CONSTITUTIONAL LAW OUTLINE FALL 1997/SPRING 1998 NEUBORNE -final exam 1. question - 3 questions probably a. unresolved issue b. combination of existing fact patterns in court dockets 2. analysis a. most important b. own theory of constitutional law -think about justifications, implications, applications I. Intro to Theories of Constitutional Interp 1. origin of concept of right - when & under what circumstances should “ought” & right be blended? a. notion of divine law - problem b/c no unity of moral thought b. natural law - Kant - reasoning that w/dignity of man comes all these rights problem b/c subjective is our constitution disguised natural law? c. constitutional positivism - rights are embedded in constitution (a foundational documt imposed by society creating & defining itself) problem b/c this is a myth 2. constitutional positivism supported by 4 theories a. literalism - in literal language of documt problem - constitution resists literal meaning b/c it was drafted in general language, requires that language have 1 exclusive meaning & not just potential meanings b. literal language & original intention of writers - look to words & when ambiguous look to intentions historical issue attractive approach b/c apparently objective, external problems - whose intention’s count b/c unclear who are framers? is it good to adopt jurisprudence of a generation that was so different from today? c. constructive intentions - what would reasonable founder intend, dominant theory today problem - no longer documt based, what time frame should we place this fictional framer? d. choice creation - founders intended that judges today have a choice but constrained by language (& by precedent) problem - would be ratifying an imperial judge that is especially controversial when the legis & pres have already declared some issue to be (un)constitutional 3. model of judicial decision-making - syllogism a. major premise - rule of law, assumption that rules exist in hierarchal form (constitution, statute, administrative regulation, common law) b. minor premise - facts to be found by court c. conclusion from the above 2 issues w/this model really external, empirical process? alternatives shrink role of judic so this would be an external exercise expand role of judic only in certain circumstances, ie in furtherance/protection of democracy functional necessity, democratic failures, etc. is it ever legitimate for judge to act in situation beyond confines of this model?
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think about consistency w/this model & constitutional interp models
II. Separation of Powers i. Does Constitution Contain Theory of Separation of Powers 1. issues a. what is the role of judic? b. what is their basis for juris? c. what does this jurisd power cover - does it include power to bind all others to their reading of constitution? 2. holding theories a. housekeeping - judic reading of constitution trumps all others when related to internal functioning of judic problem - too limiting of juris, just to evid, proced jurisdiction b. participation - judic can decline to participate in enforcing certain social policy when asked by cong or pres, extension of housekeeping problem - not everything fits in here, only applies in criminal proced or when govt agency brings civil suit c. targeted enforcemt - judic has power to say what constitution means even tho judic not involved but only when party formally seeks its assistance via lawsuit incorporates most of what courts do justifications 1. legis has given juris such juris via constitution questions 1. does juris require/justify judic reading to trump that of others’ 2. does this justification of judic reading to trump that of others’ justify extension of #d d. generalized supremacy - whatever judic says constitution means is self-executing law, do public officials obligated to follow the court’s reading when court’s power is not invoked by any of the parties (ie, did Brown v. Board of Ed order to integrate schools apply to those schools not in court?) ii. Bldg a Model - 3 Classic Cases 1. Marbury v. Madison - Marshall 1803 - limit of judic power, Marbury wants court to force Madison to deliver Adam’s order apt him as justice of peace, court has power to declare an act of Congress unconstitutional when there is a collision btwn a statute & constitution, no court juris so case dismissed a. court has no jurisdiction constitution Article 3 only provides appellate jurisdiction for writs of mandamus & there are no lower courts from which this issue could come up - exceptions clause only applies to appellate juris (opening door for congress to legitimately decrease court’s appellate juris) no original jurisdiction for this issue b/c original juris areas already enumerated b. conflict btwn constitution & federal statute § 13 federal statute provides court w/writ of mandamus juris statute unconstitutional b/c constitution supreme c. argumts Congress can establish lower courts if wanted to Article 3 could have been interp differently - exceptions clause could have applied to original juris & not just to appellate juris same drafters of constitution & statute d. participation holding theory seems to apply here 2. Youngstown Sheet & Tube Co. v. Sawyer - Black 1952 - limit of executive power, court holds that when there is some plausible cong prohibition then pres must provide explicit textual authorization to let pres act
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to stand (b/c was w/in legis power), pres unilaterally took over steel mills b/c war emergency, about determining whether pres action was w/in his scope of constitutional power & courts have this power to determine such an issue a. pres justification 1. Cong won’t act 2. action ok b/c part of power of being commander in chief (military), chief executive (political), chief mgr of foreign affairs (foreign relations) implied in constitution for emergency situations 3. presumption of power so should be cong burden to take action to prevent pres from taking such action b. court avoids answering question whether pres violated separation of powers when unilaterally acting absent any cong direction 1. when there are affirmative vibrations then pres has to show only a minimal showing of textual power c. other argumts 1. court should have stayed out of matter a. congress has options if don’t like pres actions but permit pres to act impeach, explicitly forbid, table matter for long time b. but 3rd party rights involved c. court could have imposed political judgmt doctrine - judgmt by court for a particulat matter is beyond what they can do 3. INS v. Chadha - Burger 1983 - limit of legis power, court holds that cong 1 house veto to overturn administrative agency action was violation of separation of powers b/c was act for both houses of cong & pres in order to become law would still be unconstitutional for congress & pres to pass law that creates a 1 house veto b/c would be contrary to constitution 4. theories of separation of powers a. powers of govt should be thought of in structural ways - legis (power to make law), executive (power to enforce law), judicial (power to resolve disputes) Locke - saw executive & judic roles as being the same to enforce law, ie in a parliamentarian system Montesque - saw three branches as being separate b. positive theory - about identifying & assigning the job to best suited branch (efficiency approach) constitution based on this theory legis - most likely to represent what all people want executive - most effective in enforcing law if not subject to political influences experienced by legis judicial - better for this job b/c trained & poli insulated c. negative theory - about preventing 1 branch to acquire to much power & thereby threaten individual liberties problem when application of positive & negative theories lead to different conclusions ie, investigating allegations of wrongdoing in the executive branch, Nixon iii. Testing Models 1. Ex parte McCardle - Chief Justice 1869 - newspaper editor files habeas corpus to argue that executive seizure of his newspaper & throwing him in prision is violation of a.1 & that military reconstruction is unconstitutional (after civil war when Lincoln orders newspapers sympathetic to South to be seized & imprisoned by military), Congress passes law that takes away court’s appellate juris to hear this case 2. US v. Nixon - Burger 1974 - court holds that it has power to decide whether there is pres immunity to subpoenas (Nixon was refusing to turnover subpoenaed tapes claiming necessity of confidentiality) 3. limitations of legislative power in relation to judicial power a. Congress can take away court appellate & original jurisdiction but extent is an open question b. Congress can’t take away court’s jurisdiction after case is pending
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Ex parte McCardle c. Congress can’t pass statute to compel court to rule a certain way 1. Congress can pass rules of evidence, procedure, remedies 2. Congress can’t pass rules that affect substantive rights d. Congress can’t resurrect case that has already been dismissed 1. bright line test that Congress cannot affect a case that has already been disposed of by court e. Congress can’t pass statute to overturn court’s decision if the basis of statute is something that court had declared unconstitutional ie, court declared statute unconstitutional when Congress tried to pass it to widen religious rights that had been narrowed by court 4. limitations of executive power in relation to judicial power a. president apparently can dismiss all pending cases in context of foreign affairs Dames & Moore v. Regan - court upholds presidential declaration that all pending suits in US against Iranians are to be dismissed in another forum in exchange for release of US hostages issues 1. if govt action was unconstitutional, it just means that govt will buy out claimants 2. potential unconstitutional violation might occur depending on what definition of final judgmt was - when order given, appeal certified, appeal decided 3. idea that foreign affairs should change theory of separation of powers 5. limitations of legislative power in relation to executive power a. Congress can’t attempt to micromanage an organization it created Chada - one house veto to control INS that Congress created declared unconstitutional b. Congress can’t pass statute that permits it to appoint administrators Buckley- Congress apt 4 & president apt2 on Federal Election Committee was struck down c. Congress can’t remove administrators Bowsher v. Synar - official apt by president & confirmed by Congress to certify Congressional balanced budget & initiate pro rata cuts if Congress didn’t submit balanced budget, can’t be removed by Congress for good cause 6. hypothetical a. Congress creates agency Sentencing Commission that will promulgate sentencing guidelines that will be binding on judges, president will apt commissio members (judges, penologists, etc.) 1. can president apt judges to perform an executive task? 2. can Congress delegate its legislative power to executive officials? iv. Special Role of Judiciary (If Any) 1. characteristics a. separate nondemocratic branch 1. about allocation of power away from majority b. co-equal 1. has power to set aside political judgmts of other branches 2. issues a. who has access to judiciary b. who does judiciary speak for c. who are they & what are their views 3. judiciary has appellate jurisdiction over state court decisions when they involve federal issues Martin v. Hunter’s Lessee - Story - federal treaty giving property right to foreigner trumps state law that gives it to state citizen b/c of interest of national uniformity when it comes to construction of federal statutes, treaties, constitution; court also holds that state court has concurrent jurisdiction over federal matters but that federal supreme court can review all such state cases Cones v. VA- federal statute that permits sale of lottery tickets is not a defense to state law that makes it a crime to sell lottery tickets there b/c federal statute only permitted such sale in a certain area
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4.
5. a.
v. 1. a.
b.
2. a.
court suggests that Congress probably has constitutional power to authorize action that may be counter to state law & trump it judicial has role to construe meaning of constitution even though there isn’t only one possible construction but potentially many role beyond a mechanical one of interpreting constitution McCulloch v. Maryland - Marshall - states do not have power under federal constitution to tax federal bank when Congress has power under the necessary & proper clause to create such a bank rationale a. chartering bank is sufficiently ancillary to enumerated powers so comes w/in broad power of the necessary & proper clause b. power to tax is power to destroy so states can’t destroy what Congress is authorized to create checks on judiciary parties must have standing to bring case/issue into court at all 1. components of requiremt a. discretionary b. Article 3 1. significance of injury 2. ripeness of case 3. mootness where nothing can be done to redress injury or it has already been addressed so there is no necessity of invoking this power 4. political question doctrine judiciary can use ordinary forms of reasoning to determine which versions of law governs or can decide that it is something that cannot be adjudicated by an Article 3 judiciary 5. notions of obligation to decide 2. justification a. efficiency - the more the parties have at stake, the more likely it is that they will present their best evidence b. legitimacy of judicial power Current Areas of Separation of Powers Applicability line item veto characteristics 1. treats each line in a piece of legislation as a separte piece of legislation that can be vetoed by president in past was take it or leave it 2. effectively is huge loss of de facto Congressional power issues 1. who has standing to challenge statute’s constitutionality a. one who is suffers an economic injury as a result of an item that has been vetoed who otherwise would have not been economically injured if there was no line item veto b. senators who suffer a dilution of their power do not have standing b/c dilution of power is something that can be addressed politically when everyone in their category (all senators) are similarly affected 2. what constitutes bill a. argumt is that president is signing a bill that has not been passed by Congress (would not have been passed by Congress had that line not been there) 3. can responsibility of saying what a bill is delegatable to president Congress failing to schedule confirmation of judicial appointmts - 844 Article 3 judgeships (125 circuit judges) but 101 vacancies issues
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1. who has standing 2. can court rule on this issue a. probably a political question under speech & debate clause III. First Amendment i. Free Expression 1. why is speech singled out for protection? a. function defenses - mrktplace of ideas, search for truth, facilitating change/democracy, Alexander Mikeljon 1. free speech is functionally necessary a. to achieve peaceful change b. to advance other goals c. for mrkt, political, social institutional functioning d. for resistance 2. also requires limitation of those types of speech that hinder functional justification b. essentialism - close to natural law argumt, Thomas Emerson 1. dignity of human spirit (sense of self-expression) requires respect forces us back to question of why free speech is central to human dignity c. institutional argumt 1. institutionally easier for judiciary to protect negative right like speech negative rights - right to be left alone easier to enforce than affirmative rights 2. Congress better able to deal w/affirmative rights affirmative rights - right to have govt do something for you d. cynical approach - John Locke 1. govt can’t be trusted to regulate speech b/c it will tend to make itself look good & its opponents bad e. liberal democratic conception 1. constitution has nothing to do w/private sphere b/c it only regulates govt interaction w/public have to consider whether we are ready to kick govt out - public power will just become private power 2. parties involved a. speaker b. hearer - to whom speech is directed c. object - thing speech is about relevant in libel cases d. conduit - about who controls medium of speech, sometimes can be same as speaker relevant in technology related cases e. censor a. Bldg a Model 1. earlier cases focused on speaker & hearer a. speaker - WWI opposition w/hint of anti-capitalism b. hearer - general public or draftees 2. old bad tendency rule - govt can forbid speech if speech incites hearer to engage in feared evil that is serious enough a. factors to consider 1. seriousness of evil a. when does it become serious enough to justify limitation on speech b. before, courts ruled that this factor alone was sufficient to justify punishmt of speech Shaffer - speaker saying that war is wrong & patriotism is almost like murder will increase likelihood of occurrence of evil that Congress has power to prevent (here
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potential insubordination in army & inciting general public to take action against war) 2. proximate cause - likelihood of incitemt a. how likely is speech to cause feared evil b. court rules that there must be great likelihood that evil will result - intentional incitemt by speaker brings act closer to arising of evil Masses Publication v. Patten - Hand - to be constitutionally punished speech has to specifically advocate evil as opposed to govt merely postulating that act will indirectly cause evil Schenck - Holmes - causation elemt present when hearers are draftees at induction ctr receiving leaflet to induce them not to enlist Frohwerk - conviction upheld for similar reason Debs - conviction upheld for similar reason 3. current rule - if there is no less drastic means available to protect a compelling govt interest, then govt can censor speech a. feared danger must be a compelling govt interest 1. issues a. involves subjectivity of court b. court trumps decision/value of majority Abrams - Holmes dissent - conviction of person who commented on US effort to stop communist revolution & called for general strike was upheld used bad tendency test b. clear & imminent danger 1. causal connection is deemed to be so close that act & feared evil are almost the same thing a. test of contiuum where can’t regulate/punish short of incitemt - fail to denounce, condone, approve, teach, advocate, incite Whitney- Brandeis concurrence - conviction upheld on technicality for associating w/radical organization although she advocated peaceful change Brandenburg - KKK leader making general statemts of revenge & burning cross cannot be convicted b/c causal connection is not sufficiently strong to feared evil bullshit! 2. justification a. otherwise rule be overinclusive b. assumption that if there is breathing space, it will allow rationalization of hearers to occur & lead to truth to preempt feared action strengthens Masses test Abrams - Holmes dissent c. essential to dignity of speaker 1. shift emphasis from speaker to hearer - assumption that hearer is rational & autonomous Whitney- Brandeis concurrence - conviction upheld on technicality for associating w/radical organization although she advocated peaceful change 3. effects a. no longer deferring to legislature as to judgmt of likelihood of act leading to feared evil separation of powers issue b. accepting certain amt of risk for protection of a.1 activities to create an environmt of effective mrkt place of ideas issue of whether we can calibrate & justify that risk Gitlow - Holmes dissent - printer official in left party responsible for publication of party’s manifesto urging struggle violating state anarchy
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statute that makes it a crime to advocate, advice or teach a duty, necessity or propriety of assassination of public officials & overthrowing govt by force or violence, can be convicted under such statute c. efficacy - will govt prescription work 1. tends to overlap w/causation Brandenburg d. alternatives - are there less restricting alternatives Brandenburg e. a.1 also applies to states via a.14 1. huge federalism issue Gitlow f. govt preemption of activities requires higher showing as opposed to govt punishing speech already out there outcome of test depends a great deal on characterization of govt interest 4. assumptions of model a. that speech will not necessarily lead to evil b. that if govt is given power, it will abuse it c. that hearers can be trusted to act rationally & autonomously totalitarian systems - trust govt & distrust individuals 5. model of interpreting Bill of Rights a. current judicial approach is that all items are freestanding so each should be considered by itself & there is no particular order of importance b. vertical order is indicative of relative importance - Neuborne’s view 1. a.1 - political preconditions of creating world framer’s had in mind 2. a.2-8 - list of potential threats that could affect such world in order of importance & their potential solutions 3. a.9 - statemt that there may be other rights a. questions 1. is it ever appropriate to add substantive rights into constitution b. examples 1. basis of privacy rights - right to die, abortion 2. basis of association rights - Harlan to protect civil rights groups liberal interp - judic can create new ones b/c there is set of existing rights floating out there conservative interp - Bork - rhetorical amendmt b/c it says too much 4. a.10 - any powers not given to fed govt are reserved for states liberal interp - too vague to be enforced, just states obvious conservative interp - judic can tell govt when it has gone too far c. horizontal structure also exists - Neuborne’s view 1. a.1 a. establishmt - compelling allegiance b. free exercise - publically proclaiming exercise of allegiance c. speech - sharing ideas w/other people d. press - organized institutions by which those ideas are shared e. assembly - point at which a group coalesces around an idea, beginning of politics f. petition - formal interaction btwn individuals & govt that leads to achievemt of some political agenda b. Classical Model in Operation 1. what is speech? - 2 levels of speech deserving of varying degrees of protection a. pure speech 1. covers written & spoken language including pictures 2. test is whether there is a transfer of an idea from one person’s mind to another
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3. govt regulation is analyzed under Brandenburg test a. compelling govt interest b. clear & present danger c. efficacy d. alternatives b. symbolic speech 1. there is transfer of idea mind to mind 2. there are also secondary effects distinguishable from transfer of idea that govt has right to suppress if bad 3. in context of govt regulation a. has to be substantial govt interest b. regulation has to be unconnected to suppression of ideas 1. on its face, is regulation aimed at nonspeech or expression? 2. if can’t separate out constitutional conduct & govt interest, then have to include act as one of pure speech Texas v. Johnson - statute making it a violation to burn one’s flag in protest is unconstitutional b/c statute is aimed at suppression of expression b/c it doesn’t come into play until actor attempts to express a certain idea so govt interest in preserving national unity by preserving symbol of national unity & preserving public order does not tip balance c. has to be no greater than essential d. issues 1. Neuborne sees no difference btwn this test & least restrictive means/compelling govt interest test 2. speaker usually loses under this test at Supreme Court level O’Brien - statute making it a violation to burn draft cards is constitutional b/c govt has a substantial interest (ensuring that law enforcemt under certain circumstances can check whether person has registered or not & if immediate mobilization is necessary card identifies who is to show up where), regulation is unrelated to suppression of expression b/c would be a violation even if lost card, is no greater than it has to be circumstances in which transfer takes place may also be important c. examples 1. language a. use of language written or spoken is speech 2. conduct a. choosing not to salute flag is speech Barnette - Jackson - compulsory flag salute in school during war to inculcate patriotism is unconstitutional, Jehovah’s Witness did not want to salute b/c contrary to religious beliefs b. flying red flag is speech Stromberg (1931) c. wearing armband is speech Tinker d. burning flag is speech Texas v. Johnson e. nude dancing may or may not be speech f. sit-ins are not speech b/c has overwhelming physical byproduct that interferes w/other’s rights g. throwing rock through window is not speech h. political assassination is not speech
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d.
e.
f.
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3. $ in politics is speech for person who is to be speaker (spend $ for speech) a. contribution entitled to less protection b/c it is speech once removed b. expenditure is entitled to more protection b/c it is speech directly Buckley - campaign finance reform, requiremt to disclose amt & identity of donor is constitutional, contribution limit of $1k to candidates (& higher for contributions to political parties & PACs) to further govt interest to eliminate actual/appearance of corruption is constitutional, expenditures limit & public financing are not constitutional b/c govt cannot try to equalize politics by pressing down on strong instead of helping the weak, interest of equalizing political candidates/parties is unconstitutional results a. limited supply w/unlimited demand led to situation similar to that of narcotics (supply somehow finds its way in via soft $ - political parties, issue $) potential solutions a. public finance all costs of campaigning b. bring costs of compaigning down, ie, media costs is speech just the minimum ability of expression or is it maximum expression? 1. minimum seems to be protected while maximum is not Buckley- most effective way to express via unlimited $ donations & expenditures in political campaigns is not necessarily protected but minimum of expression via expenditures seems protected presumption of speech being constitutional so govt has burden to prove that feared evil will result from speech Tinker - students wearing of armbands in class in protest of Vietnam War is constitutionally protected, govt has burden of proof that students’ acts will cause feared evil of disruption in classroom difficult to know what disruption means disagreemt as to whose opinion counts as to what counts as causation, which method is more efficacious 1. Frankfurter a. opinion of democratically elected body should take precedence over that of judiciary b. judiciary should have uniform standard of judicial review 2. Jackson a. there should be different standards of judicial review 1. rational standard for things like economic regulation - having effect of deferring to legis 2. necessity standard for things like a.1 rights & equality rights - favoring judicial dominance b/c assumption that democratic branches of govt can’t be trusted goes back to conception of role of judic in govt & theory of separation of powers other potential tests 1. consider speech or nonspeech if: a. intended as communication (subjective elemt) & hearers know what is being communicated (objective elemt) b. if it is speech, apply Brandenburg test c. if not speech, then regulatable 2. label as speech or nonspeech a. if speech, apply Brandenburg test b. if not speech, then regulatable Neuborne’s opinion that this approach is not useful b/c doesn’t tell us why one is speech & why one is not
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2. when is it speech? 3. who is speaker? - speaker a. who counts as speaker 1. test of govt regulatory constitutionality a. intent of govt regulation b. least restrictive means analysis c. time, place & manner doctrine - about considering when govt interest in regulating conduct portion activities is sufficient to justify some regulation of communicative portion 1. if regulation stops speech, courts apply Brandenburg test 2. if regulation does not stop speech, courts will apply time, place & manner doctrine 2. when speaker is public e-e a. if hearer is general public, Brandenburg analysis applies Pickering v. Board of Education - teacher can publically express discontent over school budget when hearers are general public who would not have such access to this type of info so can be countered by counter speech in the furtherance of pursuit of truth & ideas b. if hearer is other members of the office 1. have to consider whether reasonable e-e (w/interest in protecting a.1 rights) would not be able to work w/speaker b/c of speech 2. then apply Brandenburg test c. political status/belief is antecedent to speech that is protected if e-e does not occupy position of policy making such that efficient, effective functioning of govt agency is prevented 1. issues a. where is this line drawn? when does speech prevent efficient functioning of govt agency or of e-e’s position? 1. can we infer belief from previous action b. is it legitimate for courts to have drawn this line where politics has been taken out of politics? c. is it wise? d. is it legitimate to have impose nontextual values? e. what about other situations? 1. hiring 2. promotions 3. terminating existing govt Ks 4. grant of new Ks Elrod v. Burns - govt cannot terminate e-e for being a member of the losing party if e-e does not occupy position of policy making such that efficient, effective functioning of govt agency is prevented 3. when speaker is private party whose activity is funded by govt 4. when speaker is govt, speech can be regulated Time Warner v. Fox - municipal cable airways cannot be used by commerical Fox regardless of whether or not there are no commercials b/c that is what statute says, statute requires cable operator to set aside channels for municipality use, for first come first serve where content cannot be controlled by Time Warner but Time Warner can control content of bulk of its channels b/c Time Warner is treated as being the sspeaker 5. other variations when speaker is: a. demonstrator b. corporation or wealthy
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b.
c.
4. 5. a.
6. speaker when that person decides how to spend $ directly leading to speech & not when donates $ to another who will then spend it for speech Buckley does speaker have complete control over content of his speech or goes govt have right to require certain info for benefit of hearer 1. in political context a. govt can’t force speaker to reveal her identity in written speech 1. reasons a. not necessary to determine accuracy of speech, would detract from message of speech or wouldn’t make difference anyways b. potential harm to speaker MacIntyre v. Ohio Election Committee - statute that fines teacher for leafletting in context of election (budgeting election) w/out signing her name cannot stand 2. in nonpolitical context a. ie, disclosure of side effects of products speakers are not all the same depending on medium of speech - speakers get protected, conduits can be regulated based on fairness doctrine to permit all access based on assumption that there is finite amt of channels, etc. 1. direct speaker - get full protection 2. written - writer & printer in mass communications are seen as being the same whereas in publishing are seen as different 3. telephone - speaker & phone service provider are seen as different 4. movies - filmmaker & theater are seen as different 5. television/radio - programmer & service are seen as different 6. internet - programmer & service are seen as same, treated just like newspaper Reno v. ACLU - regulations for protection of children on internet struck down b/c not least restrictive as regulation denied access to adults also issues 1. under what circumstances should we treat conduit as speaker, when are their interests the same? when is speaker the speaker? hearer when do hearer’s interests take precedence over speaker’s interests? 1. circumstances a. hearer is threatening violence - standard is whether police has done everything they can Terminiello - it is police responsibility to control hearers & not to stop speech in indoor setting Feiner - conviction of speaker upheld in outdoor setting b. hearer is captive - speaker’s interests take precedence for mere offensiveness to hearers when in public space & when can be avoided w/out undue burden on hearer price of a.1 protection Cohen v. CA - 3 nuns subpeoned to court having to sit behind man w/”fuck the draft” jacket c. speaker is face to face w/hearer - fighting word doctrine exception to a.1 - can stop speech if tend to make hearer violent upon hearing speech standard for this test tends to over time justifications (promoting mrkt place of ideas, etc.) of permitting speech less in case like this b/c speech directed at only 1 hearer d. hearer can get away easily - if hearer can avoid easily, speaker’s interests will take precedence e. hearer is incompetent - speaker’s interests take precedence when govt does not use least restrictive means even when attempting to protect kids on internet
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b.
6. a. b. 7. a.
b.
Reno v. ACLU - regulation of internet to protect children (when speaker knows child is one of hearers, speaker must refrain from lawful speech as to adults) unconstitutional b/c there are other less restrictive means available where access by other adults won’t be limited, rejects denominating down to common hearer f. hearer is vulnerable - analysis depends on theory of analysis 1. hearer theory - assume that there is class of vulnerable hearers a. geography makes difference b. also consider if certain policy is selectively enforced Skokee - Nazis were permitted to march in Jewish community although ended up not marching anyways 2. target theory - speech harms target b/c it is heard by hearer ie, libel cases, hate speech, violent pornography 2. geography a. in private space, hearer’s interests take precedence b. workplace c. academic setting - special concern of permitting discussion of ideas & permitting students, etc. to pursue their activities in academics d. in public space, speaker’s interests generally take precedence w/exceptions e. quiet area in public? 3. nature of speech a. directed at hearer b. merely undesirable to hearer 4. content of speech when do one hearer’s interests overtake that of another hearer? 1. regulations that limit lawful access for adults in interest of protection of children are unconstitutional Reno v. ACLU Supreme Court coalition of liberterian left & right has created much protection for a.1 Brennan, Marshall, Scalia, Kennedy dissenters are the ones in middle - Stevens, White private party actions relationship btwn state enforced private K law & a.1 rights 1. rule - a.1 has very little to do w/private actors, especially when they ordered their affairs in that way Shelley v. Kramer - 1948, enforcemt of restrictive covenants running w/land preventing sale of land leading to residential racial segregation violates equal protection clause US v. Snepp - employmt K requiring e-r (CIA) to review all e-e publications is enforceable relationship btwn torts & a.1 rights 1. libel a. rule - when substantial damage at risk & potential chilling of speech, a.1 applies & modifies state tort law unless speaker knew falsity or published in reckless disregard of truth, then will be liable 1. clear & convincing evidence standard 2. looks to subjective state of speaker 3. risk of error borne by target & not speaker 4. nature of target is key, relationship to public issue insufficient to make Sullivan apply a. issue of who constitutes public figure 1. voluntary consideration
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c. 8. a. b.
c.
2. necessity to society Gertz v. Welch - a.1 protection doesn’t apply to speech dealing w/public issue w/target of private figure NYT v. Sullivan - tort of libel, NYT ran ad in MLK’s defense to raise funds exaggerating situation, sheriff sues newspaper, elemts of cause of action (newspaper said it, was false, caused harm), constitutionalizes state libel cause of action b. justification - torts is not voluntary so a.1 implications c. previous rule 1. only applies to public speech - speech dealing w/public issues, nature of speech key a. speech dealing w/private issues not protected in this way b. speech of public issues dealing w/private person 1. if private person consorts w/public figure, will open themselves up to NYT v. Sullivan standard d. variations/hypotheticals 1. what if speaker is average person & not press - lower courts treat as same a. individuals should have at least same rights as organization of press 2. what if target doesn’t want $ but public vindication a. costs are just as high as monetary suit & can chill speech this way b. law may be moving in this way either overwhelming evidence of truth or falsity b/c clear & convincing evidence standard means only those cases w/reasonable likelihood of success pass SJ stage & make it to court relationshp btwn criminal law & a.1 rights 1. highly involuntary so very applicable commercial speech what types of speech are worthy of protection & why & do any of these qualities apply to commercial speech rule - commercial speech is significantly protected although maybe not as much as other a.1 speech 1. requiremts for protection a. have to be truthful & nonmisleading b. speech matter can’t be unlawful c. consider importance of govt evil 1. political speech - compelling interest standard 2. commercial speech - substantial interest standard appears to be similar to causation elemt d. how certain is it that evil will take place absent regulation - consider causal nexus btwn speech & evil 1. political speech - clear & present danger test 2. commercial speech - substantial link, lower standard 3. issues a. whoever has burden to prove loses b. who decides e. are there practical alternatives 2. hearer-centered a. not certain that there are any speaker rights at all b. more paternalistic justifications 1. instrumentality - need flow of info for functioning of society/marketplace here, speaker protected b/c hearer & institution need for info
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2. dignitarian - not very applicable except maybe for necessity of economic pursuits for individuals d. difficulties 1. identifying nature of speech - line btwn political & commercial speech difficult to draw especially when co-mingled e. contexts 1. statute prohibiting solicitation of prescription drugs by pharmacies unconstitutional b/c commercial speech enjoys some a.1 protection VA State Board v. VA Citizens 2. statute prohibiting alcohol price ads to keep prices high to prohibit minors from being able to purchase easily unconstitutional 3. statute forbidding outdoor billboard ads for alcohol & cigarettes - unsettled 4. tabbacco settlemt - restricted ad, no billboards ads, no ads in publications w/youth readership of more than 15% & can’t use color & has to be informational a. issues 1. what is nature of agreemt? 2. how does it affect 3rd parties? 3. states consideration of codifying settlemt to ensure compliance will take away power to enforce K under a.1 9. corporate speakers a. commercial speech context 1. rule - courts ask whether hearers will benefit from speaker’s speech, hearer-centered a. speaker is treated as just generators of info - treated as trustees of hearers b. where there is a right to speak, there is also corresponding right to hear b. political context 1. corp can use $ to argue that taxes are bad for corp a. unclear who is being protected - corp interest or hearer interest of being allowed to receive such info 2. corp can be prohibited from giving $ to federal campaigns 10. hate speech - something that speaker says that impacts hearer in a certain way causing sufficient harm a. fighting words doctrine - 1942, words uttered in face to face situation likely to cause something 1. usually likely to cause risk of violence 2. speech calculated to cause violence in reasonable person 3. sufficient intensity & proximity b. evil - injury to hearer himself & not behavior of hearer c. contexts 1. what if hearers knew that speakers did not mean as real threat 2. employmt - co-worker 3. education setting 4. public street RAV v. City of St. Paul - minors burn cross on lawn of black family in newly desegregated neighborhood, statute unconstitutional b/c overbroad & vague (difficult to know what is protected & what is not), govt can’t use view point in regulation (deciding that fighting words related only to racial tension tends most to lead to violence & so outlaws only this type of fighting words) even when regulating an area already outside a.1 protection a. Scalia - govt never permitted to regulate based on its view point whether or not activity is protected or not b/c doing exactly what a.1 prohibits b. dissent - if area outside of protection, govt should be able to do whatever it likes, govt is also regulating on basis of why it regulates noncommunicative part of events 11. govt can never regulate based on view point even if area already outside a.1 protection RAV v. City of St. Paul Police Dept. v. Mosely - statute prohibiting picketing unless picketing on certain matters invalidated b/c view point/content regulation
15
12. case w/all elemts Herald Publishing v. Tornillo - statute requires newpaper to provide space for target to reply, court invalidates this statute a. all elemts present - speaker, target, hearer, censor b. strongest speaker-interest case so far c. applicability of this rule to other media - cable, internet c. Procedural Protections 1. intro a. 5 types b. advantages - offers good protection for those who may slip through c. disadvantages - used to dispose of cases more easily rather than considering them substantively 2. justification a. substantive protection may be insufficient, may not have resources to protect all substantively b. derivative of a.1 to protect core of a.1 c. instrumentally driven 3. prior restraint - focus on timing of restriction a. rule - higher standard to pass 1. nature of evil has to be enormous 2. certainty of occurrence of evil has to be almost 100% 3. no other less restrictive means of prevention b. justification 1. more risky to give govt power to stop speech before published b/c govt will have great inducemt to abuse this power NYT v. Sullivan - prior restraint here is no good but govt could go after criminally after publication 2. collateral bar doctrine - must obey court order regardless if it is later overturned by higher court w/threat of being held in contempt, must appeal & not violate order a. b/c of existence of such doctrine, prior restraints should be issued only where cases are strongest b. can only escape this doctrine only if there was no time to get appellate review c. issues 1. is there coherent distinction btwn prior restraint & subsequent action - if sanction sufficiently draconian, doesn’t it have same effect as overt prior restraint? a. potential response that at least choice still up to individual d. cases Near v. Minnesota NYT v. US Schenck v. Pro-Choice Network 4. overbreadth a. rule - if statute forbidding certain activity also covers something that is constitutional & is substantially overbroad, then statute is invalid 1. conviction reversed even if defendant’s activity in this case is not protected 2. facial test 3. mere overbreadth insufficient to invalidate entire statute Gooding v. Wilson - defendant arrested & convicted for fighting words directed toward police officers under statute covering other protected activities, conviction reversed first argumt used by defendants b. justification 1. will lead to self-censor if permit govt officials to attempt to prosecute potentially protected speech under overbroad statutes c. other issues 1. can’t just fix statute
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a. separation of powers argumt - not up to court to draw that line but up to Congress ACLU v. Reno - court fixed as much of statute as possible to salvage as much as it could via narrow construction to what extent should court be allowed to fix statutes in this way b. federalism - court lacks power to construe state statutes so has to read them facially, federal courts can only fix federal statues state courts can fix state statutes 5. vagueness a. rule - statute that doesn’t give adequate notice of limits is facially invalid 1. must be potential of chilling substantial # of speakers 2. must be potential of enforcemt officials to enforce selectively b. justification 1. leaves too much discretion to enforcemt officials - may be used against those they don’t like stems from mistrust of govt apparatus 2. due process - statute should provide adequate notice reality is that most defendants know 6. equality a. rule - if all things are not being treated equally, then statute is invalid 1. view point regulation is egregious violation of equality principle 2. content based regulation - dangerous b/c going to end up w/view point regulation RAV v. City of St. Paul - Scalia - says that govt is never permitted to treat even those activities outside of a.1 protection unequally 7. due process a. rule - before enforcemt official can take protected a.1 material out of circulation, there has to be some sort of proceeding by judge even while case is pending in court 1. considered some sort of prior restraint 2. reinforces prior restraint procedural protection d. Testing Amendmt 1 Model 1. procedural analysis before reach substantive part 2. substantive model has gone through stages over the yrs, current version below a. compelling interest b. 2 causation elemts 1. how likely is speech going to cause evil? 2. efficacy - how likely is suppression going to prevent evil? c. least drastic means 3. different potential tests - not mutually exclusive a. Holmes/Brandeis - attempt to save clear & present danger test Brandenburg - was culmination btwn Holmes/Brandeis & Dennis a. Brandenburg - KKK leaders burn cross & give speech w/vague threat of racial violence & prosecuted under state syndicalism statute that outlaws violent political acts, court overturns conviction b. Dennis - prosecution of communist party leader under statute that makes promoting overthrow of govt via force & violence illegal, court affirms conviction b. speech v. action dichotomy 1. contention that clear & present danger test was doomed from the beginning b/c of subjective aspect that was inherently unstable & undemocractic but that this test is more objective 2. problems a. communicative conduct O’Brien - was to deal w/problems of this test c. content-based govt action, RAV 1. will give govt lots of discretion when neutral but not when not neutral or view point driven
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d.
e.
f. 4. a. b. c. 5. a.
b.
c.
6. a.
b.
RAV- burning cross on black family lawn to drive out of neighborhood cannot be prosecuted under statute that prohibits using symbols that evoke strong emotion current test in use categorical, Chaplinsky 1. if speech is too dangerous, then outside of a.1 protection - libel, obscenity, fighting words 2. controversy a. whether categories are legitimate b. historically fixed & not expandable Chaplinsky - Jehovah’s Witness carry anti-Catholic music door to door & calls police racketeer & facist & convicted under disturbing peace statute, fighting words outside a.1 protection definitional, Roth 1. don’t treat X as speech, usually used in speech/action dichotomy Roth - obscenity treated as nonspeech so not have to worry about applying a.1 tests to it obscenity currently treated as nonspeech procedure 1. procedure protections anomalies to a.1 doctrine speaker & target interests at odds speaker & hearer interests at odds obscenity geographical elemt may affect test applied in context where interests of speaker & hearer are different areas 1. public 2. workplace court has shifted speaker-centered protection to hearer-centered protection in this context 3. academic setting 4. private home basis 1. potential for hearer to avoid speech, to exit 2. speech directed toward general public vs. to specific individuals examples 1. Cohen - public flag burning protected 2. RAV - substantial protection for burning cross on black family lawn 3. Chaplinsky - public face to face insult of religion not protected 4. Feiner - left wing public speech not protected when threat of mob 5. Terminiello - left wing speech in bldg protected 6. Beuharnais - face to face speech relating to religion & race can be restricted obscenity doctrine says that obscenity is not speech so not deserving of any protection, Roth definition, Miller 1. does it appeal to prurient interest 2. by depicting in patently offensive way (according to community standards) 3. does it lack serious artistic, scientific, political & social value matters on how defined defining as category or definitionally not too different justifications for denying protection 1. paternalism - lack of value 2. harmful - target-centered argumt depends on original basis for providing a.1 protection & whether protection of this material is consistent w/those justifications
18
c. relevance of geography 1. home a. rule when brought in by self - can’t be criminally prosecuted for possessing such materials in home 1. court decided that investigation process may be too intrusive 2. can still regulate methods of acquisition & distribution inconsistent that it is treated as speech in some contexts & not in others b. rule when brought in by outsiders - can transmit unwanted materials inside home but have to have convenient, easy mechanism for shutting it off? 1. presumption that it’s ok if limited b/c don’t want to chill recipients by requiring that they take affirmative action to have it in their homes involves privacy interests & a.1 right interests 2. closed consensual setting outside home - Stanley a. rule - protection not given to this area 3. public generally w/unpredictable audience a. rule - no protection in protection of interests of unwilling listener court not willing to go further than obscenity in protection unwilling listeners unless involves children 4. zoning - creating areas where this exists & others where not as alternative to prohibition a. types of regulation - tax, zoning, prohibiting b. considerations - don’t want to eliminate but don’t want it generally available d. other issues 1. what if both speaker & hearer want it? 2. any limitations for govt regulation? a. zoning b. regulating activity itself c. regulating in different media 3. child pornography a. minor as subject b. minor as target Neuborne - justifications & doctrine are intellectually indefensible 7. example a. Dennis v. US - prosecution of communist party leaders under sedition act, conspired to advocate overthrow of govt by force & violence 1. disagreemt over what is evil, especially when first 2 already covered by criminal law a. overthrowing govt b. attempting to overthrow c. conspiring to advocate overthrow 2. questions institutional superiority of judiciary a. free speech doctrine - judicial check on legislature who have determined that certain activity should be regulated for certain reasons b. if majority legislature gets to decide, model has no bite c. in times of crisis, judiciary is best institution to make objective analysis of model b/c most insulated from public pressure than legis or executive d. but also involves class judgmt - deferring to elite judges v. majority in criminal proceeding where judges set aside convictions - they are second guessing public via jury decision 8. relationship btwn power, $, speech in context of private interests a. is there some contradiction where strong a.1 rights creates a vacuum of where public power is pushed out & where this space is filled by strong private interests? b. at what point is it appropriate for govt to regulate these strong private interests? 1. lg concentration of power in public
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a. rule - lg concentrations of private power have to give way to a.1 to ensure that private individuals living in such contexts are not denied access to their a.1 rights, courts will treat private actors like govt when act like de facto govt Neuborne - better argumt is to base on property rights, that they can be limited in interest of strong public policy 1. conflict btwn property rights & a.1 rights a. is apt bldg public property? b. govt regulation requiring monopolies to permit other private actors to piggyback on their resources b. examples 1. company towns 2. suburban shopping malls a. rule - private property so up to owners but states can make up their own rules Pruneyard S.C. v. Robins - owner argued that state court rule was taking so requires compensation, court said it was ok b/c there is no decrease in FMV of property although may be technical violation of P property rights, disclaimers by owner sufficient to ensure that public won’t think owner has similar views b. states - split 1. state constitution claim right of access 2. under local property law, preservation of right of access to be considered a political easemt so ok 2. bounded institutions a. rule - in bounded institutions govt can control speech to prevent powerful speaker from overwhelming the weaker speaker b/c this is in the best interest of the institution b. examples 1. court room - both parties have equal opportunity & time to talk 2. capital mrkts - proxy fights 3. campaign elections? 3. geographical settings a. public domain - strongest pro-speech rules, public forum doctrine, strongest clear & present danger test b. private domain 1. home - generally more limited for speaker b/c hearer’s rights are greater than speaker’s rights obscenity - only right that is greater than in home than in public, hearer also becomes like a speaker c. workplace - trend that speech can be regulated to ensure proper functioning of institution 1. reasons - equality, efficiency d. academia settings 4. media/broadcasting a. newspaper & other print media - private newspaper speaker can’t be regulated by state Torniello - private speaker newspaper does not have to provide space for response even if newspaper is being unfair shut individual speaker has other alternatives - other newspapers, libel suit under Time v. Sullivan but high standard (knowingly false or reckless disregard for truth) b. radio & TV - broadcasting over air can be restricted
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Red Lion - state rule requiring broadcasters to cover issue fairly is enforceable question whether Red Lion is still good law Pacifica comparison btwn print & airwaves 1. # of airwaves more limited so can be regulated a. newspapers are economically scarce b. airwaves may not be so limited anymore w/technology 2. airwaves involves K w/govt a. property based argumt - easemts on common property b. trustee argumt - scarcity justification 3. airwave media is more ubiquitous so should be regulated more? c. cable - state can impose structural non-content based restrictions Turner - substantive are closer to newspapers but as practical matter, only 1 cable co. will be able to lay wire so has great gatekeeping power & when there is reasonable belief that these powers are being abused, state can require cable co. to include over-air broadcasters although infinite # of channels, limited access d. internet - like newspapers so Torniello applies c. at what point is it appropriate for govt to financially aid disadvantaged private actors & limit their actions as a precondition to receiving help? 1. govt sponsored programs a. rule - constitutional if incentive is related to the action but unconstitutional if no real choice or if compelled behavior has little or nothing to do w/program 1. is the condition germane to the program? 2. is there a real choice? 3. is intrinsic nature of activity conducive to govt control? b. examples 1. giving $ to doctors in an infant mortality program & restricting doctors from discussing abortion as an option Rust v. Sullivan - 1991, this restriction is alright b/c congress intended to create a messenger when made this grant of $ & not a speaker 2. govt funding a public forum a. rule - if govt turns over a piece of property for widespread public use, then becomes a public forum where govt can’t be the speaker but just funding private speakers so can’t discriminate based on content b. examples 1. permitting private party to use public property w/conditional permission not permissible 2. university can’t choose to subsidize only secular student groups & not religious student groups b/c this is discrimination based on view point when govt is merely funding private speakers 3. govt restricting lawyer activity for the indigent when partially funding it w/private $, what category? ii. Religious Freedom a. Intro 1. religion clause - 2 different pulls a. free exercise - maximum protection, freedom of religion b. establishmt - religion can’t be a part of public power, freedom from religion 2. trends in interp a. shouldn’t try to harmonize 2 sections w/each other nor w/freedom of speech b/c religion involves compulsion & not necessarily volition
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b.
3. a. b. c. d.
b. 1. a.
b.
c.
d.
2. a. b. c. c. 1. a.
1. shouldn’t judge person on basis of their religious behavior 2. shouldn’t let political figures be religious should harmonize the 2 sections w/each other & w/freedom of speech 1. level down - calls for weakening of free exercise 2. level up - more protection of establishmt aspect considerations what does govt have to do wrt religion? what can govt do wrt religion? do same rules apply to free exercise & establishmt? what about other social concerns beyond just sectarian & secular? 1. egalitarian notions 2. practicality of providing exemptions Free Exercise rule can’t treat religion worse than politics Rosenburg - university can’t choose not to fund religious student groups when funding secular student groups based soley on the fact that it is a religious group when govt impinges on religious activity, govt has burden to prove necessity for a compelling govt interest & that it is least drastic means similar to a.1 speech test Sherbert v. Verner - 1960 7th Day Adventist can’t be denied unemploymt compensation after losing job for having stayed home on Sat. for religious worship based on statute that says unemploymt compensation unavailable for those who provoke own discharge, govt has to duty to justify according to above test if govt activity is neutral then incidental effects on religious practices are constitutional Employmt Division v. Smith - OR law prohibits use of drugs & denies unemploymt compensation for terminations b/c use of drugs, P in considering Native American religion that involves certain drug gets fired & denied unemploymt compensation considerations 1. where is religious exercise? 2. 3rd party costs - societal interest in limiting drug use & loss of general deterence 3. isn’t this case just levelling religion down to level of politics? considerations 1. cost/benefit analysis a. if doesn’t cost society too much, should be tolerated b. does toleration shift cost to 3rd party in acceptable way (way & extent)? 2. how can society function if everyone has veto power examples person doesn’t have to have picture on driver’s license in order to follow one of 10 commandmts person doesn’t have to serve on jury if there are sufficient # of replacemts in order to follow religious commandmt have to pay income taxes Establishmt different contexts religion & public education 1. rule a. anything that helps religion is not violation of establishmt clause if it is just a part of a larger secular program that merely makes religious practice easier (incidental benefit justification) b. prophylactic rule that can’t do these things in public school c. considerations 1. subjective motivation of practice - unpermissible if to promote religion
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2. potential effects of isolating some groups, nonreligious or minority religions, from the sense of community 3. communicating impression that one religion is better than other recognize trade off - cost of preventing exercise that majority may want & resistance to prohibition to benefit dissenting minority 2. examples a. can’t have prayer in school b. can’t have bible studies in school c. can’t have religious symbols in school d. can’t have moment of silence in school e. can’t have prayer at graduation ceremony but can hold one the night before f. can’t have student led prayer before school or during lunch even though there is no official pressure g. can’t require teaching of creation science if going to teach evolution h. free busing for religious schools is ok b. religion & private education 1. issue - to what extent can/should public give money to private schools? a. public absolute right to attend parochial schools 2. rule a. if $ is secular & recipient can’t make it religious, then permitted 1. presumptions a. fixed amt of public $ for education 1. potential drain of $ from public system to private schools that already have money b. anything that could be used to promote religion will be used that way b. exception made in emergency situations & where there are other considerations 1. public teacher can teach remedial reading in parochial school for students 3 grade levels behind Agostini v. Felton - public school can send public teacher to parochial school to teach remedial reading for students 3 grade levels behind as an emergency measure 2. public can fund vaccinations at parochial schools - health consideration 3. public can provide bus rides - health consideration 4. public can provide textbks - social consideration? 5. science equipmt? 6. vouchers? perhaps we have reached a point where we are not as suspicious of religion anymore previous strict test from Lemming for establishmt clause violation 1. subjective intent - if can’t demonstrate secular purpose, then violation 2. objective impact really subjective 3. unpermissible institutional intertwining really subjective c. religion in public square (other than education) 1. towns can display religious perphynalia as a part of its holiday display depending on how a reasonable person would percieve the display, religiously or not Lynch v. Donnelly - O’Connor - town didn’t violate establishmt clause in this display Neuborne - plastic animal test 2. issues a. fear of public govt advancing a particular religion 1. longevity of religious devisiveness in other countries
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2.
2. extent of religious devisiveness in other countries certain religious rituals for purpose of tradition is alright
IV. Equal Protection of the Laws i. Intro - In the Beginning: Race 1. division of public & private spheres a. public has power to regulate based on 2 factors 1. safety 2. equality controversial over extent 2. definitional issue a. can redefine equality into terms of a.1 autonomy 3. historical overview a. no equality in Bill of Rights 1. equality notion limited to speech & religion in a.1 2. constitution endorsed slavery a. provision that there would be no interference w/slave trade b. 3/5 compromise for reapportionmt c. fugitive slave clause - escaped slaves to be returned by free states to their rightful owners Somerset - where owner voluntarily takes slave to free territory, then free territory is empowered to apply its own law in determining status of slave, VA slave declared free in UK court struck down PA statute requiring judicial hearing to determine identity of person taken back by bounty hunters, holding that it interfered w/owner’s property rights in recovering their rightful property Dred Scott v. Sandford - court holds that slaves are not citizens for purposes of diversity jurisdiction as intended by the framers, Congress lacked power to abolish slavery in the new territories in the MO Compromise b/c was taking w/out compensation, mere presence in free territory does not make that law apply especially if not bring suit in that territory but in another, P not free P can’t bring diversity suit b/c not citizen P can’t claim that he is free b/c was in free territory b/c territory was never free laws of free states MN or IL do not apply but MO law applies b/c presence insufficient to make laws of that forum apply b. racial equality introduced in a.13,14,15 1. a.13 - outlawed slavery 2. a.14 - equal protection of the laws, due process c. civil rights legislation 1. federal question jurisdiction invoked to provide federal forum for enforcemt of the amendmts 2. prohibitions of state govt treating blacks worse than others Stradle v. WVA- court struck down state statute forbidding blacks to serve on juries d. court rulings in exercise of its judicial power of review carved out in Marbury v. Madison foe of equality until late 1800’s 1. Congress lacked power to regulate private behavior in the public accomodation statutes 2. Congress statutes against state govt discrimination struck down b/c facially overbroad 3. separate but equal public accomodations were fine Plessy v. Ferguson - law mandating separate but equal accomodations on train for blacks & whites was ok thought to be violation of equality norm b/c:
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ii. 1. a.
b.
2. a.
b. 3.
a. if one group has less power, then can never be equal to more powerful, not equal until both are equally powerful b. if limit choices, taking away some of that person’s autonomy, freedom of association, etc. what about corresponding right of disassociation religious autonomy vs. racial autonomy c. implicit message that one group is inferior d. equality always measured by white standards other group can decide for themselves The Overthrow of “Jim Crow” intro what changed btwn Plessy & Brown v. Board of Education? 1. experience of racial division in WW2 2. trying to make US more attractive to 3rd world in efforts to combat communism 3. separate but equal leads to separate nations w/in 1 nation can’t be member of pluralistic society 4. recognition don’t have choice in separate but equal doctrine legal differences btwn Plessy & Brown 1. Plessy a. major premise (rule of law) - govt cannot harm any person b/c of race b. minor premise (facts) - separate but equal does not harm institutional issue - fact to be determined by legislature (people) instead of by court c. conclusion - separate but equal is ok 2. Brown a. major premise - govt cannot harm any person b/c of race b. minor premise - separate but equal harms institutional issue - fact determined by court instead of legislature b/c structural failure in democracy 1. to protect discrete & insulary minority that has been excluded in past difference btwn govt vs. majoritarian norm? 2. should we trust insulated minority to make right decisions for minority group? hasn’t always been the case that courts have helped the minority courts also tend to swing w/the majoritarian view when pressured court was just enforcing a majoritarian norm although was minority in area c. conclusion - separate but equal is not ok driven by minor premise & not by major premise 1. game rigged in the beginning just like how division of burden of proof generally decides the case Brown v. Board of Education controversy over holding 1. different perception of the facts by court instead of deferring to legislature a. how did court know that it harms? 2. different rule of law a. court may not have known but just shifting burden of proof 1. govt has to prove that practice doesn’t harm subordinated group 2. error deflection - court is not going to take risk in case practice does cause harm impetus for civil rights movemt but came in spurts ramifications
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a. negative response by academics & South b. court oks slow change c. mob cannot force district court to delay order of integration Cooper v. Aron - 1958, courts have power to decide what law is & not mob federal troops brought in d. court dissembled segregation laws case by case in early 1960’s e. court’s effort overridden by legislative efforts 1. 1964 Title VII 2. 1965 Voting Rights 4. 2nd generation Brown a. court held southern tactic of closing facilities to avoid integration was unconstitutional exceptions for minor institutions like swimming pools, etc. b. substantial compliance from 1963-7 c. problems 1. freedom of choice didn’t work b/c of de facto segregated residential areas & social pressures 2. redrew district lines but led to white flight to private schools a. successful in smaller districts b. unsuccessful in larger districts 3. bused in larger districts but led to white flight into other districts 4. created magnet schools to draw whites back but there is limit to how much court can order state to spend on such schools iii. Race & Equal Protection of the Laws Strict Scrutiny 1. overt burdening of particular racial group will trigger strict scrutiny a. can pass test 1. if end is compelling 2. if method is least restrictive 3. if method is substantially related to end b. examples 1. relocation of Japanese Americans in WW2 passes this test Korematsu v. US- criminal prosecution for failing to leave home & relocate to camp b/c of fear of potential sabotage in West Coast Jackson dissent - separation of power argumt, if executive wants judicial help in unconstitutional act, should give court right to decide constitutionality on its own represents risk of letting racial qualification be used at all - potential for abuse 2. use race in selection of jury fails this test a. can’t exclude jurors b/c of race issues 1. who is hurt? a. - a.6 entitled to trial by peers & only white is not his peers b. - a.14 isn’t getting due process b/c of this exclusion c. - a.14 isn’t getting equal protection of laws b/c of this exclusion d. potential jurors 3 areas in democratic society where power from govt passes to community (voting, jury duty, national defense participation) & if one taken away, then taking away right to fully participate in polity e. societal interests - empirical reliability & moral defensibility of jury verdicts philosophical issue
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c.
d.
2. a.
b. 3. a.
b.
4. a.
b.
1. objective truth exists - ID of jurors don’t matter as long as have ability to find & harbor no illwill 2. truth is social construct - ID of jurors matter b/c they create the “truth,” or maybe don’t have the ability, or maybe they harbor illwill perhaps judges suffer from this same shortcoming b/c there is not objective rule of law but they are also social constructs does this lead to color-coated vision of constitution? Strauder v. WVA - statute calls for black charged w/manslaughter to be tried by all white jury b/c forbids blacks from serving on juries b. can’t base preemptory challenge of jurors based on race or gender Batson v. KY sufficient statistical evidence may lead to inference of purpose 1. where no purpose of criteria 2. where everyone knows that certain result will occur issue over validity of empirical evidence McCleskey - claim that capital punishmt was being used in disproportionate way against black charged w/murdering a white victim via Baldus study insufficient to do away w/showing intentional discrimination so no interference of purpose, have to show direct purpose in this case knowledge of disparate impact may lead to inference of purpose 1. knowledge of impact 2. other ways to accomplish same purpose w/out such effects Arlington Heights - improper subjective factors used in zoing, court inferred where govt knew that such impacts would result & there were other ways to accomplish same purpose w/out such effects intentionally burdening all racial groups equally will trigger strict scrutiny govt can’t prohibit races from intermarrying Loving v. VA - state law prohibiting miscegenation w/the purpose of preserving racial purity of all groups (black & white) is unconstitutional b/c state interest not deemed compelling govt can’t limit people to adopting only from their own racial groups govt changing rules of game in facially neutral way to make it harder for one group to use political process for its ends govt can’t prohibit volutary surpassion of federal baseline WA v. Seattle School District - court holds that community can’t pass referendum that says that closest proximity is rule for school attendance unless federal court orders otherwise for violation of equal protection when school district board wanted to integrate govt can move baseline back down to federal level Crawford v. Board of Education - CA can amend state constitution to apply equal protection only to de jure segregation & to limit state court from ordering integration unless federal court would although state supreme court held that de facto segregation to violate equal protection under CA constitution if state court wants to apply federal law then has to follow extent of federal rights unintentional disparate impact will trigger rational basis test govt can impose verbal/literacy test for becoming police officer even if has effect of rejecting more blacks than whites WA v. Davis rationale - can’t nullify all govt acts just b/c impact group disproportionately b/c all acts do that to certain extent argumt that should apply strict scrutiny 1. minority members aren’t able to influence political system to lobby effectively
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5. a.
b.
c.
d.
e.
a. b. c.
govt imposes liability for disparate impact in employmt, voting, etc. even in private settings via Title VII affirmative action - benign use of racial classification to assist racial group will also trigger strict scrutiny definition - about degrees 1. outreach - recruiting certain racial group only 2. criteria - changing criteria if hurt racial group & not justified 3. supplemental programs - additional program created for benefit of racial group w/out affecting majority (other groups) 4. ties - where people are equally qualified, going to use race to break ties 5. advantage - where people meet minimum qualifications, going to choose based on race although other may be more qualified Adarand Constructors Inc. v. Pena 6. quota purpose 1. have inherited history of racial discrimination that we have to remediate 2. to assist institutions in functioning better in future - ie, police force, education current rule 1. when discrete discrimination is proven to have injured a discrete group of people, can use racial advantage to remediate 2. can remediate based on forward looking approach in limited institutional settings like education Bakke - continues to survive on this forward looking remediation basis in education setting 3. applies strict scrutiny a. don’t know if classification is benign unless look at it closely possible to know w/out looking at it at strict scrutiny level b. unclear that majority is voting to help racial group at its own expense strict scrutiny to deal w/democractic failure & there is none in this area argumts for no affirmative action or more limited form of affirmative action that doesn’t affect majority 1. instrumental - perpetuates social stigma & stereotype of certain groups as long as decisions are still racially driven (intentionally or otherwise), affirmative action necessary to combat racial bias as an institutional, systemic remedy 2. instrumental - affirmative action no longer as valid b/c institutions of racial discrimination no longer exist can’t get rid of racism w/just laws perception of extent of existence of racism is function of our own socioeconomic status 3. utilitarian - sliding scale problem of not knowing when to stop can stop when majority says stop 4. moral - punishing innocent white (males usually) for past or future remedy morally unacceptable certain that this group has benefitted from racism status quo isn’t sacred thing & may be morally questionable itself there is collective solution where no single person has to disproportionately bear cost but society unwilling to accomplish in this way - social redistribution issue of which institution is most appropriate to make these decisions 1. majority 2. judiciary a. more appropriate when involves harm of certain groups b/c of democratic failure level of scrutiny in tort like structure purposeful classification via race that harms that race will be subjected to strict scrutiny knowledge of disparate impact most likely subject to rational basis recklessness - no knowledge of disparate impact b/c don’t check
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d. negligence - no knowledge of disparate impact even w/attempts to check e. strict liability iv. Gender & Equal Protection of the Laws Intermediate Scrutiny 1. historical intro a. voting 1. Miner v. Harrison - upheld excluding women from voting 2. 1844 movemt for female suffrage 3. 1890 - first female suffrage in WY b. employmt 1. Bradwell - 1873, IL statute forbade women from practicing law upheld c. first gender discrimination case won in favor of women Reed v. Reed - 1968, ID statute dictated that when man dies w/out will & there are 2 individuals equally close to decedent, man will be chosen to be administrator of estate based on assumption that man will more likely have more business experience & therefore be better at administrating estate, court struck down difficult area b/c aspects of social assumptions/realities & individual volition 2. intermediate level of scrutiny applies a. intro 1. traditionally 2 levels of scrutiny in equal protection area a. rational basis b. strict scrutiny - for historically discriminated against discrete minority 2. women don’t tend to fit in either a. not discrete minority b/c constitute 53% of population although not all translates into power probably b/c of acculturation b. live longer than men on average, especially wealthy women over wealthy men but not translated into power probably b/c of acculturation b. intermediate level used generally 1. important govt interest & narrowly tailored to achieve this interest 2. rationale - concerned about gender classification but women better able to take care of themselves than racial minorities outcome of cases will most likely be the same even if used heightened level of scrutiny except for draft cases (would strike down exclusion of women in draft) Marshall - argued for sliding scale of more flexibility to consider other factors like motivations, reasonable proxy of act, etc. b/c rigidity of determination of level of scrutiny determines outcome of case (strict - govt loses, rational basis - govt wins) 3. sometimes cases will be disposed of on rational basis if it can be Craig v. Boren - statute that prohibits sales of low alcoholic beverage to men under 21 & women under 18 b/c greater tendency of young men to be involved in drunken driving arrests struck down b/c fails even the rational basis test where women can buy such beverages for men & where low alcohol content beverage Michael M. v. Sonoma County - statutory rape statute for girls 16 & under but not for men upheld b/c passes rational basis test where rape presents higher risk to girls in terms of potential pregnancies that boys don’t face 4. sometimes higher level of scrutiny is applied - something in btwn strict & intermediate US v. VA Military Institute - VMI precluding women from attending b/c likelihood that only a few would actually finish program while disruption of applicants would be great & instituting inferior sister program (less resources, prestige, etc.) violates equal protection, have to test individually & can’t base on group statistical estimations, no substantially justified govt interest don’t reach question of whether separate but equal would stand up in gender equality
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c. issues
Scalia dissent - sister program not perfect but decent, here passes intermediate level scrutiny test especially when no intent to harm Rehnquist concurrence - should also change institution to make it a place where women would be more likely to succeed
1. when can gender be used as proxy as a benign classification? a. can’t codify assumptions of roles of men & women just for administrative convenience even if it helps women - unconstitutional 1. rationale - basing law on current social norm makes it much more difficult to norm (Ginsburg) Frontiero - man in military can get benefits for wife but for woman in military to get benefits for husband have to prove that she provides at least 1/2 of his support based on assumption that women more likely to be dependent on men than reverse, court holds this rule violates equal protection b/c based on assumption soley for administrative convenience so if require both to prove or not, then ok? Craig v. Boren - see above Califano v. Goldfarb - 1977, law that says survivor benefits of decedent man automatically go to widow but only goes to widower if can prove that he received at least 1/2 of his support from decedent wife struck down under a.5 due process b/c based only on assumptions US v. VMI - see above b. when there is no govt intent to discriminate against women - constitutional 1974 case - court upheld exclusion of pregnancy from CA public employee health insurance coverage b/c there was no intent to discriminate against women US v. VMI - dissent - see above 2. does it require 100% accuracy? a. can’t even when 100% accurate 3. when can gender be used unequally to treat them equally (similar to affirmative action)? a. depends on whether program is equal or better than one for other gender 1. can’t provide elite all black boys school w/out one for girls 2. probably can’t provide elite black girls school w/out one for boys Harlem High - elite school for black girls where 1/2 funded by private party & other 1/2 by community, requiremt by private party that 90% be black & all female b. if can separate characteristic from gender, greater likelihood that it will be constitutional 1. can provide pregnancy benefits even in world where no other e-e are guaranteed benefits CA law for disability benefits for pregnancy upheld but guaranteed unpaid leave struck down b/c based on assumption of roles of women & men that women generally tend to stay home to care for babies 2. in context of abortion, may require giving men rights b/c they are also involved in act of conception c. if can apply only to women b/c of biological difference, greater likelihood that it will be constitutional 1. can provide pregnancy benefits even in world where no other e-e are guaranteed benefits CA law for disability benefits for pregnancy upheld but guaranteed unpaid leave struck down b/c based on assumption of roles of
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women & men that women generally tend to stay home to care for babies 2. can give women abortion right to make help make themselves equal to men to remain in work force complications when bring in 3rd party interest of potential life at stake d. can’t guarantee unpaid maternity leave only for women see above v. Economic Regulation & Equal Protection of the Laws Rational Basis Scrutiny 1. rational basis level of scrutiny a. assumption that there is no democratic failure in this area 1. advancemt of common good achieved public choice theory of democracy posit that all parties are motivated by self-interest & achieve that 2. other harmed groups can address issue politically & not judicially unrealistic b/c interested group is probably better organized w/more resources & harmed group have less resources or are less organized b/c each of individually little to lose b. govt usually wins Williamson - if there is rational basis for govt economic action, then court has to sustain govt action, legal rule that no one could get glasses w/out prescription from opthamalogist upheld although issue may have been just about opthamalogists getting $ from selling eyeglasses at detriment of opticians & consumers vi. “Victim Groups” & Equal Protection of the Laws Energized Strict Scrutiny? 1. victim groups under rational basis a. passes test if statute implicates group where they brought condition upon themselves vs. discrimination based on nonchangeable characteristic 1. drug users NYC Transit Authority v. Beazer - city can discriminate against methodone users (recovery heroine addicts) as class regardless of which job they are applying for b. court not going to engage in social redistribution 1. students Rodriguez - no violation of equal protection found where per capita of student expenditure in one district was twice that of another poorer area b/c funded by respective areas’ property taxes open for state constitutions to differ & provide more extensive rights c. court going to give deference to military 1. gays in military Steffan v. Perry - ok to discharge naval person after discovering his homosexual status b/c military can dictate how to run itself, passes rationally related test Watkins v. US Army - 9th circuit court held that can’t discharge army person for having homosexual tendancies after 14yrs of successful service b/c based soley on status & prejudice & gays are suspect class d. fails this test if statute based on irrational stereotypes 1. retarded individuals City of Cleburne v. Cleburne Living Ctr - court holds that city cannot deny permit to group home for mentally retarded w/justification that residents didn’t want it b/c would decrease property values, increase traffic, increase safety issues, etc. b/c based on irrational stereotypes of mentally retarded e. fails this test if means & ends don’t align satisfactorily where statute makes it politically more difficult to achieve goals than all other groups 1. going to consider motivation of statute where there is no connection btwn means & ends
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2. gays in politics Romer v. Evans - Co. constitutional amendmt prohibiting gay protection laws, court strikes down this amendmt claiming it fails rational basis, means of taking gay politics out of ordinary politics & making it constitutional politics too draconian compared to limited ends supplied by state potential holdings 1. can’t take away a right based soley on status w/out a hearing considerations a. role of courts in institutional relationship w/other branches b. conception of equal protection c. appropriate level of scrutiny d. question - is it ever justifiable to defend unequal outcome where dislocations of going the other way are too high sum of levels of scrutiny a. strict scrutiny - level really varies although supposedly only one 1. victim groups - race, alienage, circumstances of birth 2. disparate allocation of fundamental rights a. non-textual but fundamental to culture b. intermediate scrutiny 1. gender 2. a.1 - O’Brien c. rational basis 1. economic regulation 2. Beazer 3. Cleburne US Constitution a. negative documt b. only positive aspect - grants attorney for when charged w/crime (govt has to spend $ providing public defenders) vii. “Fundamental Rights” & Equal Protection of the Laws - not on exam 1. intro a. equal protection purpose 1. to protect victim groups 2. to protect substantive rights a. those thought to be fundamental rights - limited to travel, vote, pro-create 1. nontextual 2. controversial b. level of scrutiny - strict scrutiny not responsible for this on final unless have sufficient time to return to it at end V. Due Process: Procedural & Substantive - 3 Roles of Due Process Clause i. Federalization 1. a.5 applies to federal govt a. plays role of non-textual equal protection b. plays role of procedural fairness 2. a.14 applies Bill of Rights to states ii. Procedural Fairness 1. purpose of due process a. general grantor of procedural fairness in areas beyond criminal law 1. how much taken from these other amendmts unclear potential redundancy b/c a.4,5,6 cover specific elemts in criminal setting b. 2 philosophies
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1. preventing incorrect outcomes 2. dignity theory that inherent dignit of individual requires protection against state via these restrictions less efficient strongest in yrs where equal protection is strong - requires hearing, etc. loses out to efficiency concerns when equal protection is not strong - requires fundamental equality & not formal procedures court has never chosen btwn 2 2. triggering of due process (3 predicates) a. have to prove deprivation of life easy if not involve abortion b. have to prove deprivation of liberty 1. definition to be defined by entity against which the suit is brought difficult on margins 2. can’t be defined in a way that takes away due process protection leads to bizarre result where it is better to give nothing than something 4. examples a. reputation is not liberty 1. person losing job, house, etc. b/c mistakenly identified by state as criminal cause of action would be slander c. have to prove deprivation of property 1. definition to be defined by entity against which the suit is brought a. to determine whether there is a property right of state creation, have to look at state creation unless so strong that it can be implied 1. reasonable expectation of being rehired is not a property right where the state doesn’t define it as such Board of Regents v. Roth - untenured professor is not rehired, court holds that he is not entitled to hearing on matter b/c no due process b/c no deprivation of property right as state defines it 2. uncertain whether taking away ability to find another job would create a property right difficult on margins 2. can’t be defined in a way that takes away due process protection leads to bizarre result where it is better to give nothing than something iii. Non-Textual Substantive Protection - Economic 1. level of scrutiny higher than rational basis a. Holmes & Brandeis dissent that rational basis should apply to economic cases & not this sliding scale of heightened scrutiny 2. right to contract for nature of employmt is liberty right a. state can limit K rights under substantial justification of police power 1. to uphold health 2. to uphold public morals 3. under crisis situations a. regulating milk prices in depression to prevent deflation permitted Nebbia v. NY perhaps makes difference btwn consumer/producer v. labor/entreprenuer b. court upheld govt regulations of min wage, max hrs, union organization West Coast Hotel, Co. v. Parrish - 1937, court upheld women’s minimum wage US v. Darby - 1941, max hr, min wage upheld Phelps Dodge, Corp. v. NLRB - court upheld legislation permitting workers to unionize & bargain w/e-rs
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federalism driven by Great Depression concerns/issues 4. to equalize bargaining power btwn parties insufficient 5. just based on rational basis insufficient a. concern that true purpose in peicemeal legislation is to keep certain groups out of mrkt Lochner v. NY - courts strikes down state statute prescribing max # of working hrs for bakers b/c interferes w/bakers’ right to sell as much labor as they want & e-rs’ right to buy as much labor as they can couldn’t apply K clause b/c statute only applied to prospective employmt K whereas clause only applies to K in existence Smith v. Ames - court struck down return rate regulation b/c was taking w/out just compensation (due process), confiscatory return rate assumed that there was natural rate of return Muller v. OR - 1908, court upheld max working hrs for women based on stereotype that women are not strong enough to protect themselves Adair v. US - federal law permitting K employmt conditioned on no union membership struck down Coppage v. KS - state law permitting K employmt conditioned on no union membership struck down Adkins v. Children’s Hospital - 1923, minimum wage for women struck down 3. issue of when corp. is considered person a. person for a.1 & a.14 purposes b. not person for a.4 iiia. Non-Economic Substantive Due Process 1. covert a. fundamental rights 1. travel 2. pro-create 3. vote b. privacy 1. contraceptives 2. abortion 3. suicide c. subject to strict scrutiny 2. overt a. law forbidding related family members from living together violated equal protection Moore v. East Cleveland b. parents can decide where to send their children for school Pierce v. Society of Sisters - 1925, OR can’t eliminate parochial schools liberty concerns over take property concerns iv. Relationship Btwn Due Process, Takings & K 1. property protection isn’t available unless it falls under one of 3 categories: a. K - Article 1, §10 1. state can intercede for sufficiently strong interests under police power a. generally includes protection of health & morals b. other sufficiently strong interests in certain circumstances & if doesn’t cause complete abrogation of K rights Home Bldg & Loan Corp. v. Blaisdell - statute prevents bank foreclosures & puts them on different repaymt schedule (defermt of paymt during depression), court upholds b/c is not a complete abrogation of K & conditions sufficiently strong to justify police power
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c. state’s aim cannot be to equalize bargaining power, to be fair, to alleviate hardship of one party d. but state burden of proof e. purpose - to prevent debtors from eliminating their debts, since debtors constitute majority of population takings is not considered an option if state does intercede 2. state cannot renege as party to K even for very important reasons unless for drastic change that state couldn’t have forseen US Trust Co. v. NJ - state port authorities raised $ via bonds w/covenant that says $ earned will not be used for subsidizing mass transit system, state then wanted to used $ to subsidize mass transit b/c of OPEC oil crisis, court holds that state cannot do this b/c violates K clause 3. protects only current, existing K Lochner v. NY Allied Structural Steel v. Spannus - state passes statute requiring co. who had pension plan & then moved out of town, to pay certain amt, court holds this statute is unconstitutional as it applies retroactively (changing requiremts on corp.) but could apply it prospectively b/c K clause doesn’t cover prospective Ks Marshall - argued for retrospective & prospective application of clause this clause protects little b/c protects only current K (not even completely) where no takings application b. due process 1. procedural weakness is definition of property by state see previous section 2. substantive see previous section c. takings - a.5 1. govt can only take property under following circumstances a. private property can only be taken for public use 1. public use definition seems to be expanding - if better for all, for society at large, seems to be sufficient 2. court seems to be permitting govt to take property away to give it to another private party although never decided on point Neuborne - bothers him that definition is so expansive was really litigated only in past but may be changing b/c of expansive definition b. only upon fair compensation 1. determined at hearing & not according to free mrkt 2. finding a taking a. taking away all value is taking 1. issue a. why does private windfall belong to private while private risk does not? PA - law required that can’t mine so much coal that would endanger structures on surface, court held this was taking probably b/c law was de facto prohibition of all mining in that state b/c already had lots mined from it Lucas v. SC Coastal Commission - regulation prohibiting further bldg on particular land passed after purchased land to build single family homes, court holds this as taking b/c took all value from land
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a. v. 1. a.
b.
b. making it merely less profitable is not taking 1. rationale - govt couldn’t regulate anything b/c would be too expensive Penn Central - owner bought bldg & wanted to bld office tower, city didn’t want it bldg to change so landmarked it after this sale, court holds that this interference w/reasonable investmt expectations of owner is not taking if there is still some value left to owner as is KY - same statute as in PA upheld b/c effectively just limited amt that could be mined & didn’t prohibit mining altogether like in PA c. if act requiring govt approval creates social costs & if govt demand for easemts compensates for social cost, then not taking 1. otherwise taking will be found 2. there has to be nexus btwn condition govt is trying to extract & compensation for additional cost of private action Nollan v. CA Coastal Commission - conditioning grant of permit to remodel one’s house on granting of easemt on property for access to public beach is taking b/c this easemt does not compensate for additional cost of remodelling d. open question when regulation works such a hardship but still doesn’t take away all value commercial speech doctrine also offers some protection for property can’t use speech control in order to regulate price of product Non-Textual Substantive Protection - Dignitary intro 7 non-textual rights 1. freedom of association a. least controversy 2. travel 3. procreation 4. voting 5. conception a. Douglas - would rather conceive of this right as a freedom of association 1. can’t prohibit married couples from using birth control under a.1 b. Brennan - would rather conceive separate right of privacy where personal autonomy reigns 1. freedom of association would lead back fundamental rights jurisprudence 6. abortion 7. suicide concerns 1. non-textual rights are based on culture & tradition which are constantly changing so these rights may also change Neuborne prediction 2. stare decisis taken seriously in this non-textual rights area Planned Parenthood of Southeastern PA v. Casey - 1992, Kennedy refuses to overturn Roe b/c of stare decisis b/c no overwhelming reason to overturn how do you know if previous decision was wrong 3. any legitimacy to non-textual rights? a. issue of constitutional interpretation 1. no a. b/c judicial shouldn’t have this power against majoritarian legislature & executive 2. yes
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a. can extend right if there is some textual basis 1. balancing judicial discretion w/some basis in constitution b. can extend right even if no textual basis 1. equity of statute 2. from tradition Goldberg 2. privacy a. argumt in favor of creating this general right 1. textual support of privacy right in a.3,4,5 2. alternatively textual support in a.9 - invitation to court to determine other non-enumerated rights Brennan b. areas covered 1. conception a. can’t regulate conception btwn married people Griswold v. CT - 1965 b. can’t regulate conception btwn non-married people Eisenstadt v. Baird - 1972 c. issues 1. conception right based on establishmt clause - religious based rights 2. problem b/c to some extent most justice conceptions come out of religion so why incorp some aspects of religion into law & not others 2. abortion a. decisions of bodily functions so personal that person should be able to make those decisions w/out state compulsion in absence of compelling interest 1. not compelling until there is a viable life outside womb of mother, here not until end of first trimester Roe v. Wade - 1973 b. issues 1. provides role to technology - if tech permits life before end of first trimester 2. 3rd party costs - determinable 3. who should decide c. Ginsburg - would prefer to have taken equality route 1. abortion right to permit equal participation in society by women VI. Federalism: Vertical Separation of Powers 1. intro a. federalism 1. federal govt seems to have won out over states a. reasons 1. depression - central govt had to control economic system to save country 2. WW2 - centralization necessary to to win national threat 3. cold war - centralization necessary to protect against this “formidable” threat 2. conception - local units are sovereign & have some degree of autonomy from federal & can disagree 3. theory - no theory identifying which rights, etc. inherently belong to state or federal govt b. decentralization - pyramid structure 1. what norm binds entire system together? 2. which norm dominates? i. Positive Grant of Power to Federal Govt 1. a.10 - any rights not enumerated to federal govt retained by states a. enumerated powers
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1. commerce clause - Article 1 a. issue of constitutional interp 1. narrow - only covers way goods go btwn 2 states 2. broad - read broadly unless conficts w/intrinsic power of states where intrinsic power over takes federal power b. continual expansion over time - exercise in causation 1. only covered way goods go btwn 2 states 2. covered any instrumt of commerce that crosses state lines Gibbons v. Ogden a. leads to regulation over railroads, airlines, etc. 3. covered anything crossing state lines a. Congress could forbid items of gambling across state lines Champion v. Ames - purchases & ads for lottery tickets 4. didn’t cover act of manufactor Hammer v. Dagenhart 5. covered any act of manufacture if ultimate product will end up in commerce across states a. decided Dagenhart was wrong Schechter Poultry v. US Carter v. Carter Coal Co. 6. covered something that will never be a part of commerce but will affect something that some day that is commerce Wickard v. Filburn - fed agi agency could still regulate grain grown by man to feed to his pigs b/c if didn’t grow on farm, farmer would have had to buy grain that may have crossed state lines 7. covered de minimis amt of commerce received/sold by nature of business a. used to uphold federal civil rights discimination in public accommodations (amusemt parks, movies, restaurants, hotels) 1. can’t enforce under a.14 equal protection b/c only applies to state action a. perhaps state inaction could be deemed state action at certain point b. applies if establishmt serves people who participate in commerce across state lines Heart of Atlanta v. US - hotel servicing people moving across state lines prosecuted under federal civil rights statutes upheld under commerce clause no substantive right to not serve certain people c. applies to establishmts even when not serving people crossing state lines but business may have received/sold commerce that may have crossed state lines Al’s BBQ - restaurant didn’t serve blacks at local neighborhood restuarant, court upholds application under this principal c. may be constricting 1. federal govt not permitted to exercise gun control (prohibiting guns near school premises criminally) based on probability that gun may have crossed state lines US v. Lopez - state had same law but less stiff punishmt than federal law so prosecutors applied federal law, struck down by court state power - upheld under general police power
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2. potential interp of Lopez a. broad reading - Congress can’t regulate everything under guise of commerce clause #2 b. narrow reading - Congress made mistake in not identify causation c. intermediate reading - court now going to make clear distinction btwn regulation of commercial/economic activity (intra- & interstate) & things that don’t look like economic regulation on its face 1. when economic, still deferring to federal govt 2. when not economic on its face, going to require federal govt to prove connection 3. questions still left open a. where does fed govt have to make its case in Congress or in court? b. how strong does fed govt case have to be, plausible or persuasive? 2 potential causes 1. Congress was abusing commerce regulation power - growing sentimt that states have just become administrators of fed govt 2. court reinterp commerce clause power d. other issues 1. necessity of central coordination due to difficulties in coordination state action 2. regulating violence against women a. a.14 equal protection 1. wouldn’t work b/c no state action 2. perhaps at some point state inaction will be deemed state action 3. private action not covered by constitution except travel (immunities & privilege), slavery those provisions directed towards individuals b. commerce clause 1. i don’t think this will fly 2. violence against women is primary cause for women absence from work b. Neuborne 1. thinks it a mistake to read a.9,10 substantively 2. more correct to think of them as canons of construction a. equity of statutes - expanding when rights are involved 1. when uncertain, vote in favor of rights b. reconciliation - restricting when power is involved c. Scalia 1. asks what is nature of thing that creates right? what does it mean to be a sovereign state? similar to a.1 dignitary justification - what is nature of human that creates/demands certain rights? a. essence of communication, etc. areas a. political - easiest b/c politics generally thought to be connected to sovereignty 1. limitations on states fine when constitutional examples a. constitutional limitation on form of state govt - have to be republican 1. court hasn’t defined what republican means
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2. ii. 1. a.
b. incorp of Bill of Rights to states 2. limitations on states problem when non-constitutional a. authorized but non-constitutional b. can they be so severe to violate a.10? examples a. Congress can’t dictate to states how to spend their money 1. Congress couldn’t condition acceptance into union upon state placing $ in certain fund b. Congress can’t tell states how to organize their govt 1. NE has unicameral legislature instead of bi- like all other states c. federal govt can’t draft state e-es to do federal work 1. mandatory waiting period on gun purchases during which local sheriffs are to investigate purchaser’s background means that Congress can pass such a law but will have to have fed e-es to run which will net in locality loss 2. can’t draft executive & legislative e-es but Congress can draft state judges to listen to federal causes of action! powerful but not revolutionary - reinforces federal power issue is whether we should apply a.10 into 2 realms below b. economic 1. questions a. is economic autonomy a part of sovereignty? b. if yes, is there some part that can be protected by a.10? 1. can’t be all b/c all issues would lead back to $ 2. generally allocation of state resources left to state a. about process (procedure) v. outcomes (substantive) so as long as process doesn’t infringe on state sovereignty ok b. can argue that all political decisions are about allocating scarce resources c. can argue that when fed law imposes obligation on states, effectively taking $ away from certain activity to fulfill this obligation 1. what is consequence if states have total economic autonomy? - probably confederate states 2. is there a way to balance? - federal taxes not seen as unconstitutional as infringing upon state sovereignty b/c significantly diminishes state tax base c. social 1. argumts strongest against this realm being conceived as part of state sovereignty a. incorp of Bill of Rights to states - says there will be single rule on social issues/norms like abortion, free speech, etc. 2. question a. are there limits to federal norms in this area or does federal have free reign? Article 1 necessary & proper clause - wide grant of power to federal Negative Removal of Power from States intro positive grant of federal power necessarily implies negative removal of power from states 1. commerce clause example
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a. constitution gives federal govt power to create single, uniform economic system so necessarily prohibits states from obstructing this power b. about figuring out when state is obstructing this power 1. easy - when state discriminates against other states, citizens of other states a. Scalia - agrees that can knock down this type of state activity b/c really economic discrimination prohibited by constitution 2. hard - when not even substantive but when so harmful to overall system & so little benefit to state a. Scalia - rejects substantive balancing c. non-textual but implied so immediately suspect b. court interp 1. old - were willing to go down substantive road 2. new - unwilling to go down substantive road but down equality road instead
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