majority: Assuming that the statute is not overbroad, and that state has right to punish flag burning and
        the like, statute was under inclusive and didn't go after insults, for example, about homosexuality etc.
   Scalia: Even though this refers to fighting words, you can't pass under-inclussive statutes.
   If something is obscene and had political content criticizing the government, how can it possibly be obscene.

   Concurrences: The problem is not the “all or nothing” ridiculous approach that Scalia takes. The problem is that
      the statute is vague. Following the majority approach, the court would say that Civil Rights laws are invalid
      because they protect some and not the others - e.g. only sexual harassment at the workplace is outlawed
      and not all harassment. Not good thinking.


   Wisconsin v. Mitchell: No first amendment violation for harsher punishment for crime surrounding - a bias
      incident of an attack on a white boy.

   Punishment enhancing crimes are constitutional.

   Court found that RAV was only directed against expression and this was a crime and not at all any method of
      expression.

   Civil Rights statutes upheld so it is not clear with the concurrence that the all or nothing approach favored by
        Scalia is such good principle.




                                Michael M. Wechsler
                                          Constitutional Law                                            121
COMMERCIAL SPEECH:


      1. It doesn‟t have or deserve the same level of political speech. Degree of protection isn't the same as it is for
            fully protected speech.
      2. Commercial speech is second class form of speech because commercial speech is rugged and won't get
            as chilled by the prospect of litigation.
      3. Fraud: The state has the right to protect the consumers from fraud and other misleading ads. It can even
            resort to prior restraint, although that has been severly curtailed as of recent. The state can regulate these ads
            before they even get out on the street. Even laeyers soliciting is controllable.


      What is commercial speech?
         • You have to look at the content of the ad itself.
         • Central Hudson: “Proposes a commercial transaction” or other is “solely based to influence for
              economic motives.”
         • Political Speech may not be commercial speech - the ad in NYT v. Sullivan was of a political free
              speech nature despite the fact that it was in the form of a paid for advertisement. You have to pay for
              books and the theater, but that doesn't make it commercial.



          4 PRONG TEST OF CENTRAL HUDSON whether Reg abridges the Con. - PASA
              1. P - whether the speech is protected, speech is lawful and not misleading
              2. S - whether governmental interest is substantial
              3. A - whether the regulation directly advances the interest asserted.
              4. A - whether it is not more extensive than necessary to serve that interest. No other more
                 reasonable alternatives.

          Even purely commercial speech is entitled to some First Amendment protection - a middle ground. The
             relationship of speech to the marketplace of ideas is important. This case said all commercial
             speech protected unless flase, but limited in Ohralik as commercial speech gets only some limited
             protection, subordinate to freee speech.

          Society has a compelling interest in the free flow of information.

          As per Gertz, in fully protected speech, there is no such thing as a false idea, only false expression of
              fact.
              J. Powell in Gertz: No such thing as a false idea. The state can‟t say ideas are false, e.g. what relgion is
                   false, etc.. Commercial ideas are mere statements of fact, that may or may not be true. If you say the
                   car has 80000 miles on it and it has been turned back, it is false.


      Speech that proposes an illegal transaction may be prohibited.

          The prophylactic measure of bans against solicitation may only be where the result is harmful such as
              overreaching, fraud or other abuses.

          Countervailing interests of:
             a. First Amendment right of right to receive informationas per VA Pharmacy
             b. Freedom of association




      VIRGINIA STATE BORAD PHARMACY v. VIRGINIA CITIZENS CONSUMER COUNCIL

          Rule:
          1. Even purely commercial speech is entitled to some First Amendment protection - a middle ground.
              The relationship of speech to the marketplace of ideas is important. This case said all commercial
              speech protected unless flase, but limited in Ohralik as commercial speech gets only some limited
              protection, subordinate to freee speech.

          2. Society has a compelling interest in the free flow of information.


                                        Michael M. Wechsler
                                     Constitutional Law                                             122

    3. The state had a weak interest in prohibiting the free flow of truthful information, but it may still
        completely ban false or misleading advertisement. As per Gertz, in fully protected speech, there is
        no such thing as a false idea, only false expression of fact.

    4. The case stands for the fact that the public has a First Amendment right to receive information, not
        merely the freedom of expression to disseminate information.

    Facts: State law prohibiting advertising drug prices. State's theory was that competition would lead pharmacists
        to cut corners and endanger public. There were price differentials of up to 650%.
        The reasons state had for law
             1. Pharmacists race to bottom by cutting corners in order to compete.
             Pharmacists could argue that licenses by the state provide enough regulation. If pharmacists were
                  going to cut corners, they'd do if anyway.
    Holding: Statute struck down as there is a 1st Amendment right of a citizen to receive information in the
        relationship of speech to the marketplace. Regulation only serves to keep consumers in the dark. Here, the
        Virginia statute is overbroad, by prohibiting even truthful info on drugs. Therefore unconstituional.

    Similar to BIGELOW V. VIRGINIA, Case which invalidated a statute banning dispensing of advertising abortion
        in other states. Easy case as curtain raiser, b/c it was about a subject that Virginia couldn't prohibit,
        abortion, and therefore couldn't prohibit information about it.

    Commercial speech is protected b/c of role it plays in the free flow of ideas. Our life is based on consumer
       decisions which are best served if well informed.

    FALSE AND MISLEADING SPEECH ISN'T DESERVING OF FIRST AMENDMENT PROTECTION. In fully
         protected speech, there is no such thing as a false idea (Gertz). Racist even nazi speech is protected.
         Free speech is telling people what they don't want to hear.
    In commmercial speech, false and misleading speech leads, or can lead to consumer injury. State can protect
         citizens from fraud.


PITTSBURGH PRESS
Speech that proposes an illegal transaction may be prohibited.
Constitutional for state to prohibit a gender restrictive ad, since it has the authority to prohibit gender discrimination
    as much as it does. Ads for men to work only and was outright discrimination.


BATES V. STATE BAR ARIZONA
   The state cannot ban all advertising by lawyers.

    The court did not pass judgment on in person solicitation, dealt with in the next cases. The argument for the ban
        was that the ads were misleading, that in many uncontested cases one firm is no better than another firm
        and the ad would mislead readers into thinking as such.


OHRALIK
   Prohibited solicitation of clients after an accident - ambulance chasing is prohibited.


In Re Primus
    1. Where political expression or association is at issue, in person solicitation may be permissible.

    2. The prophylactic measure of bans against solicitation may only be where the result is harmful such as
        overreaching, fraud or other abuses.

    3. Countervailing interests of:
        a. First Amendment right of right to receive informationas per VA Pharmacy
        b. Freedom of association

    Here the D was soliciting a client for the ACLU, a free litigation for a woman who was illegally sterilized as the
        condition of her continued future payments for Medicaid.




                                   Michael M. Wechsler
                                    Constitutional Law                                            123
FLORIDA BAR v. WENT FOR IT.
   Lawyer solicitation by mail is not prohibitable by the constitution as per the First Amendment
      Commercial Speech, but the state may require a cooling off period, 30 days wait before one can
      solicit a recent victim of an accident.

    Upheld florida statute prohibitng letters within 30 days to victims of personal injury.
    Valid because it was only a 30 day limit. Permanent limit wouldn't be OK.
    Different rules for accountants and real estate brokers; they can solicit

METROMEDIA V. SAN DIEGO
   A city may prohibit all bilboards if it wants to for environmental concerns, but it may not choose which
        non-commercial billboards it will allow based upon the type of content as that would be a violation
        of the First Amendment freeedom of Speech. (e.g. exception for political billboard).

    Facts: San Diego prohibited all bilboards, therefore going beyond prohibiting just commercial bilboards. But,
        they made an exception for on-site commercial message. However, they didn't make an exception for on-
        site non-commercial messages.
    Held: USSC struck it down and found this was discriminatory. It gave more protection to commerical speech
        than to fully protected speech.

CENTRAL HUDSON

    Facts: Central hudson advertising promoting use of electricity.("TRY ELECTRIC HEAT") Public service
        commision ordinance prohibited promotional advertising by an electric company. Ordinance also prohibited
        CH from advertising the availability of the heat pump, which although used electricity, in the end saved
        energy.

    4 PRONG TEST OF CENTRAL HUDSON - PASA
        1. P - whether the speech is protected, speech is lawful and not misleading
        2. S - whether governmental interest is substantial
        3. A - whether the regulation directly advances the interest asserted.
        4. A - whether it is not more extensive than necessary to serve that interest. No other more
           reasonable alternatives.

        1. The speech was protected so Constitutionality was in issue. It was true facts.
        2. The government interest was substnatial in that it wasnted a fair and dfficient rate structure which could
             be modified poorly by the increased usage.
        3. The regulation did have a link to the end, that of energy conservation, and the ad would promote
             increased usage. the court did not buy the argument that utilities are monopolies and therefore don‟t
             need to advertise because they face competition from alternate energy sources.
        4. Failed this test. Court agreed with CH that restriction was over broad, therefore not meeting the fourth
             prong of the test. The commission could have limited the form and content of the advertising to being of
             energy conservation.

    CH test compared to strict scrutiny. CH is intermediate scrutiny and you don't need a compelling state interest.
        Here the state interest need only be substantial. Therefore intermediate scrutiny.

    Concurrence: Blackmun: This should be a straight middle tier scrutiny would be sufficient, but not the 4 part test.
         The test is not proper to manipulate a private economic decision that the state has regulated. It must go to
         the heart of the matter directly and not try to supress the freedom of information flow, The citizens have the
         right to be informed, and if there is a direct problem with energy conservation, let the utility advertise, but
         make a regulation that curtails the consumption of energy.
    Concurrence: Stevens: The statute is much too overbroad as it prohibits advocacy of the use of electricity. The
         ban would also ban an ad that shows why electricity is more energy compliant than wood stove burning,
         even though it may be true and beneficial. Therefore the statute is overbroad.
    In addition, there should be a type of clear and present danger test. If there is such a danger, it is then that the
         state can curtail such use of electricity and advertising, not try to prevent the public from being convinced
         that electricity might be more efficient than other forms of energy.
    Dissent: The court gives much too much protection on commercial speech to a state created monopoly which
         has barely above the level of none at all. The court should not impose its own judgment over the wisdom of
         the state regarding the best way to deal with a problem. For the court to interfere here and broadly construe
         whatever it wants is really substituing its judgment for the state and is exactly the problem that we dealt with
         in Lochner. The state should be given much more deference for regulation than it is given here.

    For commercial speech, prior restraint isn't a problem; perfectly OK.



                                  Michael M. Wechsler
                                    Constitutional Law                                              124

POSADAS DE PEURTO RICO ASSOCIATES v. TOURISM CO.

GREATER INCLUDES THE LESSER: The state has the right to ban whatever in entirety, and can take a lesser
   appproach than the whole approach of banning the activity entirely. Anything the state can regulate it
   can ban - e.g. snowmobiles, rifles, etc..

    Facts: Puerto Rico passed ordinance to prohibit advertising of casino gambling in Peurto Rico. It wante dto fill
        the gambling casinos with tourists from the mainland and to keep participation by local residents to a
        mminimum. It made regulations locally against casinos from advertising to the residents with words like
        “casino” and had to check with the local government before they could run. S.Ct. applied 4 prong test of
        Central Hudson.
    Holding: The court upheld the regulation as :
        1. The ad was not misleading and thereby having some commercial protection.
        2. The interest was substnatial for the “health safety and welfare of the citizens.‟
        3. The advertising curtailing would definitely reduce demand of local residents.
        4. This was not a particularly harsh statute, as there was no requirement of ads against the dangers of
             gambling. It allowed it just in a more innocuous way so as not to fuel the fire.

    D had good argument that only casinos were being discriminated against and not all the other classic forms of
        gambling. The state answers that:
        a. The government felt that only casino gambling was a compelling need to curtail.
        b. GREATER INCLUDES THE LESSER:The state could have completely banned casino gambling
             altogether and since it could ban the greater, it could ban the lesser and restrict advertising. It would be
             ridiculous to say that if the government didn‟t like the advertising they would have to outright ban
             casinos altogether.

    Then where do you draw the line? The state could prhohibit anything. even eggs (lower cholesterol) State
        could ban all commercial speech, and relate it to any activity that it could ban. State still has to show a
        substantial interest.

    Dissent: While the government may ban inaccurate, false and misleading commercial speech, the court has
        consistently invalidated rules prohibiting the dissemination of accurate information.
        • Strict scrutiny should be used whenever truth is being suppressed, even if it is commercial truth.
        • The fact is that the state could not outright just ban casinos. The motivation had nothing to do with casinos
             as the state is full of gambling mechanisms. The reason the government didn‟t eant to encourage
             casinos is because they wanted the resident s to spend their money on the state lottery.
        • The big problem here is that this jusitification emasculates the First Amendment scrutiny - it merely
             speculates as to the valid reasons for the state‟s substantial interest which reduces the First
             Amendment to mere rationality. The burden is on the government to show that there is a substantial
             interest, as well as that there aren‟t sufficient alternatives, which there are.
        Dissent: Stevens: The regulation is completely unconstitutional because it discriminates against ads in local
             newspapers. So if the paper is the NY Times it is fine, but not ifi ti is the San Juan Star. This is blatantly
             unconstitutional.

         But this is broad, and state can ban lots of things. does this mean that state can ban advertising on those
              things as well. Eggs, butter, etc.. Good question with this ruling.


EDGE BROADCASTING
Radio station banned from broadcasting lottery in states if its license is to a state that does not permit lotteries, e.g.
    North Carolina, to Virginia. Edge three miles from VA border but in NC which does not permit lotteries. The
    audience is 92% from VA.
Held: For government.
Federal Government had interest in upholding the right of North Carlina not to have a lottery, as much as upholding
    Virg right tohave one. Govt' had substantial interest in preventing Carolinians from crossing the border.

As per Posadas, the government was trying to discourage the gambling (lottery) through advertising. This is not to
    say that it wanted to keep the people ignorant, only that it needed to have respect for the state‟s laws and to
    broadcast a lottery into another state that forbids it would seriously undermine the other state‟s anti-lottery laws
    as all of them will cross the border to buy lottery tickets. This has nothing to do with mere desire to keep
    residents ignorant.




                                   Michael M. Wechsler
                                   Constitutional Law                                          125
Greenmoss Builders:
Even a private P has to show malice for recovery per Gertz when the issue is public.

No first Amendment issue when the speech is private concern so strict liability and presumed damages
    would not be violative of any constitutional First Amendment issue becasue there is no public issue or
    figure. It is a private defamation action.

Here though, it was a small contract and is not a speech of public concern. A narrow majority distinguished Gertz
   that no one gives a damn about this small company in VT. There is no need to prove malice and there could be
   presumed damages a the first amend does not protect the D as it is a speech of private concern.

Dissent: The speech isnít important to US, but it is to the town as well as VT that the company is bankrupt. So where
    do you get off drawing the line? Greenmoss limits Gertz even further. Gertz seemed to suggest no more no fault
    defamation, but the courts have neve extended Greenmoss that far. The states can give more protection than
    the constitution affords. NY requires malice where the Fed doesnít. e.g. private P requires proof of Times malice
    before any recovery. The NY Con will not allow an extension of Greenmoss.




                                 Michael M. Wechsler
                                                 Constitutional Law                                                       126
PRIOR RESTRAINTS

    Prior discussion: The speaker speaks, and then arguably has to pay a penalty. The state may attempt to retrain the speech
         prior to release and that is the issue here - censorship before publication.



    First amendment says that congress may make no law abrisging free speech.
        • Chilling Effect: we don‟t want to have the chilling effect of fear of violation of prior restraint.


    Government comes up with some pretty good arguments:
       1. subversive speech
       2. Incitement to crime

We don‟t want it to light the spark and let it get out there, this argument can be made for obscenity too.
Should govt have the right to prevent this kind of speech in advance?

                  How about if statute just said parade or public meetings?
                   - too overbroad because if law gives total discretion to some poobah, chief of police etc. to decide who can speak and
                        who canít depending upon content of the speech, then the law is invalid as in the Griffin case. You don‟t have to go
                        through the motions to go through the motions to get this official to allow you to speak and put it in his discretion.
                        Even if your speech is constitutionally unprotected, you still can speak although you may be criminaly liable. You
                        can ignore the ordinance, however, if it is invalid on its face because it is a prior restraint. It may not be exactly like
                        the board of censors in England, but it is sufficiently unconcstitutional and the ordinance can be disregarded.

Two kinds
    a. injunctions and court orders
    b. licenses and permits


         Collateral Bar Rule
             You can't collaterally attack an injuction. "A court order must be obeyed until it is set aside, and that persons
                 subject to the order who disobey it may not defend against the ensuing charege of criminal contempt on the
                 ground that the order was erroneous or even unconstitutional."
             The reason for this is you need to respect judicial proceedings if you expect the judicial process to help you.You
                 have to play by the rules once the court gets into the picture.

         Make any sense? If the statute was invalid in the first place, then how could an injunction further anything? It is a lot
            more of a prior restraint when there is an injunction. There could be a double penalty here:
            1. Criminal violation of the ordinacne, later deemed improper
            2. Defiance of the courts


             1. Griffin: You can disregard an invalid ordinance
             2. Walker: You have to play by the rules or else pay the price later if you ignore it.
             3. Poulos: The ordinance is valid on its face but applied improperly.


             Statutes of prior restraint should:
                 1. Contain definintive identifiable standards that do not conform to one person‟s judgment/
                      arbitration:
                 2. Time Manner and Place is usually a good way to restrict, but make sure it is not content based:

         NOTE: If there is no state action, then the machine is not turned on and you cannot challenge on First
            Amendment grounds as the constitutional machine requires state action in order to act, although it can
            on other grounds.

    Prior Restraint
    Argument against prior restraint: There is a very heavy burden fo r the party wishing to restrict the freedom of press
       as there is a strong presumption of constitutionality of the act.


    Argument for prior restraint: The doctrine prohibiting prior restraints should at the very least not prevent courts from
       maintiaining the status quo long enough to acy responsibly in matters that concern national importance.

                                               Michael M. Wechsler
                                    Constitutional Law                                             127


NEAR - Injunctions

    1. In only certain limited circumstances (national security, sailing of a troop ship) will the state be able to
         permit preliminary injunctions against a newspaper. If it were allowed to issue such prior restraints
         there would be a chilling effect as the publisher would have to go to court every time he wished to
         publish regarding a controversial topic.

    2. The whole idea of First Amendment expression is freedom of speech and you‟ll be forced to pay later
        if you printed libel.

    3. A preliminary injunction is patently illegal as it forces the burden on the publisher to prove truth
         before he can publish. This is the same English censorship.

    Facts: Statute that authorized the abatement of a “malicious scandalous and defamatory newspaper” Minn.
        sought to have an injunction issued against the Saturday Press, which was criticizing local officials for
        corruption.
    Holding: Newspaper - The purpose of the First Amendment and freedom of the press is to prevent previous
        restraint on publication. The proper remedy for publication is a post libel suit, not preliminary injunctions.

         The publisher would have to go to court nomatter how irritated the mayor may be, tey couldnít stoop it on
             their own, they had to go to court and do it. If so, they had to get an injunction and block it and wouldn‟t
             that be permissible and not unconstitutional? The problem here is that they would have it show that it
             was truth and not malicious, and the burden was on the publisher.
         What is the difference between going to court and getting an injunction and punishing criminally? The
             difference is that you bottle the speech up before it ever ges to the marketplace. But if itís lousy goods,
             who wants it in the maket place? Why should we allow the fuel to get out there where someone could
             light the match?

         Reason: Chilling Effect: The concern about allowing the bottling up of speech in advance is that it leads to a
            situaition where the publisher has to, in essence, get permission from the state. To require Near to go
            to the court every time he wants to get a newspaper out, held have to go to court and ask if it is OK.
            But this is supposed to be a free country, and have right to publish and I‟ll pay the price if I am wrong.
            I‟ll take my chances on getting sued by the police chief.

         Exceptions: There are instances where prior restraint is justifiable. National Security (in an narow context).
             The sailing of a troop ship.


Collateral Bar Rule
    You can't collaterally attack an injuction. "A court order must be obeyed until it is set aside, and that persons
        subject to the order who disobey it may not defend against the ensuing charege of criminal contempt on the
        ground that the order was erroneous or even unconstitutional."
    The reason for this is you need to respect judicial proceedings if you expect the judicial process to help you.You
        have to play by the rules once the court gets into the picture.

Make any sense? If the statute was invalid in the first place, then how could an injunction further anything? It is a lot
   more of a prior restraint when there is an injunction. There could be a double penalty here:
   1. Criminal violation of the ordinacne, later deemed improper
   2. Defiance of the courts



WALKER v. BIRMINGHAM

Facts: Civil rights march in Birmingham. There was an injunctin against them (Martin L King and protesting civil
     rights) which would not allow the march. City ran to court and found a friendly judge without Walker even
     knowing about it. There was a court order against the march and they marched anyways. They argued as in
     Griffin that the staute gave total discretion to the authorities to stop the march, and that it was automatically
     invalid. So they could have ignored the local law and marched, but for the injunction.
But the USSC had to decide whether or not this is a law that can be ignored or not. This was just the kind of thing
     that makes those statutes invalid, because if someone the all white Alabama city board wantd to march, the
     would give them that right, but not to these civil rights marchers.




                                  Michael M. Wechsler
                                    Constitutional Law                                              128
Holding: The court upheld the conviction in a narrow 5-4. Like old labor decisions which held for collateral bar issues
    that they could have and should have gone to court when they were issued an injunction not to strike. Here it is
    a little strange extending the collateral bar (barred from collaterally attaacking the injunction in a later
    proceeding, the criminal proceeding, if you didnít fight it). in a clear first amenment issue, a civil rights march.

But an appellate judge has the right to set aside earlier judgements, even incorrect ones.But the court nevertheless
    said that the injunction makes all the difference.
Make any sense? If the statute was invalid in the first place, then how could an injunction further anything? It is a lot
    more of a prior restraint when there is an injunction. There could be a double penalty here:
    1. Criminal violation of the ordinacne, later deemed improper
    2. Defiance of the courts



Poulos
Poulos says that you have to go to court, especially where the ordinance is valid on its face, but applied improperly.


A: Refuses to apply for a permit but marches anyways, but the statute is struck down for overbreadth.
B: Applies for a permit but is rebuffed by an official in violation of the statute and he is prosecuted for parading
    without a permit. The statute is struck down for overbreadth.
C: Applies for a permit and is rudely rebuffed, he notifies the city of the march, they obtain an injunction but he
    marches. The statute is overbroad and so is the injunction.

Result: In A, not even applying for a permit so there is no “collateral bar” except for the statute itself, the D goes free
   as the statute cannot be used to prosecute him. But in B & C, despite the fact that he is doing what he should
   have the right to do, he is being rebuffed and violative of an unconstitutional law because now he is punished for
   going against the courts, and we don‟t want to have anarchy. Questionble logic.


    Statutes of prior restraint should:
        1. Contain definintive identifiable standards that do not conform to one person‟s judgment/
             arbitration:
        You would want to see in the ordinance some standards. would it be enug for the statute to say that the
             police chief can do whatever is necesary to ensure the health safery and welfare of the citizens. Is that
             enough?
        2. Time Manner and Place is usually a good way to restrict, but make sure it is not content based:
        You would want, however, a statute that has a time manner and place restriction that is NOT content
             related. It means “I don‟t care what you say, but I don‟t want you to tie up the street during rush hour or
             play loud microphones at night and keep people up.”

When can a state require a license? With parades the police are entitle to notice that you are arching in the
    afternoon. Is licnsing permitted with speech?
Broacasting - limited resources: If you want to open a TV or radio station, you must get a license. This is allowed
    because thereare only a limited number of channels and limits to frequencies. Can the state regulate motion
    pictures? Remember the film lady chatterly‟s lover in the obscenity case, and the USSC denied it because it was
    not disallowed because it was obscene, but because it advocated a bad idea, adultery. The board of Regents
    did it, and the first amendment does not allow us to be shielded from bad ideas.

Film Ratings Scheme: The licenesing scheme there wasn‟t challenged, only its application. Why do you license
    them when you have a rating system? The licensing system wasnít the same as the rating system. The rating
    system doesn‟t actually prohibit films. In addition it is done voluntarily by the motion picture industry and not by
    the government itself. Many foreign films ignore the rating the system, and it is not a state bar. The industry
    does it, and those films that donít adhere are simply not shown in theatres that participate in the rating system.

NOTE: If there is no state action, then the machine is not turned on and you cannot challenge on First
   Amendment grounds as the constitutional machine requires state action in order to act, although it can
   on other grounds.

         The last word of the court Friedman v. MD said that there may be a licensing scheme allowed, but not the
             one adopted by MD. The administraive body cannot have the power as per first amendment, but they
             can only temporarilty restrict it subject to court order, and the burden os on the state, the censors, to
             show the film should not be shown as such. Why different law for motion pictures? Theatrical
             performances are not licensed. Could NY require an approval of a script of a play before it went on?




                                   Michael M. Wechsler
                                          Constitutional Law                                               129
LIMITS ON PRIOR RESTRAINT RE: NATIONAL SECURITY


      NYT v. US “Pentagon Papers”

          There is a very heavy burden fo r the party wishing to restrict the freedom of press as there is a strong
              presumption of constitutionality of the act.

          Facts: NYT and Washington Post wanted to publish classified study. Information leaked out and dealt with
               decision making processes. It happened while the war was still on, and the government said that it was an
               issue of national security and should not be printed so they sent to court to get an injunction. Most of it was
               about embarassing issues regarding the government.
          Is this injunction a prior restraint ala Near or is this like the sailing date of a war ship?
          Held: NY Times that this wasn‟t the extreme exception to the rule where the First Amendment will be restricted.
          These papers didnít say that they will bomb city so and so on x date, but in the papers it was a criticism of the
               US policy on Vietnam, and ways that were embarrassing for the government.
          The court eventually held no because it was a prior constraint.
               1. The state could not punish the act of D criminally
               2. There was no statute prohibiting the act.

          Steel Seizure Case: REMEMBER: That Truman seized the Steel Mills during was time to prevent striking
              because they need them. The green light, yellow light, or red light test. The president did not have the
              power to do what he did specifically there and we deal with the executive issue before the first amendment.

              1. The government did not have any statutory authority to get that authority.
              The government didnít even have it. This is really simply embarrassing to the government. It is at most
                   tallking about hether a troop ship should have sailed a year ago. The government merely said that we
                   were embarrassed. If you knew that the NYT was going to embarrass you tomorrow, could you get an
                   injunction? You could sue only if it was defamatory. You canít enjoin potential defamation, only after
                   you have been defamed. No preliminary injunctions.
              2. What about criminal prosecution for using material that was stolen?
              some of the concuring opinions say this, but they state that it is an entirely different manner. Even though
                   there is a state law that prohibits the dissemination, e/.g. the name of a juvenile accused of a crime,
                   lawyers and doctors that protect the confidentially until the charges are proven. But if a newspaper gets
                   that information, and there is no showing that they didnít get it unlawfully, than the canít be prosecited.
                   They cannot enjoin the newspaperfrom publishing still.

              Could something be enjoined if it happned on the eve of peace talks?
              NO, as it is still a past action, and free press is telling people what they don‟t want to hear, regardless of
                 how embarrassing it is. The courts will not likely enjoin the Pentagon Papers because the peace talks
                 were going on.

              Dissent: Govt Argument: This is a compelling interest of paramount importanc as it could promote rioting
                  and anarchy. There must be an important balancing of events here and the courts dealt with this
                  decision in a rushed and improperly frenzied fashion.

              There must be a good strict look as to whether there may be a natioal interest here, and not merely put the
                   strong presumption of constitutionality on the scale and make the government show that its interest is
                   more compelling. If the court guesses wrong during this most crucial time, the results are even more
                   disastrous and there must simply be a weighing of the interests.
              ---> The doctrine prohibiting prior restraints should at the very least not prevent courts from
                   maintiaining the status quo long enough to acy responsibly in matters that concern national
                   importance.

              Paper: This is not paramount and is only an embarrassing fact.


      US v. Progressive
      Some information, even though “not the sailing of a warship” is crucial to national security and may easily
          bypass the First Amendment and freedom of the press and be constrained.

          H-bomb cookbook got out into the public. The court said that the first amendment was not a bar just because it
              isn‟t the sailing date of a troop ship, it is the ship that we are all on - continued hope for survival. If another
              country gets hold of this information then it is amongst the narrow things that a court should be likely to
              enjoin. The judge was on very solid ground and a lot different thatn the Pentagon Papers case.




                                         Michael M. Wechsler
                                       Constitutional Law                                             130
   SNEPP

   Some information, even though “not the sailing of a warship” is crucial to national security and may easily
      bypass the First Amendment and freedom of the press and be constrained.

       Facts: Before you agree to work for the CIA, they require you nt to talk about the internal workings of the CIA
           and can control what you can publish. But here there is a good reason for not allowing this and regulating
           because ptherise tou could disclose the names and locations of the operatives. In addition, you agreed to it
           when you signed in.
       Issue: Could the president do it for all members of the armed forces, for his cabinet members, how about for
           government agencies?
       Holding: D - NO but there are things that we don‟t want divulging and there can be these limits on some police,
           FBI, CIA, and other seurity measures. We don‟t want to give out information that it seems likely may lead to
           others knowing crucial classified information. It will see that it paid operative X such and such. Now
           everyone knows how many operatives we have.



CLASH BETWEEN 1ST AMENDMENT AND CRIMINAL TRIALS


   First Amendment as a Shield against the press obtaining info


   SHEPPARD
   The clash for first amendment rights and the ability of a criminal to get a fair trial. Here a celebrated case of doctor
       who was convicte of murdering his wife, he claimed it was an intruder. UDDC overturned the case because of
       the “carnival atmosphere” that everyone was talking to the press, and there was excessive publicity and it was
       inconceivable that a jury can function impartially. 6th Amendment talks about a public trial.
   What can a court do in such celebrated cases, where ther is aquestion of first amendment rights of the press to
       these cases? This problem is severe.

   NEBRASKA PRESS
   Preliminary hearing open to the public with order to supress any discussion of testimony of the D relating to the
        crime, a very famous case. The judge being worried that the confessions, which were of questionable vaidity,
        would get out to the public. If this got out, how would the D get a fair trial out of this? The small town would hear
        of the confessions and there would never be an impartial jury. The judge imposed a gag order. Earlier the court
        onlyoopened the door to such gag orders such as for sailing of a troop ship.Doesn‟t this restriction not apply to
        things that already occurred?
   Held: Struck down and the court could not shield the press and the public‟s right to know what was going on behind
        closed doors in court. The court said that they could change the venue until the public interest and hoopla died
        down. Voi Dire is presumably excluding those biased jurists.

   However, today the mass media has made it so scrutinized, venue doesn‟t matter. Letting it die down
      prevents D from his right to a speedy trial. This really wont fly today.

   For Press being admitted:
   1. Change of venue if necessary
   2. Voie dire will dismiss jurors who are biased because of the news media
   2. Delay trial slightly until the hoopla dies down.
   3. Right of public and freedom of press is paramount workings of our society.

   For shielding the press
   1. No fair trial with modern mass media, even with change of venue.
   2. Voi Dire won‟t do anything as everyone knows about OJ or else you are comatose.
   3. Delaying trial denies D right of speedy trial
   4. The interests of justice is paramount and court should be able to discern the necessity




   i. Extreme relluctance of USSC to make a gag order on the press.
   ii. Once the press (and broadcast media) lawfully gets hold of info, they have the right to publish it.
        - name of rape victims, minors charged with a crime.
        - not sailing date of thetrip



                                      Michael M. Wechsler
                                        Constitutional Law                                             131
    Nevada State Bar v. Tilly
       A lawyer may not make statements that he knows or should know that will have a substantial effect on the
           proceedings. Tilly said that his client was innocent and that this other cop was the scum that was lying and
           they would prove it in court. It is going a little bit far in making such a statement to the press, but a lawyer
           should be able to make defensive statements about his client.

        - limits the 1st Amendment right of lawyers and ow far we can go to protect the rights of our clients. Should our
             speech be circumscribed? This may apply to the client‟s guilt or innocence in a particular case.


    Gentile - supp 208

        The statute was struck down for vagueness as Gentile only spoke about his opening and what he intended to
            porve and declined further comment so as not to prejudice his client.

        Prohibition of dissemination, a toughter rule for lawyers in Nevada than there is for the rest of the world. If the
            news wanted to say that a guy was being railroaded. Why a tougher rule limting what a lwayer involved in
            litigation can say?
        A lawyer has simply to prevent even more prejudices against his client. He owes his client that duty.

        It is a strange rule: anything that will create a substantial likelihood of miscarriage of justice, yet there is
              a safe harbor that states that the lawyer can claim the essence of what his defense could be.
        Here he was accusing the state and the police of trying to railroad his client. So what should the test be? Should
              there be a tougher rule for lawyers? Here there was NOT a 6th Amendment fair trial issue.

        What should the test be? If this affects the first amendment, shuldn‟t it use a clear and present danger test?
        Not 1st Am. and dissent states overbroad. Majority says not broad. But here the whole thing is vague as all the
            lawyer is doing is stating the general nature of his defense. All he was doing was coming within the safe
            harbor provision.

        So how would you redraft the rule for Nevada? How far can the state go to protect it?What if Nevada tried to
            limit the whole speaking of nature of defense? That would probably be unconstitutional.



USING 1st Amendment AS A SWORD
   Using 1st Am. as a SWORD: allowing press to get at the facts of the trial when both sides might want the press
       excluded from the trial.



Richmond - p. 672
       1. The public has the right to attend a criminal trial to knwo what goes on behind closed doors and to prevent
             judicial abuses.
       2. If the public can enter closed judicial doors, then the press is allowed as well. Their presence serves the
             important First Amendment goal of ucating the public and to serve as a check against potential judicial
             abuses.

        Facts: A criminal D was facing his fourth trial on a murder charge and wanted to close the trial to the public and
            press so as to prevent the contamination of jurors and the need for everyone to be shuffled back and forth
            during recesses. Prosecutor agreed with D because he didn‟t want the verdict set aside. This squarely
            addreesses whether the press can use the 1st am. to gain access and use it as a sword and not a shield.
        The reporters from Richmond News were amongst those reproters, all of whom were excluded from the
            courtroom, and they sued for entry.
        Holding: If the public can‟t be excluded from a criminal trial, which is a public matter that the public has a right to
            attend, then the press must be allowed to attend.
        Why is it important for us to receive this information? It protects against judicial abuses. The only real proitection
            we have against miscarriage of justice needs press. An improper acquittal wont be appealed because it is
            double jeopardy. An improper conviction is what we ae concerne with and what will be the case.


        Pasquale Press
        The press could be excluded from trials where the info was properly obtained. Law is usually across the board
            that pretrial hearings are open to the press. Different with arraignments though.

        The court can exclude the press from trial for issues that would expose secrets of national security. Traditionally
            this has also happened for family courtissues dealing with minors. Heíll never be able to get a job if the
            press labels him at this early time in his life.


                                      Michael M. Wechsler
                              Constitutional Law                                          132

Television at a criminal trial: Same rule as for the press. What about detailed excerpts on the evening news?
     There are other effects that we have to deal with.
The TV is left to the discretion of the trial judge.
- there is a fear that the jury might be intimdated by the TV cameras and find the wrong verdict.




                             Michael M. Wechsler
                                   Constitutional Law                                            133
    Manners Of Communication


    Unconventional Speech

    THIS IS SPEECH PLUS: How far can you assert your first amendment views?

    Fear of two type speech and non-speech actions that will legitimize acts such as Patty Hearst type
        assasinations - Is a runner on base really “expressing himself?”


O‟BRIEN - Burning a draft card

    Where there are both speech and non-speech elements to a conduct, a sufficiently important
       governmental interest in regulating the non-speech elements of the conduct can justify limitations
       on the First Amendment protections of that speech elements of the conduct.

    Facts: He was protesting the Vietnam War, so it was a form of speech by burning his draft card in public. He
        wasn‟t lighting a cigar. It was in context of the first amendment. He could not be convicted of thefederal
        crime of destroying his draft card.
    Holding: Law upheld using a middle tier test. The court used a test for speech an non-speed elements of a
        crime. Similar test to nudity in theatresand a middle tier test. The rationale was that there was a substantial
        interest in keeping the draft card - necessary proof that you are or are not eligible to join the army on
        emergency call.
    We don‟t need to grant O‟Brien the right to make his point in this manner of expression where there is a
        conflicting substantial governmental interest. There are plenty of other avenues for him to make his point.

    FOUR PART O‟ BRIEN TEST - LSSN
    1. Analysis: Was the D‟s act an expressive act done permitting the D to invoke the First Amendment?

    2. If it was expressive, is the state‟s regulation one that is related to the expressive conduct (TX & don‟t
          use this) or not related to expressive conduct (here, to save the card) ?

        1. L - Legitimate Power? Was the regulation done under a power that congress had in the first place? Did
             the agency that made a regulation confereed with the proper power in the first place.
        2. S - Substantial Governmental Interest? Serves Substantial governmetn interest, furthers important
             matter of governmental interest.
        3. S - Interest not related to suppression of speech? Gov. Interest not related to suprressing speech
        4. N - narrowly construed? The restriction on the speech and first amend. freedom is no greater that is
             essential to the furtherance of the interest.

    Rationale for strikedown: Here it seems as though I can burn your draft card and you can burn mine. This law
        was passed to plug that ooophole. was this a law unrelated to the suppression of speech? It was important
        to have your draft card - a reminder to notify the selective service people of your service or change of status
        that you are either pregnant, in school, etc. all good reasons to keep the card unrelatd to the suppression of
        speech.


Texas v. Johnson: p. 586

    The O‟ Brien test only applies when the law being challenged is one that was made for non-speech
        purposes (to protect the destruction of a draft card because of proof), not when the statute is made
        to protect an expression (the symbol of the flag can‟t be burned as an expression)

    Facts: There was a protest march, bunch of people saying they spit on the red white and blue, and D was
        arrested for “flag burning” which statute stated that he “desecrated a venerated object” in violation of Texas
        statute.
    Held: Statute struck down for overbreadth, as the statute would also prohibit the proper disposal of a flag by
        burning it, including improper purposes.

        This is not like O‟Brien burning the draft card? It wouldn‟t have been violation of the Texas law if the flag
            was old and burned for destruction of old flag. This seemed more at the heart of expression and not at
            conduct. But this was also a conduct issue here! Should we not use the O‟Brien test here?




                                 Michael M. Wechsler
                               Constitutional Law                                            134
    TX jusitified the statute as a ban on expressive conduct. There was no interest that was unrelated to free
        expession that TX was asserting here, which is what the O‟Brien test deals with - whether there
        is a relation between the expressive, and non-expressive elements of the conduct. There is no
        governmental reason for government not suppressing speech. That is the case exactly here. It is the
        eye of the beholder that we are concerned about.

1. Analysis: Was the D‟s act an expressive act done permitting the D to invoke the First Amendment?

2. If it was expressive, is the state‟s regulation one that is related to the expressive conduct (TX & don‟t
      use this) or not related to expressive conduct (here, to save the card) ?

    The case here misses part two of the test whether we use O‟Brien analysis. The law here was specifically
        related to banning the expressive conduct, to protect the symbolism that the flag represents. No issue
        of a non-expressional purpose that the TX statute is dealing with.

    TX did assert that saying that they didn‟t want a riot. If there simply was a danger, there is the
        problem of the “Heckler‟s Veto.” We would be punishing the after the action and not the speech.
        There cant be a heckler‟s veto. As long as the speech is protected, so is the speaker. We can‟t allow
        the heckler to silence what is otherwise protected speech. We waited for the breach of the peace
        argument to go. We can‟t arrest the speaker for the action of someone else.

    Isn’t this tantamount to fighting words? NO as it is like Cohen’s jacket that is general. It must be aimed at a
          specific person designed to arouse antagonism. Since no direction at a particular person here, no
          fighting words argument.

Eichman

There was a furor after this case. Did they solve the problem by changing the word desecration? The court ruled
    the same in Eichman. Johnson case didn‟t turn on the word “desecration,” despite the fact that Tx
    case took it on the chin for using the word desecration, the kiss of death saying it is prohibiting free
    speech.

OVERBREADTH: What if Eichman burned the flag in his basement and not out in the middle of the street as
   part of a political protest? Does it change the Johnson result? He might not be desecrating as no one is
   there to watch it, but the federal statute doesn‟t require an audience. Are we protesting the fact that a
   neighbor walks by and is overwhelmed at watching his neighbor burning the flag and reports it?

If against only public burnings disallowed then it would seem to say that it is just a purpose to supress the
     freedom of expressive conduct. But even if both are prohibited, you staill could burn the flag when it is
     soiled, and in the end it isnít very different thatn the TX case and the court came to the same conclusion.




                             Michael M. Wechsler
                                            Constitutional Law                                           135
SECTION 6 - Public Property - Public Forum

J. Holmes: MASS v. Davis: Public property is different. Govt owns public property and they have the right to regulate public
property. The court adopted the rule of streets and parks form the time of memorial as a place where people can meet, speak
and march, and it must be protected by the first am. and there must be some limits to the freedom of speech. We cannot
march into the oval office and tell pres what to do or go into the white house and claim that you are a taxpayer.

The streets and public property, there are countervailing considerations. You can‟t have a parade down fifth ave.
during rush hour and govt can create TIME-MANNER-PLACE limitations.


        EQUAL ACCESS


        For equal access to public places with TM/P restriction we use middle tier scrutiny:
            1. Substantial state interest
            2. rationally related to accomplish its ends in a sufficiently narrow fashion

        For content based discrimination it still must meet the strict scrutiny requirement.


             1. Public parks: Strict scrutiny test as these are open spaces traditionally unimited.
             2. Spaces opened to public by govt.: e.g. state allowing use of its classrooms to any student group
                 within the university.
             What if there is a limited public forum that says any student group can use it, but not for prayer meetings. The
                 court said that was invalid and content based discrimination. It is that second category in Perry Ed., that
                 once you open it up as a public forum, it is very wide oopen. Once you have a content ban, then you have
                 you are making acontent based argument and subject to strcit scrutiny, and need compelling state interest
                 and narrow (see above).

        • A state may create a “public forum” where there wasn‟t one.
        • If a room is on campus and only open for students for their activities, that is fine.
        • If the room is made available for prayer, the school cnnot discriminate allowing one religious group but not
              others


        ALL STATUTE ANALYSIS

             1. Is it content based or content neutral?
                  a. Content based: Use strict scrutiny, and propably struck down
                  b. Content neutral: Use middle tier and:
                        (i) Is the statute vague or overbroad.



        Police Dept - p.687

             Equal Protection clause and First Amendment are violated when there is a content based restriction.

             Facts: Picketing in front of a school was prohibited unless it involved a school labor dispute.
             Held: Struck down as prohibiting some expression but not other, and not a valid TM/P restriction. The statute is
                 content based and one cannot protest because he doesn‟t like the teachers, but a labor disputer can. Equal
                 protection problem.
             Are we talking about a public forum in front of a school, but a town can impose a valid time manner place
                 restriction. We use the middle tier test - substantial state interest, rationally related for accomplishing its
                 ends.

             One drop of content based discrimination changes everything and that was held here to be invalid. Because of
                the exemption for labor picketing. The lesser restriction in Chicago was invalid because it represented labor
                picketing, but the greater would be fine. It has to meet strict scrutiny for content based doscrimination -
                narrowwly tied to a compelling state interest test.




                                          Michael M. Wechsler
                                      Constitutional Law                                                  136
Brown v. LA: - footnote: Whites only library. A protest was formed as a silent protest inside the library. Protected by
    the first amendment? Everyone has the right to own a library, even though this white only law was embarrassing
    and a violation of equal protection grounds. Well these guys were just sitting there. How about protesting on an
    army base?
Held that this was a proper TP/M restriction and could be valid. Questionable.


Picketing in front of a jail: Adderly v. FLA.
Not a real public forum. What about not allowing to give out leaflets within 500 feet of the a foreign embassy? Is it
    valid? Is there a good governmental reason for a law like that? There are reasons for raucous demonstrations -
    it is time manner place issue, but what about a neutral issue?
This would be content based, first amendment fundamental rights and subject to a strict scrutiny based
    regulation.


What about prohibiting campaign literature within 200 feet of the polls. It is content based, as you are not
   violating the law unless you only give out that particular literature. This is viewpoint neutral, it doesn‟t restrict info
   of just one party - you are only violating for campaign literature, a content based restriction. Can‟t do this. It is
   content based restrictions.



Perry Education - p. 691

    Facts: A teacher‟s union was denied access to an interschool mailing system to which the rival , an official union
         was allowed. They did not allow a competing union to use school mailboxes. Are these mailboxes a public
         forum? Forums broken down into 3 categories. The mailboxes are there for information.
    Held: For D, and allowed this discrimination - the court justified this as not being content based, but one based
         upon the validation of the speaker, a non accredited union. Therefore, so long as it passes the reasonable
         standard, there is no problem. This may be an O‟Brien type test.
    But in theory that really is a form of discrimination as per the dissent, adnd it would be open to strict scrutiny.
         There is a very serious concern that you could bootstrap your argument here, and wherever govt
              wants to draw the line, they do, and have done so prior with what is a valid union.
              Govt. allowed certain charities but not others where govt employees could make donations to these charities an take
                  deductions. Some other chairities wnated to be on the list but were denied. Court said no, as not a public
                  forum, and not viewpoint discrimination - they don‟t tell you who is better charity. This is bootstrapping as per
                  the dissent.

    First we have to decide whether these mailboxes are a public forum. They are decide not as they are not a
         public forum. 2 kinds of public forums.

         1. Public parks: Strict scrutiny test as these are open spaces traditionally unimited.
         2. Spaces opened to public by govt.: e.g. state allowing use of its classrooms to any student group within
             the university.
         What if there is a limited public forum that says any student group can use it, but not for prayer meetings.
             The court said that was invalid and content based discrimination. It is that second category in Perry
             Ed., that once you open it up as a public forum, it is very wide open. Once you have a content ban,
             then you have you are making acontent based argument and subject to strict scrutiny, and need
             compelling state interest and narrow (see above).

         They were just saying that this isn‟t a public forum at all. If so, then as long as it is not viewpoint based
              discrimination. They could discriminate for content, not viewpoint. They couldn‟t restrict for democrats
              and not republican. But if it is not public based, then it is no problem to retrict content.
         But isn‟t this viewpoint discrimination? The school has a right to do that yet, and the court rejected the
              viewpoint argument:
         1. One is a valid accredited union, the other is a want to be.



    Shaker - p. 696
    What if state wants to prohibit political ads, not commercial. Here in Shaker, the bus co. did not want to
       allow this. This is putting the first amendment on its head! you are giving more protection to
       commercial speech than political. Just like Metromedia - standing on its head.




                                    Michael M. Wechsler
                                Constitutional Law                                              137
         But are we talking about a public forum? Is this like the prayer meeting case? Have we created a public
             forum by saying that we will take ads? These ads are protected speech, so how could they then
             draw lines about what speech is permissible and not others. Are these like the mailboxes in Perry
             ed, or is this a created public forum? The court ruled in favor of the transit system, but no majority
             opinion. The majority vote was cast by Douglas. Based upon banning all ads, he voted of in favor
             of excluding this ad.
         Very odd. This was decided wrongly. The dissenters had it right when they said that by allowing ads,
             especially somewhat captive, it is difficult to justify the content based discrimination here against
             political ads.


Penn Station: Amtrak is run by Penn and is a govt owned operation and is first am. governed. They said they
   didn‟t want political ads, especially one that is controversial. 2-1 said that it was not a public forum. Is a
   railroad station different tha an airport?


Krishna - supp. 216
    The purpose of the airport was not opened to these ideas. Their main purpose wasnít for literature, but also
        to solicit for funds. The airport is not a public forum like the streets? It is like Penn Station, and therfore
        should be like the airport, as well as the parks which are public forums. Why the difficulty with the
        airport?

    Is there a differnce in the streets and the airports? There is a reason for less restriction for people
         need to get to their plane. In addition, there is a different expectation. Maybe not as mcha s a
         public forum as the streets. There wasnít a time manner analog. There was no first am. right. We are
         talking about fairly recent times in our history.

    What about the subways? In this case, they shot down the ban of distribution, but not solivcitation.
       Solicitation hinders passengers, safety issue, etc.. Content based rational has to meet a content
       based test. There is a difference of rejecting litrature and the court draws a distinction. In regard to
       giving out literatue is irrational. You need a rational basis for that.

    ???Mere rationality standard for simple statute that bans e.g. handing out all leaflets - TM/P ????
       ASK HIM

    We dealt with bans on any signs except for “for sale” signs such as in case of where a person pus up a
       political sign on their property? The woman here did it to protext the gulf war? It is not public property
       but your own house and your own lawn.Court set aside the restriction.

    Use of O‟ Brien test for “aesthetic issues” that are unrelated to the expression issue.


    Widmar: Student religious group banned from using university room as general prohibition against any
       religious based group - but allowed for registered students in members of school groups. Failed strict
       scrutiny even though the state wanted seperation of church and state.

    Boos v. Barry: DC statute invalidated certain signs from being within 500 feet of foreign embassies. Since
       some signs permitted, this was content based, used strict scrutiny and struck down.


    Billboards:
    The law outlawed them as it passed the O‟Brien test. They wanted to prevent the city from being turned into
         a horrible visual disaster with political signs all over.
    • P‟s could use handbills and put up stuff on private property
    • Here there is no content based discrimination - no signs on utility poles and the like.

    Dissent:
    • must show that the alternatives were not also bad - underinclusive statute
    • the other methods such as handbills were not as effective
    • There is a serious danger as to what is proper for “Aesthetic requirements in eye of government

    Madsen:
    Uses middle tier scrutiny of “narrowly tailored to serve a significant governmental interest.”
    An injunction is treated as a neutral statute.
    Scalia says that this is content based here, as it discriminates against a group of people based upon their
        actions as a group. This is a seperate species.


                              Michael M. Wechsler
                                    Constitutional Law                                             138
        Government Support of Speech/subsidy


Arkansas Writers

    Newspapers can be taxed so long as the tax goes across the board and does nto single out one type of
       newspaper.

        Facts: The Minn. tax was on general interest magazines, but not on newspaper and religious, professional,
            trade, and sports journals.”
        Held: Clear violation of the First Amendment‟s freedom of the press. This was obviously content based
            discrimination as the tax was on magazines with a certain content.
        Even though the state was trying to promote fledgling newspapers, the test was not sufficiently narrwoly
            tailored, despite the fact that the need of the state was compelling. The First Amendment is at issue
            and the court uses strict scrutiny.

        1. First Amendment: Use strict scrutiny and fundamental right and that raises the stakes.
        2. Equal Protection: Rational basis for the distinction - usally mere rationality for economic based
             discrimination.


Simon & Schuster ???? why overinclusive

    The statute that made a fund to collect monies for books written by criminals on their crimes to go for
          compemsation to victims was found to be overinclusive and content based. If the purpose was
          compemsation, then the state should have explained why other assets of the criminal were not also made
          equally as available. This merely prohibits the topic of storytelling about the crime, and if he wrote other
          stories, none of that money could be attached, only about the crime itself.
    • This is similar to the Arkansas tax, and the problem here is that the fact that there will be no proceeds will be a
          major disincentive for these writers to write - despite the fact that many of the books would be written
          anways.
    • If there was income derived from another source besides books and storytelling it wasnot included.

    • However, there are arguments that this prohibited oly the income and not the writing - the freedom of speech is
        still there.


Rust v. Sullivan

    State statute disallowed in Title X a reference of a pregnant woman, that is in a state run family planning clinic,
        to reference and inform the woman about abortions - even upon specific request. Remember, that a state
        that does not allow its own hospitals to perform abortions is valid as per Harris v. McCrae, as well as not
        having to fund the advocacy of abortions. A state doesn‟t even have to provide family planning clinics, and if
        it does, it can choose how to run them.

    a. If you take the king‟s schilling, you are required to do what the state says - and that this isn‟t viewpoint
          based discrimination, only that it has chosen to fund one activity over another. The state does not have to
          be an equal opportunity spender when it spends money,and when the state takes it.

    b. He can go across the street and do what he wants if he wants to find out about abortion.

    Dissent: This is obviously viewpoint based discrimination. It is most dangerous to make the inference that the
        First Amendment could tolerate any governmental restriction upon an employee;s speech as long as the
        restriction is limited to a funded workplace. This is the dangerous position taken by the court that he who
        takes the schilling must abide by the rules.
    The statute is also not sufficiently narrowly tailored, as it could have a budget on its content neutral information.




                                  Michael M. Wechsler
                                   Constitutional Law                                             139
Government as Educator


   School - not the same degree of freedom of speech as in the street.


   Tinker

       Personal appearance seems to have some protection as a freedom of speech.

       Standard: Disruptive Speech Test: A school may prohibit a certain type of expression when that
           expression would materially and substantially interfere with the requirements of appropriate
           disciplind in the operation of the school.


       Facts: School attempted to prevent a brother and sister from wearing black armbands as a sign of protest
           against the Vietnam War. The kids were suspended from school. Prinicpal did it to prevent distrubance.
       Held: Struck down because not enough intereference was caused.
           The rule was content based and discriminatory against some symbols but not others, e.g. iron cross.
           The mere wish to avoid controversy is not sufficient to restrain freedom of expression in school.
       Dissent: The symbols werew an attention getter and there were many instances of making fun of them,
           verbal issues, and the armmbands werer definitely distracting enough so that the students‟ attention
           was diverted from their studies.


   Hazelwood School v. Kuhlmeier

   Mere rationality-type test when one questions the freedom of speech associated with the school
      cirrciulum.

   True test is still the disruption test as per Tinker.

   His view - more like Tinker as Hazelwood hinged upon the students getting credit.

   As long as there is a valid reason, other than just mere prevention of speech, a school will probably get
       the nod for the prohibition.

   Whose property is it test:
      Here: school: subject to libel suits, etc..
      Tinker: person‟s: his own problem

   Schools can hold students to a higher standard and less “expression” because:
   1. Immature minds of students
   2. Must be able to restrict for school control

   Facts: The school published a newspaper as part of journalism class. Teacher alwaus looked over proofs. The
       teacher thought that an article on teen pregnancy was inappropriate for some younger students and that the
       divorce article had a student‟s name, and also that it should have allowed some paretns to comment on
       their view of the siruation.
   He delted the two items as the paper could not be published, but he was unaware that the student erased the
       names of the student mentioned in the divorce article. Students claimed censorship violating freedom of
       expression.
   Held: Upheld as the paper was part of the school cirriculum and the school did not open up an avenue for free
       speech. This was just an exercise of journalism, and as long as the school had a reasonable reason for
       deleting some articles, this was fine. The papaer didn‟t have to go out, but it was better so as to educate the
       kids about journalism as a good exercise.
       Narrowly tailored to facts. If students prepare flyer out of school and bring it into school, it is different test,
            and is probably a disruptive test as in Tinker. But herer the paper was prepared in school.
       What about in cases where the paper is extracirricular and not for achool credit? Undecided, but could be:
            1. Still under school activity so Hazelwood law
            2. his view - more like Tinker as Hazelwood hinged upon the students getting credit.

   Dissent: Poor grammar is a reason to stop an article, but this was content based censorship and should not be
       allowed.




                                 Michael M. Wechsler
                              Constitutional Law                                            140
Note: There is less protection for an activity “associated” or sponsored by the school such a s a newspaper,
    than there is with an unassociated and independent act, such as handig out handbills you made at home or
    the way you dressed yorself.



PICO - 719

    Narrow ruling where the court just didn‟t like the partisan manner of removal. No real precedential
        value.

    Facts: Books were banned because they were antisemitic, antichristian, etc.. The parents received a list of
        books which stated that certain books were found objectionable. They complained to the school board
        that the books that they received were outrageous. The board members reviewed the books and
        removed most of the books from the libraries that were on the list, and the students sued under 1st
        amendment rights.

    Issue: Whether such content based discrimination is appropriate, where there is a specific ban on the
        dissemination of ideas for that reason, not like a librarian.

    Held: Struck down because the ban was a content based decision and the school should not be a censor
        for things that the school feels is not what it wants in school.

    Librarians make such decisions every day, as if no one reads a book for years, they remove them from the
          shelves. Does every student have veto power?
    If these books were vulgar, the board would definitely have the right to remove them. But what about this,
          where the board is making the decision? What is the big deal when the students have the right to get
          these bools elsewhere?

    The students have a limited first amendment right - not unlimited, subject to exceptions of vulgarity
        and lack of resources (e.g. disinterested books).

    Cirriculum: The books are not part of the cirriculum, they are not required reading. The chool would
         want to have more discretion if the books were part of the cirriculum, as they would want to introduce
         something else instead of Hamlet for the cirriculum. There would need much more for a challenge to
         the school‟s cirrculum aginst those books that are extracirricular. There would need an extraordinary
         case to get into court to be offended by the school cirriculum, e.g. that the world was flat was being
         taught.

    Can I bring a lawsuit that the library should have a particular book and the school library doesn‟t have a
        classic -e.g.

    How did the students succeed in this suit if they couldn‟t get the case mentioned above? Justice Brennan
       said this isn‟t a case about aquiring books, but removal. This is contrary to the important right
       of the students to receive information.

    What was really stuck in the court‟s throat was the fact that here there was a motivation of suppression of
       ideas, rather than mere educational suitability. What drove the school board here was this was a mere
       whim - no rational basis, and even worse than whim. The parents went to a meeting somewhere and
       the people said these bools were an outrage. this is worse than random removal. Were these books
       really unAmerican? were they really so vulgar? The authors are quite distinguished - FN a p. 719.
       There were some minor refernces. The probem is that there were groups sharpshooting to remove
       these books and then convincing parents to remove them from the schools.

    J. Blackmun took a narrower reading, where he said that there is no right to receive information, but
         there was also no right of removal because some zealot though somewhere that these books
         should be removed.

    Rust is a limited holding that patient had no right to receive info about abortion -- ONLY in a government
        owned institution. Not applicable here, and it turned on the federal funding of the family clinic.

    Dissent: Here a mere plurality, Brennan found objectionable as to how the books were removed, and White
        said it was an issue of fact to be tried by the jury as to whether these books were really vulgar and had
        to be removed.
    • The school board must be the place to make the decision - iot has to be made somewhere and they are in
        the best position.



                             Michael M. Wechsler
                           Constitutional Law                                            141
what if e.g. Huck Finn should be removed because it uses a racial epithet. Can school board remove it?
School: It is merely an extracirricular book, and not part of the required courses. In addition, it could be
    disruptive.
Students: It is not a racist book - the words represent the culture of the time. The book is about as anti
    racist as any book ever written. There is no rational issue of fact to be decided.




                         Michael M. Wechsler
                                       Constitutional Law                                            142
BROADCASTING

            The USSC has never recognized any pubic access right of the people to print media (a fallacy) - no
                right of reply as in broadcasting.

            Broadcasting: A limited right of reply is recognized giving public asccess because of the limited and
                spectrum scarcity aka bandwidth.




        Tornillo:
            Reply right is unconstitutional and grants the state too much editing power. This would censor
                 news as they have limited resources to make available to print and they would no w have to
                 factor this in, and it will chill speech.

            The USSC has never recognized any pubic access right of the people to print media (a fallacy)

            Fla passed a statute that any newspaper that published something negative about a candidate, the
                 candidate had an equal right of reply. If an attack on page one, then the candidate has a right to reply
                 on page one.

            Holding: this had a chilling effect whereby the state had too much editing power. a law like this violated the
                first amendment because it is a direct control of editorship, and we might as well go back to the
                licensing system we had in England. This law will not only prevent the news from prinitng what it
                belives because of reply, but if they grant reply rights, the newspaper would have its space used up
                and not allow something else. If it had to use page one as a reply, then it couldn‟t print something else.


        Red Lion:

        1. Listeners are a captive audience when they tune in
        P: they can turn the channel
        D: As in Pacifica, the government has a right to insisst on fairness in order to ensure that us as a captive
             audience have a right to hear equal views.
        P: Right of reply gives chilling efect on broadcasters


        2. Broadcasters have to be licensed: Unlike newspapers where that kind of behavior was prohibited in
            England. If the state did it here the court would blow that away.

        3. Limited Channels Available - monopoly must be regulated: However, the FCC can license broadcasters
             as there is a limited number of channels. This is a physics issue. We don‟t want stations broadcasting on
             the same frequency s it won‟t work.
        P: arguments that other broadcasters will have different views, as well as the fact that controversy is the best
             moneymaker.
        D: Sometimes, but the media will all agree to put on candidates that are heavily in favor of favoring the media.

        Incredible Reach: We cannot allow broadcasters to be like the biggest sound amplifier and drown out all other
            free speech. All you have to do is turn on your radio.

        The rights of the audience/public are parmaount to the rights of the few owners.

        Facts: Fundamentalist ministers who were a little nuts and the broadcaster took a pot shot at them.

        Held: The fairness doctrine gave right of reply. The FCC didn‟t necessarily have a right of reply, but the
            government has a right to license these stations because of limited space available.

            1. Broadcasters have to be licensed: Unlike newspapers where that kind of behavior was prohibited in
                 England. If the state did it here the court would blow that away.
            2. Limited Channels Available: However, the FCC can license broadcasters as there is a limited number
                 of channels. This is a physics issue. We don‟t want stations broadcasting on the same frequency s it
                 won‟t work.



                                     Michael M. Wechsler
                                Constitutional Law                                                 143
         This goes way beyond the traffic cop function - this is like an air traffic control issue, but not the content
             of what is being broadcast, but here there is a right to intervene even in content based access.

              What if you had some money and you wanted to braidcst your views in New York? Easier to broadcst your
                  views than it is to publish. How many broadcast outlets are there? Numerous. If you had money and you
                  wanted to start another one, it is a whole lot easier to set up a broadcast rather than a newspaper! Less
                  need to police based upon content in radio than it should be news.

Held: Upheld for the FCC. Right of reply rule was set up, and you could force your way into a station and have
    them give you airtime for a right of reply if you have been assailed. It is unconstitutional to apply that to a
    newspaper.

There is a statement that the airwaves are a “fiduciary of the public.” Is that enough to jusify regulatin of content.
    Does it have to do with the captive audience? Is there some linkage with that? is there s notion that people
    who listen to the broadcast media will be a captive audience?
Yes there is, as in Pacifica, the government has a right to insisst on fairness in order to ensure that us
    as a captive audience have a right to hear equal views.
Here in Red Lion the right of reply was upheld that was struck doen in Tornillo. So much for editorial discretion.
Cook may have been a bad guy yet the radio station owner is left to sit and listen to Cook use his resources to
    air his views, all because of the notion that we have to protect the captive audience, the people.

It is one thing to say that a man is attacked, and another to say statements about another. What is we have a
      controversial topic. It would mean that the radio briadcaster, unlike the Miami Herald, will have to brosdcast
      it. the radio statin will not now broadcast issues that it wants to discuss to steer clear of these issues. The
      broadcasters are in the business to make money and wont care to air controversial issues so as not to
      irritate the part of the audience that would disagree, and they would have to braidcast a reply because of
      the fairness doctrine.

What if the briadcasters were more in tune of the views of a particular potical candidate, and the public will only
   get one viewpoint. However, there is no such law for newspapers. There is no real concept of fairness.

Fairness Doctrine was adipted by the FCC, until FCC deregulated it although it kept the right of reply doctrine.
    This was discarded for the reasons that we were discussing.

     Fairness Docrine
         1. Notice of political editorial to opposing candidate and right of reply
         2. Right of notice and reply to person in public issue whose character is attacked.

Note with Fred Cook it is or just a right of reply; we are talking about a controversial issue and a broadcaster
    takaing one side and not the other side of the issue.



CBS v. Democratic Comm.

Only when the interests of the public are found to outweigh the private journalistc interests of the
    broadcasters will government power be asserted with in the framework of the FCC Act.

History was that the broadcaster was the public trustee, but now private media are like private
    journalists and free press and are subject to minimal governmental restriction.

Where is the state action in this case as it is a regulation - the fairness doctrine.

Government too intrusive
Freedom of speech violation
who controls the broadcast media should be the market

v.

Calcuclated risk giving monopoly
The marketplace of ideas is only such when all have equal access to it
There is no way the rights of one broadcaster is paramount to that of the public
One cannot purchase airtime, but must rely on a corporate trustee to give his viewpoint accurately




                               Michael M. Wechsler
                                    Constitutional Law                                             144
    Red Lion involved an FCC regulation, and did not violate the rights to impose on the broadcasters. The FCC
        wants to have a fairness doctrine, it is not unconstitutional to have it. They can also dismiss it and get rid of
        it. That is very differnt from here where there is no FCC rule that was being violated.

    What if at the night of the Vietnam war, the demo national commitee knock on CBS‟ door and want to run ads
       that are anti-war. CBS says that there is no obligation to sell any other airtime. But they say, isn‟t our money
       just as good as theirs? First Amendment require them to take the ad? CBS did not violate the fairness
       doctrine, no issue that CBS coverage of the war. Demo said that this is like having a ticket ti ride on a train
       as I have a ticket, but CBS is telling us who is and who isn‟t riding on the train.

    With a newspaper, the paper could simply say no to ads that they didn‟t want to run. Demo says that there is a
        first Amendment right for CBS to run the ad. The court found no first amendment right.

    The question here was whther there was some type of government action that would allow government to
        intervene. There must be state action or the machine isn‟t plugged in.

    Assuming that there is state action, and first amendment relevant, there is complete editorial discretion given to
        the broadcaster. what does this do t Red Lion? How could all these statutes be valid in light of CBS?

    Is the court saying that editorial discretion is complete? How can the court now compel right of reply if CBS can‟t
         run the ad? Did they overrule Red Lion without really saying so?

    Distinguishes Red Lion to some extent. CBS didn‟t violate the fairness doctrine here.

    Where is the state action in this case as it is a regulation - the fairness doctrine. Red Lion involved an FCC
       regulation, and did not violate the rights to impose on the broadcasters. The FCC wants to have a fairness
       doctrine, it is not unconstitutional to have it. They can also dismiss it and get rid of it. That is very differnt
       from here where there is no FCC rule that was being violated.

    Could Congress pass a law that there should be no editorials except for public money - this is like Rust v.
         Sullivan. Channel 13 takes the King‟s schilling and does that give Congress the right to regulate these
         statons more than others on these stations, that if Congress does not like some of the edtorials run on 13,
         then it can tell them to ban the editorials?
    If so, what is to take it a step furhter and ban any program that criticizes government? Is there a right to ban all
         editorials as opposed to selective? Same shoudl be here for CBS case? Later case allowed this to be set
         aside.

    Cable: Propositions of public access cable, that if you have some money for a ticket, then you could get on.
        What happened to the editorial discretion of the cable companies? Presumably 13 and Rust could get on
        with other money, but you can‟t run a cable industry because they have to run their wires under the street.
        So shoudl they be required to carry public access television?



Turner Broadcasting - p.255

    Rule: The motion must be tried upon summary judgment and the government will win if the government
        passes the middle tier substally related middle tier test of O‟Brien where regulatins have the effect
        of a burden on free speech, as well as another completely legitimate reaosn.

    Must Carry Rule: Required for cable companies to carry a specified number of local broadcast stations
    Cable became Goliath and now the broadcasters who used to be in complete control and now everyone
        watches cable but not broadcast due to physical limits and others. the stations asked congress to force
        some cable operators to caryy these local broadcasts.

    Isn‟t this DNC all over again where there is complete editorial discretion over what i want to broadcast as I am in
          the business of broadcasting and I am in the business of making money. I didn‟t take the king‟s schilling.
          But the governmetn is saying that I have to allow these local broadcasters access on my cable.

    There is state action here, which is the state action.

    The regulation that we are talking about here is:
    Are we talking about a content based regulation?
    If you challenge it you would want it to be, because a content based reg is much more vulnerable and the court
         will use strict scrutiny to set it aside. Like allowing only certain picketing in front of a school.

    The majority held that content neutral reasons to uphold it. Majority said no, just preventing a monoply
        on the part of cable.

                                  Michael M. Wechsler
                               Constitutional Law                                           145

But dissenting argument says that this argument is not so content neutral, and that congress really had
    the motivation of preserving the viewpoints. If so, you are really talking about content.

Digital channels can be divided into so many different sub channels and that even though the case was decided
     years ago, the facts have change. There was not enough evidence prodiced here.


FCC v. Pacifica:

Broadcasting is a different media that may need regulation because:
    1. Captive Audience: A warning about obscene material forthcoming doesn‟t help once you miss the
         warning and turn to it.
    2. Hits you in the privacy of your own home and could be an invasion.
    3. Uniquely accessible to chilren - definitly a TM/P restriction.

Majority: Because of the type of media, the court can see the context of the language and declare it
    indecent and regulate it.
Dissent: Overinclusive: May be TM/P restriction but not htis.
• We only allow adults to be exposed to that which is suitable for children.
• Turn off the radio if you don‟t like it.

Facts: The intent of the broadcast was to prove Carlin wrong that the words he said that were not broadcastable,
    were in fact broadcastable. it was broadcast at 2 PM, when kids were around.

These were not obscene as per the Miller test, which could be regulated.

The speech here was only patently offensive, and therefore not regulatable. The purpose of Carlin‟s monologue
    was to lampoon the fact you couldn‟t use these words in broadcasting not repeating the words. he was
    stating that if everyone uses the words, why cant they be on the raido? It was an idea but not obscene.

Even so, it was not “obscene” but merely vulgar like Cohen‟s jacket. there has to be an appeal to a
   pruruient interest which there wasn‟t here. There was no suggestion of sexual intercourse and this
   misses the Miller test by a mile.

However, even though it wasn‟t obscene, there had to be some statute that allowed the FCC to regulate. There
   was a statute. If there was no statute, then you would argue that there was no basis for discrimination and
   use the argument of no procedural due process of the law. Without a statute there is no notice that what
   you are doing was violable and that the government would object. This is a like a taking without due
   process of law.

These words were merely indecent and Pacifica said that there was a protection of the first amendment.The
    court is saying that there is a degeree of content based regulation that the court is going to tolerate when
    clearly they could not prohibit these words on the street.

Broadcasting is different because it is a captive audience - you tune from station to station and the next
    thing you do is hear the offending words. This is like a nuisance - pig in a parlor but not in
    thebarnyard, right thing in the wrong place.

Broadcasting is different because parents don‟t have the control as much as there s for reading materials. There
    really is some captive audience issue. Even if kids are in school, ther are younger children home, kids
    home and sick, etc..

When can the words be OK? The court says it is not talking about a restiration comedy where a word is used
   incidently, but this isn‟t the case here. In addition, it isthe wrongtime and place.

dissent: How much of a captive audience issue is this really? Doesn‟t the logic go beyond carlin even though the
    court goes far to narrow the holding completely. The government wasn‟t saying you couldn‟t print the media,
    just couldn‟t broadcast it.

After this case, Congress pushed the envelope and prohibited all indecent speech. There are many “double
     entendres” that are used on the radio and there isn‟t much that can be done. Congress left a safe harbor
     from 10PM to 6AM to broadcast this speech.




                             Michael M. Wechsler
                              Constitutional Law                                           146
Defining indecent speech would be a much better idea and it is up to us to decide what is or is not proper.
    These seven words we know now, but what I may think as lffensive is different from Aunt Matilda. This is a
    severe chilling effect. The DC Dircuit Court upheld the statute, but it is on the way to the USSC. Same rules
    ith regard to cable.

Cable television is different in that there is scrambling techniques to protect agianst children. The courts have
    taken the view in that only obscene but not indecent speech can be regulated on cable because you are not
    a captive audience. Same thing like dial a porn

You can‟t regulate indecent speech.




                             Michael M. Wechsler
                                           Constitutional Law                                            147
The right to remain silent from speaking - does the first Amendment give us this right?
        - some laws compel us to speak (seubpeaona)
        - 5th amendment - right to no self-incrimination



        Wooley v. Maynard

            Rule: One has a constitutional right to refrain from speaking or from being forced to speak by the state,
                unless there is strict scrutiny of the law.

            • The state has no right to make one speak, and that includes “stamping” one with a symbol which
                people will believe he condones.

            NH resident questioned the right to have license plate say “live free or die.” This NH citizen wasn‟t compelled to
                speak and have these words on his license plate.
            Held: Constitutional violation because he shouldn‟t be required to be a “mobile billboard.”

        W VA. v. Barnette
        First case that spoke about right to remain silent. The state law compelled students to salute the flag Barnette and
             the others were Jehova‟s witnesses and to say the pledge of allegiance was to bow down to a graven image.
             The law actually made it a crime not to salute the flag and recite the pledge.
        The case was dwcided upon speech grounds, and the state held that there can be a rule to salute the flag, but
             they cannot have the state law compel them to salute the flag if there is a religious belief that prevents
             you. In addition, we cannot compel people to salute the flag who don‟t believe the pledge that they are
             making.
        This holding was broder than just a religious exception, but not having the state force us to put words into our mouth
             - and this was struck doen for first amendment purposes.

                 Is this case the same as Barnette? All the resident has to do is have those words on his license plate?
                 Dissent said what is the big deal? The state could put up billboards all over the state with the same
                      message?

                 To have the citizen carry this message on his car would represent his intellectual views to some extent.
                 What if the slogan was racist slogan? Do we force him to have that message on his license plate? A citizen
                     shouldn‟t have to be a sandwhich man and carry a slogan aroud on his car that he doesn‟t belive in.

                     What are the instances where this first Amendment right kick in to protect us and allow us not to speak
                        when the state is compwlling us to speak. When do we have this right to remain silent? What does
                        the state‟s compelling us to speak have to conflict with?
                     What is state compels the owner of a shopping mall to allow the handing ot of leaflets in a priate
                        shipping center. The court said that there is no right to compel this kind of freedom of speech in
                        private shopping center.

        Note: States can give more constitutional protection that can federal government.

        Pruneyard: Under the constitution, you dont need state action to trigger the constitution - states can give more
            constitutional protection then the federal government, and in pruneyard, the shopping center can be controlled
            by the state constitution. This was a very large shoppping center.
                      Pruneyard owner - Isn‟t the state really compelling him to be the vehicle for views that he might totally
                          disagree with, just like the P in Barnette and Willy that they don‟t agree with? this could even be a
                          racist message, religious mesage, and therefore he should be just like Barnette. Isn‟t the CA court,
                          by opening up private parties to leaflet distribution, violating his constitutional rights through its
                          granting “greater constitutional protection to the citizens?”
                      This is very different from a large shopping center and a small shipping center.

                      Large Shopping Center: May be compelled by state law to allow handbills as “public place”:

                     • It is ridiculous that peiople are going to assiciate his views in a big shopping mall with one guy
                           handing out leaflets. In addition, he can hand out his own if he wants.
                     • One who invites such a number of people into the center will have to bend toward a non-
                           discriminatory attitude because he has made it a quasi-public forum.

                     Small shopping malls: question of association: it is more questionable, as this could be seen
                        more like a license plate.
        Claiborne


                                          Michael M. Wechsler
                                     Constitutional Law                                                148
Private boycotts by a group of people are private action and there is no state action to compel otherwise.

Majority: The boycott on racism is the kind of First Amendment speech the state cannot punish.

Facts: Boycott ordered on store on Main Street until the town changed its views on racial discrimination. In regard to
    a labor management dispute, this is ilegal arm twisting of the company. The Miss courts awarded a great deal of
    damages against the NAACP. This is like a speech plus of NY Times v. Sullivan as this is a huge verdict against
    a civil rights organization. This would be first amendment speech that should be protected speech, although
    there is no speech. ---> Problem is that the town was the criminal here and the towns were simply pawns here -
    they had no real message here that there was racial discrimination by the town owners. Where do we draw the
    line?

Held The court ruled that the boycott was a form of protected speech that Mississippi could not punish. What about
    the sotreowners‟ right to remain silent?

The boycott was not state action - it was private action. it didn‟t have the imprimatur of the state. what about
    requirements that lawyers disclose as in the Zauderer case.


zauderer - p. 762
An advertiser‟s rights are adequately protected as long as discloosure requirements are reasonably related
    to the state‟s interest in prevention of deception of its citizens. - Mere rationality.

Facts: The law against lawyers running ads that they will get recovery and he forgets to say that an unsuccessful P
    will have to pay the court costs of the filing fees, pretrial discovery,etc. and that it really isn‟t a free lunch. can the
    state compel the lawyer from the right to remain silent about this?
    - Right of state to protect against false advertising / deceptive speech
    - State can punish for failur to disclose

State can compare this to case with law that if a car was in an accident, then you have to disclose that fact and not
    try to hide that fact.


Elrod
    It is unconstitutional for a newly appointed government employee to dismiss non-policymaking and non-
          confidential state and local government employees solely on the ground that they were not affiliated
          with or sponsored by a particular party.

    Only wherer there is a serious conflict of party ideas that would be substantial may the newcomer fire
        the old employees.

    New governor new attorney general. the victor will own the spoils. In Elrod it was a democratic regime that
         entered. What first amendment right can the employee assert under that situation?
    Prior to tthis case we had 100 plus years of the spoils system. for the first time, emplyees of the sheriff‟s office
         are being replaced only because they are of a different association and the new sherriff was basically
         saying become a democrat or get fired. The state cannot do this any mre than they can put a gun to
         Barnette‟s head and make him recite the pledge.

    Rationale: If we allow this to happen, people will nt be able to practice their own political viewpoint for
        fear that they wil be fired unless they become of the incumbent‟s viewpoint.

    Aren‟t there some bona fide valid reasons as to why the people in power could do something like this?
    the problem is that these guys did what deputy sherriff‟s do. There is no reason as to why these guys need to do
         anything seriously pokitical, just what deputy sherriffs do - pick up cars, debts etc. This is different from
         policy making people, higher in office that are needed to work in conjuntion with the new elected official.
    There are other that require the close confidential relationship with those in power like lawyers in a public
         defernder‟s office ot an assistant attorney general. They have to decde how to decide how to deal with their
         cases and make plea bargains and have to deal with issues that a deputy sheriff does not have to deal with.




                                    Michael M. Wechsler
                                     Constitutional Law                                                149
    Branti: In some policymaking jobs there should be some leeway because of how the government wasnts
        to attack problems (so it applied to an assistant district atorney).

    Question of policy making sides - do we have to say that this is the case and only this? Whether they do or do
       not make policy? How could we define this? This could be like a football coach at a state university. He
       decides everything about the team. Do we replace him? Maybe there are too many exceptions on both
       sides of the line.
    However, we have to use this test of “political affiliation” and as to whtether it is too close to the job so that it will
       adversly impact and the top dog needs to change it for the machine to work smoothly.

    Rutan
    Not only can you not fire employees solely based on political party unless necessary for prioer function,
        you cannot hire based upon political affiliation for low level employees.

    The governor tried to have all hirees cleared with him.

    There are arguments of tenure - what about hiring people on the basis of affiliation? In Rutan, the court said yes,
        this is no different. Elrod only spoke about dismissal because that is all that was spoken about in those
        cases, but the situation is obviously extended.


COLE: Oath of office: Is this unconstitutional?

A loyalty oath not to overthrow the government is constitutional. There is dissent whether this is mere
    advocac issue.

part one: “He will do the work correctly.”
part two: this is the problem: “That he wil not advocate the violent overthrow of the government.”

Held: Upheld the dismissal of the employee.

         Brandenberg, Denis, etc.. Violent advocacy of the overthrow of the govt. is protected, but imminent
             incitment is not protected. the right to advocate on the street is one thing, but now you are a
             government employee, and you are more restricted ---> In Tinker wee said that you don‟t forfeit
             the constitutional rights with the school‟s “gate.” while tinker won her case, the court did say
             that if the arm band had been disruptive the school could hve forbidden it. what about the
             teachers in the high school? Could the government compel you to give up some of your free
             speech rights when you join?

These other cses are very different arenas. There is no cirrculum that the government will impose.

what about the right to advocate in Cole? To actually organize a violent overthrow would be illegal as it would be
    violence - it could be criminal, but what about advocacy?

You may be a teacher in a public school and feel very strongly against how money is spent e.g. there isn‟t money for
    a science lab, but there is always plenty for a new science lab. Until they are protected by tenure, these people
    are not protected and can be fired at will. These people are not protected by any kind of civil service legislature.
    so if the teacher says such and you are the principal, you can fire the teacher?

School: Teacher has a constitutional right to talk politics, but not as a teacher (or as a policeman, etc.).
Teacher: While I don‟t have a right as a government employee, I didn‟t get hired on the basis of status, but I got
    hired on other basis. while there is no constitutional right to be hired because meet qualifications, once I am put
    into office I should be protected. this works a much greater hardship on the public employee than on anyone
    else. We have to be careful about what we say on the street, but the only real worry is whether or not what I say
    is criminal. But here as a teacher, a mere statement is not hust a worry anout whether of not it is criminal, but
    thte fact is that you may lose your job for something that is not really more than fighting words. Here, if I lose my
    job, I can‟t just set up shop as a public school teacher.

Where do you draw the line? This is very difficult - the government cn basically fire the employees for whatever they
   say.

Does it matter if the speech of the employee is public or private concern? Reagan was shot and a woman said “I
   hope that they get him next time.” Is this the same as a tescher talking about the budget. Ewhat a bout the
   speech in Rankin (deputy sheriff case). can we fire her for saying that she hopes that they get him next time?

What if you are on TV or radio and say on radio that you think that the school principal is corrupt or that they are
   running the school like fools and into the ground.

                                   Michael M. Wechsler
                                    Constitutional Law                                              150

DISRUPTIVE speech by public officials may be punishable. You don’t forfeit your right to speak by being a public
   official, only if you do so in a disruptive way.


WATERS v. CHURCHILL
supplement: As long as there is no pretext for termination, the emplyer should be able to terminate. The
   standard is using that of a reasonable employer - at least for disciplinary reasons. The government may
   have a limited right to restrict his speech.
   Whether or not disruptive is what the employer thought was reasonable at the time.If the speech was not of
       public concern, ixsthere a different rule?


CONNICK v. MYERS

WE FOLLOW THE CARNES RULE - WHETHER THE SPEECH WAS DISRUPTIVE.

If it is a matter of public concern: then there is little right of government employer to restrict the speech.
A matter of private concern: more right for employer to restrict the speech. This is for personal motives.


District Attorney: case where she claims that she was fired because she gave out a questionnaire in the N.O. DA
     office, Harry Connick‟s father. Was her conduct protected by the first amendment?

the questionnaire asked about the other assistants in the office that were matters of private concern - e.g. transfer
     policies, are you happy at work, and real matters of public concern - are people being forced to work on political
     concerns. If this isn‟t disruptive, does Myers win?
NO - discussion on waht Holmes said, and what is not the law anymore, but the court still upheld her firing. this was
     not a matter of public concern because overall the survey was really more of private concern - she wanted a
     transfer, didn‟t get one, and this was a means of embarrassing the DA. Revenge.
But the question of solicitation for Connick’s reelection, that is difficult to say that that question is not a matter of
     public concern and made a 5-4 vote upholding dismissal.
DA would say that the whole thing is disruptive although it is a matter of public concern. Maybe the whole
     explanation of the case is that she was a disgruntled employee....


ABOOD

The union may espouse views that Abood disagrees with. However, the union cannot use those dues for donations
    or support of ideological causes that are not necessarily directly related to the union‟s activities.


If the state requires that you pay money to the union, then you have to make sure that you aren‟t required to support
      views that you do not share. But the major part of the shares were used for collective bargaining, which he does
      not agree with. the court said that that part was fine. this is because there is a sufficient state interest that the
      employee doesn‟t geta free ride. he wasnts the benefit of a union member, but he can challenge it and not pay,
      but get it. However, in regard to the union spending money not on collective bargaining, tht is like the license
      plate case.


ROBERTS


    violation of membership by admitting women.

    The right to assocaite - Dont the Jaycess, a private club, have the right to keep out people they want named
        Weinberg or Walsh? Where do we draw the line towards thte rights of an association? Is there even
        anything in the Constitution that would prevent him from doing that? Does the equal protection clause allow
        Walsh to say that he will only serve white Christion males in his restaurant?

    NO AS THER MUST BE SUFFICIENT STATE ACTION IN ORDER TO PLUG IN THE CONSTITUTIONAL
       MACHINE.

    e.g. Ollie‟s Barbeque is not equal protection, but interstate commerce. The Minnesota courts did not the
         discrimination:

    1. Can the jaycees discriminate under Minnesota law?

                                   Michael M. Wechsler
                                       Constitutional Law                                             151

        Court: No since the state had a compelling interest to interfere to prevent discrimination, and the
           Jaycees, a place of public accomodation, could not show injury to them if a woman was president of
           a chapter.

        O‟Connor: The point is not that there wouldn‟t be harm to the Jaycees right to associate, but the fact
           that this is a ban on the rights of public affairs since the Jaycees is a pubic place of accomodation.

        the Minnesota human rights held that it was a place of public accomodation like Walsh’s restaurant - that
            includes the Jaycees, and therefore could not discriminate. Then they went to the USSC and questioned
            their own associational rights that should trump the Minnesota state statute.

        The state had a “compelling state interest” argument. The problem is to find where the state has a right to go
            ahead and say that it needs to make sucha regulation. Wherer do you drae the line? what about 10 men in
            a club that want to have a club for men that come from their little villa in Europe?

        J. brennan said that there were two kinds of associative rights:
             1. the rights of privacy: marriage, the club we just spoke about, the basic rights of humans in their private
                  rights. This is not the Jaycees, millions of members nationwide.

             2. Expressive association: Rights of people concerned about a particular issue. It could also be about civl
                 liberties. Let us say that it is environmental rights and association. they should not be required to take
                 on views of members not of their own.

        what about KKK group that wasnts to take over the NAACP - the NAACP could exclude them because the whol
              poin of the NAACP was to be for civil liberties and to allow these people in would destroy the group. -> see
              the Bostion case in the supplement.
        Same case in St. Patrick‟s Day Parade - the right to exclude the gays from marching.
        this is a right of expressional association. If a group taht doesn‟t belive in war cannot march in a veteran‟s
              parade, then there can‟t begays in an irish parade that is primarily Catholic.

        here the Jaycees were designed to promote tourism in their community and had nothing to so with male or
            female, and that there really is no prejudice. This is black and white, but the question remains regarding
            whether the goals contrdict theirs.

        clubs, by law in NY, are NOT places of public accomodation, and there are private clubs. NY passed a law that
            clubs over a certain size that serve meals to non-members must admit everyone - is this constitutional? Is
            this like the St. patrick‟s day parade or is this like the Jaycees? the underlying business is te
            encouragement of making deals and no good readon to exclude women or anyone else. This is NOT like
            the saint patrick‟s day parade.



Notion of reporter‟s privilege to speak:

    Branzburg:
        Black Panther‟s Case: Reporter claims first amendment right not to reveal his sources in court that gave him the
            scoop of the story. He claims that if he revealed his sources, then no informers would do so for fear if the
            witnesses of criminal acts may not tell the press or issues that are of first amendment importance -
            informant about a politician‟s bad acts or shaky acts.

        If the reporter gives out the sources, no insider will ever want to talk to him again, and that has the
             effect.

        But the court may have to look at the importance of the effectiveness and societal interest of the people through
             news media - such as the news getting into the courtroom. This is to provide an essential public service.
        This was an issue of deadlock where it went 4-4-1. the pluratlity said that there is no privilege, but J. Powell, in
             swingman vote, that there mist be some type of a balancing of the interests here. He did concur and said
             that at least they have to appear before the grand jury.
        The first amendment precludes questioning under certain circumstances.

        Rule: The only time that thte state can get these sources are where the state can show that there is a
            compelling need for law enforcement purposes and no othere means of getting that information is
            possible. This is very close to Powell and seems like a 4.5 to 4.5 holding, adn therefore a partial privilege.




                                      Michael M. Wechsler
                                   Constitutional Law                                             152
    But the state courts haven‟t quite followed it and the states have adopted reporter shield laws - e.g. NY‟s is in
         the Civil Rights area, adn they go further than the Constitution requires and provides absolute protection
         subject to certain elments. There is absolute protection for the reporter and there is no balancing - the
         reporter does nt have t turn over a source.

    Is athere ever a time that a reporter might have to turn over confidential information and the name of a surce?
         YES:
    Confidential information aboove and beyond the source is also b\protected and cannot be subpeaones, but the
         following will override the proinciple of press protection:


Right of Confrontation in Criminal Cases - in Re Farber

    NY Times reporter uncovered news about doctor who killed his patients and he went to look for his notes in the
        hospital. Farber got notes, and Farber claimed that he had a right to confront his accuser, the scandal that
        the reporter broke. The court said that the 6th Amendment rights of confrontation trumps the NJ state shield
        law. Next question is its conflict witht he 1st Amendment Right of Speech and the importance of news.
        Same issue where the doctor has a right to a fair trial to met his accusers, but if you simply hand over all
        the documents in Farber‟s notes, than there wll be no way for the press to uncover the information.

    The judge “cuts the baby in half.” The judge examines at the evidence by himself in chambers using the
        blancing test, whether it needs to turn over the evidence to the defense by the test we said earlier, that it is
        a compelling need.

    What if the court says that the story is too good, and part of the things we need is the name of the person who
       gave you the information.

    Rule here is questionable: “The rights of a D to meet his accuser per 6th Amendment is paramount to a
        reporter‟s shield law.” So how will reporters be able to report things told in confidence?

    The Branzburg rule may be good whwere there is a weighing to see the improtance of the information.


Cohen v. Coles Media - supplement

    This turned out to be misleading information about someone who ran for office in Minnesota. This was a bit of a
        sticky wicket as Cohen worked for the opposite political party and the news thought that was better news. Is
        there a contract that was breached here? If so, doesn‟t the first amendment override it?

    There was no contract as such, but there was promisorry estoppel and Cohen relied on the promise that he was
        damaged. The source arguably was a problem as the reporter lost his job, and he will sue under promissory
        estoppel - the newspaper would argue that it is being punished for punishing accurate information. If the
        newspaper publishes information that is true. This shoudn‟t be true as in the past, the newspaper has
        always traditionally been able to print anything truthful except in cases of national security etc..

    Isn‟t this different? Florida Star is different. There was an express promise made to this guy - tell us the name of
          the candidate and we won‟t reveal his name - the first amendment doean‟t protect just the press, but every
          citizen. Note that you cannt impose a tax on the press as it would be taxing the first amendment. But still the
          news must obey the regular laws like everyone else. The income tax laws, labor laws, etc.. These are laws
          not directly aimed at newspapers, so the newspaper must obey those laws like every other citizen must.




                                  Michael M. Wechsler
                                  Constitutional Law                                          153
Zurcher v. Stanford Daily

    A newspaper may be subject to search and seizure if it does not comply with requests and a valid
        warrant may be issued. However, the warrant may be no broader than necessary. In addition, the
        newspaper ddoes not have to be criminally suspect, only that it has the evidence in issue.


    The cops want some information that is in files that happens to be in the Stanford college newspaper. They
        thought that there was some extra information that wasn‟t printed regarding the perpetrators of some acts
        on campus. They got a search warrant and searched the newpaper‟s files.

    The problem is that they had to go through all the other files than the newpaper wanted to assert the shield law
        privilege. the newspaper argues that a subpeopna would be a lot fairere and more consistent with the first
        amendment. Under the warrant, the police would seize a broad amount of material, and the newspaper
        wanted to assert the press shield law, as the police would have a lot of information that ould be
        unnecessary, but confident.
    Here the newspaper argues that a subpoena would be much more consistent witht the first amendment and that
        there was a time lag, and it hd a week to comply with the law and give the information within a few days, or
        else the police had the right to seize that information.
    The newspaper lost the battle but won the war. Dissent side was passed as a congressional statute, that unless
        the news awsa charged with a crime, or there are national intersts that are of paramount importance, the
        government mist proceed by subpoena only.




                                Michael M. Wechsler
                                             Constitutional Law                                            154
EQUAL PROTECTION

Where does this appear in the constitution? The 14th Amendment. therefore it wasn‟t in the bill of rights, and wasn‟t adopted
until after the civil war - prior to that, equal protection was not easily made.

Technically, the 14th amendent only applies to the states -” No states shall deny the citizens of the states the equal
protection of the laws.”

There is a gap - but the courts say the the 5th Amendment incorporates the exact same concepts as 14th
Amendment equal protection. So therefore the federal governent is covered by 5th Amendment due process and they
are covered by the exact same rules as in the 14th amendment.

Slaughterhouse cases - the cases involving New Orleans city laws, was challenged by equal protection, and the court blew
away all of those grounds and said that those laws had nothing to do with equal protection at all, and was only written to
safeguard the rightsof the newly freed slaves, and laws that discriminate baed upon race, and of that, only against African
Americans based upon race. BUT THIS VIEW IN SLAUGHTERHOUSE DID NOT LAST.


         Strauder v. West Virginia

         To deny blacks from participating in administration of law by serving on juries is a denial of EP.

         That only whites could serve on juries, was overruled that it discriminated based upon race. It wouldn‟t have made a
             difference though, whether the law said that whites or irshmen couldn‟t serve on juries. It makes no ligical sense
             to think that this type of discrimination is fine and the Slaughterhouse view was rejected.
         Later this went even further beyond discrimination, but such as the requirememnt of some insurance companies to
             pay more costst to court than others, and this said that no matter what ind of discrimination by the government,
             if it discriminated unjustifiably (individious) the equal protection calause may be raised.


         Railway Express:

         For ordinary economic tests of equal protection the mere rationality standard is used.

         NYC reg prohibited ads on business vehicles only if the ad is on the owners‟s vehicle and related to his business and
            used ini it.

         Held: The statute has a rational basis and passes the mere rationality standard for equal protection.
         • The court must give great deference to the wisdom of legislature.

         Concurrence: There is a real difference between having ads on your own truck, and then having loads of ads on
            someone else‟s vehicles.

         should the courts use the same test for racial segregation as in where it is a commercial question of one being able
             to advertise and another not. Carolene produts issue here in Footnote 4 that where there is a fundamental
             right, we must have stricter scrutiny of a law about whether it involves a fundamental right
             (segregation).

         Today we divide strict scrutiny into two tiers - gender discrimination is the middle level scrutiny. Suppose NYC
             passes a law that said that we wont allow advertising on the side panels of trucks becausse it distract people
             and it will cause taraffic accidents, but if the space isn‟t rented, e.g. a coke truck advertising coke, then we will
             allow that.
         I would fight it that if you are concerned that the ad will be distracting to motorists, would it make any difference
             whethere you advertised on your own truck or on a rented truck? The distraction of the woman in the bathing
             suit is the same, or the distraction of the symbol. Legally here, we are talking about the Equal Protection Clause
             that this law violates. It treats us differently than the other trucks without good reason.
         But all that is needeed here is the rational basis test - this isn‟t a test of a fundamental right. This is ordinary
             economic regulation - but what is the rational basis. They want to cut down the number of trucks so they
             did so with a rational basis.

         The rational basis test is really a very low threshhold to meet - we don‟t have t solve the whole proble. There are all
              types of advertising - the city doesn‟t have to solve the whole problem of advertising and can take the parts that
              are most needful and take tha one - end of story.
         As long as there is a rational basis for something - suppose the city council passes this law today - this is a whole
              new way of attacking this statute. Using the first amendment - that this is commercial speech and is not
              protected then, but is protected now in the 70s. It couldn‟t make a first amendment right of free speech. You
              would certainly want to argue that it is within the middle tier requirements of Central Hudson:

                                           Michael M. Wechsler
                                   Constitutional Law                                             155

That it wasn‟t overbrad, etc..

CENTRAL HUDSON TEST FOR MIDDLE LEVEL SCRUTINY
cases that followed railway express, that all we are talking about is an economic regulation, and no infringement on
    the rights of minorities, etc.. This provides a very low threshhold, and laws that may just barely have a rational
    basis will be upheld.


New Orleans v. Duke
   2 of the vendors were in the French Quarter since the age of its dawn. USSC upheld the legislation of the
        exception. While we may not have drawn the line where the city did, that is NOT the question. The question
        is where the city drew the line and wheteher or not they had a rational basis for doing so.


NY Transit:
    NYCTA made rule that no one on drugs could serve for the transit authority, even token booth clerks - no one
       with a drug problem - even someone on methadone, could not work for them. The court deferred to the
       legislation and found a rational basis - there must be rational basis.

    Remember Logan and Allegheny Coal are illustrations of where the P won. It is difficult, but can be done that
       there is discriminatory action against the individual.


Loganv. Zimmerman:
   Illinnois had a rule that you had to have a hearing with 120 days, and claimed that the company where he
         worked was discriminatory. It was the state agency that failed to give Logan the hearing with the time limit
         and the court said that you had no hearing within 20 days, and even though we didn‟t give you one - tough
         luck. It was the state‟s fault for the late hearing yet it was cancelled.
   The court felt obviously tht this was not valid at all as it had no rational relation adn wasn’t rational but
         discriminatory. Big violation of equal protection.

         Statute was challenged that wasn’t just a one family house area, but frat houses and nursing homes were
             allowed in this area, but drew the line only on housing for mentally retarded people.


Allegheny
    Involved West Virginia Tax which was supposed to be real property taxes on the market value of the property. If
        I bought my house 50 years ago, and X bought his yeterday, they should technically pay the same tax. But
        in Allegheny they weren‟t being taxed as such. They were being taxed on what they paid yesterday, but
        everyone else in town was taxed on their historical cost.
    This was a violation of due process as it only hit them and not the rest of the town, and they were not getiing
        equal protection of the laws. There was no rational basis for this.


Hahn v. Nordlinger, the court upheld a California real property tax against a very similar clainm. (p. 293 supp.) this
   differed where california made the law as such - that you pay tax on what you paid for the home. California said
   that they wanted to tax not on market value, but with a rational relation of acquisition value so people have at
   least some expectancy of the what taxes they will pay.

         What was the equal protection clause designed to deal with?


Korematsu: Discrimination based upon national ancestry against japanese people - even those that had lived there
   for years, great grandfathers, etc... There was an exckusion and a curfew order, and even confinesd some of
   these people in camps and was done to everyone of Japanese ancestry that were living on the west coast.
   Ironically, some of the kids were out seving for the country in war. This was all done pursuant to a military order.
   How could it justify this? there were japanese people who were claiming liyalty to the Japanese government.
   This was discriminatory as it was only against Japanese, not Italians. the courts sustained this order,
        however,They used the excuse of needs of war time.
   The court recognized that strict scrutiny had to be used for claims of racial discrimination.
    But a majority of the court held the test was passed, and we wonder how justices like Black and Douglas went
        along witht he decision.

    RULE: the case DID extablish that cases involving racial discrimination involvte the strict scrutiny test.


Plessey v. Ferguson:

                                  Michael M. Wechsler
                                    Constitutional Law                                             156
    Involved law that was commonplace to the southern states. Invovled a railroad car, that whites nd blacks had to
         be carried on seperate but equal accomodations on trains.
    the court said that there was no equal protection problem, as long as th law said “seperate but equal” is not
         unequal.

    how could you not feel unequal if you are consigned to ride in arailroad car . How could you not feel that this is
        not a badge of inferiority to be herded into seprate accomodation.

    Dissent: How could you say that seperate is equal.If you seperate and it is required by state law, obviously it
        does not mean equal.



Brown v. Board of Education

    The colorblind language: many believe that the affirmative action clauses vilated these.

    After Brown, they used all kinds of ruses to get around the Brown decisions. some counties set up white ony
         schools from their taxes, and that these schools wer “private schools” of private funding using their taxes -
         this was still violation of equal protection and segregation.

    DE FACTO SEGREGATION - not usually redressable unless link to de facto: Segregation “in fact“ as the
        geographics of the city are segregated - so it isn‟t the law, but the fact that it is segregated.

    De JURE - redressable - Intentional discrimination

    A court can mandate the moving of children of those segregated areas to areas that are “welathier” for the
        benefits of education.

    In the KC litigation in the supplement - this year - 5-4 vote, that while a school board can do it voluntarily, a court
         may not order it.

Fordyce:
    After Brown v. board, the practive of segrgation continued with almost white colleges and black colleges as that
         is what existed before the decision as matter of fact. It would saty this way as it was that way.

    There was a cut off score for entrance to the white schools, and there was a question of whether or not the
        school was discriminationg against the minorities. The court held that the school had to reevaluate their
        admission standards, etc.. In reality, the practice of maintaining the segregated conditions of colleges was
        continuing. The state had the burden of justifying them. Putting aside affirmative action., we probably will
        never see lws again like Plessey v. ferguson, and therefore there is equal protection.

    Note that there may be a law which is neutral on its face but is enforced as if it is said where people
        would be classified differently with Wo v. Hopkins.


YICK WO v. HOPKINS - law neutral on face but enforced unequal is EP violation
   Needed a fireproof building to operate a laundry. The problem wsas that it was only enforced against the
       chinese people. 2/3 of those running the laundries were prosecuted but not the other 1/3.
   The court says that if a law is enforced in an unviolative way, then it is jst as vilative of the equal
       protection clause as is the carrying it out.

    This issue came up again in peremptory callenges: Can a state challenge based upon rrace because a side
        wants a type of jury? Can the state use a peremptory challenge (no need to give a reason why to dismiss a
        juror) to dismiss a juror solely on a ccount of race?
    Suppose a prosecutor uses these challeneges to get as many whites on the jury - the statute is neutral on its
        fae, but if the statute is being administered by the state then it is a vioaltion of equal protection.

    A law that is intended to be discriminatory on its face but the reason for it is dscriminatory is stuck down.


CHAMELEON V. Lightfoot
   Illustration (in Washington v. Davis) regargding gerrymandering it Tuskegee Alabama. nearly al the blacks living
         there were excluded form voting. there was an idea to discirminate against those not living in Tuskegee,
         and the cuity was “zaoned” in a jagged way to get the blacks out of the district, and the zoning was done to
         prevent blacks from voting on city council. the court said that on its face it seemed neutral, but the
         PURPOSE was discriminatory. In those situations, the state can only justify such a law, then it must be
         narroely tailord to serve a compelling state interest which there wasn;t one here.

                                  Michael M. Wechsler
                                         Constitutional Law                                            157


Washington v. davis:
   est for plice officers. the test was not intended to be discriminatory against police officers, but the question was
        whether it had the effect of doing so. The lower court struck down the test, but the result here is different
        and the test was upheld. This is because the test was administered equally to both whites and monirites.
        But here the effecct eant that few monorities would become police officers in Washington.
   The rationale for the court in doing so is that it is not discriminatory in the WAY it is being administered. the test
        was an objectve test and was related to things that a reasonable police officer ought to be able to do, such
        as reading ans writing - not that the test ws discriminatory in otherways, like Lightfoot. But there was no
        discriminatory purpose. The mere fact that the effect or the impact was unequal, is not enought ot show a
        violation of the equal protection clause. There are statutes, such as title 7, that disparate impact may be a
        violation of statute (but htis is state law, not o=constitution). Statte law here may also apply to private
        emplyers. HER E THERE WAS STATE ACTION BECUAS IT WAS AGAISNT A CITY COMAPNAY, BUT
        THERE WOULD HAVE BEEN NO CONSTITUTIONAL CLAIM IF IT WAS A PRIVATE EMPLOER. title 87
        was not around here.

    therefore: disparate impact alone does not show a violation of equal protection.


Arlington Heights
     when the court reached the merots for discriminator zoning, the court said that the impact was exclusionary,
        that you needed to affors 3 acres of land if you wanted to live in Arington heights, but the court said that
        there was no showing of having a discriminatory purpose in mind. If there was one, then the court may have
        ofund an action of equal protection.

    The fact that a law affects one group stronger than another does not mena that there is a vioaltion of the equal
        protectio clause.

    If a city council said that they were enacting a valid zingin law, the court could throw it out.


    These cases are different because these statutes are to deal with discrimination.



Bakki

    Discussed in Croson and notes after Croson.

    Was the statute in Feeney a form of affirmative action statue. No because it wasn‟t designed to prevent against
       discrimination. Veterans were never a disfavored group.

    Bakki: The University of CA Davis took in 100 students a year in ther medical school. Of the 100 seats, 16 were
        set aside for applicants who were of racial minority background. Bakkie was white and he alleged that he
        couldn‟t compete for those 16 seats after he couldn‟t make it in the 84. He alleged that the seats were given
        to people who didn‟t do as well as he did, and if he had a shot at those seats, he would have made it.
    He also alleged that the school vilated Title VI of the Civil Rights Act - schools that get federal money cannot
        discriminate based upon race, gender, etc.

    Two arguments:
    1. Violation of equal protecion
    2. Violation of statute - Title VI

    Were these seats a quota?

    The school did not have to fill these 6 sets at all, so there was an argument of option and not a “quota.” But
        Bakki argues if they are there, then why can‟t I compete for those seats? a minority student could, so
        therefore it is a quota.

    On the merits, is there a denial of equal protection.

    university argued:
    1. To make up for past discrimination.
    Who does the past discrimination have to be by in order for the court to reverse the discrimination in the past?
         doesthe discrimination have to be in the past by the school U of Davis themselves? Can they do it for
         another school?


                                    Michael M. Wechsler
                                   Constitutional Law                                            158
    It is easier to deal with when the actual people did the discrimination: The Sheet Metal Case where the worker‟s
          union ws found to discriminate based upon race in allowing members to join the union. In that case the
          court required the union to accept a quota. There had to be a quota to allow one to join on for one. In that
          case it is celar that the court had to make a quota in order to adress he ptoblem. But this wasn‟t the case at
          Davis. There wasn‟t even a claim that Davis discriminated.

    Can Davis argue that they didn‟t discriminate but the nation sdid for years.
    UC Davis isnt here to cure the ills of society. Bakki: maybe so, but who is UC Davis to go and change things
        now and use Bakki to change soiciety and discriminate against him? UC Davis is nothing, a small branch of
        the U of C. If they wan‟t a pattern of discrimination, they should not discriminate against Bakki.

    2. The BEST ARGUMENT of U f Davis was that a university benefits from diversity. It is entitled to take the steps
         to make the school better.

    Bakki: Is that all that the school did here? Since the numbers wee set aside, it wasn‟t simply for diversity and
        taking race into account - it set aside 16 seats that Bakki couldn‟t compete for. Powell cast the seing vote
        and discusses the point that it is fine for a university to take race inot account to achieve diversity. The
        university doesn‟t do strict grading into accout - the university takes a lot of what these people have done in
        the past. Universities don‟t only consider scores, but they also consider race as a factor to achieve diversity.
        However race cannot be an obstacle to getting in and Bakki won his case.

    Union said there ought to be some sort of redress for the equities that may have taken place for monorities. If a
         private employer did it and your client was a white male applicant:
    1. Look at whether private employers have funding from the state - not as good because a private employer is
         NOT the state no matter how much money they get.
    2. TITLE VII - MOST IMPORTANT - this also applies to private employers. Under this staute a disparate impact
         will do - you don‟t need to require intent. Title VII was only desgned to redress employment discrimination
         and was made applicable to local governments, and congress ahs the right to give equal protection, applies
         to private employers.

    Could you challenge a private employer‟s employment plan, could you use title VII?
    The court rejected the voluntary affirmative action plan in Weber. therer was no valid claim of Title VII porblem,
        but most importantly a private employer. The court said that this is n‟t the kind of problem Title VII was
        designed to act.

    The USSC hasn;t said what some of the language means - you cannot consider race. It is arguable that
        Congressional intent of congress for Congress to do some discrimination, but then why did Congress put
        that language in at all?


SNTAT CLARA COUNTY
   This was gender, not racial discrimination. Woman wanted to be promoted to dispatcher. Therehad never been
        a female road crew dispatcher in the county even though there were many men before. The county gave
        the position to the female. The state had a scoring system. Johnson, the P sad he had a higher score than
        she did. what is the legality of that scheme.
   the county siad they were doing it for redress. the county won and Johnson‟s argument was rejected. When you
        have such a statistical disparity, then the county had the right to redress that.

    Equal protection argument: Jhnson can argue equal protection against the county. Instead of hiring a lawyer
       form wlsewhere. W don;t know what the court is dealing with for equal protection.

    If Davis can;t legislate agaisnt all the wrongs, then who can?

    congress can----


FulliLove - p. 983
     Congress regulated under its spending power. Some minority business enterprises - can congress base its
        decisions on US civil rights divisions - the court upheld it as this was not Uc davis. This was congress and
        congress has the right to look at the nation as a whole, and abased uon the civil rights congress‟ findings it
        can set up a statute and plan. This si even more of a quota than bakki. here there is a specific minority set
        aside.

    Is this Plessey v. ferguson, Brown v. board and use strict scrutiny, or is there something wrong to compare
         Brown, Koramatsu with Fullilove?

    The same way you can burdena class, you can unfairly benefit a class - an argument for strict scrutiny.


                                  Michael M. Wechsler
                                   Constitutional Law                                             159
    Can we argue no denial of equal prtoection here? The same dangers maynot be involved here. In this type of
        minority owned business, we are talking about a white congress taking away from themelves as in Plessey
        v. ferguson.

    Equal Protection clause: Through the 5th am. applicable to Congress under 5th am. due process. It would be
       ridiculous to say Congress can discriminate but the states cannot.

    what test do we use?

    This was done through the spending power, and §5 of the 14th Am. where congrss has the right to eecute the
        powers of the 14th amendment. We saw ollie‟s BBQ and ithers, and could be viewd as Congressional
        power to legislate to implement the 14th amendment.

    The court split in Fullilove as in bakki to use split scrutiny. This year and Croson we just disovered that we must
        use strict scrutiny when challenging an affirmative action statute by the state.

    In Adderand, the court ansered the question this year by saying Yes, also with Congress you must use strict
        scrutiny, as you must do so for a state, or locality. sheet metal workers is still good law. there is no question
        that in Croson or adderand about upholding actual quotas, e.g. one white one minority applicant, because
        there was actual discrimination proven. The question is whether it can be met based upon affirmative action
        means.


Richmond v. Croson - here we are dealing with:
    1. state v. federal action
    2. 30% quota, not 10% and much less of a waiver, Very difficult for a Richmond contractor to get around this set
         aside. There was no evidence of actual discrimination and used Fullilove.

    The city wa 50% black but a fractional % was black owned construction. The P tried to show that there wasn‟t a
        suitable MBE to do it. The court held that he had a right to challenge the whole program.

    What about statistical proof? we are talking about a city where the population is half white and half black -
       almost anything in absence of discrimination is the reason.hen you find 1% MBEs doing business with the
       city, you ask the question.

    maybe the reason for the lack of MBEs was becuase of the years of prior discrimination.

    The court said that any state action that is done specifically race based -

    P was able to point out that the majority of the Richmond council who made this program were by a majority of
        monority based officials. He said we have to be more suspect of this kind of statute.

    But shouldn‟t we use strict scrutiny to deal with this kind of racially based action? YES said the court.

    What was donehere was totally see saw the playing field the other way.

    Use middle tier scrutiny for gender based discrmination. Court said that if we use strict scrutiny for Plessey v.
        ferguson type, how can we not use the same strict scrutiny for the opposit e of that kind of discrimination.

    Court holds her that you have to use strict scrutiny when the affirmative action statute is based upon race.

    Blackmun dissenting in Bakki said that the 14th amendment hasn‟t lost its moorings.

    In the end in croson, the court moved away from tis position.

    The city of Richmond included a lot of groups such as Aleuts. Was there any discrimination against “Aleuts?”
        The state took the federal language uheld in Fullilove and dumped it in here. There was no proof f any
        discrimination against aleuts here either. How could you argue that there was discrimination agaisnt aleuts.

    How far does croson extend? what if NY tomorrow said that it would not have a 30% set aside. They will just
       take into account the number of monority owned business enterprises?

    deense: You could say that race s not an obstacle ow - this is what would be fine in Bakki, we are jus atking
         race into account amongst other factors.
    But in the other side, you are still using race and we must have a strict scrutiny tat it serves COMPELLING state
         interest and is sufficiently narrowly tailored.



                                  Michael M. Wechsler
                                               Constitutional Law                                            160
                he argument can be made against all affirmative aciton programs, maybe the old style discrimination is still
                    going on, that the people whose grandfathers did business.

                Adderand applied strict scrutiny to a federal MBE program for a highway contract. it didn‟t knock it out, but left
                   open the question the court left open in Fullilove, The addereand was MBE set aside and was found to be
                   subject to the narrow tailored to serve a compelling state interest test. The court remanded it to the state
                   court of CO to see whether this law really served this test.

                Croson + Adarand = Strict Scrutiny, especially when no proof of discrimination.




12/10

Exam quesetion regarding defamation and claim that the soup is lousy 12/2/92

Defamation and first am.
Q: Was P a public figure? Here it is debatable.
Yes: Times v. Sullivan and retauranteer has to prove actual malice or high dgree of probable falsity and disregard.
If issue of public concern: P has to prove falsity and for presumed and punitive damages he must prove NYT malice even a
private figure P as in Gertz.
Is it opinion? If so, it isn‟t news and in NY opinion is protected as NY goes further under its satate constistuion more than
milkovich. There test is whether the statemnt is verifiable, less than NY. BUT USSC says that an opinion article in area is
different than in seriouos news article and people approach things differently. In op ed and critic areas, people know that
there is some sort of varying of opinion.
Note a statement that is not verifyable can be false, but the quality of the food is not so verifiable for claims, as would be that
there is mention of seating for 20 when really there is for 100.

Also issue is whether this is of and concerning the P.” Here it is reasonable to assume that when you talk about a little
restaurant, you are really talking abou t the owner, same issue as in NYT as Q was whether people would relaly say the
article is of and concerning the police chief, then you would be on target.

Here we are using state action by merely going to court, the rules of defamation. NOT MUCH OF A STATE ACTION ISSUE.


Test for scrutiny is strict, as aliens have been a very disfavored class. We have not totally outgrown our penchant for beating
up on the newly arrived, or their kids for that matter.

Exceptions using rational basis
1. Feds not state have adopted the law. Because fed has plenary JD over it, it is different where congress enacts the law.
2. Even in state law when it deals with inherent function of government, e.g. voting or holding public office, or holding some
type of public office.

Gender - middle tier
Boran is the major case and it will stay, and not strict scrutiny for race, natural origin and aliens, because whiel there are
striking similarities in regard to discrimination historically against women, there were most issues which women were never
subject to such harsh discrimination, always within a bounds. This does not matter which way, bith men and women
discrimination.
Mr. M, and social security law struck down. Court said nly two genders adn it doesn‟t matter. Tough with social security where
you don‟t know who it discriminates against. does the SS law discriminate against the widow? The male wage earner is not as
subject to social security, but court said we won‟t get embroiled into a strict scrutiny, only a middle tier.
Wrong decided bu is the law, is the pregnancy cses, the court tool the view like the eeney case of veternas preference and
not gender discrimination. Congress also had trouble with the change. If someone wants to argue that in cases where there is
a physical difference between men and women there is no discrimination at all.


Illegitimacy:

The law historically as per CL discarded illegitimate children completlely except in testamentary functions. The statutes
followed the CL approach and cast the illegitimate offspring into outer darkness.

How do you decide whtere the disfavored class requires strict scrutiny?


                                             Michael M. Wechsler
                                              Constitutional Law                                             161
There is an immutable characteristic, but through paternity the father can legitimize the offspring, but as far as the child is
concerned, he has no dontrol over this situation whatsoever.

1. IMMUTABILITY ALONE IS NOT ENOUGH. e.g. eye color will not get strict scrutiny.
2. Past historical discrimination? Yes, but the courts have only taken a middle tier test. what is the historical basis.

an argument that cits the other way is that a father can say “this is my child” and legitimize him. Back in history there was no
way of proving this but now there s. This is an argument against heightened scrutiny. this occurred mostly through the royalty
that made these laws, the people in power.

Laws that discriminate between the legitimate and the illegitimate - bond v. mohammed. The father had acknowledged the
child and the mother gave way the kid for adoption, but Ny statute gave father no say in the matter. There was an argument of
legitimacy v. illegitimacy. The court said that this father visited his child and acknowledged it, so court said there is middle tier
scrutiny or it is set aside.
If the state wanted to draw the line that deals with illegitimate children who are not acknowledged, that is sufficint place to
draw the line.

Other kinds of classifications? these are not the only kinds of disfavored classes - constitution says nothing sbout any of this
subject.The courts really have it in their power to decide who is in their class. The mentally retarded - Clayburn case.

CLAYBURN: city zoning law. Were similar uses allowed where they wanted to put the home? Yes they were. This was not a
litte one family enclave here. Some of the similar uses included fraternity houses, nursing homes, sororities, convalescent
homes. There were anumber of similar uses that were not so different thatn the retarded, and you must have felt that the
retarded wer SO different that they needed to be discriminatted against.‟This was not a belle terre type of community.

Are the retarded subject to a higher scrutiny? The court said that they weren‟t.
1. History of discrimination against the retarded - the ordinance itself shows it.
a. Pattern of discrimination - probably
2. Immutability - there is no choice in being classified as such and it cannot be changed.

The difference between the mentally retarded in fact, is right there. there is a physical difference. It is one thing to say that
women can‟t be prison guards, where contact is likely (court upheld that supra) and that is a real physicial difference. The law
here relly does discriminate. This law discriminated against the retarded.

state argument: the court said that this was a task for the legislatures, that the mentally retarded have unique problems and
are being dealt with by legislature.
1. The government has made legislature to benefit tem (they have the right to benefit and treatment.)
2. This is not like short people and heavy people are different because there aren‟t laws that peole under 6 feet can‟t be such
and such.

The court here used the rational basis test. J. White made it clear that the court would not give heightened scrutiny here. This
was not a disfavored class.Court rejected the heightened scrutiny because:
1. Where do we draw the line
2. they do have special needs adn are dealt with by legislature
3. they are not toatlly lacking with political power
4. tey don‟t have the history of discrimination


What is the standard to show historical discrimination? This was done by the state! In the other disfavored classes it was. The
law wasn‟t codified such as in civil rights.

Her note that the statute doesn‟t even meet the rational basis test. This is the kind of group that doesn‟t meet it. Every type of
group home except for the retarded is acceptable.

group homes for addicts? here there may be more of a legislative purpose. In addition, crime purposes.

Heller v. Doe - supplement
Another statute that drew a distinction between the retarded and the mentally ill. The court upheld the distinction for rational
basis. Suspect classifications - there is a whole other category -

Laws that interfere with fundamental rights. The court made it clear - laws that interfere witht he right to vote interfere witha
fundamental right as per Baker v. Carr, the one person one vote rule. This was subjected to strict scrutiny. If the legislature in
a state keeps old district lines, so that 100000 people is a small area can elect a member such as 100,000 people in a large
area because of changing migration of people, the court said that these laws say that you cannot vote - they dont prevent you
from voting, but your votes only ount 1/10 as much as what should equal. What kind of compelling state interst is there here
that would justify this? there must be some proximity to legislation for legislative districts.



                                            Michael M. Wechsler
                                               Constitutional Law                                              162
The power was in the rural area, that meant that taxes went to rural programs at the expense of those in urban and suburban
areas. In TN befoer the approtionment, they wouldn;t likely vote for mass transit in the cities if there was such power in small
areas - this is key.

Why should the right to vote be a fundamental right...what IS a fundamental right?

Race gender were as per the 15th amendment, but there is an argument that with voting it is not such a fundamental right in
this case because all the other types of bias were ealt with. But where do we go to find what is a fundamental right as we
cannot confine the rights to the bill of rights - privacy is a fundamental right as is the right to travel yet there is no mention of
them in the constitution and strict scrutiny is the required test.

So therefore in ber v. carr, what is the touchstone for deciding what is a fundamental right?
Any kind of prinicpal - even $1 isn‟t much today, it is significant enough a tax to vote. We cannot impede the right to vote in
any way. No monetary restriction can be justified under the fundamental interest test that it is narrowly tailored to a
compelling interest.

Are there any times when they can be limited. We all have interests in the public schools despite the fact that we don‟t or
maynever have children in the school, but the qulity of the school affects everything else. Such restrictions are completely
invalid - schools are so important that everyone has a right to vote, and there cannot be any type of discrimination as to who
can vote and to who can‟t, as it is too integral a function, such as voting in a mayor, etc..


GERRYMANDERING

Davis v. Bandemer - p. 1082

The right of the voter being violated here is that your vote is being diluted, simlar to baker v. carr - when the majority rezones
the districts for its benfits so as to the same.

Here the lines are being drawn so as to maximize the areas, so as to say who is going to be elected. But the plurality held that
you had to do this more than once to show that htere was proof that this was going on. Fool me once shame on you fool me
twice shame on me reasoning. You have to do it TWICE in order to show that there was deliberate gerrymandering going on.

In certain limited purposes, some types of imited voting is proper such as local taxes.

Shapiro v. Thompson -
The welfare systme in CT may be more generous so people would want to move there. so why can‟t CT draw the line not to
give these resources to people who had been in CT for a long period of time and say that you have ot live there for a year.

Why can‟t a state draw the line her as such - is it a rational basis test? Why did the court apply strict scrutiny test?
Here the court felt that there was a restriction on the right to travel.
The court said it is just as legitimate for a woman to have a right to move into the state for welfare. In the end it is the right to
travel,, not a right to welfare that carried the day. Once there is a right to travel between the states, and that the right is
fundamental, then a law that interferes with it deserves strict scrutiny and CT must show that the law is narrowly compelling to
serve a compelling state interest.

If laws based on residency deserve strict scrutiny, where do we draw the line? One year‟s residency to have hospitalization,
or vote, or getting a divorce in the state? There is a greater state interest that may justify the reasons of some such as
hospitalization, in contrast to divorce. There may be many issues of child custody and other property issues.

What about interference with rights to travel for employmet by the city? You cna get a job, just not a city job. In Peoria it was
necesasary (McCarthy) that you live there first before you can get a job. it is not like there is a one year limit on being a
citizen, just that you are there.

There used to be a law that you couldn‟t appeal a court conviction unless you paid a court stenographer with loads of money
to get a copy of a transcript. Constitutionally, is ther a right to appeal from a criminal conviction? What if Illinois said that there
is no appeal from an appellate court ? This is fine - the state is not required to provide apellate courts, but if it does, they must
have equal protection of the laws and applied equally across the line.
You might be able to raise a PDP issue if the state decided to abolish such an action.

Note that dicsrimination that discrimnates upon ealth or property only gets rational basis treatment. - where do we say
fundamental rights are that get strict scrutiny.
HERE however, this is discrimination based upon access to judgment. Poverty is not immutable and a “SUSPECT” class,
there hasn‟t been a history of laws discriminating against poverty. Access to justice is a fundamental right. Illinois could not
pay for the transcript. the courts have never dealt with the issue of civil litigation.




                                             Michael M. Wechsler
                                               Constitutional Law                                              163
What about a law that says conviction of a particular crime is $500 or prison in 30 days if you cannot pay the fine. Tate v.
shoard, there is a fundamental right involved here. This isn‟t just access to justice, but to everything. The state can‟t say jail if
you don‟t to pay the fine, but allowable if you refuse to pay the fine.

what abot people who can‟t afford to pay court costs, where to go forward you have to pay court fees. there is no other
avenues for people to go forward with. if you want a civil divorce, you have to get it from the state. The court took the view that
imposing fees, that fees for people imposing fees are denial of access to justice.
This is an indiciation that Griffin does apply to civil cases.

bankruptcy: Crass: court said this is different as in divorce you must go to the state to get a divorce. what about money for a
blood test in a paternity proceeding? steeder says YES, the court must pay for the test. It applies to certain types of civil
cases and the court says that they are important enough to warrant the same kind of treatment. these are all civil cases, and
these are NOT discimination based on poverty that triggers strcit scrutiny, it is the fact that there is no access to
justice<<<<========

what do these rights have in common?
Access to justice, freeedom of speech, what is the connection?

why isn;t the right to shelter a fundamental right? That seems like it would be on a cold night like tonight. Shouldn‟t it be?
What about welfare payments. it is urgency that is the touchstone? As in Marr v. Roe, the state did not pay medicaid to “fund”
with abortions. You have a right to travel but the state doesn‟t have to buy you a ticket. Right to speech, state doesn‟t have to
pay for a hall. What level of scrutiny do we use when the state has spending and decides what kind to pay for?
Rational basis or strict scrutiny? The state is really burdening that right isn‟t it? Is this the same as the right to travel but the
state doesn‟t have to buy you a ticket.
strict scrutiny because government gave you hall and is not giving you access because it doesn‟t want to and you are not
protected.

Here you can argue that the entitlement is being limited, and the government can draw thte line rationally as long as it is not
interfereing with a fundamental right.

So where do we draw the line around the fundamentally protected rights where the govt interferes with them. if shelter isn‟t,
than what about education, whic brings us to Rodriguez.

Rodriguez:
Was a challenge to the TX school founding and most public schools get their money from school tax, and the residents of the
poor districts were crying because the difference between the neighborhoods education was incredible. The people in the rich
neighborhood paid much less tax, and at a lower rate, while the people in the poor neihborhood had only small amounts.
Even so, alamo heights got twice as much money per student - better school stuff.
1. Is there a fundamental right here in regard to education taht requires strict scrutiny?
If individual wealth is not a suspect classification, it is not immutable, adn in the end it is kind of a spin off of wealth v. poverty
and it is not a asuspect classification. The more important classfication really is akin to the right to vote.

But don‟t these issues turn on your right to education? The court stressed the fact that thtis was not a case where the kids
from edgewood got no education at all. The state was merely trying to equalize it - but we saw in voting a 2 -1 disparity will not
pass constitutional muster.

If you were a lawyer for the P. what if TX denied education at all to classes of people as in Pliler v. Doe. there the court said
that the statute was going to deny public education to children who were illegal aliens, and the court held that educationwas
not a fundamental class, but still middle tier when denied against. A law that denies agianst documented aliens is different
thatn undocumented, who are lawbreakers. This said that children of these people, the kids who didn‟t break the law, are
denied unless they pay tuition. They said what was not happening in Rodriguez was happening in Plyler.

Others have held that state constitutions require much greqter equality in school districting that the state required in
Rodriguez.




                                             Michael M. Wechsler
                                               Constitutional Law                                           164

    1
      McCulloch v. Maryland
    Facts: Prior to this case, the federal bank that was set up failed miserably by overextending itself, and then trying to curtail its
      loans, which contributed to the failure of many state owned banks as well as the farmers and merchants who were no longer
      extended credit. The Western and Southern states especially, would attempt to heavily tax these banks so as to exclude non-
      state chartered banks - “The power to tax is the power to destroy.” A Maryland statute prohibited any bank operating in the
      state without state authority, from issuing bank notes except upon stamped paper issued by the state. The state law specifies
      the fees payable for the paper and provides for penalties for violators, which were quite high. An Act of Congress established
      a U. S. Bank. McCullouch D, the U.S. Bank's cashier for its Baltimore branch, issued bank notes without complying with the P
      Maryland law.
    Issues:
      (1 ) Does Congress have the power to incorporate a bank?
      (2) Does a state have the power to impose fees on the operation of an institution created by Congress pursuant to its
         constitutional powers?
    Holding:
      (1) Yes. Although there is nothing in the Constitution that expressly states that Congress has the power to create a bank, it is
         deemed an implied power from the enumerated power of the Tax and Spend power in Article I §8, or also the War Power.
         This extension is made possible by the Necessary and Proper Clause at the end of Article I §8 where Congress may do
         what is necessary to carry out the enumerated powers.The court says to remember that we are expanding a constitution, a
         set of laws, and the drafters of the Constitution could not have enumerated specifically every single power, so the
         Necessary and Proper Clause gives Congress the power to carry out it‟s ends that are its enumerated powers. We need to
         give th government a little bit of elbow room.
      a. Necessity: Maryland argued that it must be “absolutely necessary,” but the USSC says that the clause states “what is
         proper and necessary.” emphasis on the proper, and necessary meaning the colloquial meaning of necessary, not
         indispensible, but proper and reasonably necessary to bring about the powers of Congress. As long as the end is legitimate
         and within the scope of the Constitution, any means which are appropriate, which are plainly adapted to that end, and
         which are not prohibited by the Constitution but are consistent with its spirit, are constitutional. A bank is a convenient,
         useful, and essential instrument for handling national finances. Where will they put the money from the collected taxes of
         the Tax and Spend Power and write checks? How about moving money from one end of the country to another? Can‟t be
         by transport each time. Hence, it is within Congress' power to enact a law incorporating a U.S. bank.
      (2) No. The federal Constitution and the laws made in pursuance thereof are supreme. They control the Constitutions and
         laws of the states and cannot be controlled by them. Maryland is incorrect in its contention that the powers of the federal
         government are delegated by the states who alone are truly sovereign. The 10th Amendment that gives the states the
         powers not expressly given to Congress is not a bar to Congress if it falls within the realm of the Necessary and Proper
         Clause
      The Constitution derives its authority from the people, not from the states. Here, Maryland's statute in effect taxes the
         operation of the U.S. Bank, a bank properly created within Congress' power. The power to tax involves the power to
         destroy. Here it is in opposition to the supreme congressional power to create a bank. Also, when a state taxes an
         organization created by the U.S. Government, it acts upon an institution created by people with whom it claims no control.
         The states have no power, by taxation or otherwise, to impede, burden, or in any manner control the operations of
         constitutional laws enacted by Congress. The Maryland statute is, therefore, unconstitutional and void.

2
   Gibbons v. Ogden - p. 73
Facts: Livingston and Fulton received from the New York state legislature a grant of the exclusive right to navigate the waters
of the state by steamboats for a number of years. From this monopoly P Ogden was assigned the right to navigate between
New York City and New Jersey. D Gibbons was using in navigation between New York and New Jersey, two steamboats
licensed under the federal Coasting Act. Ogden secured an injunction in a New York State court to prevent Gibbons from
violating his monopolistic right.
               • D Gibbons appealed, arguing that the power of Congress to regulate commerce under the Commerce Clause
                  in Article I, §8, Cl. 3 is exclusive.
               • P Ogden claimed that a concurrent power existed between the federal government and the states.
   Holding: Yes. There are three main questions which must be addressed in determining the scope of Congress' power over
     commerce.
   First, what does the term Commerce include? Commerce, undoubtedly is traffic, but it is something more - it is intercourse. It
     comprehends not only the buying and selling or the interchange of commodities but navigation as well.
   Second, to what extent does this power reach commerce within the separate states? While the completely internal commerce of
     a state is immune against federal regulation, the power of Congress does not stop at the jurisdictional lines of the several
     states. The power of Congress may be exercised within a state if a foreign voyage may commence or temminate at a port
     within that state. Congress thus may regulate all navigation which may affect more states than one. This power, like all others
     vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than
     are prescribed in the Constitution.
   Third, may the states severally exercise the same power within their respective jurisdictions? It has been suggested that the
     New York monopoly in question here is not inconsistent with Congress' power and thus should give way only to the extent
     required to give effect to the federal Coastal Act. However, unlike as in instances of state taxation and inspection laws, when
     a state proceeds to regulate interstate commerce, it is exercising the very power that is granted to Congress and is doing the
     very thing Congress is authorized to do. In the examples of taxation and inspection, the state derives its power from some
     residual power which remains with the state; its exercise of power is on subjects acknowledged to be within its control. The

                                             Michael M. Wechsler
                                              Constitutional Law                                           165


      court has the authority to inquire whether a particular state law collides with an act of Congress to regulate interstate
      commerce. Should a collision exist, it is immaterial that the state law was passed in virtue of a concurrent power. Accordingly,
      the grant of the monopolistic navigation right to Ogden, affecting as it did intercourse between New York and New Jersey
      cannot stand in light of the federal Coastal Act. The injunction was improperly issued.
3
    Houston, East & West Texas Ry v. US (Shreveport Case) - p.81
    Facts: Houston D charged lower rates from Dallas and Houston eastward to intermediate points in Texas than from Shreveport,
      Lousiana westward to the same points. While the distance between Houston and Dallas and Shreveport, LA are the same,
      the cost was substantially higher to ship to and from points outside of Texas. Shreveport competes with both of these cities
      for the trade of the intervening territory. The difference in rates charged was substantial and injuriously affected Shreveport
      commerce. The l.C.C. found that the interstate rates from Shreveport into Texas were unreasonable and set a maximum for
      these rates, and charged for transportation for similar distances within the state. It ordered that the discriminatory rates from
      Shreveport be stopped and that no higher rates be charged from Shreveport to a point in Texas than was charged from that
      point to Shreveport.
    • D argues that Congress has no right to regulate interstate activities (the prices interstate were related and set based upon
      interstate rate, which would have to be lowered if had low rates intrastate).
    Issue: Can Congress control the intrastate charges of an interstate carrier to prevent injurious discrimination against interstate
      traffc?
    Holding Yes. Congressional power to regulate commerce embraces the right to control the operation of interstate carriers in all
      matters having such a close and substantial relation to interstate commerce that the control is necessary or proper for the
      effective government of that commerce. Examples of appropriate purposes of control would be the security of interstate traffic,
      the efficiency of interstate service, and the maintenance of conditions under which interstate commerce may be conducted
      fairly and without molestation or hindrance. The fact that an interstate carrier also is an intrastate carrier does not derogate
      congressional authority over the fommer. Whenever the interstate and intrastate transactions of carriers are so related that
      the government of one involves the control of the other, it is Congress, and not the state, that can prescribe the dominant rule.
      Congress may, in the exercise of its paramount power, prevent carriers of both intrastate and interstate commerce from being
      used in their intrastate operations to the injury of interstate commerce.
    Congress has the right to protect us against unfair competition despite it being intrastate activity because you san‟t separate
      the two. Here a carrier in interstate commerce is being used in a discriminatory manner to inflict injury on that commerce. This
      is sufficient ground for federal intervention, and it is immaterial that the discrimination arises from intrastate as compared to
      interstate rates. The order of the l.C.C. is afffirmed.


4
    Swift v. US
        The Court used the Current of commerce theory in holding that an intrastate activity was controllable not because of its
           effect an commerce but because it could be viewed as part of the currents of commerce. This language was used by
           Congress in drafting a 1921 act aimed at preventing unfair, discriminatory, or deceptive practices by meat packers in
           interstate commerce. It stated that a transaction would be considered to be in such commerce if the article is part of the
           current of commerce usual in the meatpacking industry. In Stafford v. Wallace, an attack on the act's constitutionality was
           rejected on the theory that the stockyards were but a throat through which the current of meat production flowed from one
           part of the country to another. However, the Court did add that only practices which affect commerce may be regulated.
5
    Champion v. Ames (The Lottery Case) - p. 78
    Facts: D Champion was indicted for conspiracy to violate the Federal Lottery Act. The law prohibited importing, mailing, or
      transporting from one state to another any lottery ticket. The indictment charged shipment by Wells Fargo Express of a box
      containing lottery tickets. Champion challenges the constitutionality of the Act.
    Issue: May Congress, under its commerce power, prohibit the transporting of lottery tickets in interstate commerce?
    Holding: Yes. The power to regulate commerce among the states has been expressly given to Congress. By this statute,
      Congress does not interfere with traffic or commerce carried on exclusively within the limits of a state. It is only regulating
      interstate commerce. As a state may, for the purpose of guarding the morals of its people, forbid all sales of lottery tickets
      within its limits, so Congress, for the purpose of guarding public morals and protecting interstate commerce, may prohibit
      transporting lottery tickets in interstate commerce. We should hesitate long before adjudging that an evil of such an appalling
      character cannot be met and crushed by the only power competent to that end."
    Dissent: The power to suppress lotteries belongs to the states and not to Congress. To hold that Congress has a general police
      power is to defeat the operation of the 10th amendment. The shipping of lottery tickets from state to state is not interstate
      commerce. Just as insurance policies create contractual relations and a means of enforcing a contract right and have been
      held not to be interstate commerce, so should it be with lottery tickets. Neither should a lottery ticket become an article of
      interstate commerce simply because it is placed in an envelope and mailed.
    Notes: Early twentieth century refommers seeking a constitutional basis for broader federal police measures were encouraged
      by the lottery decision. The decision is an example of one in which the court treats the commerce power as analogous to a
      federal police power, The lottery case precedent sustained a variety of early twentieth century laws excluding objects deemed
      hammful from interstate commerce. Examples include the Mann Act prohibiting the transportation of women for immoral
      purposes, a statute banning interstate transportation of adulterated or misbranded articles, and a statute banning interstate
      transportationof goods made in violation of state law or possession of which violated state law.
6
    Hammer v. Dagenheart (The Child Labor Case) - p.82

                                             Michael M. Wechsler
                                                Constitutional Law                                            166


    Facts: A congressional act prohibited the shipment in interstate commerce of the product of any mine or quarry which employed
       children under the age of 16. It prohibited the shipment in such commerce of the product of any mill, cannery, workshop, or
       factory which employed children under the age of 14 or employed children between the ages of 14 and 16 for more than eight
       hours a day or more than six days a week or before 6 a.m. or afler 7 p.m. Dagenhart P brought this action on behalf of his two
       minor children afler being infommed by the company where they worked of their impending discharge on the effective date of
       the act. Hammer D, the U.S. Attomey General and the company which had employed Dagenhart's P children were named as
       defendants.
    Issue: Can Congress, under its commerce power, pass a law prohibiting the transportation in interstate commerce of products
       of companies which employed children as laborers in violation of the terms of the law?
    Holding: No. The court strikes down the act prohibiting excessive child labor regulation dealing with it through commerce.
    • The goods, which travel in interstate commerce, are not the evil sought to be remedied as in The Lottery Case. It was only the
       child labor that was evil.
    P: As in the Lottery Case, if we can prohibit a lottery, also child labor.
    D: If we allow this, then the 10th Amendment has no meaning and is really an altruism. What powers are not enumerated or
       impliedly given to Congress that are reserved for the states?
       It is argued that the power of Congress to regulate commerce includes the power to prohibit the transportation of ordinary
           products in commerce. However, in cases such as the lottery case, the power to prohibit the carrying of lottery tickets is as
           to those particular objects the same as the exertion of the power to regulate. In those cases, the use of interstate
           commerce was necessary to the accomplishment of harmful results. Regulation over commerce could only be
           accomplished by prohibiting the use of interstate commerce to affect the evil intended. Here, the thing intended to be
           accomplished by this act is the denial of interstate commerce facilities to those employing children within the prohibited
           ages. The goods shipped are of themselves harmless. The production of articles intended for interstate commerce is a
           matter of local regulation. The making of goods and the refining of coal are not commerce, nor does the fact that these
           things are to be aflerwards shipped or used in interstate commerce make their production a part thereof.
    • Congress has no power to require states to exercise their police powers to prevent possible unfair competition. This answers
       the argument that congressional regulation is necessary because of the unfair advantage possessed by manufacturers in
       states which have less stringent child labor laws.The act is unconstitutional and the decree enjoining its enforcement is
       affirmed.
    Dissent: Modern View: As long as the Congressiional regulation falls within a power specifically goven to Congress from the
       Constitution, the fact that it effects a local activity should not render the statute unconstitutional. The Lottery Case and others
       following it establish that a law is not beyond Congress' commerce power merely because it prohibits certain transportation.
       There is no legal distinction between the evils sought to be controlled in those cases and the evil of premature and excessive
       child labor. The court has no right to substitute its judgment of which evils may be controlled.
    Notes: This was a 5-4 decision. After the Hammer decision, Congress sought to regulate child labor through the taxing power.
       That law was invalidated in Bailey v. Drexel. Subsequently, Congress submitted a proposed constitutional amendment to the
       states which authorized a national child labor law. The amendment has not been ratified, but the need for it has largely
       disappeared in view of U.S. v. Darby, 312, U.S. 100 (1941), which overnuled Hammer.
7
    NLRB v. Jones & Laughlin Steel - p. 88 (Substantial Economic Effect Theory
    Facts: Pursuant to a complaint filed by a labor union, the P National Labor Relations Board found that Jones & Laughlin Steel D
       had engaged in Unfair labor practices." The Board issued a cease and desist order to Jones & Laughlin to stop using
       discriminatory and coercive practices to prevent union organization at two steel plants in and around Pittsburgh. The company
       operated factories inseveral states and exports 75% of its goods out of state. The company refused to comply and the Board
       went to court for judicial enforcement of its order under authority of National Labor Relations Act of 1935.
    • Jones & Laughlin contended that the order was an unconstitutional exercise of the Board's authority since the plants were not
       engaged in interstate commerce, being totally manufacturing facilities. The court of appeals upheld the company's position
       and refused enforcement of the order on the ground the order flay beyond the range of federal power."
    Issue: Do the manufacturing portions of a large, integrated multistate corporation fall within the constitutional meaning of the
       term “activities affecting commerce” so as to allow federal regulation thereof?
    Holding: Yes. The act of the Board in ordering Jones & Laughlin to cease interfering with its employees' rights of self
       organization and collective bargaining is an exercise of the congressional power to regulate interstate commerce. The
       definitions in the Act restrict the Board's actions to protecting interstate commerce in the constitutional sense, and the Board
       is given the power to determine whether the practice in question aflects commerce in such a way as to be subject to federal
       control.
    Congress has the power to protect interstate commerce by all appropriate types of legislation, and the controlling question is the
       effect on interstate commerce, not the source of the interference. Although such legislation may result in the regulation of acts
       that are intrastate in character, Congress still has the power to regulate if the intrastate acts bear such a close and substantial
       relation to interstate commerce that control is appropriate for the protection of commerce. Congress is forbidden only from
       regulating acts that have a remote and indirect effect on interstate commerce.
    Here, even though the application of the National Labor Relations Act results in the regulation of labor practices at Jones &
       Laughlin's manufacturing plants, the circumstances indicate the required substantial effect on interstate commerce. If
       production were interrupted at one of the plants due to a labor dispute, the extensive nationwide operations of Jones &
       Laughlin indicate that there would necessarily be an immediate effect on interstate commerce. Therefore, the National Labor
       Relations Act as applied to the facts of this case is a proper exercise of Congress's power to regulate interstate commerce.
    Dissent: The majority reasons that there is an effect on interstate commerce in the following manner: if the employer discharges
       a few employees for union activities, this will create discontent among the remaining employees, which will lead to a strike
       which may result in reduced production, which may decrease the volume of goods in interstate commerce. This is obviously

                                              Michael M. Wechsler
                                                Constitutional Law                                            167


       only a remote and indirect effect on interstate commerce and not subject to federal regulation. Manufacture and production
       are purely local activities, even if the raw materials come from another state and the finished goods are shipped across state
       lines.
     Notes: With this case the Supreme Court retreated from its strict geographical definition of interstate commerce and the
       direct/indirect approach which it used in Schecter and Carter. Jones & Laughlin states that under the commerce clause
       Congress has the power to regulate any activity which has a significant effect on interstate commerce, regardless of whether
       that effect is direct or indirect.
     Affectation Doctrine: Test: This new concept is often called the "affectation doctrine." Although the court cited prior cases in its
       opinion and said it was not creating new law, Jones & Laughlin is, in effect, a reversal of the Schecter line of cases. The court
       now bases its opinions on a combination of the commerce clause and the necessary and proper clause—power to regulate
       interstate commerce extends to control over intrastate activities when necessary and appropriate to make regulation of
       interstate commerce effective.



8
    C. US v. Darby - p.94
    Facts: Darby D was a manufacturer of finished lumber, and a large part of the lumber he produced was shipped in interstate
       commerce. The purpose of the Fair Labor Standards Act was to prevent the shipment in interstate commerce of certain
       products produced under substandard labor conditions. The Act set up minimum wages and maximum hours and punished
       the shipment in interstate commerce of goods produced in violation of the wage/hour requirements and also punish the
       employment of persons in violation of those requirements. Darby D was arrested for both shipment of goods in violation of the
       Act and employment of workers in violation of the Act.
    D: The trial court dismissed the indictment on the ground that the Act was an unconstitutional regulation of manufacturing within
       the states.
    Issue: Does Congress have the power to
       (a) prohibit shipment in interstate commerce of goods produced in violation of the wage/ hour provisions of the Labor
          Standards Act and the power to
       (b) prohibit employment of workers involved in the production of goods for interstate shipment in violation of the wage/hour
          provisions of the Labor Standards Act?
    Holding: Yes. Both prohibitions are a constitutional exercise of Congress' commerce power. Although manufacturing itself is not
       interstate commerce, the shipment of goods across state lines is interstate commerce and the prohibition of such shipment is
       a regulation of commerce. Congress has plenary power to exclude from interstate commerce any article which it detemmines
       to be injurious to public welfare, subject only to the specific prohibitions of the Constitution. In the Fair Labor Standards Act,
       Congress has detemmined that the shipment of goods produced under substandard labor conditions is injurious to commerce
       and therefore has the power to prohibit the shipment of such goods, independent of the indirect effect of such prohibition on
       the states.
          The prohibition of employment of workers engaged in the production of goods for interstate commerce at substandard
            conditions is also sustainable, independent of the power to exclude the shipment of the goods so produced. The power
            over interstate commerce is not confined to the regulation of commerce among the states, but includes regulation of
            intrastate activities which so affect interstate commerce as to make regulation of them an appropriate means to the end
            of regulating interstate commerce.
          Here, Congress has detemmined that the employment of workers in substandard conditions is a fomm of unfair competition
            injurious to interstate commerce, since the goods so produced will be lower priced than the goods produced under
            adequate conditions. Such a fomm of competition would hasten the spread of substandard conditions and produce a
            dislocation of commerce and the destruction of many businesses. Since Congress has the power to suppress this form of
            unfair competition, and the Act is an appropriate means to that end, the wage/hour provisions are within Congress'
            power. It is irrelevant that only part of the goods produced will be shipped in interstate commerce. Congress has power to
            regulate the whole factory even though only a part of the products will have an effect on interstate commerce.
    Notes: Darby, like Jones & Laughlin, is an example of the application of the affectation doctrine. It had long been the law that
       Congress had the power to exclude from interstate commerce hammful objects or immoral activities, such as mismarked
       goods or lottery tickets. This case extends the power to exclude articles produced under conditions which Congress
       considered hammful to the national welfare. Even though production of lumber was an entirely intrastate activity, it was a part
       of an economic process that led to the eventual sale of lumber across state limits, affecting interstate commerce. The federal
       commerce power extends to purely intrastate transactions; the effect on commerce, not the location of the regulated act, is
       the basis for the exercise of the federal power. This case overruled the earlier case of Hammer v. Dagenhart, which held
       unconstitutional an attempt by Congress to exclude articles made by child labor from interstate commerce.
9
  Perez v. US
The government enacted RICO, the Racketeer Influenced and Corrupt Organizations statute that made it a federal offense to
  participate in the conduct of racketeering activity that affects foreign and interstate commerce. We must ask the question about
  cases that only involve local activities that do not affect interstate commerce.
10
  Heart of Atlanta Motel v. United States - p.108
Facts: Title 11 of the Civil Rights Act of 1964, § 201(a), prohibits discrimination or segregation on the ground of race, color,
  religion, or national origin in any place of public accommodation which, as further defined in the Act, includes a motel having
  more than five rooms for rent. Only those motels affecting commerce were subject to injunctive action pursuant to the Act. The

                                              Michael M. Wechsler
                                               Constitutional Law                                            168


     Heart of Atlanta Motel P, with more than 216 rooms, was situated within ready access to interstate and state highways. The
     Motel solicited patronage through various national advertising media and maintained over 50 billboards and highway signs
     within the state. It accepted convention trade from outside Georgia. Seventy-five percent of its registered guests were from out
     of state. Prior to the Act's enactment, the Motel had followed a practice of refusing to rent to Negroes. The Motel brought a
     declaratory judgment action against the United States to have it determined that the Motel was not within the provisions of Title
     11 and could continue to refuse service to Negroes. A three-judge court sustained the validity of the Act and issued a
     permanent injunction against the Motel, which appealed.
11
     US v. Lopez
      Majority:
           1. Requirement of substantial effect on commerce, not merely that the activity affects interstate commerce, or else
               Congress would have a general police power like that is specifically reserved to the states.
                 i. Wickard analysis: Wickard case is the extreme for connections to interstate commerce and sufficient for
                     Congressional action. Unlike Wickard, the gun running was not part of a larger interstate activity of wheat
                     growing.
                 ii. Court rejects the notion of a mere connection and know adheres to some type of more substantial connection
                     as if not, Congress could make virtually any law because it in some way may affect interstate commerce (e.g.
                     Congress can mandate a federal cirriculum vecause what is taught in local schools has a significant effect on
                     classroom learning, and that, in turn, has a substantial effect on interstate commerce.”
           2. Concurrnece by Kennedy said again, it must be substantial, and that this case and others can be guaged by
               certain factors:
                 i. Non-commercial transactions are further away from Congressional regulation.
                 ii. Power traditionally left to states should be even further off limits to Congressional regulation.
      Dissent:
           i. Rational basis test applies - a rational basis between the law and its objective. There was a string connection
               between the deterioration of education and its crippling affect on localities.
           ii. No greater connection here that in Katzenbach, where therer was seen a substantial effect and connection
               between a local restaurant not involved in interstate commerce.
           iii. No distinction should be made between commercial and non-commercial transactions.
12
     Steward Machine v. Davis
      Holding:
      • Purpose is justified and is for the general welfare of the states. The Act is constitutional, as a crisis so extreme as the
         unemployment crisis, the use of the nation's moneys to relieve the unemployed and their dependents cannot be called
         a use for any purpose other than the promotion of the general welfare. Before Congress enacted the Social Security
         Act, few states had passed unemployment laws. Many held back for fear that the toll placed on industry by such
         legislation would put them at an economic disadvantage as compared with neighboring states. The purpose of
         Congress' intervention in enacting the Social Security Act was to safeguard its own treasury, and as an incident to that
         protection to place the states upon a footing of equal opportunity as to unemployment insurance.
       • Unlike the tax in Butler, the proceeds from the federal unemployment tax are not earmarked for a special group but go
         into the general treasury.
      • The condition is not linked to an irrevocable agreement. The state may choose to repeal its unemployment law, thereby
         temminating the credit; further, the credit condition is not directed to achieve an unlawful end but an end, the relief of
         unemployment, for which the nation and states may lawfully cooperate.
      • The statute does not call for a surrender by the states of powers essential to their quasi-sovereign existence. The
         condition requiring that the state laws meet the Social Security Board's criteria is suitable to assure that those who look
         to the laws for protection receive that protection.
      • Congress may use the carrot philosophy. Here the federal government saw the need for the unemployment fund and
         therefore created one for all the people, and gave credit to the states that joined in the act. The court held as per the
         dissent in Butler, that the “coercion” argument was not coercion - e.g. enact an unemployment plan or face the
         consequences - they participated voluntarily.



13
  Garcia v. San Antonio Metropolitan Transit - p. 135
Holding. USSC held that the 10 Amendment did not barr congress from making federal minimum wage and overtime rules [FLSA]
  applicable to state and municpal employees. It has been difficult, if not impossible, to identify an organizing principle upo n which
  this determination may be made. It is impossible task to determine what is and what is not a “traditional state function” as per
  NLC. Who cares whether he drives a bus or a train? The states should be free to do what they are permitted to do under the
  Constitution, and the analysis is to look at the Constitution and see if it is prohibited. A state or local government or agency may
  be federally regulated. State functions change all the time, such as private school education now assumed by states, as well as
  no workable standard, as necessary services would produce a negligible list that would overindulge the court‟s time.
     • Using a system defining important governmental functions invites an unelected federal judiciary to make judgments
        about appropriate state functions.
     • The sovereignty of the states is limited by the Constitution itself: they retain sovereign authority to the extent that the
        Constitution has not divested them of their original powers.

                                             Michael M. Wechsler
                                             Constitutional Law                                            169


     • The principal means chosen by the founders to protect state sovereignty lies in the structure of the federal government
        itself. The states have a role in the selection of the executive and legislative branches of government. The
        effectiveness of the political process in protecting state interests is clearly evident from the course of federal
        legislation. Substantive restraints on the commerce power must be tailored to compensate for possible failings in the
        national political process. There is nothing in the FLSA standards as applied to SAMTA D that is destructive of state
        sovereignty or violative of any constitutional provision. The internal safeguards have performed as intended. National
        League of Cities is overruled.


14
   Youngstown Sheet and Tube v. Sawyer - p. 146
Facts: As a result of long, but unsuccessful, negotiations with various steel companies, the United Steelworkers of America
  served notice of an intent to strike in April, 1952. Through the last months of the negotiating the President had utilized every
  available administrative remedy to effect a settlement and avert a strike. Congress had engaged in extensive debate on
  solutions but had passed no legislation on the issue. By order of the President, the Secretary of Commerce seized the steel
  companies so that steel production would not be interrupted during the Korean War. The steel companies sued in federal
  District Court to have the seizure order declared invalid and to enjoin its enforcement. The government asserted that the
  President had inherent powers to make the order and that it was supported by the Constitution, historical precedent and
  court decisions." The district court granted a preliminary injunction which was stayed the same day by the court of appeals.
  The Supreme Court granted certiorari and ordered immediate argument.
    CONCURRENCE: (Frankfurter, J.) This decision does not attempt to define the limits of presidential authority. The
        President cannot act in contravention of an express congressional act nor may he act where Congress has done
        nothing. Were this a case of a long history of congressional acquiescence to presidential practice our decision might
        be different, but no such showing has been made, and in fact, Congress had denied this pwer to the president in the
        past - the seizure of private protperty ot avoid a labor dispute.
    CONCURRENCE: (Douglas, J.) The only branch of government which may authorize seizures is the branch that must
        authorize compensation, i.e., the Congress.
    CONCURRENCE: (Jackson, J.) “The Red Light Green Light” Approach: The power of the President to act can be viewed
        as three separate categories of circumstances.
           1. Green Light: The President's power is at its maximum when he acts pursuant to express or implied congressional
              authorization.
           2. Yellow Light: In the absence of a congressional grant of power - congress is silent, the President acts solely on
              the basis of his powers as specified in the Constitution. There may be concurrent power to both branches, an area
              also where distribution of power is uncertain. Such as in the Civil War when the President took away the writ of
              habeous corpus.
           3. Red Light: When the President acts in contravention of congressional action, as Congress has specifically forbid
              this action. the President may act only where it can be shown that:
                 i. Congress has exceeded its constitutional powers; and
                 ii. the President is acting in his own sphere of authority.
    It is in this last area where presidential acts are subject to the closest scrutiny. This order is clearly not in the first
        category. His act cannot be justified in the second category since Congress has limited seizure powers to specific
        instances not embracing this order. The constitutional grant of powers to the President is in specific terms that do not
        permit any loose aggregation to create powers not specified. There is little question that Congress could have
        authorized those seizures, and this very power denies the same authority to the President. Finally, the President's act
        is justified by arguing it is the result of powers accruing to his offfice by custom and practice of previous
        administrations. Present unconstitutional acts cannot be justified by the prior unconstitutional acts of others.
        Presidential power may, in fact, enlarge due to congressional inaction, but the courts will not assist or approve this
        process.
    CONCURRENCE: (Clark, J.) Congress has prescribed the measures necessary to meet the emergencies of this nature
        and I cannot find any justification to sanction deviation from those measures.

     DISSENT:(Vinson, Reed, and Minton, JJ.) The executive is the only branch of government that may, by design, act swiftly
       to meet national emergencies. This decision emasculates that necessary power. The majority's opinion has left the
       President powerless to act at the very time the need for his independent and immediate action is greatest. From
       Washington to Roosevelt, history is replete with examples of needed presidential action in the face of congressional
       inaction. Jefferson's Louisiana Purchase, Lincoln's Emancipation Proclamation, Wilson's War Labor Board with
       accompanying industrial seizures and Roosevelt's seizure of an aircraft plant to avert a strike are but a few examples
       of presidential action that received subsequent, not prior, congressional or judicial authorization. The President's
       seizure in this case is in accord with congressional intent to support the resistance of aggression in the world and is in
       furtherance of his duty to execute the laws of this nation.

15
    Penn Central v. City of NY
• When a building is declared a landmark:
1. Exterior of the building must be well maintained.
2. Can‟t alter building without certificate from the Commission.


                                           Michael M. Wechsler
                                             Constitutional Law                                             170


• Denial of a certificate allows the owner to: (Denial on the first 2 alternatives are subject to judicial review)
1. apply for a certificate of alteration, that won‟t damage or change the nature of the architectural landmark.
2. The owner may apply for a certificate of appropriateness - that the proposed construction on the landmark site would not
unduly hinder the protection, enhancement and use of the landmark.
3. Owner may seek a certificate of appropriateness for approval based upon insufficient return; takes into account whether
the landmark enjoys a tax exemption and to ensure that the landmark designation isn‟t what is causing the severe problem.

• Certificate of appropriateness: Permit from the Commission to restore, or use the landmark for a more appropriate purpose
such as the one intended which the Commission denied for preservation. May be issued the certificate if he shows an
insufficient return on investment.

A. Although Penn has opposed the Commission‟s designation of Grand Central as a landmark, it did not seek judicial review
of that decision. Penn waived its right to challenge the landmark designation and was barred from bringing it to in court.
B. Penn was denied a permission for construction of a 50 story skyscraper above Grand central (it would obviously ruin and
swallow Grand Central and its architecture), but did not seek judicial review as it enjoyed a significant tax benefit. They did not
apply for a different structure.

P argument: The Landmark Preservation Law had “taken” Grand Central as an exercise of the power of eminent domain and
without the required just compensation in violation of the 5th and 14th Amendments, and arbitrarily deprived them of
reasonable use of their property without due process of the law as per the 14th Amendment. This was because they were
barred from arguing that the land was improperly designated a landmark through their waiver




                                            Michael M. Wechsler

				
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