I. THE SUPREME COURT'S AUTHORITY
A. Foundation of Judicial Review
1. Marbury v. Madison - SC asserts its power to review constitutionality of
actions of exec. & leg. branches
a. Holding - If SC identifies a conflict between const. provision & cong.
stat., the ct. has the authority to declare te stat. unconst and refuse
to enforce it.
B. SC Review of State Court Decisions
1. Martin v. Hunter's Lessee - SC held that ct. could review the constitutionality
of a decision by a state's highest ct.
a. Policy - stop state bias, uniformity of C interpretation
II. THE FEDERAL SYSTEM
A. Rise of National Authority
1. Doctrine of Implied Powers - Fed Govt may validly exercise power that is
ancillary to one of the powers explicitly listed in C so long as this power
doesn't conflict w/ specific C prohibitions
2. McCulloch v. Maryland - Ct. interpreted the necessary and proper clause so
as to est. the legitimate role of the Fed Govt. in dealing w/ nat'l problems
Three Principles Established
1) Fed Govt draws its authority directly from the people
2) Interpretation of necessary & proper clause so as to allow Cong a
wide scope of authority to implement enumerated powers
3) State legislation which might interfere w/ exercise of fed powers
is invalid (Supremacy Clause)
Test: Fed Acts are legit as long as they bore reasonable relationship to
enumerated power of fed govt.
III. THE FEDERAL COMMERCE POWER
A. Article I § 8 - Congress has powers to "regulate Commerce w/ foreign nations,
and among the several states and w/ Indian Tribes"
B. Growth of Federal Power to Regulate Interstate Commerce
1. Gibbons v. Ogden - Two Arguments
a. Commerce Clause - Cong can regulate commerce among states. No
area of interstate comm. is reserved for state control.
b. Supremacy Clause - Ct. holds NY monopoly invalid cause fed stat.
trumps state stat.
C. Economic Regulation - Justifying National Reg. of Local Activities on the Basis
of Their Relationship to Interstate Commerce: Affecting Commerce Arguments
1. E.C. Knight (1895)- Manufact vs. Commerce. Held, Local activity was not
reachable unless it had a "direct" rather than "indirect" effect on interstate
commerce: Ct. couldn't under commerce clause forbid monopoly in
manufacturer cause it was indirect.
2. Shreveport Rate Case (1914)- Congressional regulation found to fall w/in
commerce power so long as activites being regulated had "substantial
economic effect" upon intestate commerce. Here, "local" r.r. rates were
reachable cause of practical econ. impact on interstate transport.
D. National Police Regulation: Commerce-Prohibiting Technique (prevent spread to
other states). Objective Moral not Econ
1. The Lottery Case (1903) - Held, Cong. may prohibit transport of lottery
tickets in interstate commerce cause cong. not interefering in internal state
2. The Child Labor Case (1918) - Held, Cong. may not under commerce power
pass a law prohibiting the transportation in interstate comm of products of
companies employing child laborers. Here, the goods being shipped
weren't the evil that cong. was trying to prohibit.
E. The New Deal Cases
1. The Sick Chicken Case (1935) - NIRA found unconst. as applied to
Schechter its activities not in "current" or "stream of commerce" cause
chickens only sold locally. Also not "affecting commerce".
2. Carter Coal Case (1936) - Act setting max. hours and min wages for coal
miners held unconst. cause production in Knight sense was "purely local
F. PRESENT DOCTRINE - Ct. will uphold commerce based laws if there is any
rational basis upon which Congress could have found some relation between
its regulation and interstate commerce. THREE THEORIES:
1. Expanded Substantial Economic Effect Theory
a. NLRB v. Jones & Laughlin (1937) - Held, that the NLRA as applied to
J&L was w/in the comm clause cause a work stoppage of PA
intrastate manufact would have a substantial effect on interstate
commerce. Doesn't matter if activity being regulated occurs before,
during or after interstate movement if close & substantial relation to
2. Cumulative Effect Theory - Cong. may reg not only acts which taken alone
would have a substantial econ effect on interstate comm, but also an entire
class of acts, if the class has a substantial econ effect
a. Wickard v. Filburn (1942)- Act set quotas on amt. of wheat that could
be consumed on farm whre raised was upheld cause the cumulative
effect was large and the regulation of homegrown wheat is
reasonably related to protecting that commerce.
3. Commerce Prohibiting Technique (Police Power Regulations) - general
a. U.S. v. Darby (1941) - overruled Child Labor Case. Cong. has power
to regulate hours and wages of workers engaged in the prod of goods
destined for interstate comm and can prohibit shipments of goods
manufactured in violation of wage & hour provisions.
Superbootstrap - "regulate-the-local-activity-as-a-means-of-
F. Federal Criminal Laws
1. Perez v. U.S. (1971) - Anti-loansharking law found const cause Cong can
regulate an entire class of activities which affects interstate commerce
G. Civil Rights
1. Civil Rights Cases (1883) - 14th A doesn't reach private acts of
discrimination but encompasses only state action which is discriminatory
2. Arguments under Commerce Clause (Ollie's BBQ)
a. Discrimination discourages blacks from travel
b. Obstructs business - distrubances may cut down bus
c. People may be unwilling to travel or settle in diff parts of country
d. Civil unrest may cut down retail sales
3. Heart of Atlanta Motel (1964) - 75% of guests out of state. Refused rooms to
blacks. Cong can pursuant to commerce clause power prohibit
discrimination in public acommodations so 1964 Civ Rights Act is Const.
Discrimination by motels impedes interstate travel
4. Katzenbach v. McClung (1964) - Ollie's BBQ refuses sit down service to
blacks. No evidence that appreciable part of bus in serving out of state
travellers. Court uses Wickard v. Filburn cumulative effect theory to hold
that application of Civ Rights Act was OK.
IV. THE COMMERCE CLAUSE AS A RESTRICTION ON STATE POWER TO
EVOLUTION OF BASIC DOCTRINE
A. Premption: Gibbons v. Ogden (1824) - NY monopoly invalid cause it conflicted
w/ the fed commerce power. Fed stat. preempted state action when conflict
(Supremacy Clause). When states enact law in conflict w/ fed law, ct. must ask:
1) whether laws collide w/ Act of Congress
2) it deprives citizen of a right to which the Act entitles him
B. Dormant Commerce Clause - Congress has not spoken
1. Willson v. Black Bird Creek Marsh (1829) - Upheld Del. law authorizing
building of dam even tho it interfered w/ navigation liscensed under fed
law. Held that the purpose of the del law was health not reg of interstate
comm and it didn't discriminate against interstate commerce. Cong. silent
2. Cooley (1851) - Local v. National Distinction led to direct v. indirect test:
affirmed Pa. law requiring use of local pilot. Held, states could reg those
aspects of interstate comm that were of such a local nature as to require
diff treatment from state to state but not those requiring uniform nat
TEST: If the local interest outweighs the national interest and the
regulation doesn't discriminate against interstate commerce, the states
are allowed to regulate. But if it appears that the State regulation has
placed a burden on interstate commerce, the court has drawn the line
and refused to hold state reg valid even if local subject is involved
C. State Regulation of Transportation
1. RULE: A state reg which affects interstate commerce must meet the
following in order to be upheld
1. Must pursue legitimate state end
2. Must be rationally related to that legitimate end
3. The regulatory burden imposed on interstate comm and any
discrimination against interstate comm must be outweighed by
the state's interest in enforcing regulation
a. South Carolina Highway v. Barnwell (1934) - Upheld S.C. reg limiting
size of trucks because it was applicable to interstate and intrastate
traffic alike and cause highways are a local concern. Applied
b. Southern Pacific v. Arizona (1945) - Shot down stat limiting length of
trains as violating dormant Commerce Clause. The small increase in
safety was outweighed by the national interest of efficient interstate
commerce. Applied Balancing Test
3. Modern Approach
a. Bibb v. Navajo Freight Lines (1959) - Mudguards on trucks.
Intensified review on highway cases. Held, local safety measures,
tho undisriminating has placed unconst. burden on i.c.. Safety
advantage far from clear. - Balancing
b. Raymond Motor Transp (1978) - expanded Bibb's heightened scrutiny.
No evidence of increased safety from law banning trucks over 55ft.
c. Kassel v. Consolidated Frightways (1981) - Held, Iowa stat outlawing
65 ft trucks was unconst. No persuasive evidence of increased safety
D. State Protection Against Out of State Seller's - Incoming Commerce
1. Intro - if purpose of state reg is to protect in state producers or strengthen
local economy ct. will usually strike it, however if it is to promote health
or safety they will balance the benefit against burden to i.c.
2. Baldwin v. Seelig (1935) - NY law forbid sale of milk from out of state if it
was purchased at alower price than the one set for purchases w/in NY.
Held, act stricken cause it was to ensure that NY milk producers stayed
3. Silas Mason (1937) - compensatory tax OK. Taxing out of state goods at
same rate as in state is OK cause it removes an otherwise competitive
disadvantage imposed by local tax on local products
4. Dean Milk (1951) - Must use least restrict means to reach health objective.
Invalidated ordinance barring sale of milk unless it had been made at
approved plant w/in 5 miles of Madison. TEST: A locality can't
discriminate against i.c. even to protect health and safety if reasonable
alternative exist which don't discriminate and are adequate to conserve
legit local interests.
5. Hunt v. Washington Apple (1977) - Rule: A law, even tho
nondiscriminatory on its face and applied evenhandedly, is invalid if the
practical effect is discriminatory. Held, invalid law requiring all apples
shipped into state to bear U.S. grade. WA had its own stds. Law had
practical effect of burdening interstate sales of WA apples and
discriminated against them.
6. Exxon v. Maryland (1978) - Where the disproportionate impact is truly
accidental and doesn't directly derive from the fact that the burdened firms
are out of staters, the Court will normally uphold the statute.
7. Philadelphia v. NJ (1978) - Held invalid NJ stat which forbid importation of
waste collected in another state. "whatever NJ's purpose, it can't be
accomplished by discriminating against articles of commerce coming from
out of state unless there is some reason, apart from their origin to treat
them differently." RULE: State can't reg importation in manner that gives
more than incidental preference to local goods unless the measure is
strictly necessary to prevent direct injury to the public health or safety or
some other important nonecon. local interest.
E. State Protection Against Out of State Buyers - Outgoing Commerce, Hoarding
1. RULE: If subj matter is of local concern and the effect on i.c. is incidental,
the reg is likely to be sustained as long as it is non discriminatory even if
motivated by local econ. concerns rather than public health & safety.
2. H.P. Hood & Sons (1949) - Restriction imposed for the avowed purpose &
w/ practical effect of curtailing volume of i.c. to aid local economy is
3. Protection of Local Resources - States may not prefer local buyers or reg that
require state bus. operations
a. Hughes v. OK (1979) - Overruled stat which forbid transport of
minnows out of state as facially discriminatory
4. Requiring business operations to be performed in the home state
a. Pike v. Bruce Church (1970) - AR law required all AR cantalopes to be
packed in AR. Ct. said state's int in enhancing reputation of its
cantaloupes is legit, but it is outweighed by the national int in
5. The Market Participant Exception to Commerce Clause Restraints - RULE:
If a state is acting as a market participant rather than a market regulator,
the dormant CC places no limitations
a. Hughes v. Alexandria Scrap (1976) - Upheld MD subsidy scheme:
state bounty for scrap autos can favor scrap processors in state
b. Reeves v. Stake (1980) - SD participant in cement market may prefer in
c. White v. Mass Council (1983) - Sustained Boston requirement that
50% of workforce on all cosntruction projects funded by city be
d. South Central Timber v. Wunnicke (1984) - Struck down Alaska law
limiting sale of timber from state lands cause it in effect result in
downstream regulation. A state may only impose burdens w/in the
F. The Role of the Privileges & Immunities Clause in Limiting State Regulation (Art
1. Intro - Clause intended to enable people to move from state to state, get jobs,
promote interstte harmony. It serves as a restraint like CC on efforts by
states to bar out of staters from acess to local resources and matters of
fundamental concern. City or state can run afoul of P&I but not CC.
2. United Bldg & Construction Trades Council v. Camden (1984) - Invalidated
under P & I clause, a city ordianance that no less than 40% of labor force
on any const project funded by the city must reside in the city. Reasoned
that P & I bars discrimination based on municipal residence just as it does
based on state.
Test: 1) Whether benefit or activity constitutes one of P&I's protected by
2) Is there a substantial state interest in the differing treatment
3. Edwards v. California - CC rationale invalidated law making it a
misdimeanor to bring into Ca any indigent person who is not a resident of
the state. Anti Okie Law. Ct. said state can't isolate itself to solve its econ
4. Baldwin v. Montana Fish & Game (1978) - Held, state may charge more to
non residents for hunting liscense cause elk hunting is reacreation, not
livelihood. Right to hunting liscense is not "fundamental" to promotion of
Cox: Public beaches would probably also not be considered fundamental
V. SEPARATION OF POWERS - Conflict between Legislative Power & Exec.
A. Domestic Affairs
1. Steel Seizure Case (1952) - Held, Pres. Truman was excercising lawmaking
function when he ordered seizure of steel mills during wartime. Pres may
not make laws; he may only carry them out. Rejects argument that it was
in theatre of war.
2. Chadha (1983) - One-house veto is unconst. violation of separation of
powers. The action taken by House in rejecting the deportation suspension
was legislative action and so requires vote by both houses and presentment
B. Pres Power to Remove Subordinates/Appointments Clause - Art II §2
1. Art II § 2 - Pres has power to appt fed officers. Cong can't make any
applointments. But Cong can limit Pres power to appt. lower level
officials. Cong can give power of appt to the Pres, the judiciary, or heads
2. Buckley v. Valeo (1976) - Held, part of Fed Elect Campaign Act that allowd
Cong to appt members of commission is unconst., it is a exec function
3. Morrison v. Olson (1988) - Cong can limit Pres right to remove even purely
exec officer as long as removal restrictions are not of "such a nature that
they impede the President's ability to perform his const duty."
4. Myers v. US - held, unconst a legis provision that postmaster couldn't be
removed by Pres w/o consent of Senate.
5. Humphrey v. US - Upheld limitation on Pres power to remove FTC chariman
for "good cause". Reasoning, quasi-legis commission needed
independence of commissioner.
C. Problem of Executive Privilege
1. U.S. v. Nixon (1974) - Ct recognized a constituionally based doctrine of exc
privilege, but held that the privilege was only a qualified one, which was
overcome on the facts by the needs of a pending crim investigation.
a) The Ct. not the Pres must evaluate claims of pres privilege
b) There is a Priv for confidential Pres communications in exercise of Art
c) Priv only a qualified one and it was outweighed by the need to get all
the facts for the crim trial.
D. War Powers
1. Controversy over Pres power to commit forces oversees
a) Art I §1 & Art II § 2
Commander in Chief
Power to make treaties & appt ambassadors & receive ambassadors
b) Art I § 8
Cong has power to declar war, raise & support armies, necessary &
VI. DUE PROCESS OF LAW
A. The Bill of Rights and The States
1. Pre-Civil War - Guarantees of BofR not directly binding on state
a. Barron v. Baltimore (1833) - held, BR limits only fed govt.
2. Post Civil War - 13, 14, 15th Amend passed
a. Slaughterhouse Cases (1873) - held, that the 14th A's Privileges &
Immunities Clause merely forbade state infringement of the rights of
national citizenship not the rights of state citizenship.
B. The Incorporation Controversy
1. Question - Did 14 A make applicable to the states all of the BR guarantees.
a. Selective Incorporation - No, only those fundamental rights
b. Total Incorporation - Wholesale incorporation
2. Palko v. Connnecticut (1937) - selective incorporation view of Cardozo.
TEST: whether those rights are "so rooted in the tradition and conscience
of our people to be ranked fundamental." Concluded that double jeopardy
is such a right.
3. Adamson v. Cal. (1947) - total incorporation view in Black's dissent.
Majority held that 5th A self incrimination priv isn't applicable to the
4. Modern Approach - Warren Ct effectively incorporated all the BR but the
remaining problems are, once specific BR is incorporated is all its
remaining baggage made applicable.
a. Duncan v. La. (1968) - held, 6th A right to trial by jury applies to states
in all crim proceedings. TEST: Is the right "fundamental to teh
American scheme of justice."
C. Regulation of Economic Activity under the 14th Amendment
1. Substantive Due Process Before 1934 - Substantive DP is doctrine relying on
14th A to invalidate a substantive state regulation
a. Allgeyer v. La. (1897) - Ct. finally used substantive DP review to
invalidate a statute under freedom of K.
b. Lochner (1905) - Struck down a max hours law as a violation of
freedom of K and therefore a violation of DP. Essentially imposed
strict scrutiny on liberty of K as fundamental right. TEST: close fit
between stat & objectives. Also Objectives could be health or safety
but not readjustment of econ power.
c. Coppage v. Kansas (1915) - law tried to equalize bargaining power by
outlawing yellow dog K. Shot down the law as unconst
2. Modern Era
a. Nebbia v. NY (1934) - upheld legislation fixing min & max prices for
milk. Said there was a substantial means-ends relationship and it
wasn't unreasonable, arbitrary or capricious.
b. West Coast Hotel (1937) - upheld min wage law and said that
readjustment of econ bargaining power in order to enable workers to
obtain a living wage was a legit limitation on freedom of K.
c. Carolene Products (1938) - Made it clear tht a presumption of
constitutionality would be applied in the case of an econ reg
subjected to DP attack. Sustained fed prohibition on the interstate
shipment of filled milk because of health danger.
d. Williamson v. Lee Optical Co. (1955) - Ok. law made it unlawful for
anyone not a liscensed optometirst to fit leses w/o a written
perscription. Ct. Upheld as a rational health measure.
e. Modern Test: It is enough that there is an evil at hand for correction,
and that it might be thought that the particular legis measure was a
rational way to correct it.
D. The Old Equal Protection Clause -- The Rationality Requirement (Scrutiny of
1. Before Warren Ct - So long as the mean used by the leg reasonably related to
the leg's purpose, the stat was upheld
2. Tussman & tenBroek Analysis p. 595
a. The measure of the reasonableness of a classification is the degree of its
success in treating similarly those similarly situated
b. A reasonable classification is one which includes all persons who are
similarly situated w/ respect to the purpose of the law
3. Mere Rationality Test - stat won't be stricken if there is some rational relation
between the means selected and a legitimate legislative objective. Lindlsey
4. Royster Test (1920) - Stricter formulation "the classification must be
reasonable, not arbitary, and must rest upon some ground of difference
having a fair and substantial relation to the object of the legislation, so that
all persons similarly circumstanced shall be treated alike."
5. Railway Express v. New York (1949) - NY law prhobited advertising on
vehicles, but allowd advertising on bus. vehicles as long as they were
engaged in owner's usual work and not used mainly for advertising. Ct.
sustained it. EP doesn't require all or nothing approach: ie it doesn't
require that all evils of the same genus be eradicated or none at all.
6. Williamson v. Lee Optical (1955) - height of deferential stance. Scheme
subjected opticians to reg but excempted sellers of ready to wear glasses.
Ct. said leg may take one step at a time to remedy problems addressing
itself to the phase of the problem which seems most acute.
7. McGowan v. Maryland (1961) - Rejected claim that exemptions of certain
businesses from Sunday closing laws violated EP. Very permissive test.
8. New Orleans v. Dukes (1976) - Sustained legislation that barred vendors
from operating in French Quarter who hadn't been there for more than 8
years. Ct.'s rationale was that those who had been there longer were more
likely to preserve the character of the area.
VII. FREEDOM OF SPEECH AND THE PRESS
A. Advocacy of Unlawful Conduct (Reg of pol speech cause of its content)
1. WWI Cases: Clear & Present Danger Test
a. Schenk (1919) - D mailed leaflets urging people to resist the draft.
Held, issue was "whether the words usd are in such circumstances
and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Cong has a right to
b. Abrams v. US (1919) - Ct. upheld conviction of conspiracy to violate
espionage acts. Dissent, Holmes clarify's CPD test: if no intent to
bring aboug immediate evil, there can be no punishment; but if there
is, the danger must be immediate.
c. Masses Publishing v. Patten (1917) - Hand Test: If one stops short of
urging upon others that it is their duty or their interest to resist the
law . . . one should not be held to have attempted its violation. Dove
Hypo: was advocating "moral duty", under Hand's test he'd go to
2. Legislation Against Forbidden Advocacy in the 20's & 30's
a. Gitlow v. NY (1925) - upheld conviction under NY's crim anarchy stat
which prohibited advocating violent overthrow of govt.. D
circulated radical manifesto, but no evidence of any effect. Ct. didn't
apply CPD test cause the leg had already determined that certain
types of lang posed a risk that substantive evils would result. Also
rejects need to show immediacy. Ct. is saying leg should determine
whether there's CPD
b. Whitney v. CA (1927) - upheld conviction of D for violating Crim
Syndicate Act by assisting in organization of Communist Party. Ct.
gave substantial deference to legislature's concl that membership in a
organ like the party was dangerous and that this finding should be
given much weight. Brandeis Dissent: Whether the speech or
assembly posed a CPD of substantive evil; only the ct, not the leg
could determine if it did.
3. The Smith Act Prosecutions
a. Dennis v. US (1951) - D convicted of violating Smith Act by
conspiring to organize the Comm Party who's goal was violent
overthrow. Applies Hand's BPL Test: whether the gravity of the
evil, discounted by its improbability justifies such invasion of free
speech as is necessary to avoid the danger. Here the evil was so
great that even a small chance of success justified curtailing speech.
b. Landmark Communications (1978) - Rejects legislative determination
of danger in holding that crim stat was unconst. Scope of 1st A
freedoms shouldn't be legislature. This is Rule today.
c. Yates v. US (1957) - Construed Smith Act narrowly to distinguish
between advocacy of concrete action and advocacy of abstract
doctrine. Held, P's staatement's advocated a philosophy but didn't
incite action. No conviction w/o evidence of actual action or
possibility of action. Rule: essential distinction is that those to
whom the advocacy is addressed must be urged to do something now
or in the future, rather than merely to believe in something.
Immediacy not necessary.
4. Current Status of CPD
a. Brandenberg v. Ohio (1969) - Held, advocacy of violence is protected
as long as it doesn't incite to immediate action. Strikes down OH
stat cause it fails to distinguish between advocacy of theory and
advocacy of action. Rule: Only convict for 1) advocacy directed to
inciting or producing imminent lawless action; and 2) the advocacy
is also "likely to incite or produce such action."
B. Publication of National Secrets
1. Prior Restraints - particularly suspect, presumed to be constitutionally invalid
a. Pentagon Papers Case (1971) - Dismissed TRO against Times. Any
system of prior restraint bears a heavy presumption against its
validity; Govt carries a heavy burden to justify enforcing any system
of prior restraint.
b. Snepp v. U.S. (1980) - Someone who violates an employment
agreement or other K by causing confidential materials to be
published may clearly be subjected to subsequent punishment.
Former CIA agent published book w/o first clearing it w/ CIA as K
said he had to. Ct. gave all royalties to CIA
c. Progressive H-Bomb Case (1979) - Dist ct enjoined mag from
publishing info about H-bomb. Balanced dangers to paper's 1st A
rights against national security.
C. Symbolic Speech - Non Verbal
1. W.Va Bd of Ed v. Burnett - (1943) - Public School children can't be
compelled to salute flag in violation of religious beliefs. Flag salute is
form of utterance.
2. Stromberg v. California - State stat unconst which prohibited displayer of red
flag as symbol of oppossition.
3. U.S. v. O'Brien (1968) - Draft card case. Not all expressive conduct receives
full 1stA protection. A sufficiently important govt interest may justify
incidental limitations on nonspeech. TEST: A govt reg is sufficiently
i) it w/in const power of govt.
ii) it furthers an important or substantial govt interest
iii) the govt interest unrelated to suppression of free expression
iv) if incidental restriction is no greater than essential to furtherance
of that interest
Here, govt interest in smooth admin of selective service system is
4. Texas v. Johnson (1989) - Flag burning. Where conduct is expressive under
1st A, and the govt interest is in regulating that conduct, strict scrutiny
applies and the reg will probably be strucken
1. New York Times v. Sullivan (1964) - P sued Times for libel. Limits extent
to which states may award damages in libel action brought by a public
official against critics. Held, 1st A bars state from awarding a public
official damages for a defamatory flsehood relating to his official conduct
unless the falsehood is published w/ knowledge of its falsehood or w/
reckless disregard for its falsity. Guiding principles is that public debate
should be open & robust.
2. Libel of Public Figures
a. Curtis Pub Co v. Butts / AP v. Walker (1967) - NY Times rule
extended to public figures--defined as those "who by reason of the
notoriety of their achievements or the vigor and success w/ which
they seek the public's attention"
3. Libel of Private Individuals
a. Rosenbloom v. Metromedia (1971) - NY Times malice test extended to
libel actions by private individuals where alleged defamation was a
matter of public interest or general concern
b. Gertz v. Robert Welch (1974) - Held, where P is neither a public
official nor a public figure, there is no const requirement that he
prove that the D knew his statement to be false or recklessly
disregarded the truth. Punitive damages only allowd if P can prove
recklessness or knowing falsity. Ct reasoned that private individuals
are more vulnerable to defamation cause public figures have more
access to media and can use it to counteract false statements. They
are also more deserving cause public figures have generally
"voluntarily exposed themselves to increased risk of injury from
4. Invasion of Privacy & NY Times Rule
a. Time, Inc. v. Hill (1967) - False Light (P claims he has been preesnted
to public in a misleading way). Ct. applied NY Times stad. where
matter, Tho private, was of public interest.
b. Cox Broadcasting (1975) - True Privacy Action (where info was true
but P claims that the disclosures were intrusive). Held, no liabiity on
publisher for truthfully publishing info released through ct. records.
5. Statements of no "public interest"
a. Dun & Bradstreet v. Greenmoss Builders (1985) - Credit report w/ false
info published. Issue: Does Gertz or 1st A principles apply to non-
media defamation of private indiv.. Held, credit reports like this--
involving nothing that concerns the public interest--are outside Gertz
& 1st A, thus OK to allow punitive damages and no required
showing of malice.
E. Expression in Public Places & the Maintenance of Local Peace & Order
1. Test: Restriction must be justfied by 1) important interest and 2) not
remediable through less restrictive means
2. Right to Public Forum - what extend are indiv's assured access to public
a. Broad View: Hague v. CIO (1939) - Priv of an open forum can be
regulated but only if the reg meets strict scutiny 1) compelling
interest 2) narrowly tailored
b. Norrow View: Mass v. Davis - State absolute prohibition is no more an
infrigement than private prop owner's right to exclude.
3. Liscensing or Permits - Must be Content Neutral
a. Lovell v. Griffin (1938) - City law req min approval of dist of any
literature held invalid for overbreadth cause official charged w/
granting permit was given too much discretion.
b. Cox v. NH (1941) - If statute does adequately constrain administrative
discretion & does require content-neutrality, it will be upheld if it is a
r easonable means of ensuring that public order is maintained.
a. Cantwell v. Conn (1940 - No stat. involved; Commun breach of peace
conviction overturned as vague, ill-defined,
5. Overbreadth - stat so broad as to cover some protected conduct
a. Schneider v. State (1939) - Ct. struck down flat ban on leafletting and
rejected state's argument in interest to keep streets clean.
b. Cox I- Breach of peace stat. found overbroad cause it would apply to
anyone "peacefully expressing unpopular views. Stat prohibiting
parades was valid but not applied even handedly. It gave too much
control to the censor
6. Picketing Statutes
a. Content Neutral ban: Cox II - Stat expressly forbade picketing in or
near cthouse. Ct rejects 1st A argument cause the stat was precisely
and narrowly drawn and the state had a legit interest in orderly admin
b. Discriminatory Restraints on Expression: Chicago Police Dept v.
Mosely (1972) - Content Based restrtiction. Chicago disorderly
conduct ordinance barred picketing w/in 150 ft of school, but
accepted peaceful picketing of any school involved in a labor
dispute. Held, selective exclusion from a public place is unconst.
Once a public forum is opened up, govt can't admit some, deny
7. Intrusive Speaker & Unwilling Listener
a. Saia v. NY (1948) - Struck down law which prohibited use of
loudspeakers w/o police chief's permission cause it was subject to
chief's uncontrolled discretion and it was a standardless previous
restraint. Less restrictive means--reg decibils
b. Kovacs v. Cooper (1949) - Upheld conviction under stat prhibiting loud
and raucous use of loudspeaker as legit exercise of legisislative
discretion. Here, the admin discretion was sufficiently restricted and
stat not overbroad. Dist from Saia, here no prior restraint only
c. Pollack (1952) - Rejects unwilling listener argument concerning radio
broadcasts on public buses.
d. Rowan (1970) - held const fed law which allows people to remove their
name from junk mail mailing list
e. Keefe - Distinguished Rowan in allowing community org. to distribute
literature in suburb critical of real estate broker. Rejects right of
privacy argument: P is not trying to stop flow of info into own
home, but to public.
8. Solicitation & Canvassing
a. Schaumberg (1980) - Ct. invalidated ordinance barring solicitations of
contributions by organ. that don't give more than 75% to charity.
Held, charitable solicitation in residential neighborhoods are clearly
w/in 1st A. TEST: Even if law is written in way that doesn't give
too much discretion to officials will not pass const muster if it 1)
directly and substantially impairs protected 1st A expression; and 2)
is not substantially related to achievement of a strong subordinating
9. Unwilling Viewer / Listener
a. Cohen v. California (1971) - Fuck the Draft. Stands for proposition
that profane, offensive lang is nonetheless 1st A speech, and may not
be suppressed under the guise of regulating the manner of speech.
Rejects unwilling viewer argument: outside the home we're always
subject to unwelcome views, avert the eyes.
b. Erznoznik v. Jacksonville (1975) - Struck down ordinance prohibiting
films containing nudity from being shown in drive ins whose screens
are visible from street. Rejects unwilling viewer argument. Speech
may be restricted on the grounds that it is offensive to where 1)
speaker intrudes on privacy of home or 2)degree of captivity makes it
impracticable for view to escape. Burden on view to avert the eyes.
VIII. EQUALITY UNDER THE 14TH AMENDMENT - Suspect Classifications
1. Strauder v. W.Va (1880) - 1st racial disc invalidated under 14th A. Struck
down state law which allowed only white males to serve on juries
2. Korematsu v. US (1944) - Japanese Exclusion Case. Est strict scrutiny std
for racial classifications. "all legal restrictions which curtail the civil
rights of a single racial group are immediately suspect . . . cts must subject
them to most rigid scrutiny."
3. Loving v. Va. (1967) - held invalid state law restricting interracial marriages:
A state law restricting the freedom to marry solely on the basis of racial
classifications violates EP. No legit purpose indep of invidious disc to
4. McLaughlin v. Fla. (1964) - invadlidated crim stat prohibiting cohabitiation
by interracial couples. STRICT SCRUTINY: burden of showing a
compelling interest and narrowly tailored necessary means.
5. Palmore v. Sidoti (1984) - Invalidated state ct dec divesting natural mother of
custody cause she'd married a black. Strict scrutiny cause law shouldn't
give effect to private biases.
6. What is sufficient justification
a. Andersen v. Martin - invalidated law req pol candidates race appear on
b. Tancil v. Woolls - invalidated law requiring list of blacks & whites in
voting, tax, and prop records, but upheld law req identity of race of
H's wife in divorce (as necessary for vital stats)
c. Lee v. Wash - invalidated law req segregation of b & w inmates, but
suggested that in cert cases, authorities may take race into acct. to
quell racial tension.
B. Racial Segregation & Implementation of Desegregation
1. Plessy v. Ferguson (1896) - Ct. distinguished between social and pol equality
in upholding sep but equal doctrine and determined that legislature is at
liberty to rely on custom and usage in enacting legislation.
2. Brown v. Bd of Ed (1954) - Separation of races period is unconst. Rejected
sep but equal.
3. Bolling v. Sharpe (1954) - held, racial seg of DC schools in violation of 5th
A DP clause. Fed govt not permitted to operate seg schools anymore than
4. Brown II - Authorities must show good faith implementation.
5. DE JURE v. DE FACTO: De jure is purposeful racial separation by govt.
authorities. De Facto is seg that occcurs cause of housing nad migration
patterns and is unconnected to any purposeful govt action.
6. Green v. County School Bd. (1964) - Rejected freedom of choice plan. Ct.
made clear that 14th A doesn't merely require elimination of barriers
(deseg) but compelled integration (racially mixed schools). School bds
under affirm duty to do what ever necessary to convert to one system .
7. Swann v. Charlotte-Mecklenburg Bd of Ed (1971) - Rquired showing of de
jure seg for cts to order adjustment of racial composition. Every school
doesn't have to have ratio of dist as a whole but ratio isn't a bad starting
point. Redrawing districts is a permissible technique for remedying seg.
Zones don't have to be contiguous. Approved busing as a way to
RULE: once effects of official seg have been even temporarily remedied,
later imbalances caused by changing residential patterns or other non-
official conduct may not be cured by federal court order.
8. Anti-Busing Laws
a. Wash v. Seattle School Dist (1982) - state effort to nullify de facto seg
plan unconst cause the reallocation of govt decisionmaking power
must be done in a racially neutral manner.
b. Crawford v. LA (1982) - Upheld amend cutting back Ca. state const.
bussing scheme to fed level. Once a stat does more than 14th A
requires it can return to fed stad.
9. Desegregation in the North
a. Keyes (1973) - The Denver Case. Only one area of Denver was
segregated. But Ct. Held, racially inspired school bd. actions have
an impact beyond the particular schools and may be probative of
racially inspired segregation elsewhere.
b. Milliken v. Bradley (1974) - Detroit Interdistrict Desegregation.
interdistrict purposeful violation, there is no basis for an interdistrict
C. Inexplicit Discrimination
1. Discrimination in the Administration of a Law
a. Yick Wo - shows a facially neutral law can be purposeful
discrimination caues of the manner of its admin. Law was used to
deny liscenses to chinese.
2. Inquiry into Motive
a. Palmer v. Thompson - upheld, municipal decision to close all
swimming pools despite showing of bad motive. No affirm duty to
run swiming pools
b. Gomillion v. Lightfoot - Tuskegee redistricted into "uncouth 28 sided
figure" was enough to show discrimianatory purpose.
3. Differential Effect - Effect isn't enough tomake out const. violation
must show purposeful disc.. But ct. held that in a number of cases
Cong can determine what effect is enough. Under Title VII
discrimatory effect is enough to est. prima facie claim. But
discrimatory purpose is still needed to make out a const. violation.
D. Modern Ct.'s Approach to Proving Purposeful Discrimination
1. Washington v. Davis (1976) - Rule: Stat isn't invalid cause of discriminatory
impact, but only if there is a showing of invidous purpose. Found
insufficinet evidence that a neutral employment test had disproportionate
effect on blacks. TEST: a law, neutral on its face, and serving legit. govt
ends, will not be held invalid simply cause of its impact on one race.
2. Arlington Heights (1977) - Upheld law eliminating multi-family housing and
the decision not to grant exception for multi-family housing project for
minorities. Look to 1) Impact - need clear pattern unexplainable on
grounds other than race 2) history of decision - was there a sudden change
3) departure from normal procedures 3) statements of officials / legislative
3. Personel Admin. v. Feeney (1979) - upheld state statutue granting a strict
lifetime preference to veterans in civil service. Held, legislation was to
prefer all vets, male or femael, over nonveterans, and no showing that
legislation purposely preferred men over women, or there was intent to
4. Rogers v. Lodge (1982) - disc pupose shown by circumstantial evidence.
County in Ga. elects via at large system. Whites are only slight majority
of voters but no black has ever been elected. Held, although at large
system is facially neutral, it has been maintained for discrimatory purposes
and has a discrimatory impact on black citizens. There was other evidence
that officials had been insensitive to black community.
5. Hunter v. Underwood (1985) - held invalid § 182 of Al. const. which
provides for dienfranchisement of persons convicted of misdemeanors of
moral turpitude. Here P passed bad check. Held, you have to show
discrimination as motivating factor. Here no secret about its purpose to
disenfranchise blacks, thus original enactment was motivated by
E. Affirmative Action by a State or Private Party w/o Congressional Action
1. Bakke (1978) - Est. tht benign class also subject to strict scrutiny. No
admissions program can survive judicial scrutiny if it sets aside a fixed #
or % of places for minority applicants unless institution is willing to
acknowledge and can prove that it had engaged in unlawful discrimination.
But noted that a stated interest in attracting a diverse student body is
sufficient to justify giving minority applicants substantial favorable
recognition on a case by case basis.
2. Wygant v. Jackson (1986) - ct. overturned a scheme in which black teachers
had greater protection from lay-offs than white teachers. Ct. felt that it
didn't survive strict scrutiny cause it wasn't narrowly tailored they could
have had hiring goals. "Denial of a future employment opportunity is not
as intrusive as a loss of an existing job." Ct. also rejects as a compelling
state interst the "role model" theory, it could allow discrimination against
3. U.S. v. Paradise (1987) - Upheld numerically oriented promotion preferences
as a judicial remedy for past discrimination. It was a one black for each
white promotion scheme.
4. Steelworkers v. Weber (1979) - held, voluntary affirmative action plan by
private employer do not violate Title VII. It was in spirit of Title VII. It
didn't lay off wites or create absolut bar to promotion.
5. Johnson v Transp Agency (1987) - public employer. Ct. upholds promotion
of female over slightly better qualified male as not violative of Title VII.
Agency properly took sex into acct pursuant to flexible, case-by-case
affirmative action plan.
F. Other Invidious Classifications
1. Gender - Old Cases applied only rational basis to sx discrimintaion. Goesart
v. Cleary (1948) sustained Mich. law prohibiting women from working in
bar. Reed v. Reed rejected stat allowing preference for men in appt of
adminstrators of estates but purported to apply rational basis test. After
Reed things changed:
a. Frontier v. Richardson (1973) - rejected fed law permitting male
members of armed forces an automatic dependency allowance for
wives but requiring women to make showing. Said classifications
based on sex should be subjected to strict scrutiny, ie, compelling
govt int. narrowly tairlored.
b. Craig v. Boren (1976) - retreat to intermediate scrutiny, ie,
classifications by gender must serve important governmental
objectives and must be substantially related to achievement of those
objectives. Holds invalid OK stat prohibiting sale of 3.2 beer to men
under 21 and women under 18. Rejects state's stat findings and
objective to prevent traffic accidents--sex based distinction doesn't
achieve tht end unduly tenous fit.
c. Michael M. v. Superior Ct (1981) - Upholds stat rape law punishing
men but not women. Classification isn't invious but realistically
reflects sex based diff.
2. Alienage: Test elevated to strict scrutiny in 70's but later ct adopts bifurcated
scheme where political functions were involved.
a. Graham v. Richardson (1971) - applied strict scrutiny in holding that
states couldn't deny welfare benefits to aliens. Aliens discrete and
insular minority and state's fiscal int in preserving limited resources
for its citizens not sufficiently strong countervailing govt interest.
b. In Re Griffins (1973) - held states can't prevent resident aliens from
practicing law. Sugarman held state can't bar aliens from holding
positions in stae civil service. Sugarman exception: a state can
prevent aliens from holding state elective exec, leg, & judicial
positions and even important nonelective positions in any of hte
branches of state govt.
c. Foley v. Connelie (1978) - upheld NY law barring aliens from
employment as state troopers. TEST: does the position involve
discretionary decisionmaking or execution of policy affecting
d. Ambach v. Norwick (1979) - held, teaching in public schools is public
function for EP analysis and state may refuse to employ aliens.
3. Illegitimacy - confused std. of review
a. Levy v. La. (1968) - held invalid law denying illegit children right to
recover for wrongful death of mother. Rule: illigitamacy has no
relation to the wrong
b. Labine v. Vincent (1971) - upheld inteste law which prevented even
aknowledged illegit kids from sharing equally w/ legit in estate of
c. Mathews v. Lucas (1976) - upheld proviision in Soc.Sec law providing
benefits for dep children which made illegit prove dep. No strict
d. Trimble v. Gordon (1977) - struck down law of intestate denying illegit
children recovery from father's estate. Return to middle level
e. Mills v. Hablueztal (Current Ct.) invalidated Tax law requiring
showing of paternity before child was 1 yr. old. Restriction not
substantially related to legit govt int. It served no purpose.
4. Age - Test is rationality only
a. Mass. Bd v. Murgia (1976) - sustained mandatory retirement law for
uniformed police. No pervasive history of discr. treatment, not a
discrete and insular minority. The link between being over 50 and
being physically unfit was not so attentuated as to be irrational.
5. Durational Residency Requirement
a. Shapiro v. Thompson (1969) - Ct. invalidated the denial by two states
of welfare benefits to residents who had not resided in the
jurisdiction for at least a year. Applied strict scrutiny to
classification penalizing the right to travel or migrate. Right to travel
is a fundamental right.
b. Mem Hosp v. Maricopa County (1974) - invalidated law req 1 yr
residency before indigent could receive free medical care. Shapiro
test requires strict scrutiny whre requirement acts as a penalty. Ct.
found state denial of necessities of life a penalty
c. Sasua v. Iowa - upheld res req of 1 yr before bringing divorce action
against non-resident. State justification in no becoming a divorce
mill. no strict scruti
G. Unequal Access to Fundamental Political rights.
1. Voting Rights
a. Baker v. Carr (1962) - est justiciability of apportionment plans by
stating that malapportionment violated the EP clause and didn't
present a pol question. Previously the court had said that it was a pol
question and the cts shouldn't enter into the debate.
b. Reynolds v. Sims (1964) - one person-one vote. Struck down Al.
malapportionment scheme because Ep clause requires that the seats
in both houses of a bicameral state leg must be apportioned on a pop
basis. Ct. allowed some deviations from mathematical equality.
c. Harper v. Va. Bd of Elections (1966) - held invalid a poll tax. Right to
vote is fundamental cause it is "preservative of all rights" therefore,
inequality in its distribution was to be "closely scrutinized". Rule:
State violates EP clause when it makes affluence of the voter or
payment of any fee an electoral std.
d. Kramer v. Union Free School Dist (1969) - Struck down stat which
limited school dist elections to persons who either owned or leased
prop w/in dist or were parents of children in the schools. RULE:
stat which grants the right to vote to some residents of requisite age
& residence and denies it to others is subject to strict scrutiny. Not
narrowly tailored cause some people w/ substantial interest in
outcome were excluded while some w/o an int were not. Strict
Scrutiny cause it denied some persons the fundamental right to vote.
e. Clements v. Flashing (1982) - Rejects strict scrutiny std in sustaining
two Tex statutes which limit ability of public office holder to seek
another office. "Candidacy for elective office is not a fundamental
2. Access To The Courts
a. Griffin v. Illinois (1956) - Held, the state must provide a D w/ a
transcript of crim trial proceedings where it was necessary to appeal.
"Plainly the ability to pay costs in advance bears no rational
relationship to a D's guilt or innocense, and could not be used as an
excuse to deprive a D of a fair trial."
b. Douglas v. California (1963) - Held, an indigent is entitled to appointed
counsel to prepare an appellate brief where the appeal pursued is
granted as a matter of right to all D's. The law was found to
discriminate against the indigent.
c. Ross v. Moffit (1974) - refused to extend Douglas to discretionary
appeals. Appointed counsel at trial is a shield whereas at appeal it is
a sword (D initiates).
d. Fuller v. Oregon - upheld recoupment law whreeby state can collect
funds expended to assist indigents later when they're financially able.
e. Williams v. Illinois - preventing state from imprisoning D for more
than the statutory max for the offense in order to work off a fine
which he was unable to pay.
a. Boddie v. CT (1971) - Ct. sustained claim that ct fees unconst restricted
indigents ability to obtain divorce. A violation of P's DP rights.
State had monopoly of means for divorce and marriage occuppies
fundamental place in society.
b. U.S. v. Kraus (1973) - held law requring $50 filing fee for bankruptcy
doesn't violate EP rights of indigents cause govt.'s control over debts
is less complete than that over divorce so its not as fundamental.
c. Ortwein v. Schwab (1973) - held indigents could be forced to pay $25
filing fee to gain judicial review of welfare-benefits termination.
Welfare benefits have far less significance than marriage-divorce
d. Little v. Streater (1981) - indigents do have EP right to state subsidized
blood grouping tests in paternity action. Suit had quasi-crim
dimensions cause suit was instigated by the state.
3. Econ. Inequalities & Fundamental Interests Analysis
a. San Antonio School Dist v. Rodriguez (1973) - Culmination of cts
refusal to expand fundamental interests analysis to redress econ
inequalities. Ct. refused to fashion EP into a broad ranging tool to
redress econ inequalities and impose affirmative obligation on govt.
Deviations in per pupil expenditures don't constitute interference w/
a fundamental right.
a. Welfare Benefits: Dandridge v. Willians (1970) - rejected challenge to
Md. scheme whit set ceiling on AFDC awards regardless of size of
b. Housing: Lindsey v. Normet - rejects applying strict scrutiny and
finding new fundamental interest in shelter (poss of a home).
Applied mere rationality to a state stat making it easy for LL to evict
tenant if LL claimed rent not paid.
c. Education / Wealth as Suspect Classification (Fund Int)
i. San Antonio School Dist v. Rodrigquez (1973) - Ct rejects
applying strict scrutiny to challenge that the Tex system of
financing educ led to disparities in per pupil expenditures. Ct.
refused to find wealth a suspect classification or to recognize
educ as fundamental interest. Two parts of decision:
1) Rejects wealth argument by saying it isn't pure & simple a
case of disc against poor people cause no absolute deprivation
here and no evidence that scheme disc against any definable
category of poor people
2) Fundamental Rights - Ct. adopts stricter lang. to define:
Right must be explicitly or impliedly contained in constitution.
Ed not fund.
ii. Plyler v. Doe (1982) - ct invalidated state law which denied
public educ to children of illegal resident aliens. But ct.
refused to say that educ was fundamental right or illegal aliens
are suspect class. Applied intermediate scutiny cause although
actions of parents was voluntary actions of children were not.
iii. Kadrmas v. Dickinson - held, no EP violation whre some school
dist charge for transp, others don't. It doesn't single out
helpless group or cut off all educ like Plyler.
H. Equal Protection W/ or W/O Bite: Scutiny of Means in Econ Reg: New EP
1. Rationality Review W/ Bite - Theory is that Ct. should engage in more
serious, less deferential review to assure that legis means genuinely
promote articulated legis purpose. Ct. is less willing to hypothesize
plausible rationales - This newer EP model puts teeth into old rationality
2. US Railroad Retirement Bd. v. Fritz (1980) - Upheld Congressional
elimination of dual retirement benefits to some employees who had
engaged in both RR & non-RR employment on any basis that is not
arbitrary or irrational. TEST: Mere rationality - inquiry ends where
plausible objective is found. So long as there was a plausible reason for
Cong to have made the classification scheme it did, lowest-level EP
review was satisfied; it was "const irrelevant whether this reasoning in fact
underlay the legislative decision cause the Ct had never insisted that a leg
body articulate its reason for enacting a stat."
3. Schweiker v. Wilson - Upheld Soc.Sec classification denying comfort
allowance to those institutions unless they receive medicaid. TEST: If
classification rationally advances reasonable and identifiable govt interest,
then inquiry ends, ie, cong may have concldued its better for state's to
4. City of Cleburne v. Cleburne Living Center (1985) - Ct. applies form of
heightened scrutiny in striking down city's denial of a permit for operation
of a home for mentally retarded. Refuses to treat mental retardation as a
suspect class. Here finds that the record doesn't support city's articulated
IX. Judicial Power Under 14th Amendment "State Action"
A. 14th & 15th Amendments Apply to "State's only"
1. Civil Rights Cases (1883) - only 13th A is applicable to private as well as
state conduct. In absence of congressional legislation, the cts will not find
conduct that is exclusively private to be violative of 14th A guarantees.
2. Black Letter Assertions
a. Any govt. agency, state govt, state univ. or exec. officer is a state
b. Any govt official purporting to exercise offial power is state actor
(Monroe v. Pape)
c. Any govt official administering trust fund ex officio even tho set up to
benefit private person by private endorsement is state action (Girard
B. Public Function Doctrine
1. Only those activities or functions which are traditionally associated w/
sovereign govt. and which are operated almost exclusively by
governmental entitles, e.g., operation of election systems, operation of
seemingly public facilities like a park. But mere operation of a business
which could be operated by govt isn't enough.
a. White Primary Cases - the entire electoral process is a public function
and private political parties are acting as agents of the state so they
can't practice racial discrimination.
b. Company Towns - Marsh v. Alabama (1946) - Co owned town had all
charatistics of any other Am. Town. Held, the more an owner opens
up prop for public use, the more are those rights limited by const.
The facilities were owned and operated to benefit public, hence
c. Shopping Centers - Hudgens v. NLRB (1976) - Public function doesn't
extend to shopping centers.
d. Parks - Evans v. Newton (1966) - Held, private park, which had been
maintained and operated as amunicipal park could't exclude on basis
of race. "The predominant character is municipal."
e. Utility Companies - Jackson v. Metro Edison (1974) - Test for public
function: must be "powers traditionally exclusively reserved to the
state." Held, supplying of utility service isn't traditionally the
exclusive perogative of the state.
f. Warehouseman's Lien - Flagg Bros (1978) - held, no state action in the
sale of a debtor's goods by a warehouseman who had the goods in his
possession and who had a lien on the goods, even tho the state had
adopted UCC which authorized such sales. Rule: Limited public
function to where there is a "history of exclusive govtmental
activity" of the type at issue.
C. State Enforcement or Encouragement of Private Action
1. Shelley v. Kraemer (1948) - held, any ct order which enjoined the sale of
private prop to enforce racially restrictive covenants violates 14th Amend..
Such a command to make racial distinction between willing buyer and
seller violates 14th Amend. The covenants standing alone didn't violate
14th, but judicial enforcement did.
2. Broad reading: anytime a person's decision to discriminate, or an agreement
between 2 or more people to discriminate is enforced or left undisturbed
by the state's legal system, state action exists. For instance if a white
owner who had signed racially restrictive convenant like in Shelley
simpley refused to sell to a black in reliance on the covenant, the judiary's
refusal to prevent the white from relying on the agreement would be state
action and thus unconstitutional. If restaurant owner used state trespass
laws to stop civil rights sit in would also be state action thus unconst.
3. Narrow Reading: rationale of Shelley only applies to those situations were
there are a willing seller and buyer, and the state is asked to use its power
affirmatively to prevent them from consummating their sale. So if a white
simple refused to sell to blacks, Shelley would have no application.
D. Nexus Theory
1. Generally - Relates not to type of activity carried out by private actor, but to
the conduct of teh govt. If govt is sufficiently involved in the private
actors conduct or encourages or benefits from it, the private party's actis
will be deemed state action. The issue is the points of contact between
state and private actor (Nexus).
2. Burton v. Wilmington Parking Authority (1961) - Test: to find state action,
state must be involved to "some" significant extent. Held, restaurant in
municipal parking facility couldn't exclude blacks. RULE: bldg. was
publicly owned; parking auth essentially govt function; mutual benefits
deemed "the state has ... insinuated itself into a position of
interdependence...so as to be joint participant."
E. Mutual Contacts - Licensing, Subsidies & other Entanglements. Focus on direct
aid of state to private parties, encouragement, etc.
1. Moose Lodge v. Irvis (1972) - ct. rejects claim that a private club's racial
discrimination was unconstituional cause it had a statee liquor license.
2. Gilmore v. City of Mont - held, a city couldn't grant exclusive use of public
facilities to racially segregated groups even on temporary basis.
3. Reitman v. Mulkey (1967) - Ct. struck down amend to Ca. const. which
forbids the state from interfering in discrimination in the housing market.
Ct. found its purpose and effect would inevitably be to encourage private
4. Jackson v. Metro Edison - held, non state action. 1) mere fact that utility is
subject to extensive reg isn't enough; 2) state didn't authorize monopoly; 3)
no symbiotic relationship. TEST: whether there is a "sufficiently close
nexus between the state and the challenged action of the regulated entity
so that the action may be treated as that of the state."
F. Modern Trend - limit state action
1. Blum v. Yarelsky (1982) - due proces didn't restrict a nuring home's freedom
to discharge or transfer patients eventhough the home and patients
received substantial federal funding. RULE: decision to transfer turned
on medical judgments by private parties established by professional stds
not regulated by state. TEST: State can be held liable for actions of
private parties only where it has used 1) coercive power or 2) has provided
2. Rendell-Baker v. Kohn (1982) - held, a private school whose income was
derived mostly from public sources wasn't engaged in state action in firing
3. Lugar v. Edmondson Oil (1982) - Writ of attachment issued by state clerk to
creditor to attach debtors property is state action.
X. THE PERMISSIBLE SCOPE OF SUBSTANTIVE CONGRESSIONAL
A. Issue: Question of whether Congress possess the power to modify the substantive
content of the 13th, 14th, & 15th Amendments.
B. Broad Remedial Powers
1. Voting Rights - Was framework for broadening of Congress' "remedial"
powers. Voting Rights Act of 1965banned literacy tests and created a
scheme of administrative fact-finding, w/ no requirement that those
findings include discriminatory intent, Only after the factfinding could the
state seek judicial review in a proceeding in which it bore the BOP, not the
2. South Carolina v. Katzenbach (1966) - Ct. held any rational means could be
used to enforce 15th Amend's ban on racial discrimination in voting.
Upheld, Act. Previously in Lassiter v. Northhampton County Bd. of Elect,
the ct had rejected a claim that a literacy test was per se violative of the
15th Amend, where there was no affirm evidence that the test had been
used w/ intent of racially discriminating. Congress wasn't overturning that
decision, it was just remedying a violation of §1 by use of its §2 powers of
the 15th A.
3. 1970 Amend to Voting Rights Act suspended literacy tests nationally, not
just areas covered in 1965 Act. Approved in Oregon v. Mitchell (1970).
4. Rome v. U.S. (1980) - Ct. upheld AG's finding that a change in Rome's
voting system wasn't purposefully discriminatory but would have
discriminatory effect. Thus the city sued claiming that since it wasn't
purposeful the Act couldn't be constitutionally applied to it. Ct. Held, that
Cong had the const. power to ban practice that wre discriminatory only in
their effect , not their purpose, under it §2 powers. Gvies extremely
generous reading to Cong's power to remedy past or anticipated
discrimination. Wherever a practice has discriminatory impact on
minorites, and might be used for discriminatory purposes, Cong can ban
that practice. Almost allowed to redefine the substance of constitutional
5. Katzenbach v. Morgan (1966) - Involved constitutionality of provision of
1965 Act which said no one who completed 6th grade in accredited
Spanish lang school in Puerto Rico can be denied right to vote cause of
inability to read or write English. Suit brought by NY voters on theory that
it infringed on NY's right to impose English literacy test for voting. Held,
Valid exercise by Cong. of its powers under §5 of 14th A for 2 reasons:
a. provision was purely remedial, designed to secure for Puerto Ricans
in NY non-discriminatory treatement by govt.
b. Ct. felt Cong may have been attempting to eliminate what it saw as
"invidious discrimination in establishing voter qualifications". So
called Fact-Finding Theory.
6. Oregon v. Mitchell (1970) - Involved Cong's right to grant the vote to
citizens 18 and over for all state as well as federal elections. Sustained
Stat in regards to fed elections but not state ones.
7. Cox says: Congress power to define the scope of substantive guarantees is
most clearly appropriate where Congress' actions are based on its superior
XI. CONGRESSIONAL POWER TO REACH PRIVATE CONDUCT
A. 14th & 15th Amend explicitly grant Congress power to enforce each of these
amendments "by appropriate legislation." Thus the issue arises, to what extent
may Congress "appropriately" enforce the 14th & 15th ameendments by
proscribing conduct which the Ct wouldn't construe to be "state action".
1. U.S. v. Guest (1966) - Ct. stated that Cong could under §5 of 14th A reach a
substantial range of private racially discriminatory conduct. Ct. said
purely private interference w/ the federally-guaranteed right of interstate
travel was constitutionally reachable by Congress cause fundamental to
concept of federal union. Cong can proscribe private conduct which
satisfies two requirements: 1) that it be racially motivated; and 2) that it
be committed w/ the intent to deprive the victim of rights guaranteed by
the federal constitution.
B. The 13th Amedment and Private Conduct
1. Since the 13th A unlike the 14th & 15th isn't explicitly limited to
governmental action, it has proved to be a useful source of congressional
power to reach certain private conduct
2. Jones v. Mayer (1968) - Held, Cong had power under 13th A "rationally to
determine what are the badges and incidents of slavery." It also held that
Congress' definition of those badges and incidents could rationally be
broad enough to encompass private racial discrimination in real estate
transactions. Upheld § 1982, which gave all citizens equal rights to own
or lease prop, and these rights can't be impaired by private discrimination.
Ct. found the stat. w/in Cong. 13th A power.
3. Griffin v. Breckenridge (1971) - holding that §1985 , giving a private cause
of action against private conspiracies is constitutional under the 13th A
where intentional racial discrimination is shown.
4. Right to Damages - Sullivan v. Little Hunting Park (1969) - Extended § 1982
to include a private right of action for damages for racial discrimination.
5. Private Schools - Runyon v. McCrary (1976) - Held, § 1981 which
guarantees to all persons equal rights to make and enforce contracts could
constitutionally be applied to bar commercially operated private schools
from refusing to admit black students.
6. Patterson v. McLean Credit Union (1989) - refusd to overrule Runyon, but
held that § 1981 doesn't apply to bar private discriminatory contract after
the contract is made, such as racial harassment directed at an employee
after she has been hired.
A. Overview - The SC has in effect given substantife DP protection for cert non-
economic rights. In contrast to the economic rights area whree it has abstained
from DP review since the late 30's. During the last 15 years the ct has been
willing to strike down legislation which it finds violative of important non-econ
1. The SC has found rights such as sex, marriage, child-bearing, and child
rearing to be fundamental in the substantive DP area. The Ct. has treated
most of these as falling w/in the category of "right to privacy". A better
term would be "right to personal autonomy". Could be return to Lochner?
2. If it is a fundamental right it gets strict scrutiny. Must prove that the state's
objective is compelling and that it can't be achieved in less restrictive way.
1. Meyer v. Nebraska (1923) - SC struck down a state law which prohibited
teaching of foreign languages to young children. Ct. held that the term
liberty, in the 14th A included many non-academic, but nonetheless
important rights: the right of teachers to teach, and that of students to
acquire knowledge were among these. "Stat. not reasonably related to any
end w/in in the competency of the state."
2. Pierce v. Society of sisters (1925) - Ct. struck down state stat requring
children to attend public schools, preventing them from attending private
and parochial ones. Decision rested on "liberty of parents to direct the
upbringing and education of children under their control."
3. Birth Control
a. Griswold v. Connecticut (1965) - State law forbade use of
contraceptives and also forbade aiding and counselling of others in
their use. D's were convicted of counselling married persons in the
use of contraceptives. Ct. Struck down Statute. Ct. found that sever
of the Bill of Rights guarantees protect privacy interest and create a
"penumbra" or "zone" of privacy. The ct. then concluded that the
right of married persons to use contraceptives fell w/in this
penumbra. "Would we allow the police to search the sacred
precincts of marital bedrooms for telltale signs of the use of
b. Eisenstadt v. Baird (1972) - ct. invalidated a stat which by prmitting
contraceptives to be distributed only be registered physicians and
pharmacists and only to married persons discriminated against the
a. Roe v. Wade (1973) - right of privacy found to exist in Griswold was
extended to abortion. Ct. invalidated on right of privacy grounds
Texas' nearly complete ban on abortions. First Trimester: state can't
ban or even closely regulate abortions. Second Trimester: State can
protect its interest in mother'shealth by regulating abortion in ways
reasonably related to her health. Third Trimester: fetus becomes
viable so compelling int in protecting fetus so state can regulate
abortion, but itmust be permitted to preserve life or health of the
b. Maher v. Roe (1977) - Ct. held that the states may refuse to provide
Medicaid funding for non-therapeutic abortions, eventhough they
gave it for expenses of ordinary childbirth. Ct. said no fundamental
interest (wealth not a suspect classification). Ct. said that Roe didn't
mean a woman had a fundamental right to an abortion, but merely,
that she had a fund right to be free of unduly burdensome
interference w/ her freedom to decide. The stat placed no obstacle in
her path except failing to alleviate a pre-existing obstacle (poverty).
Since no SS, only required rational relation. Ct. felt encouraging
childbirth is legitimate state objective and that the state's policy for
paying cost of childbirth but not abortion was a ratonal way of
pursuing the objective.
c. Harris v. McRae (1980) - states or fed govt can refuse to fund
d. Webster (1990) - Plurality would regard the state as having a
compelling interest in protecting potetial human life even before
viability. More importantly, the ct. held that a state may prohibit all
use of public facilities and publicly-employed staff in abortions.
e. Akron v. Akron Center for Reproductive Health (1983) - A state may
not impose a blanket rule that all abortions after the first trimester be
perfomred in a hospital. Ct. concluded that requirement
unconstitutionally infringed on the abortion right recognized in Roe.
a. SC has refrained from establishing any general protection of adult
consensual sexual activity.
b. Bowers v. Hardwick (1986) - P a homosexual, challeneged Georgia stat
making it a crime to perform or submit to anal or oral sex. Statute
didn't on its face distinguish between heterosexual and homosexual
behavior. Ct. upheld statute. Majority asserted that Court has
regarded and should regard as fundamental only those liberties that
are either implicit in the concept of ordered liberty or deeply rooted
in this nation's history and tradition. Hommosexual sodomy wan't
such a liberty under either of these formulations, according to
majority. Ct. felt if you forbade prosecution cause of right to privacy
in the home, you would be starting down road to protecting adultery,
incest and other crimes.