Con Law 1 INTRO TO CON LAW I. How is con law different from other types of law? allocates power*** Supreme law of land creation difficult to change sets up machinery of government recognition of individual rights II. Hierarchy of Law: US Constitution Federal Statutes Federal Regulations State Constitution State Statutes State CL III. What are the advantages of having a written constitution? a) avoid tyranny b) protect property c) control power d) predictability (to avoid disputes) e) game plan for political circumstances (i.e., transfer of power) f) preserve expectations of states that ratified it g) symbolic statement of what we are about IV. What are the disadvantages of having a written constitution? a) difficult to amend b) gridlock issues c) cumbersome procedures V. How does a case get to be heard before the Supreme Court: a) Decision from below (usually from State Supreme Court or Fed. Ct. of Apps.) b) Petition for cert c) Screening (cert memos) d) Conference (rule of 4) -- if cert is denied (98% of time), end of case; if cert is granted (2% of time), go on e) Briefs filed f) Oral arguments g) Conference (Vote) h) Opinions assigned i) Circulation of opinions j) Opinions announced THE CONSTITUTION
I. What does it do?
1. sets up government (structure and operation) – procedural
(ex. Art. 1, Sec. 3; Art. 4, Sec. 3; amend 12, amend 22)
2. allocates power a. confers power 1. federal government
--legis: Art. 1, Sec. 8 (enumerated powers) Art. 1, Sec. 2 (“necessary and proper” clause; regulate commerce) Amend. 16 (power to impose an income tax) Art. 4, Sec. 3 (land owned by federal government Art. 3, Sec. 3 (treason) Amend. 14, 15, 23, 24, 26 --exec: Art. 2, Sec. 2 --judicial: Art. 3, Sec. 2 state government (state constitutions confer power on the states, not the US Constitution) --Art. 4, Sec. 4 (not real powers though) --Amend. 10 (reserved powers; powers the states began with and not been taken by fed. govt.)
2.
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3. individuals
--none from Constitution
b. limits power 1. federal government
--Amend. 10 --Art. 1, Sec. 9 (no ex post facto, no bill of attainder --Bill of Rights (amend. 1-9) state government --Art. 1, Sec. 10 --Art. 6 (supremacy clause) --Amend. 14, Sec. 1 (due process) --Art. 4, Sec. 1 & 2 --Amend. 15, 19, 26, . . . individuals --Amend. 13 (abolishment of slavery) --Amend. 18 (until it was repealed by the 21st amend.) **states limit powers of individuals**
2.
3.
CONSTITUTIONAL CONVENTION
(1787, Philadelphia; made public on 9/17/1787)
I. What factors/events played a major role in convincing people that a constitution was necessary? a) economic problems (state taxes) b) debtor backlash (Shay’s Rebellion in MA; successful debtors in RI) c) Continental Congress was too weak (revise Articles of Confederation) d) security concerns (Indians, slaves, and foreigners) e) pride II. What were their concerns? a) protection for liberty (but what exactly is liberty?) b) protection of property III. 55 delegates assembled a) George Washington (presiding officer) b) James Madison (Father of the Constitution) – feared tyranny of factions; author of original Bill of Rights; wanted a strong central government with separation of powers to provide order and stability c) Alexander Hamilton (favored English monarchy system) d) William Paterson (NJ plan and more state power) e) NEED TO FILL IN SOME MORE!!!! IV. Constitution was a set of compromises: a) nationalists (Federalists) v. states’ rights (anti-Federalists) 1. FEDERALISTS supported the Constitution; wanted a strong central government (Madison) 2. ANTI-FEDERALISTS feared the creation of a strong central government a) north v. south b) aristocrat v. egalitarian c) big state representatives v. small state representatives d) liberals v. moral conservatives/communitarians e) 3/5 count for slaves f) representation in the houses 1. VA plan: representation according to population 2. NJ plan: equal representation 3. CT plan: compromise between VA and NJ
V. Bill of Rights Debate at the Convention, During Ratification a) some framers felt a Bill of Rights was unnecessary, useless and dangerous
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b) other framers felt the Bill of Rights would be “phase 2” c) during ratification debates, promised states that Bill of Rights would be added d) Madison drafted original (17 proposed amendments)
JUDICIAL REVIEW I. Marbury v. Madison (1803) S.Ct. has judicial review over Congressional acts FACTS: Marbury was appointed Justice of the Peace; commission was not delivered; Marbury sues Madison (Secretary of State) to force him to deliver Marbury’s commission (the new party was coming in, so the current party made several judicial appointments (called Midnight Judges) – Marbury was one of them; Marbury wants a “writ of mandamus” – an order to force a public official to do something COURT: opinion by Marshall 1. Is Marbury entitled to the commission? Yes 2. is there a statute that authorizes “writ of mandamus”? a. Judiciary Act (section 13) – allows writ of mandamus in cases warranted by law 1. Marshall wants to say “yes” to this statute 2. Marshall wants to get to larger issues of Supreme Court power (Marbury was actually in the wrong court, but Marshall wanted to move to the next question) 3. Is the statute constitutional? a. Marshall says “no” – violates Art. 3, Sec. 2 b. statute seems to give power to S. Ct. to have original jurisdiction over “writs of mandamus”; it is unconstitutional – framers did not want this to be included in original jurisdiction c. original jurisdiction is fixed in Constitution; Congress cannot change it 4. Does S. Ct. have the power to declare a statute passed by Congress unconstitutional? Yes
II. Why is the constitution silent on judicial review?
a) obvious that judicial review was to exist; didn’t have to state so b) framers thought that it would never be an issue in the future c) framers meant to leave it out on purpose III. Is judicial review a good idea? a) protects minorities from majority b) protect long-term interest c) may prevent current ideas IV. What does judicial review do? a) reduces power of Congress b) increases power of S.Ct. to invalidate acts of Congress; but decreases power of S.Ct. by lessening their original jurisdiction CONSTITUTIONAL INTERPRETATION I. Sources that guide interpretation of the Constitution a) Text of Constitution b) Intention of drafters/proposers/ratifiers (i.e. debate records, practices of the time, underlying purposes of the Constitution) c) prior judicial decisions d) social, political, and economic consequences of alternative interpretations e) natural law -OR-OR-
II. Two Main Approaches to Interpretation a) ORIGINALISTS (Black, Scalia, Thomas, Rehnquist); ex. Marsh v. Chambers 1. look at text (textualists) and intentions (intentionalists) 2. Constitution is a binding K 3. want to preserve authority of the court b) NON-ORIGINALISTS (Brennan, Marshall, Blackmun, Douglas, Posner) 1. look at prior judicial decisions (pragmatists), consequences, and natural law 2. allow the Constitution to evolve
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III. Marsh v. Chambers (1983)
prayer before legis session is not violation of Establishment clause of 1 st amend FACTS: challenges NE’s practice of opening legislative session with a prayer COURT: opinion by Burger 6 to 3 decision Originalist Decision 1. look at intentions and acts of framers of 1st amend. 2. majority of Congress voted for the amend. 3. framers also started session with a prayer DISSENT: Brennan and Marshall (non-originalists) 1. statute/practice is unconstitutional when looking at the Lemon Test a. statute is not secular (purpose) b. statute advances religion (effect) c. fosters excessive govt. entanglement with religion (Marsh) 2. reason for praying is religious 3. times have changed; let the Constitution adapt and evolve
IV. Griswold v. Connecticut (1965) marriage is an association which is permitted a rt. to privacy FACTS: Griswold (E.D. of Planned Parenthood) was arrested for aiding and abetting, selling contraceptives, etc. which was against CT law; the purpose behind such a statute was to discourage sexual intercourse between unmarried persons COURT: opinion by Douglas Non-Originalist Decision 1. rt. to privacy in 1st, 3rd, 4th, 5th, and 9th amendments 2. looks at penumbras (shadows cast from something else) and emanations 3. core right to privacy should include decisions to use contraceptives, etc. 4. must look at future consequences -- don’t want govt. intrusion in private lives CONCURRING: Goldberg 1. looks at mainly 9th amendment 2. 9th is overarching rights not listed in 1-8th amendments DISSENT: Black and Stewart 1. this is a silly law INCORPORATION DEBATE (Bill of Rights)
I. Clauses in Section 1 of the 14th amendment a) privileges and immunities (P&I) b) due process (DP) c) equal protection (EP) II. In 1873, the Supreme Court voted (5 to 4) that the Bill of Rights were not incorporated into the states; SELECTIVE
INCORPORATION has since changed that III. What is the meaning of the 14th amendment, and how does it apply to the states? A. Barron v. City of Baltimore (1833) 5th amendment if only applicable to the federal govt. th * FACTS: “takings clause” of the 5 amendment * COURT: 1. 5th amendment is ONLY applicable to the FEDERAL government, not states or cities B. Slaughter House Cases (1872) P&I clause does not include all rights set out in B of R * FACTS: Louisiana law; gave monopoly to Crescent City Slaughter House (people had no choice as to where they could go); claim that it was unconstitutional under 14th amendment * COURT: 5 to 4 decision narrow interpretation of P&I clause 1. focuses on Privileges and Immunities clause 2. P&I clause does not include all the rights that the Bill of Rights sets out 3. Framers: privileges set out by the federal govt. (rt. to go to fed. ct., etc.) Since this decision, P & I clause is rarely used anymore. Equal protection ONLY involves discrimination against ex-slaves. IV. What does the 14th amendment mean with regard to the Bill of Rights?
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A. Three General Views (1) No Incorporation View (Harlan; Frankfurter in Adamson) a. independent meaning b. not relevant to rest of Bill of Rights c. gives more power to judges d. subjective view e. fundamental fairness and ordered liberty? natural law approach (2) Total Incorporation View (Black dissenting in Adamson) a. look to the Bill of Rights, intentions, and consequences b. thinks “No Incorporation View” is too subjective (3) Selective Incorporation View (White in Duncan) – where we are today a. choosing among Bill of Rights based on a test as to which ones are incorporated b. incorporate only fundamental provisions
B. Adamson v. California (1947) no incorporation approach FACTS: self incrimination claim COURT: opinion by Reed 1. 5th amendment does not apply to the states 2. P&I is for all citizens 3. DP is for all people DISSENT: Black 4. look at history of 14th amendment 5. framers intended B of R to be applicable to all states
C. Duncan v. Louisiana
(1968) selective incorporation approach (modern interpretation) FACTS: Duncan was trying to stop a racial fight; one person accuses him of assault; Duncan was put on trial without a jury because his case did not deal with capital punishment or punishment regarding hard labor; Duncan claims his 6th amendment rights have been violated COURT: opinion by White 1. asks if a trial by jury is basic to a system of jurisprudence 2. looks at history and tradition (jury trial was an important part) 3. the textualist view is that ALL criminal prosecutions had right to trial by jury 4. have to draw a line between “serious” criminal offenses and “petty” criminal offenses (since serious = jury trial, and petty jury trial); look at type of punishment to draw the line EFFECT OF DECISION: states preserve these cases by giving less than 6 months punishment (since 6 months is where the line is drawn regarding serious criminal offenses)
THE EVOLUTION CONTROVERSY 1st amendment “Congress shall make no law restricting an establishment of religion . . .”
I.
Scopes Trial (1925) a. TN had a statute which prohibited the teaching of evolution b. decision decided on a technical one rather than constitutional c. conflict between traditional (Bryan) and modernism (Darrow) in Scopes trial d. debate regarding evolution has gone on since primarily b/c it undermines the strong views that people have (1968) law prohibiting evolution is violation of establishment clause FACTS: AR law prohibited the teaching of evolution COURT: opinion by Fortas a. religious reason behind AR law (sponsors of bill thought evolution undermined religious beliefs) b. states are prohibited from taking sides on religious issues c. “free speech” clause (also included in this case) -- teachers should have right to free speech, but have obligations to teach certain things (1987) law giving equal time to both theories was violation of estab. clause FACTS: Louisiana law that stated, if you teach evolution in the classroom, you must give equal time to creationism COURT: opinion by Brennan
II. Epperson v. Arkansas
III. Edwards v. Aquillard
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1. religious purpose behind LA statute (there could be a non-religious motivation behind the LA statute such as
academic freedom and a more comprehensive curriculum, but court said no to these)
2. fails LEMON TEST
DISSENT: Scalia & Rehnquist 1. Lemon test should be dismantled because the prongs are worthless
FREEDOM OF ASSOCIATION (Sources that protect rt. to associate are the 1st and 4th amendments)
I.
Does not appear in Constitution, but S.Ct. recognizes 2 types of associations a) expressive associations – people get together to achieve social or political goals b) intimate associations (i.e., marriage) – right to privacy
II. What does an organization believe it has the right to do? a) choose its members b) define its purpose, set its goals c) choose its leaders d) meet III. 2 conflicting views regarding right to associate a) Egalitarianism (Rights Oriented Liberalism) – open up choices, let people do what they want to do, knock down barriers b) Communitarianism – an individual’s identity does NOT come from choices made, but comes from the community that surrounds him; government should protect those communities; associations are protective shield between government and individuals
IV. Roberts v. US Jaycees
state has a CSI for women to join an econ/commerical association FACTS: local chapters admitted women as regular members (against national policy of Jaycees); president of national organization told local chapters that if they didn’t stop, their charters would be revoked; Jaycees did not include women because of tradition, views of both sexes are different, and comfort value; MN has Human Rights Act which prohibits all male membership policy (MN Supreme Court agreed with Act) COURT: opinion by Brennan 1. US Supreme Court can’t interpret state law; can ONLY decide if state law is constitutional or not 2. State has to show a compelling state interest (MN says the compelling state interest is equal access to economic opportunities) – S.Ct. agrees with MN 3. decision will not change the Jaycees that much; goals and positions will stay the same CONCURRING: O’Connor 1. 2 types of associations: commercial and expressive; Jaycees are commercial = little protection 2. if a group is “predominantly expressive,” they can choose their membership and have total protection (this is a factual question) 3. a continuum (spectrum) exists between expressive and commercial associations
V. Boy Scout case (2000) FACTS: James Dale (who held a leadership position in the Boy Scouts) was expelled from his position and the Boy Scouts when they found out he participated in a gay rights group at a university; Boy Scouts have restriction on sex and religion; now, sexual orientation NJ Supreme Court: 1. dismissal of Dale because of sexual orientation was illegal 2. Boy Scouts are a public accommodation S.Ct.? 1. stronger case than Jaycees 2. possibly expressive which means the Boy Scouts can dismiss homosexuals RIGHT TO BEAR ARMS (2nd amendment) “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
I.
Militia (state) a. used to assist with state problems; as a supplement army; prevent oppression from federal government b. any one over 16 (w/ upper limit of 60); male adult citizenry
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c. required to have a gun
II. Army (federal) – used for foreign threats III. What is the purpose of the militia clause? a. recognize right of states to have militias in order to protect themselves from federal government b. is this still the purpose today? c. has it outlived its usefulness?
IV. What is the original intent of 2nd amendment? -- Individual right of citizens to bear arms V. US v. Miller
(1939) people have the right to use same arms that militia uses FACTS: defendants were found guilty of transporting a sawed off shotgun across state lines COURT: opinion by McReynolds 1. sawed off shotgun is not something that falls under the 2nd amendment; people have a right to own arms that militia would use 2. does NOT answer if Miller would have won had he transported a regular, registered shotgun court’s decision could be read in 2 ways: 1. individual right to bear arms, but only for commonly used arms in militia 2. no individual right (1982, Ct Apps) 2nd amend is a limitation on fed. govt.; not incorporated FACTS: town forefathers enacted an ordinance that made possession of handguns illegal COURT: 1. second amendment was not violated 2. 2nd amendment is only a limitation on what the federal government can do; 14th amendment does not incorporate 2nd amendment (therefore, it does not apply to the states); cites Pressner even after this decision, STILL DO NOT KNOW WHAT 2 nd AMENDMENT MEANS
VI. Quilici v. Morton Grove
VII. US v. Emerson (1999, N. Dist. Ct. of TX) 2nd amend is meant to protect right to own/carry of citizens FACTS: Emerson was indicted for possession of a firearm while being under a restraining order COURT: 3. 2nd amendment was intended to protect the right of individuals to own/carry firearms 4. right to bear arms is a check against TYRANNY (federalist view) UNREASONABLE SEARCHES –4th AMENDMENT “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . ”
I.
Two types of cases under 4th amendment a. individualized suspicion (TLO) b. across the board searches
II. New Jersey v. TLO (1985) 4th amend applies to schools; only need reasonable suspicion FACTS: girls are found smoking in the restroom; taken to vice principal’s office; VP questions the girls; TLO denied smoking; VP demanded to see TLO’s purse and looks in it; VP finds cigarettes and continues to search through it; VP finds rolling papers, plastic bags, money, and little marijuana; TLO asks to exclude evidence in the case COURT: opinion by White 1. 4th amendment does apply to school officials (public employees) 2. school officials do not have to obtain a warrant; need freedom to maintain order) 3. STANDARD: “reasonable suspicion” (lower standard than probably cause) of violation of school rules or law (met in this case) 4. balance between students 4th amendment interests and a legitimate government interest DISSENT: Brennan and Marshall 1. VP should have stopped after he found the cigarettes; VP had no reason to believe that she had marijuana 2. invasion of privacy was INSIGNIFICANT 3. person searching must have PROBABLE CAUSE 4. 4th amendment grants individuals a zone of privacy
Con Law 8 III. Veronia School District v. Wayne Acton (1995) blanket searches are permissible FACTS: Acton wanted to try out for football team; had to fill out a form allowing a urine test to be conducted on him; he and his parents refused to sign form (thought it was an invasion of privacy); he is suing to stop drug testing for football players; across the board search of athletes went on because of more risk in sports related injuries (if using drugs), leaders of the drug culture, role models, attribute bad playing to drug and alcohol use COURT: opinion by Scalia 5 to 4 1. blanket search is permissible 2. suspicionless test 3. athletes had lower expectation of privacy; participation was voluntary CONCURRING: Ginsburg 1. should be a “reasonable” balance btw privacy interests and government interests DISSENT: (O’Connor, Stevens, Souter) suspicionless = UNREASONABLE
IV. National Treasury Employees Union v. Von Raab
(1997) okay to test custom officers FACTS: custom officers were being tested for drugs; claimed it was violation of 4th amendment COURT: okay to test custom officers DISSENT: custom officers should not be tested for drugs (Scalia changes his view since Veronia; probably b/c Veronia was a school) (1997) unconstitutional to make GA candidates for governor submit to drug tests
V. Chandler v. Miller
TAKINGS OF PRIVATE PROPERTY – 5th AMENDMENT “ . . . nor shall private property be taken for public use, without just compensation” I. What factors does the Supreme Court look at to see if it is a “taking”? a. economic impact (diminution in value); if practically valueless = taking b. interferes with investor expectation (reliance) c. character of government action: seizure, invasion, adjustment of burdens and benefits (zoning laws are regulatory takings), or prohibition of use
II. Elements of a taking a. state actor (public use) b. property is involved c. degree of interference (judicial discretion) III. Penn Central Transportation, et. al. v. New York City, et. al.
(1978) not a taking FACTS: Penn Central wanted to add 55 stories to Grand Central; city did not allow tower to go up b/c of Landmarks Preservation Law; Penn Central had to have modification approved by Landmark Preservation Commission; did not approve, but city did offer Penn Central transferable developmental rights (not equivalent to value of addition Penn Central wanted) COURT: opinion by Brennan 1. not a taking; property still had value 2. a city may place restrictions on development of historic landmarks (zoning) w/o being a taking DISSENT: Rehnquist, Chief Justice, and Stevens 1. not all property around Penn Central has to follow the same rules – looks suspicious 2. Penn Central had air rights which have been TAKEN 3. city has destroyed the P’s property rights IV. Dolan v. City of Tigrad (1994) a taking; rough proportionality test FACTS: Dolan had to get a permit to expand building; before giving permit, city said company had to give the city a bike path a flood plain; Dolan has lost the right to exclude (a stick in her bundle) COURT: opinion by Rehnquist (2 PART TEST: #1 &2) 1. have to show substantial nexus between what the city is taking and the harm (city did not demonstrate this enough; therefore it was a taking) 2. must be “roughly proportional” (show how much more traffic, etc.) – city did not prove 3. P lost her ability to exclude (stick in the bundle)
Con Law 9 DISSENT: (Stevens, Blackmun, Ginsburg) this is an issue we should not be getting into; shouldn’t micromanage land use (1992) a taking b/c the govt. made the land worthless FACTS: Lucas bought land; SC legislative passed law that said he could not build on it; Lucas claimed it was a taking since land was now worthless COURT: opinion by Scalia 1. this is a taking since the land is worthless and the owner could do nothing with it 2. 2 prong test: a. physical invasion of property deserves compensation b. 100% depravation of an owner’s property deserves compensation DISSENT: (Blackmun) 1. court launches a missile to kill a mouse 2. land is not totally valueless
V. Lucas v. South Carolina Coastal Council
VI. Ivory example: A collector has a store of ivory, but now he cannot sell it since there is a bar on selling it. The Lucas
opinion suggests it would be difficult since it is personal property; people can expect the rules will change. Ivory is not now valueless and the government is not taking it. The collector can display it and charge people to come look at it. DEATH PENALTY - 8th amendment
I.
Arguments for and against the death penalty For abolition a. cruel (psych & physical; excessive) b. unusual (applied rarely; discriminatory) For death penalty a. 5th amendment b. 14th amendment
1. Text
2. Intention 3. Case Law
vagueness of 8th can go to either side “cruel & unusual” is left open for interpretation a. evolving standards of decency a. makes people insensitive to violence a. Wilkerson, Kemmler, Francis a. without capital punishment, govt. could be encouraging vigilante actions
4. Policy
II. Supreme Court 8th amendment tests: a) “inconsistent with evolving standards of decency” b) “wanton and unnecessary infliction of pain” c) “deliberate indifference”
III. Furman v. Georgia (1972)
death penalty is uncon. if it is arbitrarily applied FACTS: appeal after a capital offense case resulted in the death penalty (NAACP had been appealing every capital offense case); if this case was successful for NAACP, 600 people’s sentences on death row would be commuted (more pressure on Justices); Furman’s attorney argues standard of decency has changed; most industrialized nations do NOT have the death penalty (FYI: 38 states in US now have death penalty and the majority of people support it) COURT: 5 to 4 with 9 different opinions (White and Stewart were swing votes) 1. death penalty in this case was UNCONSTITUTIONAL since it was arbitrarily applied 2. Brennan & Marshall state that the death penalty is ALWAYS CRUEL AND UNUSUAL 3. all Justices on the S.Ct. feel that the death penalty is bad DISSENT (Blackmun, Burger, Rehnquist, & Powell) the text and intentions of the framers move them to make his decision; CAPITAL PUNISHMENT IS CONSTITUTIONAL IMPRESSION ON PEOPLE WHEN DECISION CAME DOWN: people thought that was the end of the death penalty; then, 38 states passed laws that apply the death penalty, but not arbitrarily
IV. Gregg v. Georgia (1976) death penalty is constitutional (arbitrariness is gone) FACTS: appeal from death row inmate; attorney’s for US/Georgia argues that the ramers did not outlaw death penalty (look at intentions); the death penalty is not inflicted b/c of race; and the death penalty has elements of discretion which are safeguards COURT: opinion by Stewart 6 to 3 decision
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4. 5. 6. 7. 8.
arbitrariness has been vacated, so the death penalty is constitutional death penalty is only applied to a limited # of crimes; serves as a deterrence and retribution defendant now gets bifurated hearings (1st – guilt; 2nd – punishment) death penalty is supported HISTORICALLY and by PRECEDENT punishment must be accepted by society and comport w/ basic concept of HUMAN DIGNITY
V. McCleskey v. Kemp (1987) death penalty is constitutional (was not applied b/c of race) FACTS: D was sentenced to death; D now claims his death sentence violates the 8th and 14th amendments because it is racial biased; D brings in “Baldus study” which shows that when there is a white victim and a black D, the D is 22% likely to get the death penalty (at least 3x more often than any other combo); however, more white D’s are being executed COURT: opinion by Powell 1. sentence was constitutional; the death penalty was not applied because of race 2. D failed to prove jury imposed death penalty b/c of his race (this would be difficult to impossible to prove) 3. court pretty much ignored the study 4. slippery slope argument; attys only look at their case while judges see how one case will effect future cases DISSENT: (Brennan, Marshall, Blackmun, & Stevens): let’s worry about the future when we get there; in this case, RACIAL PREJUDICE was DEMONSTRATED VI. Hudson v. McMillan (case brought up by Linder) 2nd test used; violation of 8th to hit inmate & put in shackles FACTS: Hudson was an inmate; he got in an argument with another inmate; he was put in shackles by the guards and hit several times; 5th Circuit Ct. of Apps. said Hudson had to suffer significant injury (ie. permanent disability) for it to be a violation of 8th COURT: 5. this was “wanton and unnecessary” (2nd test) 6. violation of the 8th amendment DISSENT: (Thomas & Scalia) slippery slope argument; not concerned with what occurs in prisons; not what framers intended
VI. Case before the S.Ct. regarding electrocution in AL and whether or not it violates the 8th amendment; in response and fear,
NE (which also has the electric chair) is trying to pass a bill to make the death penalty via lethal injection.
VI. Range of issues have come up regarding 8th amendment violations:
putting a non-smoking prisoner with a chain smoking prisoner (possibly could apply “deliberate indifference, but S.Ct. did not decide – remanded case) b) punishment in schools (framers never intended to address this issue because they did not have public schools; S.Ct. said it was not an 8th amendment issue) a) LIBERTY TO CONTRACT – 14th amendment (due process clause)
I.
Lochner v. People of the State of New York (1905) right to contract; state cannot make maximum hr. law FACTS: NY state law in question stated bakers could only work so many hours per week (maximum hour law); Lochner said his liberty to contract (his right to purchase/contract for labor) was violated by this law; NY wanted Ee’s to have more time for family and other things instead of work; without the law, it could have a negative impact on the welfare of the family and children. COURT: opinion by Peckham 5 to 4 example of JUDICIAL ACTIVISM 1. we have a right to contract 2. STANDARD: unreasonable, unnecessary, arbitrary interference 3. court allows STATES to regulate certain contracts: safety, health, & morals (NY law could possibly fit in health, but state had no evidence to establish this) 4. Maximum hour laws may be justified in certain cases (i.e., air traffic controllers, coal miners, etc.) 5. state has no power to do this (laissez faire capitalism); let the market alone w/o interference by the states 6. this law is unreasonable and is substituting their judgment for the legislature’s judgment DISSENT: (Holmes) Constitution does not embody the principles of ONE economic system (i.e., laissez faire, like the majority wants) – POSNER calls this the best S.Ct. opinion ever written (case that Linder brought up) maximum hour laws for women are const. S.Ct. upheld maximum hour laws for women; ct. had more paternalistic view of women as opposed to men; long hours may have an effect on reproductive capabilities and child rearing
II. Muller v. OR
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III. Nebbia v. NY (1934) 5 to 4 decision adopts “reasonable test” for state statutes FACTS: NY statute that set a minimum price on the sale of milk; state was worried about cheap milk having a bad effect on the farmers; if there was no minimum price set, consumers (in the end) may have to pay higher prices due to less milk being made COURT: opinion by Roberts 1. changing attitudes regarding state and federal economic regulations 2. Under Lochner, this statute would have been unconstitutional since it does not fit under any of the 3 categories set forth by the court in that case. 3. NEW STANDARD adopted; court asks the following: a. is the statute reasonable? b. is the statute substantially related to its goal? 4. burden of prove is on the party challenging the statute 5. statute promotes GENERAL WELFARE 6. MORE DEFERNTIAL APPROACH to legislative economic statutes IV. Williamson v. Lee Optical Co. (1955) – Warren court rational basis standard adopted for rt. to contract FACTS: OK law regarding opticians and eyeglasses (probably due to an effective lobbying effort by opthalmologists and optometrists); opticians were banned from filling prescriptions, etc. COURT: opinion by Douglas example of JUDICIAL ABDICATION 1. MOST DEFERENTIAL APPROACH; accepts almost any form of state economic regulation 2. NEW STANDARD: (Rational Basis) a. is the statute rational? b. does the statute have a legitimate goal? c. are the means rationally related to the legitimate interest the state has?
V. Fundamental Personal Liberties vs. Economic Liberties (and applicable tests)
FUNDAMENTAL PERSONAL LIBERTIES strict scrutiny approach (ex. Griswold, Roe) ECONOMIC LIBERTIES minor scrutiny (RBT) (ex. Lochner)
ABORTION
I.
Roe v. Wade (1973) abortions in the first trimester could not be regulated by states, CSI test FACTS: challenge to TX law that did not allow abortions unless to save the live of the mother ARGUMENTS FOR ROE: a) Law infringes upon Roe’s privacy rights as recognized in Griswold & right to an abortion is a FUNDAMENTAL PERSONAL RIGHT (choice, health effects, economic effects) b) Right to give/receive medical treatment (this is the basis that BLACKMUN wanted to use in his opinion) -abortion is a medical procedure, choice btw patient and doctor, could help a woman (ie, if life threatening) c) TX has no compelling state interest to support its law d) Fetuses are not “persons” within 14th amendment – “persons” does not include the unborn e) Statute is unconstitutionally vague (this is her weakest argument) -- does not say EXACTLY when a doctor can and cannot perform an abortion ***vague statutes are ONLY unconstitutional if people have to guess the meaning*** ARGUMENTS FOR TEXAS: a) no fundamental personal right involved here -- text of Constitution says nothing about abortion; Griswold was a case about contraceptives and intimate association; much more private matter than abortion b) TX has a compelling state interest to preserve life of fetus (potential human life), prevents/discourages promiscuity, protect health of mother, respect for life c) a fetus is a “person” within the meaning of the Constitution d) the case was no longer moot b/c P was no longer pregnant (BUT, no pregnancy could last as long as appellate process; COURT says this is NOT A PROBLEM)
Con Law 12 How do you deal with the question of “when does life begin”? a) let the state decide b) let the woman and the doctor decide c) let each individual decide Where do you draw the line (for when abortion should and should not be permitted)? a) trimesters (Roe) b) viability (Casey and constitutional standard) c) at conception (bright line rule) d) until birth (bright line rule) COURT: opinion by Blackmun a) expanded right of privacy to include abortion as a personal right of the woman b) uses CSI test (STRICT SCRUTINY) c) draws line at TRIMESTERS (1st trimester: no CSI to regulate abortions; 2nd trimester: state has a CSI to protect the health of the mother; 3rd trimester: state has CSI to ban abortion) d) “person” is not w/in the meaning of the 14th amendment e) looks at HISTORY (abortion was okay until the quikening of the fetus at CL) f) does NOT discuss when LIFE BEGINS (1992) court adopts undue burden and viability tests FACTS: challenge to Roe decision; PA statute required spousal consent, parental consent (if younger than 18), and 24 hour waiting period to be met before a woman could get an abortion JUSTICES’ VOTES: 2 for Roe (Stevens & Blackmun); 3 for status quo (O’Connor, Kennedy, & Souter); 4 anti-Roe (Rehnquist, White, Scalia, & Thomas) REASONS NOT TO OVERTURN ROE: (1) people will lose confidence in the court; stare decisis (Scalia disagrees with this) – only reasons for overturning a previous decision should be: a. change of circumstances b. when it is a remnant of a previous decision; nothing left of prior decision c. unworkable decision d. when there is not much reliance on the previous decision (2) reliance of right to have an abortion (however, Scalia says the only people who are relying on Roe are people who are having unprotected sex) COURT: (1) adopts undue burden test (new test – only used for abortion thus far); looks at whether or not a substantial obstacle makes the abortion more costly or more difficult (2) spousal consent was undue burden, but the 24 waiting period was not (3) changed trimester test to VIABILITY (after fetus is considered viable, states can ban abortion) DISSENT: (Scalia, Thomas, White, and Rehnquist) (1) If it is a principle that is deeply embedded in our legal system and a great deal of reliance on the principle exists, we should stick with it regardless if it is wrong. (2) Roe is not one of these principles. (3) Scalia thinks the majority opinion is both APPALLING AND RIDICULOUS
II. Planned Parenthood v. Casey
RIGHT TO SEXUAL AUTONOMY I. Bowers v. Hardwick (1986) law criminalizing sodomy is not unconstitutional FACTS: Hardwick was arrested for same-sex sodomy per a GA law which criminalized sodomy; Hardwick claims he has a right to decisional and spatial privacy; law was rarely enforced COURT: opinion by White (1) state met RBT: protect morality and health (AIDS) – law is not unconstitutional (2) this case is only about homosexual sodomy (married couple had tried to Ps with Hardwick, but the court dismissed them because they did not have standing) – if enforcement was brought against heterosexual couple, court probably would have found it unconstitutional (3) concern with slippery slope – if allow Hardwick to commit sodomy in own home, is the court allowing incest, prostitution, etc. to occur also? -- concerned with line drawing (4) liberty of sodomy is not a traditional one nor an implicit concept of ordered liberty DISSENT: (Blackmun) case is about fundamental right to be left alone to make private decisions in the home
Con Law 13 in 1988, GA S.Ct. found this statute to be unconstitutional when conference for this case was held the vote favored (5 to 4) to strike down GA’s law; Powell changed his mind and wrote a concurring opinion instead (saying that if Hardwick had been sentenced and placed in jail, he would have dissented – cruel and unusual punishment II. Romer v. Evans (1996) CO amendment is unconstitutional when applying EP clause FACTS: different cities in CO adopted gay rights protection laws; amendment 2 (a referendum Constitutional amendment) repealed these ordinances and some at the state level (Univ. of CO); because of this amendment, gays could no longer go to the state legislature and get protection COURT: (1) state has to have a legitimate state interest (RBT = legitimate state interest + classification is rationally related to legitimate interest (2) CO does not meet RBT (CO had claimed preserving morality and protecting LLs) (3) most likely, the court felt that homophobia and animosity drove this amendment DISSENT: (Scalia) (1) opinion is terminally silly; it is a subjective decision by the court that reflects elite lawyer class that makes up the court (2) quotes Bowers v. Hardwick; if it is constitutionally permissible to make homosexual conduct criminal, surely it is constitutionally permissible for a state to enact laws disfavoring homosexuality
THE RIGHT TO DIE I. Cruzan v. Director of Missouri Department of Health (1990) expansion of DP clause FACTS: MO state law forbids the withdrawal of feeding tubes at any time; Cruzan was in a car accident and is now in a PVS (persistent vegetative state); TRIAL COURT was satisfied with evidence regarding Nancy’s wishes and granted Cruzan’s parents the decision to withdraw feeding tubes; MO S.Ct. reversed trial court; statements were not strong enough; state had a compelling state interest to protect other in same situation (this was the 1 st state court NOT to allow a parent to disconnect life support) 2 major propositions: (1) competent adults do have a constitutionally protected liberty interest in declining unwanted medical procedures (2) if incompetent, state may constitutionally refuse termination unless there is clear and convincing evidence that it was what the patient wanted COURT: 5 to 4 (1) there is a liberty interest involved (however, Nancy really does not have an interest since she is unaware as to what is going on) (2) state can decide who a person is (in this case, MO says Nancy was), and can establish a standard of clear and convincing evidence – MO establishes this standard to get closer to intent of patient and want to err on the side of preserving life (3) constitutional right to turn down treatment, not to be killed DISSENT: (Scalia – no liberty interest involved; Stevens – state took away the family’s right to remember Nancy)
II. Washington v. Glucksberg assisted suicide statute is not unconstitutional FACTS: WA law that makes it illegal to assist suicide; challenged by Doctors and “The Passionate Dying”; the 9th Circuit Ct. said this law was UNCONSTITUTIONAL as applied to terminally ill and competent; 9 th Circuit Ct. stated that people had a LIBERTY INTEREST in controlling time of own death, and the STATE INTEREST is strong enough to trump these interests except in the above exceptions COURT: (4) right to assist suicide is NOT a FUNDAMENTAL RIGHT (5) look at history/tradition/practices (historically, this was never accepted as a right and still is not; 49 states reject this “right”) (6) the state has an interest (has to meet RATIONAL BASIS) a. preservation of life b. protection of integrity of medical profession c. protect vulnerable groups d. slippery slope
Con Law 14 DISSENT: STEVENS – people who are in unbearable pain and are helpless may be constitutionally allowed to have someone assist in their suicide
THE FAMILY AND THE CONSTITUTION I. Village of Belle Terre v. Boraas no fundamental right in living with whoever you want FACTS: city zoning ordinance prohibited no more than 2 unrelated people to live together as a “family” unit; 6 unrelated college students wanted to live together and say PERSONAL INTERESTS are being violated; city claims the ordinance is for other reasons (reduce noise, parking, and traffic) COURT: opinion by Douglas (1) RBT applied; state had a RB (2) discretion is legislative (not judicial) (3) no fundamental right granted DISSENT: (Brennan, Marshall) (1) right to associate (right to choose who you live with) (2) right to privacy
II. Moore v. City of East Cleveland FACTS: Moore is living with her son and 2 grandchildren (who are not brothers, but cousins); Moore is cited for having an illegal occupant and was charged with a fine of $25 and 5 days in jail COURT: (1) these people are related which gives them a special status (2) family relationship; FUNDAMENTAL PERSONAL LIBERTY in living with related people (3) demand JUSTIFICATION from state/city (NOT rational basis/strict scrutiny) (4) protects more conformist types of lifestyles with this holding after this ruling, not permissive for a city to say “no kids can live here” III. Michael H. v. Gerald D. biological father does not necessary have rt. to visit his daughter FACTS: Michael H. wants to visit his biological daughter; the daughter lives with Gerald D. and biological mother; Gerald was mother’s husband at time of birth; Michael H. believes he has a CONSTITUTIONAL RIGHT to visit his daughter COURT: opinion by Scalia (1) go to specific level (tradition), then (2) has it been traditionally protected by society? [this is quite fuzzy; some record of protection by statute or toleration of it is necessary] (3) Michael does not have a right to see his daughter b/c of tradition DISSENT (Brennan) (1) Scalia is hardly protecting anything with this test (2) should protect non-conforming lifestyles (3) should not go to specific level, because other cases have not gone to that level (ex. MO case regarding inmates being able to marry; court looked at marriage being accepted by society, not marriage of inmates) (4) fathers have a right to see their children members of court reject Scalia’s specific level analysis (should look at broader level of interest) IV. Wisconsion v. Yoder mandatory schooling violated free exercise clause of 1 st amend. FACTS: Amish parents did not send their children to school and were fined $5, because WI had a compulsory attendance policy; there are Amish values which cannot be learned at school; parents also worry about bad influences from school (possibly undermine values); WISCONSIN’s reasons: keep children off of welfare, better citizens, and protect children’s ignorance COURT: opinion by Burger (5) violation of free exercise clause of 1st amendment (6) right of parents to make decisions regarding children’s religion (due process; fundamental liberty) – due process portion of case helps those parents who want to home school their children (7) apply STRICT SCRUTINY – state has to have very important reason to have compulsory attendance; state does not meet this (8) Amish have a long history (decision may have been different if involved another religion) DISSENT: (Douglas) always have a hearing before granting action to see if kids are okay with decision; should have less parental control and more child’s choice/decision
Con Law 15 V. United Pentecostal Church case (brought up by Linder) (1) parents claimed it was immoral for their children to go to school with immodestly dressed children of the opposite sex in gym class; sought court order (2) 7th Circuit: sided with Church; school had to exempt children from gym class; FREE EXERCISE CLAUSE VI. Troxel v. Granville (2000; case heard before S.Ct. in January) FACTS: grandparents’ visitation law in WA that requires grandparents visitation if in best interest of the child; in this case, father committed suicide; he was never married to mother; mother now says grandparents cannot see grandchildren; mother argues DUE PROCESS right as a parent (grandparents and mother may have differing views regarding discipline, morals, religion, etc.); WA S.Ct. struck down statute COURT: ??? (1) Linder thinks Scalia will invalidate law based on traditional parent right to choose (2) S.Ct. will have to decide if statute is constitutional or not VII. Other areas where substantive due process comes into play: Due process to one’s own personal appearance (ex. in 1970s: schools had rules regarding hair lengths and facial hair) 1976, NY ordinance regarding police officers; officers had to have a certain hair length, be clean shaven, etc.; officers said they had a fundamental right to look the way they wanted to; before case went to S.Ct., 8 circuits had decided on this issue (4 upheld fundamental right; 4 did not) if general population is effected, there is a liberty interest here employment was involved (promote morale, etc.) – ordinance is okay need RATIONAL BASIS for public employment restrictions on appearance EQUAL PROTECTION – 14th amendment “No state shall deny to any person within its jurisdiction the equal protection of the laws.” 14th amendment applies to states; 5th amendment applies to federal government applies to all PERSONS (not just citizens) within jurisdiction (borders) of state what are legitimate distinctions the state can use when making laws?
M = mischief T = trait M T Perfect legislation would regulate all persons causing mischief and no one not causing the mischief No one who is part of problem is being regulated (this legislation is irrational) – this type of legislation is never okay
M
T
M T
Getting only some of the people that are causing the problem UNDERINCLUSIVE LEGISLATION
T M
Regulating too many people OVERINCLUSIVE LEGISLATION – most likely to be struck down
M
Part overinclusive / part underinclusive T
Example: mischief is alcohol impaired drivers; it is difficult to have a law that states all alcohol impaired drivers cannot drive; what are the possibilities? M T All persons with a .30 BAC and above can drive (irrational law)
Con Law 16 M Any person with .15 and above can be arrested (only getting severe drunks) (UNDERINCLUSIVE)
T
T
M
Any person with .01 and above are subject to arrest (OVERINCLUSIVE)
M T
Set BAC at .08 (both UNDERINCLUSIVE an OVERINCLUSIVE)
States try to make legislation close to fit (better legislation = better classification to fit the problem) state must fit standard set forth by the court
EXAMPLE: NY ordinance that did not allow people to have ads on automobiles unless they related to their business; legislation was underinclusive; court said ordinance was okay; NY met rational basis test (only need justification) RATIONAL BASIS TEST: majority of cases are upheld under this test because the state only needs a rational reason (only extreme cases are irrational) When should we look at a classification more carefully than others? Identified certain categories (as to when to look at classification more): (1) historically discriminate against (2) immutable characteristic (3) discrete and insular minority (4) underrepresented in political process Group being discriminated against will raise level of scrutiny (i.e., CSI, LRM, ISI, SRM) If a suspect classification exists . . . CSI/LRM applies SEPARATE BUT EQUAL 14th amendment adopted in 1868 for a brief period of time after 1868, political equality between races existed 1880s, Jim Crow laws were passed Plessy v. Ferguson in 1890, Louisiana passed a statute which required blacks and whites to ride in separate cars on the trains Plessy got on a “white” car because he wanted to challenge the LA statute; he was 1/8 black (LA had a “1 drop” rule); RR worker, who did not like this law and agreed to help Plessy challenge the statute; asked him to move to the “black” car COURT (Brown delivered the opinion) 1. law is CONSTITUTIONAL 2. standard is REASONABLENESS; probably reasonable at that time to have separate cars 3. separation is fine; only need equality 4. feelings of racial superiority; whites were trying to keep blacks out of their white cars; white race exercising their political power DISSENT (Harlan): 5. majority has blinders on 6. “all citizens are equal before the law” 7. “Constitution is color-blind, and neither knows nor tolerates classes among citizens” VIDEO ON CHARLES HOUSTON Murray v. Maryland – University of MD Law School (to admit blacks); court said that the student’s constitutional rights were violated and ordered him to be admitted
Con Law 17 wanted to equalize teacher’s salaries Gaines v. Missouri – Gaines was seeking admission to law school; state only had 1; MO said that Gaines could attend a law school in NE, IA, or IL; S.Ct. (Hughes delivering the opinion) stated that this was a violation of the EP clause; can’t provide separate but equal outside of state desegregate transportation and armed forces Sweatt v. Painter – U of TX law school; built another law school for 1 black student Brown v. Board of Education – 7 year old Linda Brown wanted to go to an all white school which was quite closer than segregated school; case was combined with 4 others; Marshall litigated for Brown; court went through 17 months of deliberation; COURT said that segregation inferiority which effects the hearts and minds and REJECTS Plessy
Gaines v. Canada (1938) Gaines, graduate of Lincoln University wanted to attend State University of MO School of Law; his record was unquestionably sufficient MO solved the issue by stating Gaines could got to surrounding states and MO would pay the tuition what is inequality to Gaines? 1. may be a disadvantage to attend an out-of-state school if he wants to practice in MO 2. out-of-state law degree may not be as impressive to clients 3. closer to home (travel/transportation costs) COURT: (Hughes) 4. does not make item by item comparison 5. each state has an obligation to offer legal education to both whites and blacks 6. VIOLATION of 14th amendment (Gaines had personal right) The cases between Plessy and Brown dealt with a variety of law schools as opposed to other educational schools; why? 1. clearer violation of separate, but equal 2. judges may have understood the importance of graduating from a law school with a good reputation 3. mass resistance would have occurred if suits dealt with elementary schools (with elementary schools, parents and children would be involved; with law schools, only adults are involved) Brown v. Board of Education (1954) 9 to 0 decision court looked at intangible things; i.e., reputation, job placement, etc. looked at equality in a real sense school’s argument – original intent of framers [difficult to decide whether framers wanted segregated schools or not; in the South, they were no public schools]; in 1868, the general thinking was that it would not make sense to have integrated schools because the framers incorrectly assumed that blacks were not as educationally capable as whites in context of PUBLIC EDUCATION, SEPARATE was inherently UNEQUAL separating races sends a message of inferiority (based on studies) the COURT could have based its decision on 1st AMEND. RT. TO ASSOCIATE; court based its decision instead on STUDIES court says segregation (anywhere) implies inferiority S.Ct. never says why places (besides educational facilities) segregation requirements are unconstitutional; S.Ct. orders them to integrate and to see Brown; no other reason is stated decision may have been written narrowly in order to get a 9 to 0 vote what is the RELIEF granted? integration in 1964 (10 years later) – 1% of 11 Southern state’s schools had African American children enrolled some states enforced integration a year after the decision some states (mainly Southern) would draw school lines around black areas or even families UNDER ThE EQUAL PROTECTION CLAUSE, if classification is for (1) RACE, STRICT SCRUTINY test is applied (CSI/LRM) (2) GENDER, INTERMEDIATE SCRUTINY test is applied (ISI/SRM) – the court generally thinks that gender is not an appropriate classification
MUW v. Hogan (1982) 5 to 4 decision segregation based on gender Hogan wanted to attend an all-female nursing school; there were other universities in MS that offered programs for males, but Hogan wanted to attend MUW (which was much closer)
Con Law 18 the STATE claims that there are not as many economic opportunities for women; therefore, the state formed the university for women to further their advancement COURT: 1. state has to have an important reason for all-women nursing program 2. when applying ISI test, the state did not prove that establishing all women’s nursing school was the means of reaching their goal decision may have come out differently if it was an all-women’s engineering school
United States v. Virginia VMI excluded women from admission VMI was a military school which used the “adversative method”: 3. lack of privacy 4. physical rigor 5. mental stress (“Rat Line”) 6. regulation of behavior at a minute level VMI used this method in order to produce better men, form a bonding experience, develop loyalty, and because the method worked Jeffrey Rosen article – VMI is egalitarian (tremendous amount of loyalty and the program works); Ginsburg agrees with Rosen if women are added, must change privacy, physical rigor; environment as a whole would change absolute equal treatment may not be equal protection (i.e., putting the same physical rigor standard on women would be unfair) the District Court gave Virginia opinions; Virginia choose to create VWIL was VWIL similar to VMI? 7. faculty qualifications differed 8. VWIL used cooperative method of instruction (state relies on generalization that women learn better under this type of instruction) 9. lower quality (standardized test scores were lower, fewer classes, lower teacher salaries) COURT: (Ginsburg delivered opinion) 10. VWIL was not equal enough 11. programs must be “substantially equal” 12. cited Sweatt v. Painter DISSENT: (Scalia; Thomas probably would have dissented also, but he recused himself from the case since his son attended VMI) 13. criticizes majority’s use of intermediate scrutiny (too high of a standard) 14. there are always going to be differences 15. accuses majority of raising the bar in gender cases from ISI & SRM to “exceedingly persuasive justification” 16. RBT should be used because it has a firmer foundation in jurisprudence 17. tradition of VMI 18. no single-sex educational facility will survive such a test What about single-sex sports? S.Ct. has never addressed the issue if you have one team for each sex for a sport, it is fine purposes for single-sex sports: safety, mental aspects, etc. PROVING UNCONSTITUTIONAL DISCRIMINATION Yick Wo v. Hopkins San Francisco passed a statute in 1880 to regulate wooden laundries by requiring licenses (because of fire hazards) on its face, statute is not discriminatory Yick Wo applied for a license, but was denied (Yick Wo’s laundry facility was inspected the year before and passed) Yick Wo presented evidence that 1/200 Chinese receive their laundry licenses while 79/80 non-Chinese receive their licenses numbers do not PROVE discrimination, but gives inference that purposeful discrimination is going on EP APPLIES HERE because the clause covers “ANY PERSON” COURT:
Con Law 19
1. Statute was applied discriminatorily 2. statistics (in this case) were enough to prove unconstitutional discrimination 3. EP was violated
When are statistics enough to allow inference? S.Ct. says there is no mathematical line depends on context; is there a racially neutral explanation for these statistics?