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Course: Constitutional Law Fall 2002
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Year: 2002
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Constitutional Law Outline



I. Supreme Court’s Authority

A. Marbury v. Madison - Judicial review of Congressional legislation.

1. If the Sprm. Ct. identifies a conflict between a constitutional provision and a congressional statute, the Ct. has the authority and the duty to declare the statute unconstitutional and refuse to enforce it.

a. the people established a government of limited power, so Congress must not be the only reviewer of constitutionality of their own laws, otherwise there is the potential for unlimited power.

b. Art VI states that the constitution is the “supreme law of the land”, and it is the function of the judiciary to say what the law is.

1) Sprm. Ct. is not the exclusive interpreter of the constitution, but they are the ultimate interpreter.

2. Criticisms- not explicitly stated in the constitution that the Sprm. Ct. is the ultimate arbiter.

a. however, since the constitution is silent, it is more practical to have an ultimate arbiter, and that should be the Sprm. Ct. because they can protect the interests of the minority because they are not subject to political pressures.

b. also serves as a way to legitimize government in the eyes of the people by having independent review.

B. Martin v. Hunter’s Lessee - judicial review of state court decisions

1. Sprm. Ct. has power to review the federal questions decided by state courts in order to maintain uniformity and supremacy of federal law.

a. under Art. III, the judicial power extends to “all cases” arising out of federal law, not just those that are originated in federal court.

1). limited to review of federal questions, so if there “clear and plain statement” of “independent and adequate state grounds” for the decision, the court will defer to avoid a 10th amendment conflict or giving “advisory opinions.” See Michigan v. Long

b. the federal gov’t is supreme, the states are not “dual sovereigns”

c. if states were not subject to review, federal law could not be applied uniformly across the nation.

C. Cohens v. Virginia- Sprm. Ct. has power to review state criminal cases, as well as civil cases (Martin dealt only with civil case).


II. Congressional Control of the Federal Court Jurisdiction

A. Ex-Parte McCardle - Art. III, § 2 states that the appellate jurisdiction of the Sprm. Ct. is subject to “such exceptions and conditions as Congress shall make”, thus Congress may limit the appellate jurisdiction (broadest reading).

B. Klien - attempts to control the appellate jurisdiction are unconstitutional if they are not neutral.

1. restricting the appellate jurisdiction is unconstitutional under separation of powers where it is used as a “means to and end” to alter the outcome of a particular case because it would deny the court the judicial function to “say what the law is.”

C. Plaut - even a statute that applies to a whole class of cases is unconstitutional if enacted for an illicit purpose.

1. might even prevent uniformity and supremacy of federal law required under Martin.

D. It is probably easier to limit the lower federal court’s jurisdiction, because Art. III, § 2 gives Congress the express power to eliminate them altogether. “in such lower courts as Congress may from time to time ordain and establish.”


III. Breadth of general federal power

A. McCulloch v. Maryland - breadth of the Congressional power

1. Congress has the “implied power” to enact legislation that, although it is not expressly enumerated in the Const., is “appropriate” and “plainly adapted” to the end of executing an enumerated power, so long as it is not otherwise prohibited by the Const.

a. “necessary and proper” means “helpful and conducive”

b. means-ends analysis of mere rationality - further inquiry to Congressional purpose would be against the separation of powers doctrine.

c. Marshall’s view is Const. may evolve within limits.


IV. The Commerce Power

A. Gibbons v. Ogden - Marshall’s broadest view of commerce power

1. Congress has the complete and exclusive power to regulate interstate commerce, even internally to the states, limited only by the Const.

a. “commerce” defined broadly as “commercial intercourse” (not just buying and selling) which concerns more than one state.

1) thus, “navigation” was part of “commerce.”

b. commerce power is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution.”

B. Knight - hostility to economic regulation (manufacture is not commerce)

1. Congress can only regulate activities under the commerce power if they have a “direct” affect on interstate commerce, rather than those that have an “indirect” or “incidental” affect.

a. the 10th amendment reserves the right of police power to the states to regulate local activities that have an “indirect” affect.

1) thus, “manufacture” was not properly controlled by Congress because it only has an “indirect” affect.

2) this case seems to fail its own test, but is an indication of hostility to federal regulation of economics.

C. Shreveport Rate Case - more deference to Congress - “close and substantial economic affect” on interstate commerce.

1. Congress has the power to “protect” and “foster” interstate commerce, thus Congress can regulate completely intrastate matters if they have a “close and substantial” affect on interstate commerce because the “ultimate object” was the protection of interstate commerce.

2. Swift - Congress can also regulate activity that, although they are completely intrastate, and do not have a substantial economic affect on commerce, if the activity is “in” commerce or part of the “current of commerce.”

a. thus, the middlemen who transported meat across the country could be regulated because they were part of the “current of commerce”. Their many transactions, viewed as a whole, represented interstate commerce on a major scale.

D. Wickard v. Filburn - quota on homegrown wheat

1. First standards appear:

a. Congress can regulate any activity, even a local one, if it has a “close and substantial” relationship to or affect on interstate commerce; and

b. Small local effects may be aggregated for purposes of determining “substantial affect.”

1) thus, a farmer’s use of homegrown wheat may be regulated.

E. Darby - two more standards:

1. Congress has control over the channels and facilities of interstate commerce, and can thus regulate “impure goods.

a. 10th amendment is not a limitation on Congressional power to regulate interstate commerce (no dual sovereignty).

2. Congress can regulate totally local activities in order to effectuate its regulation of interstate commerce (bootstrap argument).

a. “motive” or “pretext” is irrelevant as long as the means are “reasonably adapted” to the end of protecting interstate commerce.

1) thus, the criminalization of local employer activity was reasonable means of implementing the prohibition on interstate shipments of “impure goods.”

b. this means that in order to regulate an activity that has a substantial affect on commerce, Congress can regulate any activity which has a substantial affect on Congress’ power to implement its regulation of interstate commerce.

c. ex: Perez - Congress made express findings that organized crime had a “substantial affect” on interstate commerce and that loansharking was a primary source of revenue for organized crime, thus Congress could directly regulate loansharking, even though it was completely local in nature, because it affected Congress’ ability to effectuate regulation of organized crime and thus interstate commerce (no way to tell which loansharks were not related to organized crime, so regulate them all).

F. Commerce Power in Civil Rights cases - the 1964 Civil Rights Act based part of its authority on the commerce clause, banning discrimination in establishments which serve interstate travelers, or which buy or sell food a substantial portion of which “has moved in interstate commerce.”

1. Heart of Atlanta Motel - motel that is on interstate highway and serves interstate travelers may not discriminate.

a. express Congressional findings that the presence of discrimination “displaces” interstate commerce by discouraging blacks to travel in the south, thus it has a substantial affect on interstate commerce.

b. “if it is interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze,” indicating that the “moral” purpose behind the law does not invalidate it.

2. Katzenbach v. McClung - Ollies BBQ is not near interstate travelers, but substantial amount of beef it buys moves in interstate commerce.

a. the local business climate suffers from discrimination, deterring investment in the area, thus displacing commerce, and having a substantial affect on commerce.

b. aggregation of the small affects of individual restaurants can be done under Wickard.

c. although there were no Congressional findings, the court would not scrutinize Congress’ motives where a rational relationship existed.

G. The 10th amendment “police power” as an independent limitation on the commerce power.

1. Garcia - 5-4 vote holding that “traditional” state functions and activities of states qua states may be regulated without regard to the 10th amendment because the only limits on the commerce power is the constitution itself. The fact that a state qua state is being regulated is not significant, if the regulation would be valid if applied to a private party.

a. states could adequately protect themselves by participation in the federal election process.

b. Dissent (Powell and O’Connor) believed that this was intrusion on 10th amendment which was a limit Congressional power apart from the political process. They felt the proper approach was a “balancing” of the state vs. federal interests as was done in National league of Cities.

c. Counter-ex: in Gregory v. Ashcroft, court held that application of federal retirement ages act to state judges unconstitutional because there was no “plain statement” of Congressional intent to intrude on traditional state area.


2. Lopez - gun free school zone act unconstitutional because it does not have a “substantial affect” on interstate commerce.

a. deterring the presence of guns on school grounds is not part of a larger regulatory scheme that would be undermined if not viewed in the “aggregate.”

b. possession of guns is not a commercial activity, and there are no congressional findings to defer to, so there is no “rational relationship” to interstate commerce.

c. infringed on a traditional area of state regulation, so it prevented experimentation in the “laboratory” of the states.

d. court will no longer give deference to Congress’ findings, but will decide the issue from scratch, applying a stricter test than mere “rational basis.”

3. New York - Congress may no simply “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

a. however, federal monetary or economic “incentives” are proper to encourage the states to pass certain laws.

b. congress may not force a state to adopt a certain regulatory scheme or even force a state to regulate in a certain area if it does not want to.

1) where the federal gov’t compels regulation, the state gov’t takes the political heat, while the federal gov’t remains insulated from the political process.

2) thus, federal gov’t can not compel a state to take title (as a state) to the radioactive waste produced in the state if it does not follow a federal regulatory plan.

3) however, Congress could theoretically state that the state could not ship the waste outside of its borders, thus directly regulating under the commerce clause.


V. Other Federal Powers

A. The Taxing power

1. Bailey - the Child Labor Tax case. - Congress may not impose a tax on an industry as a means of regulating it, where the purpose of raising revenue is merely a “pretext” for accomplishing an illegitimate end (i.e. regulating a local activity that may not be regulated under the commerce power).

a. a tax that is actually a penalty (i.e. heavy burden for departure from a standard, imposed without regard to level of activity, etc.) is invalid even if it generates substantial revenue.

2. Kahriger - A federal excise tax is not invalid merely because it deters the activity taxed, or generates negligible revenue, as long as its regulations are “reasonably related” to collection of the tax for a valid tax need.

a. thus, an occupational tax on gamblers is valid because it serves a legitimate revenue generation need, and the associated reporting requirements are “reasonably related” to the collection of that tax.

** 3. Summary:

a. If Congress has an independent power to regulate (for instance under the commerce clause) then it can tax under the necessary and proper clause whether they have actually regulated in that field or not.

1) thus, if the commerce power is broadened, the taxing power follows.

b. If there is no independent power to regulate, then it can tax if the dominant purpose is revenue generation, and not regulation or penalty.

B. The Spending Power

1. Butler - Congress has the substantive power to tax and spend (on equal footing with the commerce power), limited by the requirement that it be exercised to “provide for the general welfare.”

2. Steward Machine - Congress has the power to encourage states to comply with legitimate federal regulation programs by the use of monetary incentives under the spending power, if it is done for the “general welfare.”

a. spending conditioned on compliance with legitimate federal regulation is not “coercion” and thus not an infringement on 10th amendment.

b. the “general welfare” is served when the states, acting individually, can not effectively combat a “national” problem, such as unemployment.

** 3. Summary:

a. If Congress has an independent power to regulate (for instance under the commerce clause) then it can spend under the necessary and proper clause whether they have actually regulated in that field or not.

b. If there is no independent power to regulate, then the spending must be for the “general welfare” and not have a “local purpose.”

C. The War Power

1. Woods - post-war rent control act was constitutional under the “necessary and proper” clause as a valid exercise of the war power because although formal hostilities had ceased, the war power is still available “to remedy the evils which have arisen from its rise and progress.”

a. the war power is limited by the rest of the constitution, namely the 9th and 10th amendments, but since it is normally exercised during times of “hasty patriotism,” there is potential for abuse.

b. It probably can not last as long as the effects and consequences of war last because many of them are permanent. (Jackson, concurring in the result).

D. The Treaty and Foreign Affairs Powers

1. Missouri v. Holland - Congress may regulate local activities pursuant to the necessary and proper clause as a means of giving effect to a valid treaty.

a. valid treaties are the “supreme law of the land” (supremacy clause) so they override state interests in the same area. (10th amendment is not a barrier to treaty power)

b. in operation, Congress may pass a valid treaty, and then pass a statute regulating a local activity if it is necessary to give effect to that treaty (similar to bootstrapping argument in Darby).

c. treaties themselves are limited by rest of constitution under Reid v. Covert (a treaty can not confer power on the Congress which is beyond the constitution).

2. Although there is not explicit grant of power to conduct foreign affairs, it is impliedly given to Congress and the President as the most logical holders of the power.


VI. Dormant Commerce Clause

A. Background

1. Gibbons v. Ogden - Marshall stated that the power to regulate interstate commerce is exclusive to the federal government because it is unsharable by its very nature, but decided the case on pre-emption grounds because he found an actual conflict.

2. In Wilson v. Black Bird Creek, Marshall backed away from this approach, conceding that a state’s exercise of its police power was not necessarily invalid if it had an affect on interstate commerce, so long as there was not a direct conflict with federal power.

a. the dam was a valid exercise of state police power because its purpose was to protect health and safety; and

b. it was non-discriminatory in effect - it burdened interstate and intrastate commerce equally.

3. Cooley - The states are free to regulate (under its general police power) those aspects of interstate commerce that were of such a local nature as to require different treatment from state to state, but not those which required uniform national treatment (which only Congress can provide) in the absence of action by Congress.

a. the determinative factor is the “subject” of the regulation (what is being regulated) rather than the “purpose” of the regulation.

b. this standard has been modified by modern courts

** B. Modern Approach:

1. determine if the state law is a substantial burden on interstate commerce;

2. determine the state’s interest in the law;

a. the regulation must pursue a legitimate state end

1) non-discriminatory economics

2) health, safety and welfare

b. the means must be at least “rationally related” to the legitimate state end.

1) economic advantage statutes are put to close scrutiny if there are “less burdensome alternatives” available

2) health and safety finding are given general deference.

3. determine the federal interest in preventing the burden and protecting interstate commerce

4. balance the state and federal interests.

C. Examples of the Modern Approach:

1. South Carolina v. Barnwell - regulation of size of trucks on state highways upheld

a. highway regulations were equal burden on intrastate and interstate commerce, so no discrimination;

b. highways are a local safety concern because they are built by the state

c. rational relationship existed, state findings given deference.

2. Southern Pacific v. Arizona - regulation of length of trains in state was struck down

a. the regulations were a burden on out-of-state railroads who would have to stop and reconfigure, or use Arizona trains exclusively, triggering closer scrutiny than mere acceptance of state findings.

b. railroads are not just a local concern because they stretch across the nation and are not funded by the state, thus requiring uniformity

c. the safety improvement was non-existent because although there were smaller trains, there were more of them, thus the means were not “rationally related” to the ends of providing more safety.

3. Dean Milk v. Madison - regulation requiring local processing of milk was struck down.

a. burdened in-state and out-of-state milk equally, but economically advantaged the local processor, triggering closer scrutiny than mere acceptance of state rationale of health and safety.

b. although state had bona fide health interest, there were “less burdensome alternatives” available, because inspectors could travel to out of state processors instead of vice-versa.

c. thus, balance in favor of federal interest in protecting interstate commerce from undue burden.

4. CTS Corp. v. Dynamics Corp. - state anti-takeover statute to prevent hostile takeover was upheld

a. burdened in-state and out-of-state purchasers equally, and gave no economic advantage to local purchasers

b. incorporation is necessarily a local activity - corporations have no rights apart from those granted by their state

c. the means are rationally related to the valid state interest in promoting stability in its corporations.


VII. Privileges and Immunities Clause

A. Camden - a state (and by inclusion, a municipality) may not discriminate against an out-of-area resident with regard to a “fundamental” privilege or immunity unless such discrimination is outweighed by a “substantial” local interest.

a. can only discriminate if out of area residents are “constitute a peculiar source of the evil at which the statute is aimed.”

b. reasoning: out-of-state resident has no opportunity to represent his interests in the local political process.


c. ex: Piper - state law prohibiting out-of-state residents from joining the state bar was struck down:

1) practice of law was a fundamental privilege because it was “important to the national economy.”

2) no substantial justification for discrimination because bar requirements ensured competency, not residency.

d. ex: Edwards - privileges and immunities clause combined with commerce clause implies a fundamental right of mobility (travel), so anti-Okie statute was struck down.


VIII. Pre-Emption

A. Pacific Gas & Electric - state nuclear regulation law based on economic (rather than safety) regulation is valid even in the presence of extensive federal regulation of the field of nuclear energy.

1. a state may pass regulations in an area subject to concurrent federal regulation if:

a. compliance with both the state and federal regulation scheme is possible;

b. the area is not one of exclusive federal authority;

c. there is not a “clear and manifest” intention on the part of Congress to pre-empt the field; and

d. the state law does not frustrate the federal purpose

2. compliance with both state and federal was possible because although the state forbade construction of power plants, the federal scheme did not compel them

3. Court accepted state’s “purpose” of economic regulation rather than safety so there was no intrusion into an area of federal authority.

B. Rice - test is whether:

1. the federal scheme of regulation was so pervasive as to infer that Congress left no room for state regulation;

2. the federal interest is so dominant that it outweighs the state interest; and

3. the state law produces a result inconsistent with the federal objective (frustrates federal purpose).

C. Campbell - tobacco marking statute struck down even though it “supplemented” federal marking regulations because Congress had “occupied the field” by setting “uniform standards” leaving no room for state supplementation (also apparent local discrimination).

D. Florida Lime - local lime marking statute upheld in the absence of “an unambiguous congressional mandate” because the regulation involved “minimum” standards and not “uniform” standards.

** E. Modern Court Approach - no presumption of preemption:

1. look for express preemption in the federal statute

2. if not express, determine if there is no other logical conclusion:

a. use standards previously mentioned (purpose, uniformity, pervasiveness...)


IX. 14th Amendment Procedural Due Process

A. Early cases:

1. Bill of Rights does not directly apply to the states, unless the specific right is incorporated into the 14th amendment and made applicable to the states.

a. Ex: Barron - pre-14th amendment due process case. Marshall held that there was no right of “just compensation” for state takings.

2. 14th amendment does not create additional rights, it only guarantees that states can not infringe on the rights of citizens of the United States.

a. ex: Slaughterhouse Cases - closed the “privileges and immunities” clause by limiting it to protection of only “fundamental” privileges, not all of those in the bill of rights.

B. Three approaches to incorporation:

1. “selective incorporation” of “fundamental rights” - look at the facts of the trial to see if they were “fundamentally unfair,” if so incorporate the necessary bill of rights provision.

a. Palko - Cardozo stated that test of whether a right is “fundamental” is if it is of “the very essence of a scheme of ordered liberty” and whether it is one of those “fundamental principles of liberty and justice which lie at the base of all of our civil and political institutions.”

1) the right against double jeopardy if state can show prejudicial error is not “fundamental”

b. Adamson - Frankfurter concurrence stated that the 14th amendment due process clause had “independent potency.”

1) right against self-incrimination due to state commenting on defendant’s lack of testimony is not “fundamental” under Palko approach.

2) total incorporation would prevent experimentation by states (federalism).

c. Duncan - (modern approach) focused on bill of rights instead of particular case - if case implicated a “fundamental” right, it was automatically incorporated (here, trial by jury in “serious” criminal cases)

1) Harlan’s dissent argued that automatic incorporation led to “jot for jot” incorporation of all of the federal precedent baggage concerning the right, putting a “straitjacket” on state experimentation.

2. “total incorporation” of the entire bill of rights

a. Black’s dissent in Adamson - stated that full incorporation was the “original purpose” of the 14th amendment, and that “selective incorporation” is too subjective because it is based on the idea of “natural law.”

1) felt selective incorporation put bill of rights guarantees in jeopardy of dilution.

3. “total incorporation plus” incorporates the entire bill of rights plus any other rights deemed to be “fundamental”

a. Justice Murphy’s dissent in Adamson stated that there might be other rights in addition to the bill of rights that are automatically incorporated.

b. ex: In Re Winship held that proof beyond a reasonable doubt, although not expressly provided for in the Const., was nevertheless “essential” to due process.


X. Economic Due Process

A. Lochner - a state may pass a law under its general police power that affects “liberty” under the 14th amendment only if the law has a “real and substantial” relation to a legitimate state end.

1. there is a “liberty of contract” created by “natural law” which is protected by the 14th amendment

2. the state end of regulating the working hours of bakers in order to realign the economic power between the bakers and their employers is an illegitimate state end because the bakers are not a class needing protection.

3. the infringement of a fundamental “liberty” triggers a non-deferential determination of the underlying purpose - here the health and safety purpose was a “pretext” for labor regulation (interferes with laissez faire).

4. even if the health and safety purpose were legitimate, this is still a bad means-ends fit because there is not a “real and substantial” relationship of hours regulation of bakers to health of bakers because their working environment is not dangerous.

5. See also, Coppage - yellow dog contracts requiring employees to promise not to join a union were struck down as violating the “liberty of contract.”

B. Regulatory Takings -

1. Justification for compensation for state takings:

a. 14th amendment incorporates 5th amendment’s “just compensation” clause, even though it is absent from the 14th amendment’s due process clause (procedural due process) OR

b. “just compensation” is a “fundamental” right of liberty and thus springs out of the 14th amendment itself.

2. Pennsylvania Coal v. Mahon - a taking does not have to be a complete “physical” taking (as was required in Mugler). While property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.

a. since the value of coal rights depends on the ability to mine the coal, preventing mining is tantamount to a physical taking.

b. the existence of commercial impracticability is enough to result in a taking.

3. Lucas - denial of “all economically viable use” of land is a per se taking.

a. whether a regulation is “harm preventing” (and therefore non-compensable) or “benefit conferring” (compensable) is irrelevant if the land has completely lost economic value.

b. basis of “implied limitation” of regulatory taking is the history of the 5th amendment which has become part of our “constitutional culture.”

4. Dolan - to obtain an exaction from a private business, a city must show that there is a an “essential nexus” between the exaction and a “legitimate state interest”, and the exaction must bear a “rough proportionality” to the interest.

a. there was a nexus between the 15 foot unpaved greenbelt and the flooding, as well as the bicycle path and increased traffic.

b. however, there was not a rough proportionality because:

1) the greenbelt did not have to be publicly owned - it would be just as effective if privately owned; and

2) the city could not show calculations that the bicycle path would reduce the flow of traffic significantly.


XI. Individual Rights/Private Liberties under 14th amendment substantive due process

A. Early cases finding substantive due process rights:

1. Meyers - fundamental right to be educated (struck down prohibition of teaching of foreign language).

2. Pierce - fundamental right to educate your children (struck down statute prohibiting catholic private schools).

B. Right of Privacy

1. Griswold - marital right of privacy of contraception

a. The scope of the right of marital privacy is unstated, but broad enough to encompass contraception.

b. The right originates from:

1) Douglas’ majority - a “penumbra” of certain bill of rights provisions creates a “zone of privacy”

2) Goldberg’s concurrence - the 9th amendment indicates that there are fundamental rights outside of the bill of rights (not an exclusive list), so the right of privacy springs out of the 14th amendment due process “liberty” clause itself.

3) Harlan’s concurrence - found marital right to privacy “implicit in the concept of ordered liberty” like Palko

c. the standard to be applied here is “strict scrutiny.”

d. the zone of privacy for contraceptives of Griswold was broadened in Eisenstadt to apply to contraceptive use by unmarried couples, thus broadening the scope of the right of privacy to include the right of an individual to be free from governmental regulation of birth control choices.

C. Right to an Abortion

1. Roe v. Wade - trimester approach - 1st trimester - no close regulation, discretion of woman had doctor, 2nd trimester - state may make regulations concerning protection of mother’s health, (state interest is “compelling” with regard to the mother’s health) 3rd trimester - after fetus becomes viable, state may regulate, and even proscribe not life-threatening abortions (state interest is “compelling” with regard to the potential life of the fetus).


a. scope of the right - broad enough to cover a woman’s right to choose to have an abortion.

b. source of the right is the liberty clause of the 14th amendment

c. the standard of review is “strict scrutiny”:

1) right to choose an abortion is “fundamental”, so

2) state interest must be “compelling” and

3) means must be “necessary” (narrowly drawn) to accomplish the ends.

d. Douglas’ concurrence describes the following classes of fundamental rights:

1) autonomy over self-expression

2) freedom of choice of basic decisions of marriage, divorce, procreation, contraception, and education

3) freedom from restraint or compulsion - freedom to “walk, stroll, or loaf.”

2. Akron - O’Connor’s dissent reasons that the proper standard that triggered strict scrutiny should be whether the law is an “undue burden” on the right to seek an abortion.

a. if undue burden not found, then use mere rationality standard of review.

3. Casey - O’Connor - an undue burden exists, and therefore a provision of the law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

a. rejected the fundamental right/strict scrutiny, and trimester approach of Roe and adopted the “undue burden” standard from Akron.

1) undue burden is a fairly high standard since the 24 hour waiting period passed.

b. restated the “essential” holding of Roe as:

1) a woman has a Const. right to seek abortion before viability without undue interference from the state;

2) the state has the power to restrict abortions after viability;

3) the state has legitimate interests in the health of the mother and the life of the fetus from conception.

c. thus, abortion is no longer a “fundamental” right.

d. result of holding:

1) informed consent is not unduly burdensome

2) 24 hour waiting period is burdensome, but not unduly burdensome

3) husband notification is unduly burdensome because it would scare away wives from abortion if they are afraid of their spouse’s reaction.

e. Four justices thought Roe should be overturned altogether.

D. Right of related persons to live together

1. Moore v. East Cleveland - city can not pass laws forbidding “extended” family from living together.

a. right was not necessarily “fundamental” so it did not trigger strict scrutiny, but rather a middle level review somewhat higher than mere rationality.

b. “more than a deferential review.”

c. this right was “deeply rooted in the Nation’s history and tradition.”

E. Right to Marry

1. Zablocki - a state may not pass a law which “directly and substantially” interferes with the “fundamental” right to marry in the absence of a “sufficiently important” state interest.

a. did not use a “strict scrutiny” review, but rather a “critical examination” review.

1) critical examination means that the law cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.

b. although the state interest was legitimate and substantial, it the statute was not closely tailored enough, and alternate less intrusive means for exacting compliance with child support obligations was available.

F. Right of Sexual Conduct

1. Bowers v. Hardwick - there is no constitutionally protected fundamental right of homosexual sodomy.

a. issue framed very narrowly.

b. homosexual sodomy has been outlawed for many years so it can not be “implicit in the concept of ordered liberty” (Palko) nor “deeply rooted in the Nation’s history and tradition.” (Moore).

c. explicit reluctance by the court to recognize new “fundamental” rights that are not found in the Const. because of the “slippery slope” which might lead to adultery, incest, etc.

c. Dissent:

1) Blackmun felt that the issue was the broader “right to be let alone” with respect to decisions about intimacy, and privacy in the home (4th amendment).

2) Stevens noted that since it applied equally to married and unmarried heterosexuals, the state needed to show a compelling interest.

3) Powell saw an 8th amendment problem due to the long prison term.

G. Right of Personal Appearance

1. Kelley v. Johnson - police officers do not have a fundamental right to wear their hair long.

a. right of personal appearance for certain occupations appears to be less than “fundamental”, triggering only “mere rationality” standard.

b. short hair among police is a rational means to accomplish the state ends of:

1) public recognition of police officers

2) esprit de corps of police officers

c. private citizens probably have a fundamental right of personal appearance

H. Right to Die

1. Cruzan - a competent person has a 14th amendment “liberty interest” right to refuse unwanted medical treatment, but in the absence of clear intent of an incompetent person to the contrary, a state may provide medical care against the wishes of the incompetent person’s family.

a. the right to die is not “fundamental”, so it only triggers some sort of “balancing” test.

b. the state has a legitimate interest in preserving life, and may properly require “clear and convincing” evidence of an incompetent person’s desire to refuse medical care.


I. Procedural Due Process

A. springs from 14th amendment right to “life, liberty, and property”

1. “liberty” being taken:

a. ex: Assuming that there is a fundamental right to education (based on state constitution), then to expel (or suspend for >10days) a student from school requires a hearing. - Goss v. Lopez

b. counter-ex: defamation of character (being labeled a “shoplifter” by local police) is not a deprivation of a liberty interest, even though it may have adverse effects on hirability - Paul.

c. ex: if state law provides a contractual right, there is a liberty interest in freedom of contract that may not be abridged without a hearing.

d. ex: an otherwise qualified driver must get a hearing before his driver’s license is taken away, because it affects his ability to work and function autonomously - Bell

2. must have a “legitimate claim of entitlement” to subject matter having the nature of “property” before due process is triggered, regardless of how “important” it is to you personally - Roth

a. ex: a welfare recipient has an entitlement to receive benefits, and they may not be taken without a hearing - Kelly

b. ex: a person who has an “objective expectation” of continued employment (may be proven by “unwritten policy”) is entitled to a hearing before termination - Perry

c. counter-ex: an unlicensed lawyer does not need a hearing for the court to deny his pro hoc vice (one time only) application to argue before the court.

3. the type and nature of the hearing required for due process is flexible and requires balancing - Matthews

a. the private interest being affected

b. the risk of erroneous deprivation and the probable value of any safeguards

c. the government’s interest in efficiency and the substitutes available.

4. if the origin of the liberty or property interest is in state law, then the state may define the nature and scope of the hearing due without violating due process.

a. ex: if state law provides the employment regulation, taking away the employment may only require an administrative hearing with your supervisor.

5. there must be state action to trigger due process

II. Equal Protection

A. Economic/Social equal protection - rational basis

1. normally triggers rational basis test - the classification must bear a rational relationship to a legitimate purpose of the law.

a. ex: banning of advertisement for hire on the sides of trucks does not violate due process because it is rationally related to the prevention of accidents caused by distraction. - Railway Express

1) doesn’t matter if law is underinclusive because gov’t does not need to erradicate all evil in one step.

2) great deference given to city’s alleged purpose for the law, and their findings of relatedness

3) court rarely invalidates an under-inclusive law, even though it may pose a greater danger for arbitrariness because of the lack of political accountability that results from burdening small classes.

b. ex: police department may legitimately put all officers over the age of 50 in desk jobs, because it is rationally related to the purpose of providing physically fit street cops, even if many policemen over 50 are physically fit. - Murgia

1) age is not a suspect class

2) doesn’t matter if less burdensome alternative is available - only need one rational basis

c. ex: state judges may be required to retire at age 70 because it is rationally related to providing quality in law, even if some older judges are still competent. - Gregory v. Ashcroft

d. counter-ex: however, a state has no rational basis for denying a use permit to build a home for the mentally retarded persons - City of Cleburne

B. Suspect classifications - strict scrutiny

1. “discrete and insular minorities” who are not likely to be able to represent themselves well in the political process.

a. history of past discrimination

b. subject to frequent stereotyping

c. an immutable characteristic shared by the class that identifies them as members of the class

2. if the classification is based on purposeful discrimination against suspect class, it triggers strict scrutiny - it must be necessary for and narrowly tailored to fit a compelling state interest.

a. racial/national origin classifications are suspect - “the most rigid scrutiny”

1) ex: classification and exclusion from the west coast of all Japanese-Americans (although it passed strict scrutiny) - Korematsu

2) ex: prohibiting interracial marriages, even though it burdens both classes equally - Loving

3) ex: child custody being awarded to white father if white mother remarries black man (avoiding prejudice is not an acceptable basis for classification) - Palmore

3. racial segregation in schools is by definition a violation of equal protection because segregated schools are conclusively unequal - Brown (state) Bolling (federal)

a. separation of the races stigmatizes the minority races affecting their motivation to learn


C. Quasi-Suspect classes

1. gender is not a suspect classification, but it triggers a heightened level of scrutiny - classification must be “substantially related” to acheivement of “important governmental objectives” - Craig

a. ex: administrative convenience does not justify a male-only executor law - Reed

b. ex: administrative convenience does not justify requiring female servicepersons to provide proof of their husband’s financial dependency. - Frontiero (actually applied strict scrutiny)

c. ex: marginal statistics do not justify increasing the male drinking age over the female drinking age - Craig

1) even though the discrimination was against males, the high standard of scrutiny applies because of the stereotyping that made the law overinclusive.

d. ex: interest in providing a positive “all female” environment for nurses college does not justify the exclusion of males. - Hogan

1) purpose of all female environment is invalid, and the fit is bad, since males could sit in, but just wouldn’t receive credit

e. counter-ex: selective service act is constitutional even though it only requires men to sign up - Goldberg

1) important purpose of the law was to prepare combat troops, and women were not allowed in combat at that time, so it was substantially related.

f. counter-ex: a state disability plan may choose not to cover pregnancy - Aiello

1) the classification was not gender-based as such because it only classified persons into pregnant females, and “non-pregnant persons” which included both men and women.

2. Alienage

a. triggers strict scrutiny unless the discrimination is with respect to a “state function” or “political function”, then only rational basis

1) ex: states may not prohibit legal aliens from receiving welfare benefits - Graham (strict scrutiny)

2) ex: state may not exclude all legal aliens from holding permanent civil service positions, although it could require citizenship as a basis for at least some positions - Dougall

3) ex: state may exclude non-citizens from being state troopers because it is a gov’t function, so citizenship bears a rational relationship - Foley

4) ex: state may not exclude non-citizens from being notaries public because that is not a gov’t function, it is clerical and ministerial - Bernal

b. the federal gov’t is more able to discriminate based on alienage because of the broad immigration and naturalization power of Art. I, §8, notwithstanding the 5th amendment’s implied equal protection clause.

1) ex: the federal gov’t may require an alien to wait 5 years for federal medicare - Matthews v. Diaz

2) ex: states may not deny public education to illegal alien children, because the federal gov’t has preempted the field - Plyler v. Doe (intermediate scrutiny)

3. Illegitimacy

a. triggers intermediate scrutiny (“substantially related” to achievement of “important state objective”) - Clark

1) ex: state may not pass law preventing illegitimate children from recovering for wrongful death of their mother - Levy

2) ex: state may not put one year limit on bringing paternity action for child support - Mills (or even 6 years - Clark).

D. Purposeful Discrimination requirement -constitution only protects against purposeful discrimination - Washington v. Davis

1. three ways to prove purposeful discrimination

a. de jure discrimination - the law is intentionally discriminatory on its face

1) ex: state may not ban blacks from jury service - Strauder

b. de facto discrimination - the law is discriminatory as applied, even though facially neutral

1) ex: law preventing wooden laundry buildings without a waiver was discriminatorily administered because a waiver was never granted to Chinese applicant, but usually granted to white applicant - Yick Wo

2) ex: counsel may not exercise a peremptory challenge to eliminate a black juror (Batson) solely because of his race, or a woman solely because of her sex (J.E.B v. Alabama).

c. law was enacted because of a discriminatory motive of legislature, even though it is facially neutral

1) ex: city may not close all of its swimming pools to prevent desegregation - Palmer

2) ex: city may not “gerrymander” voting boundaries to eliminate most black voters from a particular district - Gomillion

3) counter-ex: even though blacks failed police entry test four times more often than whites, statistics are not sufficient to prove discriminatory purpose, especially in the face of affirmative efforts to recruit black police officers - Washington v. Davis

4) ex: in a title VII case, evidence of disproportionate impact alone is sufficient to make a prima facie case of discrimination - Griggs

E. Desgregation Remedies

1. “freedom of choice” is not sufficient, the segregation scheme must give way to a “unitary” system, and it must be dismantled “root and branch” - Green

2. no remedy is permissible unless the court finds that there has been purposeful (de jure) segregation, and then many remdies are allowable - Swann

a. court may consider the ratio of black to white students in rezoning the school districts

b. court may order “pairing” or “clustering” of the schools

c. court may order busing unless it poses a significant health or educational burden

3. once de jure discrimination has been found in one area of the school district, it can be presumed to exist in other areas of the same district unless rebutted by the school district. - Keyes

a. purposeful discrimination found in gerrymandering of school zones allows court to create remedies district wide.

b. however, “the scope of the remedy must equal the scope of the violation,” so an inner city school district which is found to have de jure segregation may not “borrow” white students from a different district in the suburbs (where there was no de jure segregation) in order to balance the ratio of black/white students. - Milliken

c. “magnet schools” in the inner city may not be used as a remedy unless it is shown that the white flight occurred because of de jure segregation. - Jenkins

4. court-supervised remedies may be terminated after a reasonable time of compliance (“unitary” system) when the school board can show that they will continue good-faith efforts to keep the schools integrated. - Dowell

a. federalism concerns grow if federal gov’t continues to supervise state schools.

b. new actions may still be brought in the future should things go wrong.

c. court may withdraw partially, even if “unitary” school system has not yet been accomplished in all areas. - Freeman

5. state has the same obligation to dismantle de jure segregation in public universities as it does in public schools. - Fordice

F. “Benign” discrimination/Affirmative Action

1. Benign discrimination against the majority group is put to the same scrutiny as discrimination against the minority group because it is still purposeful discrimination.

2. benign gender discrimination

a. ex: state may not impose alimony only against men, and not against women. - Orr

1) although objective of remedying past discrimination is important, classification is not substantially related because it is based on stereotypes.

b. counter-ex: a state may permit women to exclude more lower-earning years in computing social security benefits if the state can show an objective basis for remedying past discrimination against lower-paid women. - Webster

c. ex: administrative convenience is not sufficient basis to justify requiring widowers, but not widows, to demonstrate dependence on their deceased spouse. - Wengler

3. Benign race discrimination - affirmative action

a. ex: university may not reserve minority “quota” of seats for which whites can not compete. - Bakke

1) quotas are unconstitutional, however, the school may take race into account as one positive factor in admissions.

2) diversity in student body is compelling, based on 1st amendment concerns, but the classification was overbroad because not all whites are non-diverse.

b. ex: state may not institute a minority quota “set aside” program for construction contracts - Croson

1) in fact, any affirmative action must be for the purpose of remedying past discrimination by the state itself (not by soceity at large), of which there is specific evidence.

2) benign race discrimination stereotypes blacks as being inferior.

c. ex: federal gov’t may not pay kickbacks to contractors who hire minority firms - Adarand

1) skepticism - racial classifications are inherently suspect, triggereing strict scrutiny

2) consistency - level of review does not depend on which race is discriminated against

3) congruence - equal protection under 14th amendment is the same as that under the 5th amendment.

G. “Fundamental” Rights and Equal Protection

1. if a fundamantal right is inequitably administered, then it does not matter who is burdened (don’t need de jure discrimination), it triggers strict scrutiny (“necessary” to accomplish “compelling” state interest).

2. Education is not a “fundamental right”, so a state may tied school spending to local property taxes even though it means that wealthy students will have better schools - Rodriguez

a. “fundamental right” must either be explicit or implictly found in the Constitution.

b. equality in spenditures among different school districts does not give rise to strict scrutiny.

c. poverty is not a suspect classification

d. probably must be a minimum level of spending that is necessary by the state.

1) ex: probably may not charge tuition for elementary and secondary schools unless there are alternate free schools available.

e. arguments in favor of finding education as a fundamental right under the federal constitution:

1) there is a fundamental right to educate your children as you see fit - Society of Sisters

2) the 1st amendment right to free speech is meaningless if the population is illiterate.

3) the gov’t compels school attendance

4) most states, and the drafters of the constitution, feel education is fundamental to a healthy democracy

3. Right to travel

a. ex: state may not condition the reception of welfare benefits on being a state resident for >1 year. - Shapiro


1) impermissible state objective of discouraging indigent families from migrating into the state

2) permissible objective of providing budgetary security and predictibility was not sufficiently “compelling” to burden the fundamental right to travel

3) the law prevents person from receiving basic necessities of life.

b. ex: state may not condition receiving non-emergency medical care on being a state resident ≥ 1 yr. - Maricopa

1) no need to prove actual deterrence of travel, the existence of a “penalty” on travel is sufficient.

2) a penalty is an unequal distribution of “vital government benefits and privileges”

c. counter-ex: state may condition suing a non-resident for divorce on being a state resident > 1yr. - Sosna

1) only postpones court access, it does not eliminate it, so it is less of a burden than denial of medical or welfare benefits

2) state interest in preventing overcrowding of courts is sufficiently strong.

III. Separation of Powers

A. The presidential domestic powers

1. Art II, § 1 states, “The executive power shall be vested in a President.” Thus, most of his power is implied, however it must be “executive” (carrying out laws) in nature, rather than “legislative” or “judical.”

a. ex: President may not unilaterally order steel industry plants to be seized (without the consent of Congress) and put under gov’t control in order to prevent a strike. - Steel Seizure Case

1) this is a legislative function that is vested in Congress

2) not justified under “commander in chief” power because the theater of war connection is too remote.

3) congressional dispproval of such action was explicit.

b. Jackson’s analysis - three spheres of presidential power. Presidential powers are not fixed, but rather fluctuate based on congruence with Congress.

1) where the president is acting pursuant to an express or implied authorization of Congress - broadest powers, limited only by the Constitution

2) where the president is acting in the face of Congressional silence - more narrow powers limited by the “zone of twilight” where there may be overlap with congressional powers

3) where the president is acting in opposition to Congress - most narrow powers, supported only by his expressly granted constitutional powers, and then still limited by any overlap Congress may have [Congress is dominant in case of overlap].

c. Frankfurter’s analysis - a long-standing Presidential custom or habit of action over time in the face of Congressional consent leads to a “gloss” on the enumerated or implied powers of the president, unless Congress takes action to demonstrate their disagreement.

2. The president normally has the power to appoint and remove principle officers, but is not constitutionally required to retain the ability to remove inferior officers at will. - Morrison.

a. the special prosecutor is appointed by the judiciary, and only removable by the Attorney General (an executive officer) for cause.

b. president’s lack of power here does not impede is ability to perform his constitutional duty because the special prosecutor is still removable, but only for “good cause.”

B. Congressional Domestic Powers

1. Reservation of a one-house legislative veto is unconstitutional - Chadha. (congress can not interfere with executive branch’s power to execute the laws).

a. legislative acts require bicameralism and presentment.

b. a “legislative act” is one which has the “purpose and effect of altering the legal rights, duties and relations of persons.”

c. does not matter that the original delegation of power came from Congress with bicameralism and presentment.

2. Congress may not reserve the power to remove an executive officer (except for impeachment) - Bowsher (congress can not execute the law itself)

a. the executive power can not be wielded by Congress.

b. a person becomes an agent of Congress if Congress has the power to remove them

c. thus, an executive officer may not be removed by Congress.

C. Armed Forces and War Powers

1. Although Congress has the exclusive ability to declare war, it may delegate broad foreign policy powers to the President - Curtiss Wright

a. Congress may delegate authority to the President to perform the “legislative”-like function of initiating an embargo or blockade - Curtiss-Wright, The Prize Cases

b. president is in the best position to make decisions since he is the sole embodiment of U.S. foreign power.

2. War Powers Resolution

a. §5(b)(2) requires the president to withdraw troops within 60 days, unless Congress extends that period.

1) appears to be a legislative veto of the sort shot down in Chadha.

b. §5(c) allows Congress to jointly pull any troops out of any hostile zone at any time.

1) also appears to be a legislative veto.

D. Impeachment

1. Mechanics - Any officer ot the U.S. may be impeached for “treason, bribery, and other high crimes and misdemeanors.”

a. house indicts by a majority vote

b. sentate “tries” the case, convicting by a 2/3 majority

1) “try” does not mean that all of the members of the Senate have to participate in all of the hearings; a subcommittee may make a summary and present it to the whole senate for vote - Nixon (the federal judge)

c. Impeachment proceedings are not judicially reviewable because of separation of powers.

d. new president may not pardon impeached president

E. Presidential Immunity

1. the president has an absolute immunity for civil liability arising from within the outer boundaries of his official acts - Nixon v. Fitzgerald

a. the source of the immunity is “rooted in the constitutional tradition of separation of powers and supported by our history.

b. civil liability interferes with execution of duties.

c. the blanket immunity does not extend to presidential aids, who are only qualifiedly immune with respect to official actions not violating a “clearly established” right.

1) ex: presidential aid may not conduct an illegal search of someone’s house because it violates the clearly established right of the 4th amendment.

d. there are other ways to keep the president honest, ie. the press, impeachment, re-election, and personal reputation.

2. President has “executive privilege” to refuse to disclose confidential information related to his official duties, but it is outweighed by interest of justice in a criminal proceeding. - Nixon Tapes Case.

a. source of privilege is need for fearless policy making.

b. a specific claim of national secrets would get more deference than the mere generalized privilege asserted here.

c. normally results in an in camera hearing to determine what is admissible

IV. State Action

A. For purposes of constitutional protection, the π must show state action because the constitution does not protect against private discrimination.

1. A private citizen who performs and essentially “public function” is subject to constitutional regulation. - Marsh

a. ex: a company owned town which is like any other town, except that it is privately owned, may not prevent jehovah’s witness from passing out religious fliers (1st amendment) - Marsh

b. ex: a privately owned park may not discriminate based on race because a park is a traditional public function. - Evans

c. counter-ex: a privately owned utility company may discriminate because it does not exercise powers “traditionally exclusively reserved to the state.” - Jackson v. Metro Edison

2. if the government is significantly involved in, or benefits from, or provides support to a business, then that business is subject to constitutional regulation (Nexus test) - Shelley

a. ex: a discriminatory private land covenant is unconstitutional because it has the power of enforcement of the courts. - Shelley

b. ex: a privately owned restaurant that leases space from a state-operated parking garage may not discriminate on the basis of race - Burton

c. ex: private litigant may not exercise a peremptory challenge of a civil juror on the basis of race because the jury system rests on state authority. Edmonson

d. ex: Amtrak is an “agency or instrumentality of the United States” because of their mutually beneficial relationship, and thus it may not put content-based restrictions on advertising. - Lebron

V. Standing

A. Taxpayer standing - the petitioner must show that the statute being challenged rests on the taxing and spending power, and that it violates specific constitutional limitations on the taxing and spending power (rather than just a general limitation on the constitutional power) - Flast

1. ex: taxpayer may challenge congressional statute to subsidize religious private schools as an establishment clause violation - Flast

2. ex: taxpayer may not challenge statute to provide subsidized funding to states reduce infant mortality as a general 10th amendment violation - Frothingham

3. ex: taxpayer may not challenge HEW (executive branch) grant of free porperty to religious college as violation of establishment clause because it is not pursuant to the tax and spend power - Valley Forge.

4. ex: taxpayer does not have standing to challenge the non-publication of CIA expenditures, because there is no specific constitutional limitation violated - Richardson

5. the specific constitutional limitation so far is only the establishment clause.

6. policy: don’t want a bunch of private attorneys general policing the government and clogging the courts.

B. Traditional Standing - a petitioner must allege specific facts that show an individualized “concrete injury” actually caused by the challenged law, that would be redressed if they had a favorable ruling. - Warth v. Seldin

1. ex: low income family must show that the zoning law challenged prevented him from buying affordable housing, and that if the zoning law were struck down, he would get the affordable housing - Warth

2. ex: developers must show that they would have participated in building low income housing if the zoning law were struck down. -Warth

VI. Establishment Clause

A. Lemon three part test (mostly in disuse today) - if an action fails any of these three tests, it is invalid:


1. must have a secular legislative purpose

2. the primary effect must be neither to advance nor inhibit religion

3. it must not foster excessive governmental entanglement with religion

B. Establishment in Education

1. ex: a school district may provide free transportation to both secular public and religious private schools - Everson

a. the secular purpose is the provision of transportation to one’s school.

b. the incidental benefit to religious schools does not favor religion over non-religion.

c. money was paid to the parents not to the schools, so there was little danger of entanglement

2. ex: state may not provide funding for teacher’s salaries - Lemon

3. ex: state may lend books to parochial school students - Allen

a. later cases say nothing else may be furnished, except books - Allen limited to its facts.

b. textbooks lent directly to students.

c. non-religious books only.

4. ex: state may provide tax exemptions for school tuition, books, and transportation as long as it is applicable to secular student’s parents as well - Mueller

a. even though parents of parochial children get a bigger benefit from the law.

b. aid given directly to parents.

c. part of a greater tax scheme

d. Lemon is only a “helpful signpost”

5. ex: state may provide funding for sign-language interpreter for deaf student at a parochial school, if the same facilities are available at secular schools - Zobrest.

a. very low risk of interpreter promoting religion - only acting as a translator

b. neutrally provided program

c. no savings to the parochial school because they would not have provided it for free

d. didn’t mention Lemon test.

6. ex: rabbi may not make non-denominational prayer at school commencement ceremony - Lee v. Weisman

a. state sponsored event, coercion of student’s presence

b. even though non-denominational, it favors religion over non-religion

c. booklet on how to write prayers was excessive entanglment, and promotion of religion.

d. no conceivable secular purpose (solemnity could be accomplished by playing music)

7. ex: school may not require teaching of creationism, even alongside other theories - Edwards

8. ex: state may not provide public school teachers in a private school setting or vice versa - Kiryas Joel

C. Establishment in Public Places

1. ex: city may provide generic christmas displays on public property during the holiday season. - Lynch.

a. purpose was the secular celebration of the holidays

b. only an indirect benefit to religion

c. no excessive entanglement because the city did not maintain the display

2. counter-ex: city may not place a nativity scene on the lawn of the courthouse during christmas because it looks too much like endorsement of religion. - Allegheny County

VII. Free Exercise Clause

A. Traditional Test (Incidental burden on free exercise) - strict scrutiny (free exercise may only be burdened when justified by a compelling state interest) - Sherbert.

1. ex: state may forbid bigamy - Reynolds

a. compelling state interest in preventing social misconduct

b. although belief may not be outlawed, conduct inspired by belief is not as protected.

2. ex: ahmish children may not be forced to go to secular schools - Yoder

a. less-restrictive means is available - exemption must be granted unless there is a compelling state interest that would be defeated

b. no great harm to children because their home schooling is adequate.

3. ex: state may not deny unemployment benefits to a 7th day adventist for refusal to work on Saturdays - Sherbert

a. less restrictive means is available - exemptions

B. Modern Test - If religious practice goes against neutral and generally applicable criminal prohibition, it has no protection - Employment Div. v. Smith

1. ex: state may prohibit all use of peyote, even for religious purposes - Smith

a. there is no additional constitutional protection being violated

b. the state could still choose to pass exemptions, but need not because the law is generally applicable.

2. ex: state may not purposefully criminalize animal sacrifices in order to prohibit the practice of Santeria religion - Lukumi

a. law was by definition not neutral or generally applicable

b. no compelling state interest because the city had not taken steps to provide for disposal of hunting carcases, or restaurant food.

c. case could also have been decided under equal protection.

VIII. Free Speech

A. receives particularly strong, self-justified, protection because:

1. it serves as a check on governmental power

2. truth is served by conflict in the marketplace of ideas

3. key ingredient to the exercise of other individual, constitutionally protected fundamental rights.

B. Early standard for dangerous speech - “clear and present danger” test

1. ex: gov’t could criminalize flyers that urged draftees to resist the draft - Schenk

a. not all speech is protected; must take into account surrounding circumstances

b. crying “fire” in a crowded theater is not protected because of the consequences it may have

2. ex: gov’t could criminalize flyers that urged workers to stop production of war materials being used against Russia - Abrams

a. Holmes’ dissent advocated the marketplace of ideas and the free exchange of ideas

3. ex: gov’t may outlaw communist speech which advocates overthrow of the government - Dennis

a. “clear and present” danger does not require the gov’t to wait until it is attacked to take action.

b. Hand balancing test - “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

1) threat of violent overthrow of the government is so “evil” that even a slight probability of actual attack makes it a “clear and present danger.”

C. Modern Dangerous Speech Test - the “incitement” test (imminence and probability)

1. ex: state may not proscribe advocacy of violence for political reform unless that speech is advocating imminent lawlessness, and is likely to produce such violence - Brandenburg

a. mere abstract teaching of violent uprising is not punishable on speech grounds.

2. ex: state may proscribe “fighting words” that are likely to cause an average addressee to fight. - Chaplinski.

a. calling a police officer a “damned facist” and a “damned racketeer” is not protected speech because it is plainly likely to cause a breach of the peace.

b. the content of the words themselves are injurious, as are lewd, obscene, profane, and libelous words.

D. Libel of public officials - need actual malice - Sullivan

1. ex: A state may not provide civil damages for defamation of a public official unless they are asserted with “actual malice. - Sullivan

a. “actual malice” means the author knew the words were false, or had reckless disregard for their truth.

b. the first amendment must protect unintentional defamation of public figures if it is to have the “breathing room” necessary to operate freely because fear of civil damages will stifly free exchange of ideas.

2. “actual malice” requirement has been extended to all public figures.

E. Obscenity - truly “obscene” materials are outside of the scope of 1st amendment speech protection - Roth

1. ex: state may prohibit the mailing and advertising of obscene books - Roth

a. early definition of obscenity: is whether the average person, applying contemporary community standards, would find that the material as a whole appeals to prurient (lustful) interests.

b. obscentity measured by the affect on the audience

2. ex: stat may not prohibit “immoral” films, because “immorality” and “obscenity” are not the same - Kinglsey Int’l Pictures

3. ex: state may not prohibit a person from keeping or watching x-rated materials in his own home - Stanley v. Georgia

4. ex: state may prohibit mailing of obscene materials due to the danger that it will be sent to children and unwilling adults - Reidel

5. ex: “patently offensive”, “hard core”, “sexual conduct” is unprotected. - Miller

a. “content” definition vs. “effect” definition of Roth.

1) the average person, applying contemporary community standards would find that the work, taken as a whole, apeals to the prurient interest

2) the work depicts patentaly offensive sexual conduct

3) the work, taken as a whole, laks serious social value

F. Hate Speech

1. although “fighting words” are a traditionally unprotected category, the gov’t may not regulate them in a content based manner - R.A.V.

a. ex: a state may not ban only fighting words that are directed as hate speech against a minority

1) it allows one side to use hate speech, but not the other.













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