No Law Requring Citizens to Pay Income Tax - DOC

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					                           CONSTITUTIONAL LAW
                             PROFESSOR COX


  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


  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.


  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
                  interstate comm.
     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.


  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
     2. Development
          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
                Reasonableness Test
          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
                 unencumbered commerce.

        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
                    state buyers.
             c. White v. Mass Council (1983) - Sustained Boston requirement that
                    50% of workforce on all cosntruction projects funded by city be
                    Boston residents.
             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
        IV §2)
        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
              interstate harmony.
              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
            to President.

  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
            of depts.
       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
                  II powers
            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 &


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.
          Two views:
          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.


  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
          justified if
                 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

D. Defamation
    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
               defamatory falsehoods."
    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.
     4. Vagueness
           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
                of justice.
           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
                   subsequent punishment.
            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.

      (Heightened                    Scrutiny)

  A. Race
      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
          justify classification.
     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.
                 Absent an
          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
          exclude women.
     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
             assume resp.
        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
             rational basis.

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
                public function
           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
   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
           significant encouragement.
      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.


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
          fed govt.
     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
            fact-finding abilities.


  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.

  B. Cases
      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
      4. Abortion
           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
           medically-necessary abortions.
     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.
5. Sexuality
     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.

                               THE END


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