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Course: Constitutional Law Fall 2003
School: Wayne State University
Year: 2003
Professor: unknown
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Constitutional Law I


Fall 2003



I. The Constitution of the United States 4

II. Judicial Review 5

III. The Equal Protection of the Laws 6

A. The Basic Structure of Equal Protection Review 6

1. Background and Early Decisions: Centrality of Race 6

Dred Scott v. Sanford (1857, p. 427) 6

From pp. 431-35 (Note 2 through end of 435) 7

Ho Ah Kow v. Nunan (9th Cir. 1879, AR) 7

2. “Standards of Review”: Mere Rationality and Heightened Scrutiny 8

Railway Express v. NY (1949, p. 484) 8

Williamson v. Lee Optical (1955, p. 485) 8

Minnesota v. Clover Leaf Creamery Co. (1981, p. 485) 8

Korematsu v. United States (1944, p. 501) 8

Loving v. Virginia (1967, p. 533) 8

Washington v. Davis (1976, p. 514) 8

From pp. 519-21 (Notes 1-2) 8

Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977, p. 523) 8

Massachusetts Board of Retirement, et al. v. Murgia (1976, AR p. 6) 8

City of Cleburne v. Cleburne Living Center (1985, p. 488 & 679) 8

B. “Separate But Equal” – Brown v. Board of Education 8

Plessy v. Ferguson (1896, p. 437) 8

Brown v. Board of Education (1954, p. 446) 8

C. Sex 8

From pp. 596-97 (Note 1) 8

Craig v. Boren (1976, p. 602) 8

Mississippi University for Women v. Hogan (1982, p. 609 paragraph 3 only) 8

J.E.B. v. Alabama ex rel. T.B. (1994, p. 619) 8

Michael M. v. Sonoma County Superior Court (1981, p. 621 Note 3b) 8

Nguyen v. Immigration and Naturalization Service (2001, Supplement p. 97) 8

D. Bush v. Gore 8

Bush v. Gore (2000, Supplement p. 3) 8

E. “Affirmative Action” 8

Adarand Constructors, Inc. v. Pena (1947, p. 574) 8

Grutter v. Bollinger (2003, Supplement p. 70) 8

Gratz v. Bollinger (2003, Supplement p. 91) 8

F. Homosexuality 8

Romer v. Evans (1996, p. 638) 8

IV. The Separation of Powers 8

A. The Allocation of Powers between the Federal Government and the States 8

1. Background 8

McCulloch v. Maryland (1819, p. 55) 8

2. The Commerce Power 8

Gibbons v. Ogden (1824, p. 143) 8

US v. E.C. Knight Co. (1895, p. 161) 8

Houston, East & West Texas Railway v. US (The Shreveport Rate Cases) (1914, p. 162) 8

Champion v. Ames (The Lottery Case) (1903, p. 164) 8

Hammer v. Dagenhart (The Child Labor Case) (1918, p. 147) 8

Carter v. Carter Coal Co. (1936, p. 169) 8

United States v. Darby (1941, p. 179) 8

Wickard v. Filburn (1942, p. 149) 8

Heart of Atlanta Motel v. United States (1964, p. 183) 8

Katzenbach v. McClung (1964, p. 184) 8

United States v. Lopez (1995, p. 186) 8

United States v. Morrison (2000, p. 197) 8

3. Section 5 of the Fourteenth Amendment and the Eleventh Amendment 8

General Question: Can Congress enforce a liberty that courts have not recognized? 8

Katzenbach v. Morgan (1966, p. 222) 8

City of Boerne v. Flores (1997, p. 226) 8

From p. 230-31 Note 8

Board of Trustees of the University of Alabama v. Garrett (2000, Supplement p. 37) 8

4. Unwritten states’ rights 8

Printz v. United States (1997, p. 248) 8

Reno v. Condon (2000, p. 251 Note 1) 8

B. Allocation of Powers within the Federal Government 8

1. The President as Lawmaker 8

United States v. Curtiss-Wright Corp. 8

Youngstown Sheet & Tube Co. v. Sawyer (1952) (page 336) 8

Introduction to The Two Modes of Separation of Powers Analysis 8

Clinton v. City of New York (1998) (page 368) 8

2. Congressional Delegation to and Vetoes of Administrative Agencies 8

Note: Nondelegation Doctrine and “Quasi-Constitutional” Statutes 8

INS v. Chadha 8

3. Appointment and Removal of Administrative Officers 8

The Two Modes of Separation of Powers Analysis (Reloaded) 8

Myers v. United States 8

Humphrey’s Executor v. United States 8

Bowsher v. Synar 8

Morrison v. Olson 8

Mistretta v. United States 8

Rust v. Sullivan 8

Summary, and Separation of Powers According to Jed 8

4. Enemy Combatants 8

Padilla v. Bush 8

Hamdi v. Rumsfeld 8

Hamdi v. Rumsfeld II 8

Al Odah v. United States 8

The Slaughter-House Cases 8

B. “Substantive Due Process”: The Lochner Era 8

Dred Scott v. Sanford (1857) 8

Munn v. Illinois (1877) 8

Railroad Commission Cases (1886) 8

Santa Clara County v. Southern Pacific Railroad (1886) 8

Mugler v. Kansas (1887) 8

The Minnesota Rate Case (1890) 8

Allgeyer v. Louisiana (1897) 8

Lochner v. New York 198 U.S. 45 (1905) (page 713) 8

Note: The Lochner Era (1905-1934) & Nebbia, West Coast Hotel 8

Muller v. Oregon (1908) 8

Bunting v. Oregon (1917) 8

Adair v. United States (1908) 8

Adkins v. Children’s Hospital (1923) 8

Williams v Standard, Ribnik v. McBride, Tyson & Brother v. Banton 8

New State Ice Co. v. Liebmann (1932) 8

Nebbia v. New York (1934) (page 725) – The end of Lochner 8

West Coast Hotel Co. v. Parrish (1937) (page 727) 8

Williamson v. Lee Optical of Oklahoma (1955) (page 731) 8

Ferguson v. Skrupa (1963) (page 731) 8

C. The Incorporation Controversy 8

Barron v. Mayor & City Council of Baltimore (1833) p. 702 8

Murray v. Hoboken Land & Improvement Co (1956) Page 703 8

Twining v. New Jersey (1908) page 704 8

Palko v. Connecticut (1937) p. 704 8

Adamson v. California (1947) p. 705 8

Duncan v. Louisiana (1968) page 707 8

VI. Unenumerated Rights – Modern Developments 8

A. The Right of Privacy 8

1. Antecedents of Roe 8

Meyer v. Nebraska 8

Pierce v. Society of Sisters 8

Griswold v. Connecticut 8

Skinner v. Oklahoma 8

Eisenstadt v. Baird 8

2. Abortion 8

Roe v. Wade 8

Planned Parenthood of Southeastern Pennsylvania v. Casey 8

Stenberg v. Carhart 8

From Jed Rubenfeld. “The Right of Privacy.” 102 Harv.L.Rev. 737 (1989) 8

Unenumerated Rights and the Ninth Amendment 8

3. Homosexuality 8

Bowers v. Hardwick 8

Lawrence v. Texas 8

4. Other Applications 8

Moore v. City of East Cleveland 8

Zablocki v. Redhail 8

Boddie v. Connecticut 8

Roberts v. Jaycees 8

Washington v. Glucksberg 8

Troxel v. Granville 8

VI. Unenumerated Rights – Modern Developments 8

B. The Right to Travel 8

C. “Positive” Rights – Minimum Entitlements 8

VII. The Freedom of Speech 8

A. Introduction: speech and conduct 8

B. Dangerous speech 8

C. Content-Neutrality, the Public Forum, and Time, Place and Manner Regulations 8

D. Unprotected Speech 8

1. Overview and Libel 8


Rubenfeld on 1st Amendment tests: 8

Relationship between O’Brien Test and Time Place and Manner Test 8

2. “Indecency,” Pornography, Obscenity 8

3. “Fighting Words”/ “Hate Speech” 8

E. The “Freedom of Expressive Association” 8

F. Equalizing Political Speech 8

G. Subsidies, Penalties, and Government Speech 8


A. Background 8

B. Judicial Intervention 8

C. Entanglement 8

D. Public Function 8

Marsh v. Alabama (1946, p. 1544) 8

Note 3(a), p. 1547 8


A. Background 8

B. Free Exercise 8

C. Establishment 8

The School Prayer Cases (p. 1450 Note 3) 8

Content of viewpoint-based discrimination (p. 1497 Note 1) 8


A. The “Public Use Requirement” 8

B. Determining whether a “taking” has occurred 8







I. The Constitution of the United States



  • Constitutional Law applies in all jurisdictions

  • Binds governmental (state) actors; does not bind private actors

    • Exceptions: two clauses which apply to private as well as governmental actors

      1. Article (“Art”) IV, Section (“Sec”) 2, Clause (“Cl”) 3: Fugitive Slave Clause. Slaves must be returned to their owners, even if they had escaped to a state without slavery

      2. 13th Amendment (“Am”): Abolition of slavery

      3. 18th Am: Prohibition



Other Restraints on Governmental Actors

  • Powers: Grants explicit power (original Con strategy to restrain Congress), limiting power that is granted

    • Congress (Art I, Sec. A). When it acts, two questions are asked:

      • Was it within Congress’s granted powers?

      • Does it violate someone’s rights?

      • 14th Am: made Bill of Rights applicable to all States

    • 10th Am makes the point that powers not delegated to the US are reserved for the States or the people

  • Rights: Protection of specific rights (9th Am make the point that not all rights must be enumerated)

    • Roe v Wade: Right to privacy, no explicitly granted right to privacy in the Con

    • Note: Con has no “State of Emergency” Clause or National Security override



Important Points on the Constitution

  • The Exceptions Clause – Art 3, Sec 2, Clause 2: Says that Congress can change the breadth of the Supreme Court’s appellate jurisdiction – does not apply to the Supreme Court’s original jurisdiction (but Congress can put something in the SC’s original jurisdiction into its appellate jurisdiction)

  • The Supremacy Clause – Art 6, Sec 2: The Constitution, the laws that further it, and treaties of the U.S. are the supreme law of the land (contrary state laws will not prevail)

  • The Equal Protection Clause – 14th Am, Sec 1: Requires states to treat equally all similarly situated classes of people

  • Due Process Clause – 5th Am: SC has used this clause to declare that the federal government must abide by the equal protection measures spelled out in the 14th Amendment

  • Due Process Clause – 14th Am: Used to partially incorporate some of the Bill of Rights (see below)

  • The Necessary and Proper Clause – Art 1, Sec 8, Cl 18: Very important to the McCulloch decision

  • Commerce Clause – Art 1, Sec 8, Cl 3: Congress has power to regulate interstate commerce and trade with other nations

  • The Due Process Clause has also been utilized to recognize unenumerated rights, like privacy (Roe v. Wade)

  • Important: Which of the first 8 amendments in the Bill of Rights are not incorporated into the 14th Am Due Process Clause and thus not made to apply to the states specifically? Answer: Using the selective incorporation doctrine, the Court has incorporated every amendment save these four: 2nd Am, 3rd Am, 5th Am requirement of grand jury indictment, and the 7th Am.



II. Judicial Review


Marbury v. Madison (1803, p. 22)

Facts: In the last days of his Presidency, Adams appointed justices whom the Senate confirmed but whose commissions had not been delivered by the time Adams left office. Jefferson succeeded Adams and refused to deliver Marbury’s commission. Marbury sought a writ of mandamus to compel Madison, Jefferson’s Secretary of State, to deliver the commissions.

Issue/Holding: Does the Supreme Court (“SC”) have power, under Judiciary Act of 1789 (JA 1789) (bottom p. 26), to issue a writ of mandamus (court order forcing someone to do something)? Yes.


Reasoning/Major Points:

  • Marbury has a right to the delivery of his commission. He was appointed by Adams to a position that is not removable at will by the executive. He is therefore entitled to all “evidences of offices” that pertain to this position.

  • Since Marbury has a right, he has a remedy. Marshall states that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Further, he holds that this is a government of “laws, and not of men.”

  • Marshall establishes the right to judicial review, meaning that the courts have the power to interpret the Con and that the other branches of government are bound by this interpretation.

  • Marshall does not primarily use the text of the Con, which addresses the judiciary (Art III and Art VI) to establish judicial review. To do so would be circular: these are the very things that are being called into question.

  • Marshall turns to these 4 propositions:

  1. The fact of a written constitution. Inherent within written cons is that they are the paramount law of the land. The law established by the legislature is binding only in so far as it conforms to the con. It is the “emphatically the province and duty of the judicial department to say what the law is.” This is the “very essence of judicial duty.”

[Note: this justification does not answer why the JUDICIARY has the power to say what is binding as constitutional on the national government. It just posits that this is the “essence of judicial duty.”]

  1. The judicial power is granted to all cases arising under the con. This must mean that the judiciary must look into the con, all parts of it, to determine the validity of the law.

  2. Judges take an oath to support the Con.

  3. The Supremacy Clause: the Con is the supreme law of the land.

  • Political Question Doctrine: The courts do not have jurisdiction over questions that are merely “political” or “discretionary.” They have jurisdiction over questions concerning the rights of individuals.

  • The jurisdiction of the SC is confined to its original and appellate jurisdiction as laid out in Article III. [The Congress does have exceptional power to add to the appellate jurisdiction, see below].

  • Courts are given the power to issue writs of mandamus to a Secretary of State as stated in JA 1789 creating the judicial courts: “the US authorizes the supreme court to ‘issue writs of mandamus…to any courts appointed, or persons holding, office, under the authority of the US” [this power will be shown to be unconstitutional].

  • Courts do not have power “to inquire how the executive or executive officers, perform duties in which they have discretion.” Marshall insists that the Court has no jurisdiction over purely political questions that are a part of the inner workings of the executive office.

  • While the Supreme Court was granted the power to issue writs of mandamus by the JA 1789, it does not have jurisdiction over this issue. Issuing a writ is not within the original jurisdiction of the SC which is given in “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” Marshall then insists that b/c issuing this writ is like delivering the original commission there is no appellate review involved. Without original or appellate powers, the Court here has no jurisdiction. Congress does not have the authority to grant original jurisdiction where there is appellate and vice versa.

  • Power granted to SC by JA 1789 to grant writs of mandamus is unconstitutional. The Court has the authority to hold that a legislative act is unconstitutional and the legislature must be bound by these judgments in its duties: judicial review is the province of the courts.



NOTE: Marbury has been overruled insofar as it suggests that Congress can’t give lower courts jurisdiction over cases that fall within the original jurisdiction (OJ) of the SC. The opposite doesn’t apply: SC’s OJ cannot be added to. Further, congressional power to make exceptions means that Congress can change scope of appellate jurisdiction.



III. The Equal Protection of the Laws

A. The Basic Structure of Equal Protection Review


1. Background and Early Decisions: Centrality of Race


Dred Scott v. Sanford (1857, p. 427)

Facts: Scott’s former owner took him from MO to IL then to MN (part of LA Territory). He returned to MO, where Scott was sold as slave to Sandford (from NY). Slavery is legal in MO, but illegal in IL (by state constitution) and MN (by federal statute outlawing slavery in LA territory as provision of the MO Compromise). Scott claims he is a free man and citizen of MO, brings suit in federal court based on diversity of citizenship.

Issues/Holding: Was Scott a citizen of Missouri for diversity purposes? No. Did Scott remain a slave after sojourn to the LA Territory and IL? Yes.

Reasoning/Major Points:

  • Scott is NOT a citizen of MO for diversity jurisdiction purposes, thus federal court lacks jurisdiction.

    • The framers never intended to confer federal citizenship upon blacks: they thought that blacks were inferior and were rightly enslaved.

    • Just because a state confers citizenship upon a person, does not mean he is vested with the privileges of federal citizenship that are the predicate of diversity jurisdiction.

  • Scott was therefore NOT made free by residence in IL or MN. Due process: Can’t justify taking someone’s property when they haven’t committed a crime.

    • The MO Compromise is unconstitutional insofar as it prohibits slavery in the LA territory.

    • The right to property in a slave is granted by the Constitution and the Compromise cannot abrogate this right.

JR’s comments: First part of the opinion classic originalist rhetoric. Court says that it is not the Court’s job to say whether laws are good or bad but to enforce the law as intended. The role of the Court is not to pronounce on the justness of the Con, just to interpret it.

**14th Am specifically overrules Dred Scott: equal protection laws refer not just to citizens but persons.


From pp. 431-35 (Note 2 through end of 435)

  • Slaughterhouse Cases (1873, p. 433): Rejected equal protection attack on LA statute granting to a single company the exclusive right to slaughter livestock, reasoning that it was the job of the States rather than the federal government to protect civil rights generally, and that the “one pervading purpose” of the 14th Amendment was “the freedom of the slave race…and the protection of the newly-made freeman …from the oppressions of those who had formerly exercised unlimited dominion over him.”

  • Strauder v. West Virginia (1879, p. 434): Struck down murder conviction of black man tried before a jury from which blacks were excluded. Strauder stands only for the proposition that statutory discrimination which deprives blacks of enjoyment of their rights is unconstitutional; it does not maintain that the state cannot draw distinctions among citizens based on gender, land ownership, age, education, etc.

  • United States v. Cruikshank (1875, p. 434): Following an election dispute, 60 freedmen were killed and mutilated. 3 of 97 defendants were convicted under the 1870 Enforcement Act, passed to enforce the 14th Am. The Court reversed all three convictions, holding that the 1870 Act did not apply to the actions of private individuals.

  • The Civil Rights Cases (1883, p. 435): Denied that the 13th and 14th Amendments empowered Congress to prohibit private discrimination in public accommodations.



Ho Ah Kow v. Nunan (9th Cir. 1879, AR)

Facts: HAK convicted under state statute and sent to prison, where his queue is cut off. Ordinance that states that male prisoners, for sanitary reasons, must have their hair cut to within one inch of their scalp. HAK challenges this as cruel and unusual punishment, arguing ordinance targeted Chinese in particular.

Issue/Holding: Is the “Queue Ordinance” constitutional? No.

Reasoning/Major Points:

  • Law exceeds the authority of the “Board of Supervisors.” The legislature did not authorize them to add to the fine imposed by the court or the right to change and add punishments.

  • Equal Protection (“EP”) analysis: Structure used in this case is EP doctrine today, seems to be rudimentary strict scrutiny analysis.

    • Even though this legislation is neutral on its face it is clear to everyone that this law was created to target Chinese people, to single them out, and try to coerce them into compliance.

    • Law was INTENDED to hurt Chinese people in particular in an invidious way.

    • Can look to statements of supervisors (for all intents and purposes here akin to legislators) for the meaning of certain terms used, but the court cannot shut its eyes to the obvious and known purpose of this legislation. “When we take our seats on the bench we are not struck with blindness…”

    • The justification given for the law (to urge Chinese people into compliance with housing statutes) is invalid because it seeks enforcement through a method akin to torture. Thus, the ordinance violated the 14th Am.


2. “Standards of Review”: Mere Rationality and Heightened Scrutiny


Rational Basis (“RB”) Review

TEST: In the absence of interference with a fundamental constitutional right in relation to a suspect class, a law must be REASONABLY or RATIONALLY related to a legitimate state interest to pass Con muster (very difficult to fail this test).




Railway Express v. NY (1949, p. 484)

Facts/Issue/Holding: NY traffic regulation which prohibited “advertising vehicles” but which permitted placing on a truck “business notices” relating to the business of the truck’s owner was ruled constitutional. Deference is given to legislatures in discerning a rational relationship between classifications and the goals of the statute.

Reasoning/Major Points:

  • When not dealing with a suspect class deference given to local authorities (municipal govt., state legislature) in how they view the fulfillment of the law’s goals through the classifications they set up. Assumes some rational relationship between these classifications and goals of statute.


    • Court defers to City’s assessment that distinctions set up by ordinance further aim of eliminating pedestrian distraction.

    • “It is no requirement of equal protection that all evils of the same genus be eradicated or nothing at all.”

  • Concurrence: Maintains there is no rational difference between the classifications of statute in relation to statute’s goals, but maintains that discrimination constitutional because statute distinguishes between groups who contribute to the evil out of their own self-interest (constitutional) and groups who do so “for hire” (unconstitutional).



Williamson v. Lee Optical (1955, p. 485)

Facts/Issue/Holding: OK law made it unlawful for anyone not optometrist or ophthalmologists to fit lenses. Statute specifically exempted “ready-to-wear” sellers. In effect, statute prevented opticians from fitting old glasses into new frames. Court held did not violate EP clause.

Reasoning/Major Points:

  • EP clause extends ONLY to invidious discrimination.

  • In cases where invidious discrimination not apparent, legislatures may take steps to eliminate some evils but not all without violating the EP clause.

  • Legislature may have felt that the “ready-to-wear” branch did not pose as great a problem as the other branches.

Minnesota v. Clover Leaf Creamery Co. (1981, p. 485)

Facts/Issue/Holding: MN law banned milk sales in plastic non-returnable bottles, but permitted non-returnable paperboard containers. Court upholds law as constitutional.

Reasoning/Major Points:

  • The Court assumes that objectives articulated by legislature are the actual objectives of statute (exceptional circumstances may force Court to alter this assumption).

  • Proof that legislature was MISTAKEN in creating classifications to serve a state goal does NOT show that the classifications are not rationally related to the furtherance of a state goal.

    • If issue was “at least debatable” to legislature creating the statute, evidence showing classification is not rational will not prevail.

    • States do not have to convince Court of correctness of legislative judgments. Even if shown that statute does not fulfill the objectives intended to fulfill, still cannot be used as proof of statute’s irrationality for rational basis review.



Strict Scrutiny (“SS”)

TEST: Law must be “narrowly tailored to further a compelling state interest”

  • Use heightened means of scrutiny to “smoke out” underlying “irrational” prejudice

  • If over- or under-inclusive, law gets struck down. Virtually impossible to pass strict scrutiny due to the narrow requirement, law rarely so well tailored



JR’s two modes of analyzing state actions under SS:

1) Justificatory. Balance state interest with harm to the individuals involved. In the case of racial profiling, provide evidence on how well it stops crime. Cost/benefit analysis, balancing of interests.

2) Purposivist (very different). What were the reasons behind the state legislation or objectives behind the action? Some state interests are illegitimate to pursue no matter what the cost/benefit.




Korematsu v. United States (1944, p. 501)

Facts/Issue/Holding: Korematsu, Japanese-American citizen refuses to leave his home for internment camp during WWII. Executive Order 9066, issued by military commander, required all persons of Japanese descent—including U.S. citizens—to report to “Assembly Centers”. Court upholds the order, saying it was based on a public necessity rather than racial antagonism.

Reasoning/Major Points:

  • Laws curtailing civil rights of single racial group are immediately suspect and warrant SS, but this does not mean laws that facially discriminate are automatically unconstitutional. (Today, Korematsu stands for proposition that laws that are facially racially discriminatory almost always unjust and unconstitutional (see p. 505 Note).)

  • “Pressing public necessity” can justify racially discriminatory laws if shown to have a “definite and close” relationship to a state aim.

    • Deference given to the military authorities in their determination of what is necessary in this instance.

    • Important to the majority that Korematsu was not excluded because of hatred of him or his race. Rather, he was excluded because of military necessity.

  • Dissent: When dealing with a military order we can use rational basis test instead of SS. Even so, however, there is no rational basis for confining ALL Japanese people because some may be disloyal.


Loving v. Virginia (1967, p. 533)

Facts: Interracial couple convicted under a Virginia statute making it a felony for any white person to marry any "colored" person, or for any "colored" person to marry any white person.

Issue/Holding: Does a state statute preventing marriages between persons solely on the basis of racial classifications violate the EP and Due Process clauses of 14th Am? Yes.

Reasoning/Major Points:

  • State defended statute because it punished both members of an interracial couple equally, and thus did not use racial classifications to make invidious discrimination in furtherance of its "legitimate" state purpose.

  • Court held that "equal application" of a statute containing racial classifications does not remove the classifications from 14th Am's proscription of invidious racial discrimination.

    • First time Court says that the purpose of the law was racist, making it unconstitutional

    • White supremacy is at issue, holding does not necessarily turn on the effect. Court uses strict scrutiny to smoke out the purpose.

  • EP clause requires consideration of whether such classifications constitute arbitrary and invidious discrimination.

    • Racial classifications in a statute must be shown to be necessary to some permissible state objective, independent of the racial discrimination.

    • Statute patently has no legitimate overriding purpose independent of invidious racial discrimination, as shown by the fact that it barred only interracial marriages involving whites, not, for instance, those between African-Americans and Asians.



Washington v. Davis (1976, p. 514)

Facts: Unsuccessful African-American applicants to D.C. police force claimed that verbal skills test unconstitutionally discriminated against them because a higher percentage of African-Americans than of white Americans failed the test. They claimed that there was no evidence establishing the test's accuracy in measuring subsequent job performance, but NOT that the test constituted "intentional" or "purposeful" discrimination against them.

Issue/Holding: Is a law or other official act is unconstitutional solely because it has a racially disproportionate impact? No.

Reasoning/Major Points:

  • Court holds that 1) there is a rational basis for test; and 2) there was no invidious purpose in administration

  • The invidious quality of a law claimed to be racially discriminatory must be traced to a racially discriminatory purpose.

  • This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute (J. Stevens's concurring opinion elaborates on this). An invidious discriminatory purpose may often be inferred from the totality of the relevant facts.

    • Nevertheless, the Court has not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the EP clause simply because it may affect a greater proportion of one race than of another.

    • Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Con.

JR’s comments:

  • Don’t conflate concepts of rationality and discrimination. Discrimination can be perfectly rational

    • Instrumental rationality depends on preferences; must start somewhere. Preferences provide the basis for judgment on rationality of actions

    • Impact can be evidence of purpose, but then that has to be the claim and plaintiff must convince that it is true

  • Shows that modern EP doctrine is purposivist in its sense

  • Many people think that EP law went fundamentally wrong with Washington v. Davis with the requirement that invidious purpose be shown



From pp. 519-21 (Notes 1-2)

What about if disproportionate racial impact is intentional?

  • Yick Wo v. Hopkins (1886, p. 519): Overturned conviction of Chinese man for operating laundry without a permit when it was shown that the permit statute was applied in a discriminatory manner: each of over 200 applications by Chinese nationals was rejected, while all but one application by non-Chinese were accepted.

  • Gomillion v. Lightfoot (1960, p. 521) AL statute altered shape of Tuskegee in a manner which excluded all but 4 or 5 of the 500 black voters while not removing a single white voter. Court held that if these allegations were proved, the statute infringed on the right of blacks to vote in violation of the 15th Am.



Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977, p. 523)

Facts: Metropolitan applied for re-zoning of land to permit construction of low- and moderate-income housing. Village denied the request; Metropolitan sued, claiming denial was racially discriminatory in violation of the EP clause.

Issue: On what basis can official action be deemed to be motivated by invidious discriminatory purpose? (Opinion as excerpted in the CB is about evidence.)

Reasoning/Major Points:

  • Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.

  • Impact is one possibility, especially if a clear pattern emerges which is unexplainable on grounds other than race. Historical background, including departures from the normal procedural sequence and substantive departures, is one evidentiary source; the legislative or administrative history another.

  • J. Powell places the burden of proving discriminatory purpose on the original plaintiff (here, respondent, Metropolitan), and says that it failed to carry this burden.



Massachusetts Board of Retirement, et al. v. Murgia (1976, AR p. 6)


Facts: Former Massachusetts State Police officer, who retired at age 50 as required by state statuted, sued on the ground that the statute violated the EP clause of 14th Am.

Issue/Holding: Does a state statute requiring the retirement of uniformed state police officer upon attaining the age of fifty denies the officer EP of the laws in violation of 14th Am? No.

Reasoning/Major Points:

  • 3-Judge District Court held that the compulsory retirement provision did not pass the rational basis test. Supreme Court agrees that rationality, rather than SS, is the correct test, but disagrees that the provision is not rationally related to furthering a legitimate state interest.

    • SS is the proper test only when a legislative classification interferes with a fundamental right or operates to the peculiar disadvantage of a suspect class.

    • Right of governmental employment is not fundamental, and uniformed state police officers over 50 do not constitute a suspect class.

    • A suspect class is one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."

  • Decision to apply rational basis test reflects Court's awareness that drawing lines that create distinctions is peculiarly a legislative task and an unavoidable one.

    • Perfection in making the necessary classifications is neither possible nor necessary.

    • State choosing not to determine fitness more precisely through individualized testing after age 50 only means that perhaps the State has not chosen best methods to accomplish its purpose. Does not mean that objective of assuring physical fitness is not rationally furthered by maximum-age limitation.



City of Cleburne v. Cleburne Living Center (1985, p. 488 & 679)

Facts: Texas city denied special use permit for operation of group home for the mentally retarded, pursuant to municipal zoning ordinance requiring permits for such homes. Ordinance permitted a wide variety of operations, including hospitals, sanitariums, nursing homes, and homes for convalescents or aged, on the site without a special permit, but required special permits for homes for the insane, feeble-minded, alcoholics or drug addicts. City Council objected to the use of the location for home for the retarded because: nearby property owners were opposed; facility was across the street from a junior high school whose students might harass the retarded residents; and home was located on a flood plain.

Issue/Holding: Does ordinance violate EP clause? Yes. Also, on what basis should an ordinance discriminating against the mentally retarded be reviewed to ensure equal protection?

Reasoning/Major Points:

  • Court holds that the lower court erred in treating the retarded as a "quasi-suspect class", which demanded "middle level scrutiny" of the law. Court does not really make a policy decision regarding the retarded, because it can, on narrower grounds, make a decision using rational basis test.

  • Court held that mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding are not permissible bases for treating a home for the mentally retarded differently from other uses of the property. Concern for a flood does not distinguish the use for a home for the retarded from other uses, which do not require the special permit.

  • Court thus finds reason to believe that requiring the special permit for the home for the mentally retarded rests on an irrational prejudice against the mentally retarded and thus constitutes invidious discrimination.

JR’s comments:

  • This is an unusual rational review case because the Court performs under/over-breadth analysis associated with SS.

  • Questioned use of “irrational prejudice”—the concept of rationality may not deliver the right concept of discrimination that the 14th Am opposes; 14th Am not about rationality

  • Can we subject emotions to rationality tests?

    • Some people say no, rationality and emotion are mutually exclusive

    • Preferences are the basis for decisions on rationality

  • Court has been extremely reluctant to recognize other suspect classes. Why? Why did the court not classify handicapped as suspect class under strict scrutiny doctrine?


B. “Separate But Equal” – Brown v. Board of Education


Plessy v. Ferguson (1896, p. 437)

Facts: Louisiana statute required railroad companies to provide "equal but separate accommodations for the white and colored races." Plessy, who claimed to be 7/8 Caucasian, was prosecuted when he failed to leave the coach reserved for whites.

Issue/Holding: Do racially segregated accommodations on railroad cars constitute a violation under 13th and 14th Ams? No.

Reasoning/Major Points:

  • Court distinguishes 14th Am's goal of enforcing absolute political equality of the two races from what it would see as enforcing absolute social equality.

    • If civil and political rights of both races are equal, one cannot be inferior to the other civilly or politically.

    • If one race be inferior to the other socially, Con cannot put them upon the same plane.

  • Court holds that laws permitting, and even requiring, the separation of the two races, do not necessarily imply the inferiority of either race to the other. Underlying fallacy of Plessy's argument is that the enforced separation of the two races stamps the colored race with a badge of inferiority—if this is so it is solely because the colored race chooses to put that construction upon it.

  • Court says every exercise of the state's police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. In determining reasonableness, the legislature is at liberty to act with reference to the established usages, customs, and traditions of the people (thus, in a circular fashion, using the status quo to justify itself).

  • J. Harlan’s dissent notes the purpose behind the law, namely to exclude colored people from coaches occupied by or assigned to white persons. States that decision will encourage belief that it is possible, by means of state enactments, to defeat the beneficent purposes of the recent amendments to the Con.

  • Did the court apply SS? No, not as would be recognizable by contemporary doctrine

    • Employs standard of reasonableness. Reasonable because separate does not necessarily mean superior/inferior

    • Holding on the effect of the statute and denies race based purpose of the law



Brown v. Board of Education (1954, p. 446)

Facts: Legal representatives of African-Americans sought admission for them to public schools in their community on racially non-segregated basis. In each instance, blacks were denied admission to schools attended by white children under laws requiring or permitting racial segregation.

Issue/Holding: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities, in violation of the EP clause of 14th Am? Yes.

Reasoning/Major Points:

  • Court argues against originalist interpretation of 14th Am, because:

    • What members of Congress and state legislatures who were neither avid proponents nor opponents had in mind cannot be determined with any degree of certainty; and

    • What anyone in 1868 would have thought of public education in light of 14th Am is irrelevant to modern conditions given the enormous changes in the status and extent of public education.

  • Court says that public education is perhaps the most important function of state and local governments, and it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.

  • Court relies on Kansas lower court's finding that "segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group," even though lower court ruled against black plaintiffs. Finding serves as evidence enabling the Court to hold that "separate educational facilities are inherently unequal."

  • Court does not use SS doctrinal structure, even though case after Korematsu

    • Facilities are not at question here, even though in practice the facilities were actually unequal

    • Holding on effect of statute. Separation has deleterious effect on children. Purposivist not justificatory, which doesn’t square with subsequent decisions.



Equal Protection Doctrine Review

Question: What is the appropriate standard of review?

1) Strict Scrutiny

  • Triggered when state action:

i) Interferes with a constitutional or fundamental right; or

ii) Places a "suspect class" at a disadvantage with respect to the enjoyment of a constitutional or a fundamental right.

      • Test: Is the law narrowly-tailored and necessary to the furtherance of a compelling state interest? Test triggers an over/under-breadth analysis that most laws cannot pass.

      • "Suspect class" applies to groups who have suffered from "discrimination" in the ordinary pejorative-political sense of the word. The group must be "discrete and insular," the victim of a "history of purposeful and unequal treatment," or so despised that its ability to assert its interests through coalition building is fatally undermined.

2) Rational Basis

  • Triggered in all other cases when legislation or governmental action discriminates against non-suspect class, with exception for sex/gender discrimination, which requires intermediate scrutiny.

      • Test: Is law rationally related to a legitimate state interest?

      • State only has to show that the discrimination was made in the furtherance of a legitimate state purpose; it does not have to show that the law is the best, most efficient way to achieve that purpose.


JR’s comments:

  • Everything depends on the standard of review chosen:

    • If Court applies SS it has in a sense already decided that there is something wrong with the governmental action;

    • If chooses RB it will most likely uphold the action.

  • Big difference between the two tests is whether over-breadth counts against you--it does in SS, but not in RB. There are a few cases where laws were upheld under SS (Korematsu) and struck down under RB review (Cleburne)

  • Traditional view is that SS applies “when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” S. Ant. School Dist. v. Rodriguez (1973).

    • Fundamental rights prong is rarely invoked, since most fundamental rights are provided constitutional protection independent of equal protection clause

    • Suspect classes: race, color, but NOT age (Murgia), poverty (Maher), gender nor sexual orientation.

    • Religious groups: Court has never decided the issue of whether religious groups are a suspect class. Circuit courts have held that religious groups are a suspect class.

  • Today SS applies to “any racial classification subjecting [a] person to unequal treatment” Adarand v. Pena (1995, p. 574). Generally applied when Court thinks there was ulterior motive behind enactment and wants to smoke out prejudicial motives behind a putatively rational law.

  • Doctrinal apparatus is imperfect, as Cleburne shows. Court is not in fact applying a RB test, but doing the under/overbreadth analysis associated with SS. However, if the Court were to hold the mentally retarded as a "suspect class," then every law regarding them would be subject to SS, including Special Ed. programs.

  • Washington shows that disparate impact is not enough by itself to raise the presumption of discriminatory purpose. In order for state action to be found unconstitutional under the EP clause, it must be motivated by “purposeful invidious discrimination.” Burden of proof on plaintiff to show discriminatory purpose.

    • "Purposeful" is the basis of Harlan's dissent in Plessy and the majority's reversal in Loving; also the problem that Washington plaintiffs ran up against.

    • "Invidious" is basis for the "Suspect Class" Doctrine, which, taking the treatment of African-Americans in the US as the paradigm, is based on rooting out the subordination of a minority group to the majority, the reduction of that group to a socially inferior caste which can be exploited, "instrumentalized" for the "superior" group's benefit. (On this basis, JR contends you can distinguish between "separate but equal" bathrooms for the sexes as opposed to the races.)

    • "Impact" does not count in itself, though is central to Warren's reasoning in Brown. But there impact was evidence of the invidiousness of purpose.


C. Sex


Intermediate Scrutiny

**Only applies to gender/sex discrimination

TEST: Law must “serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren. See also U.S. v. Virginia (VMI case) requiring “exceedingly persuasive justification.”


From pp. 596-97 (Note 1)

Early cases decided against the backdrop of The Slaughter-House Cases:

  • Bradwell v. Illinois (1873, p. 596): Right to practice law was not a privilege or immunity of national citizenship, therefore not protected by the 14th Am, women could be denied license to practice law.

  • Minor v. Happersett (1894, p. 597): Right to vote was not a privilege of citizenship, therefore women could be denied the franchise.

  • Muller v. Oregon (1908, p. 597): Constitutional to prohibit the employment of women in factories for more than ten hours a day, distinguishes Lochner v. New York because “inherent difference between the two sexes” justified limitations on woman’s right to contract, in conflict with Adkins v. Children’s Hospital (1923, p. 597).

  • Goesaret v. Cleary (1948, p. 597): Constitutional to prohibit a woman from working as a bartender (MI statute), court found no equal protection claim.

  • Quong Wing v. Kirkendall (1912, p. 597): Upheld as “rational” a jury selection system excluding women who did not affirmatively indicate a desire to serve, because of the special place a woman has in the home.

  • Reed v. Reed (1971, never discussed in class or assigned, yet cited in these cases, p. 598): Statute preferring men to women as administers of intestate estates overturned using SS. First SC decision to invalidate a gender classification under the EP Clause.

Craig v. Boren (1976, p. 602)

Facts: OK statute prohibited the sale of non-alcoholic beer to males under the age of 21, but to females under the age of 18.

Issue/Holding: Is a denial of males 18-20 years of age of the equal protection of the laws a violation of the 14th Am? Yes.

Reasoning/Major Points:

  • Not a sufficient correlation between the males and the subject of drinking.

  • Overrules Goesaret in any portions of the opinion that may be inconsistent.

  • Interprets Reed to be saying that gender-based difference must be substantially related to achievement of the statutory objective, and is trying to follow Reed

  • Does not distinguish between discrimination against men verses discrimination against women

  • Establishes Intermediate Scrutiny: Any gender-based classification must be substantially related to important governmental objectives (but not explicitly announced in the opinion)

JR’s comments:

  • Believes Craig is wrongly decided because the purpose of the test of intermediate scrutiny with regard to gender is to smoke out invidious discrimination against women on the basis of gender.

  • Agrees with Rehnquist in his dissent, who apparently would not have objected to intermediate scrutiny for discrimination against women, but saw no reason why discrimination against males should be given any greater scrutiny than that given to most other statutes attacked on equal protection grounds.



Mississippi University for Women v. Hogan (1982, p. 609 paragraph 3 only)

Facts: Nursing School at MUW barred men from enrolling in courses. Hogan wished to enroll because it was the closest nursing school to his home.

Issue/Holding: Is women-only policy constitutional? No.

Reasoning/Major Points:

  • Intermediate Scrutiny was applied, with the addition that an exceedingly persuasive justification must be shown for any sex-based classification, also important that the “important governmental purpose” be an originally intention of the legislature, and whether that purpose was substantially related to achievement of an important governmental objective

  • Not Affirmative Action because the field of nursing was not a field in which women found disadvantages, so the program was not compensating for anything

  • JR agrees with O’Connor who wrote the opinion



United States v. Virginia (1996, p. 611)

Facts: Virginia Military Institute (VMI) was a public, military focused, all-male college run by the State. In response to threats of gender-integration, VA had created an all-female program at a private college in the state, which had a similar, yet admittedly less rigorous program for women.

Issue/Holding: Does VMI’s all-male policy violate the EP Clause? Yes. Was the State’s alternative program similar enough to VMI to overcome the equal-protection claim? No.

Reasoning/Major Points:

  • Court used Intermediate Scrutiny and stated that State must demonstrate an exceedingly persuasive justification. State must show at least

    • Important governmental objectives; and

    • Discriminatory means employed are substantially related to the achievement of those objectives

  • Differences between mere rationality

    • Justification must be genuine, not invented post hoc in response to litigation

    • Burden lies on the State

  • Court left open possibility of SS

JR’s comments: According to this case, sex-segregated bathrooms in state buildings would likely be unconstitutional, but we don’t see this as reflecting discrimination against either group



J.E.B. v. Alabama ex rel. T.B. (1994, p. 619)

Facts: Trial to determine whether the defendant was the father of a child and the extent of his child support obligations. State used gender-based peremptory jury challenges; and, as a result of the challenges, jury was made up entirely of women.

Issue/Holding: Are gender-based peremptory challenges unconstitutional? Yes.

Reasoning/Major Points:

  • Using Intermediate Scrutiny, Court stated that assumption that women would have particular views in certain types of cases (such as paternity) reinforced stereotypes about women that laws sought to get rid of.

  • Linked to Batson v. Kentucky (1986), which forbids peremptory challenges based on race



Michael M. v. Sonoma County Superior Court (1981, p. 621 Note 3b)

Facts: Statute made it a crime to have sexual intercourse with a female under the age of 18. Thus, only men could be liable for “statutory rape”

Issue/Holding: Plurality decision of four upheld statute.

  • Using Intermediate Scrutiny, Court found that state had a strong interest in preventing illegitimate pregnancies, and consequences fall almost entirely on females

  • Dissent believes goal would be better advanced by being applied equally to men and women (JR seemed to agree)



Nguyen v. Immigration and Naturalization Service (2001, Supplement p. 97)

Facts/Issue/Holding: Upheld INS rule requiring an unwed citizen father (but not a citizen mother) of a child born overseas to demonstrate that there was an opportunity to form a relationship during the child’s minority years before the child can become a citizen.

Reasoning/Major Points:

  • “The mother is always present at birth, but the father need not be, [so] the facially neutral rule would sometimes require fathers to take additional affirmative steps [to prove parenthood]”.

  • Not doing purposive analysis as in VMI, court more accepting of proffered justification as real justification


D. Bush v. Gore


Bush v. Gore (2000, Supplement p. 3)

Facts: Outcome of 2000 Presidential election rested on FL recount, which had been disputed due to method of vote counting in various counties.


Issue/Holding: Recount to discern intent of the voter—different counting standards in various counties was a violation of EP clause. Three main pieces:

1) SC issued stay against recount

2) Opinion issued:

a) Finding of EP violation

b) No possible remedy, so must shut recount down

Reasoning/Major Points:

  • Fundamental Right case: right to vote fundamental, Court applies heightened scrutiny

  • End of opinion Court states there can be no remand and recount must stop, because it is impossible to complete recount by Dec 12th in a manner that complies with EP

JR’s comments:

  • Manual recounts have been going on for 150 years, so peculiar that it would violate EP. But concerns over differing standards was legitimate

  • Remedy was legally indefensible—single worst piece of reasoning to come out of SC during JR’s lifetime

  • Court gave its decision on Dec 12 at 10am…making it impossible to get it done by Dec 12. But why Dec 12? Federal statute does not require the recount to be completed by Dec 12. Actually “safe harbor” statute that says that if a state completes its recount by Dec 12, then that determination by the state will be conclusive in D.C. against certain types of challenges

    • Hawaii failed in Kennedy v. Nixon, and submitted its votes in January

    • Some states have a state law requirement because they want to complete its recount under safe harbor requirements. But the Florida election code has no such requirement.

  • SC states that the Florida SC said that the Florida legislature intended complete recount by Dec 12. Florida SC had never said that.

    • Court said “the Supreme Court of Florida has said that the legislature intended the State’s electors to participate fully in the federal electoral process”.

    • In prior ruling on certification, SC had overruled Florida SC because FSC had interpreted Florida election code to state a date which it hadn’t


    • Court just made it up, legally indefensible

    • No one defends this part of the opinion, without this it would have been remanded

E. “Affirmative Action”


Adarand Constructors, Inc. v. Pena (1947, p. 574)

Facts: Central Federal Lands Highway Division (CFLHD), part of Dept. of Trans., awarded highway construction contract to Mountain Gravel Construction Co. (MG), which then solicited subcontractor bids. Adarand submitted lowest bid but Gonzales Construction Co. was awarded subcontract. CFLHD’s contract, as per federal requirements, gave financial incentive to hire subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals.” Adarand challenged govt’s race-based assumption in identifying socially and economically disadvantaged individuals. MG submitted an affidavit stating it would have accepted Adarand’s bid if not for additional payment it received for hiring Gonzales.

Issue/Holding: By what standard should a 5th Am challenge against race-based affirmative action be reviewed? Appellate court incorrectly used intermediate scrutiny and therefore its ruling is vacated and the case is remanded. SS should be applied: “federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.”

Reasoning/Major Points:

  • Precedent prior to Metro Broadcasting, Inc. v. FCC (1990) established three propositions with respect to racial classifications:

    • Skepticism: “any preference based on racial or ethnic criteria must necessarily receive a most searching examination” (Wygant)

    • Consistency: “the standard of review under EP Clause is not dependent on the race of those burdened or benefited by a particular classification” (Croson)

    • Congruence: “EP analysis in the 5th Am area is the same as that under the 14th Am” (Buckley v. Valeo) i.e. congruence between federal (5th Am) and state (14th Am) EP

  • Above three propositions together stand for the idea that “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny….” (emphasis added)

  • Metro Broadcasting undercuts all three of the above principles and stands for the proposition that “benign race-conscious measures mandated by Congress … are permissible to the extent that they serve important governmental objectives … and are substantially related to the achievement of those objectives” (emphasis added) i.e. that benign race classifications are subject to intermediate scrutiny only.

  • Court states that because it may not always be clear whether a race classification is benign, the SS outlined by Croson should apply.

    • According to Croson, the purpose of SS is to “smoke out” illegitimate race classifications.

    • This is purpose-based view of SS, which is consistent with Washington v. Davis, unlike a cost-benefit view (see below).

    • SS ensures that government measures “fit [its] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice….” i.e. narrowly tailored

  • Idea of compelling state interest relates to “consistency” principle outlined above. Principle of consistency means that “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” The application of SS “determines whether a compelling government interest justifies the infliction of that injury….”

    • This the cost-benefit view of SS.

    • Cost-benefit view, which is concerned with unintended harms, is inconsistent with welfare, veteran’s benefits, etc.

JR’s comments:

  • Racial classification cases are subject to SS, Adarand settled this issue

  • Adarand transforms SS from a method of smoking out invidious purposes into justificatory balancing test. It hypothesizes an effect from all racial classifications (perpetuation of racial stereotypes) and inverts the Washington v. Davis rule that effects are only relevant as evidence of intent

  • Justificatory view (p. 578) of SS: Unequal treatment triggers SS, which, when applied, determines whether compelling government interest justifies infliction of that injury

    • Should we distinguish between good and bad intentions? Recall Murgia: SS only applies when statute operates to the peculiar disadvantage of a suspect class (Suspect Class Doctrine)

    • But SS doctrine no longer based on suspect classes, now based on suspect classifications.

  • SS Classification Doctrine: Classifications themselves are bad

    • Whites are now treated as a suspect class for EP

    • Other groups cannot be granted “suspect class” status. Wealth based classifications favor the poor (taxes, welfare). But rich are not a suspect class.

  • Why does Court think classifications are bad?

    • Consequences are pernicious, unintentionally really bad for minorities, which is why SS must be applied. Though there are unintended harms for minorities, benefits could (not likely under SS) outweigh the costs.

    • Can we accept this as the constitutional analysis? Doesn’t Washington v. Davis say that unintended consequences can never be the purpose for triggering SS?

    • What about standardized tests? Greater effect in promoting notions of racial superiority/inferiority…Court would say that it is unintended, basically contradicting itself. Court is just inconsistent on this point

  • What’s the defense for subjecting classifications to SS? Three possible ones:

    • Unintended consequences—contradicts Washington v. Davis

    • Just bad on face, color consciousness is just really, really bad: this would be a different argument. Not a morally plausible claim.

    • Discriminates against white people. But many laws are unfair to many people.

  • After Adarand, not a single decision by a lower court upholding an affirmative action program until the Michigan cases.



Grutter v. Bollinger (2003, Supplement p. 70)

Facts/Issue/Holding: Grutter, a white Michigan resident whose application to Michigan Law School was denied, claimed that she was rejected because the Law School used race as a predominant factor in violation of the EP clause. SC upheld law school Affirmative Action (“AA”) program.

Reasoning/Major Points:

  • As per Adarand, SS applied for racial classification case.

  • Court found “compelling state interest in diversity” in higher education (p. 73).

    • Educational benefits flow from student body diversity.

    • Law schools represent training ground for large number of Nation’s leaders.

  • Law school’s use of race as a “+ factor” to “achieve critical mass” to achieve that interest was narrowly tailored.

    • Not a quota system like undergrad program, because Law School awards no mechanical, predetermined diversity “bonuses” based on race or ethnicity

    • Significant variance in percentage of minority students in entering classes over a period of years.

    • Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives” but not “exhaustion of every conceivable race-neutral alternative” (p. 76).



Gratz v. Bollinger (2003, Supplement p. 91)

Facts/Issue/Holding: SC struck down Michigan undergraduate AA admissions program because it was “not narrowly tailored” to serve government interest in diversity.

Reasoning/Major Points:

  • Admissions policy included point system, which awarded a significant number of points for minority status (Court says disproportionate to points awarded for other characteristics).

  • Admissions policy did not provide for individualized consideration, and had the effect of making the factor of race decisive for virtually every minimally qualified underrepresented minority applicant.

F. Homosexuality


Romer v. Evans (1996, p. 638)

Facts: Colorado constitutional amendment would have prevented the state or any of its cities from enacting or enforcing any statute, ordinance, etc. whereby homosexual orientation, conduct, etc. could be the basis for a claim of minority status, quota preferences, protected status or claim of discrimination.


Issue/Holding: Amendment constitutional? No.

Reasoning/Major Points:

  • Court found that the measure flunked “mere rationality” review on two separate grounds:

    • (1) No legitimate state interest being served;

    • (2) Means chosen by the state were not rationally related to the interest that the state asserted (legitimate or not)

  • Fundamental right to equal participation in the governmental process.

    • Amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and

    • Forbids reinstatement of these laws and policies.

JR’s comments:

  • Used purposivist analysis to determine that amendment was motivated by animus

  • Amendment targeted people rather than conduct (i.e. smokers rather than the action of smoking), conduct v. status (conduct can be regulated, status should not be). Person can be separated from the conduct.

  • Court applies mere rationality review, like Cleburne one of the rare cases where the SC strikes down something under rationality review

    • Perception that this law born of animosity that EP law does not allow. This is not a plausible rationality review case

    • Covertly SC is viewing homosexuals as a “suspect class”. SC is suspicious of the intent of this law, that there is actually an invidious purpose

  • Legal methods for preventing discrimination

    • Common Carrier. Hotels, transportation companies. General law prohibiting arbitrary discrimination

    • Forbidden Grounds. Cannot exclude someone on basis of…lays down specific criteria (race, creed, color, gender, etc). Controversy over what etc. is


IV. The Separation of Powers


JR Preview:

  • Turning to structural side of Con Law: Federal vs. States’ Rights

  • Two methods of restraining governmental power

    • Limit domain: define spheres

    • Articulate rights: can’t violate certain things, doesn’t matter what the subject matter is

  • Original Constitution more about limiting domain than setting out rights. Concerned that rights would be construed as exhaustive

  • Strategy of enumerating powers of Congress failed by around 1940, because there failed to be limitations

  • Federalists were in favor of national power, less government for the States

    • Anti-federalists were those who wanted more power for the States

    • Now, federalists are the opposite


A. The Allocation of Powers between the Federal Government and the States


1. Background


McCulloch v. Maryland (1819, p. 55)

Facts: Cashier at US Bank allegedly failed to pay state tax and denied that he is obligated to follow state legislature because sovereign immunity claim.

Issue/Holding: Does Congress have power to incorporate bank? Yes. Can a state tax a US government bank? Yes, if a uniform tax not specifically targeting federal employees.

Reasoning/Major Points:

  • Maryland claims that the power to establish a bank is not an enumerated power and that federal government gets powers from states. Court responds that the Con that gives Federal authority. Federal government gets power from the people “in form and substance it emanates from them” (p. 59).

  • Asserts supreme authority of US government over States. Feds given broad power to regulate commerce, wage war, etc. Court says that banking provides the means for the Feds to carry out its duties.

  • Art I, Sec 8 gives Congress “all laws which shall be necessary and proper for carrying into execution the foregoing powers…” says necessary, not absolutely necessary or indispensably necessary.

    • Court reads necessary in a mitigated sense—cites example of Con creating post office, which implies power to deliver mail and punish robbers and mail fraud.

    • Narrower/stricter reading of necessary would be impractical, would render government impotent.

    • Clause placed in section on powers of Congress (Art I, Sec 8), not limitations (Art I, Sec 9).

      • US Con is supreme over state constitutions

      • Power to create implies power to preserve

      • Power to destroy is hostile to power to create and preserve

      • Where conflict, supreme power must not yield to lesser authority

  • Therefore, States do not have power to tax or do anything that restricts Congress’s power.

2. The Commerce Power


a. Historical Development


Gibbons v. Ogden (1824, p. 143)

Facts: NY legislature granted exclusive rights to Fulton/Livingston to operate steamboats in NY waters. These two licensed Ogden. Gibbons operated competing ferry service, licensed by Congress in 1793.


  • NY monopoly invalid under supremacy clause, injunction dissolved.

  • Congress has the right to regulate interstate commerce, but will not regulate matters internal to states.



US v. E.C. Knight Co. (1895, p. 161)

Facts: US invoked Sherman Anti-Trust Act to block acquisition of four competing sugar companies by American Sugar Refining Company, which left only one independent refinery in operation (provided only 2% of the sugar refined in the country).

Issue/Holding: Does Sherman Act reach this monopoly? No.

Reasoning/Major Points:

  • Sherman Act did not reach this monopoly because the Constitution did not allow Congress to regulate “manufacturing.”

  • Fact that an article is manufactured for export to another state does not make it an article of interstate commerce

  • Harlan dissent: Common government of all is only one that can deal with matter that directly and injuriously affects the entire commerce of the country.

  • This case is wrongly decided under McCulloch, which provides for more expansive Commerce Clause powers. Stafford and Shreveport case reverse Knight


Houston, East & West Texas Railway v. US (The Shreveport Rate Cases) (1914, p. 162)

Facts/Issue/Holding/Reasoning: Railway operated lines between TX and LA. Interstate Commerce Commission set maximum rate for shipments from Shreveport to Texas and ordered railway to charge no higher rates per mile for shipments to Marshall from Shreveport or Dallas in order to eliminate “discrimination” against Shreveport.

  • Court held Commission could set rates for the intrastate Dallas to Marshall route

  • Also held that Congress is entitled to prescribe the final and dominant rule when interstate and intrastate transactions of carriers are so related that government of one involves control of the other



Champion v. Ames (The Lottery Case) (1903, p. 164)

Facts/Issue/Holding/Reasoning: Federal Lottery Act of 1895 prohibited interstate transportation of foreign lottery tickets. Champion indicted for shipping Paraguayan lottery tickets from TX to CA. Court rejected challenge to constitutionality of act, saying Champion’s actions constituted interstate commerce.

  • As states might prohibit lotteries to protect morals, so might Congress across states.

  • Congress can’t arbitrarily prohibit commerce, will be up to the courts to judge.

  • Dissent: Congress being given general police power. “It is a long step in the direction of wiping out all traces of state lines, and the creation of a centralized Government.”

  • Reversed by Hammer; but Darby reverses Hammer, bringing back Champion into good law.



Hammer v. Dagenhart (The Child Labor Case) (1918, p. 147)

Facts/Issue/Holding/Reasoning: Congress passes Child Labor Act in 1916, which prohibited transport in interstate commerce of goods produced in factories employing children in certain conditions. Father of two children employed in cotton mill in NC secured an injunction against enforcement of the act on grounds it was unconstitutional. Court upholds.

  • Court says that Congress has no power to require states to exercise police power so as to prevent unfair competition. Commerce Clause not intended to give Congress general power to equalize such conditions

  • Transcends authority delegated to Congress but also exerts a power as to a purely local matter to which federal authority does not extend

  • Dissent Holmes: When states seek to send products across state lines they are no longer within their rights. Court is being inconsistent with other cases

  • Irreconcilable with Champion, later reversed by Darby



Carter v. Carter Coal Co. (1936, p. 169)

Facts/Issue/Holding/Reasoning: Bituminous Coal Conservation Act of 1935 intended to stabilize industry during period of sustained industrial crisis. Established coal boards to set minimum prices, administer employee collective bargaining code. Stockholder sued to enjoin company from complying with code. Court invalidated statute’s labor provisions, which were not severable from price-fixing provisions.

  • Court says these issues are local, not interstate in nature. Slippery slope if Congress able to regulate. The Court holds “the power expressly granted Congress to regulate interstate commerce does not include the power to control the conditions in which coal is produced before it becomes an article of commerce.”

  • Dissent: Within the power of Congress. Intrastate sales prices have a great affect on interstate. Coal industry a mess, this is best remedy.



United States v. Darby (1941, p. 179)

Facts/Issue/Holding/Reasoning: Darby charged with violation of Fair Labor Standards Act of 1938, which prohibited employment of workers in interstate commerce other than at prescribed wages and hours. District court sustained Darby’s objections, SC reversed.

  • Court holds that while manufacture is not itself interstate commerce, the shipment of manufactured goods interstate falls under Congress’s power to regulate. “Such regulation is not a forbidden invasion of state power merely because either its motive or its consequence is to restrict the use of articles of commerce within the states of destination…”

  • Rejects purposivist interpretation of McCulloch

  • Revokes Hammer holding, incorporates Holmes’s dissent in that case.



Wickard v. Filburn (1942, p. 149)

Facts/Issue/Holding/Reasoning: Agricultural Adjustment Act set quotas on wheat production. Filburn harvested more than his allotment, for home consumption, was penalized $117. He sued the Secretary of Agriculture to enjoin enforcement, lower court issued injunction. SC reversed.

  • Home grown wheat is most variable factor in disappearance of wheat crop and competes with wheat in commerce


  • Says even if local, can be regulated by Congress if “exerts a substantial economic effect on interstate commerce” regardless if direct or indirect. Test is aggregate effect (p. 150), specific rejection of E.C. Knight analysis.



Heart of Atlanta Motel v. United States (1964, p. 183)

Facts/Issue/Holding/Reasoning: Title II of the 1964 Civil Rights Act declares that places of public accommodation must not discriminate or segregate on the basis of race, color, religion or national origin, and defines places of public accommodation as those whose “operations affect commerce.” HAM sought a declaratory injunction that Title II was unconstitutional. SC upheld statute.

  • Court acknowledged this was a moral problem, but there was overwhelming evidence of the disruptive effect on commercial intercourse, the ability of blacks to travel interstate.

  • Local character didn’t matter either, was just local incidence of broader commerce.



Katzenbach v. McClung (1964, p. 184)

Facts/Issue/Holding/Reasoning: Companion case to HAM case above. Restaurant challenged constitutionality of Title II. Court upheld statute. Congress had rational basis for finding that racial discrimination in restaurants had direct and adverse effect on the free flow of interstate commerce.


b. The New Doctrine

United States v. Lopez (1995, p. 186)

Facts: Congress passed Gun-Free School Zones Act of 1990, making it a federal offense to possess a firearm in a school zone.

Issue/Holding: Is regulation linked to interstate commerce? No.

Reasoning/Major Points:

  • Court held that the act neither regulates a commercial activity nor contains a requirement that the possession be connected to interstate commerce. Exceeds the authority of Congress to regulate commerce…

  • There are 3 categories that Congress may regulate under interstate commerce powers:

    • 1) Channels (waterways, highways) of interstate commerce,

    • 2) The instrumentalities (airplanes, trains) in interstate commerce, and

    • 3) Activities having a substantial relationship to interstate commerce.

  • On point 3), test requires an analysis of whether the regulated activity “substantially affects” interstate commerce (Wickard Test)

  • Gov’t contends that it does substantially affect commerce in two ways (p. 188):

    • Costs of violent crime substantial, costs spread through insurance

    • Violent crime reduces willingness of people to travel to areas perceived unsafe

  • Court says this rationale lacks real limits

  • Kennedy, concurring: Statute upsets federal balance to a degree that renders it unconstitutional assertion of commerce power (p. 191)

  • Dissent:

    • J. Souter: Why are we going back to old standards? Commercial, non-commercial like direct and indirect

    • J. Breyer: Rational basis test. Is there rational basis?

  • Lopez introduces Economic Activity Test, which is what the SC applies in Morrison. This is now the crucial test in Commerce Clause doctrine

  • The holding in Lopez:

    • Limits congressional power to activity that is economic in nature.

    • Resurrects the pretext tests from McCulloch

    • Limits purpose; purpose must be related to interstate commerce.

    • When in-state action is being regulated by Congress, purposive (rational basis) test is used.

  • How to determine what is economic activity? Can look to:

    • EC Knight: Trading of goods, buying or selling (but fails Wickard)

    • Effects of action

    • Purpose of actor: trying to make money (could have applied to Lopez)

    • Purpose of statute: economic or commercial purpose?



United States v. Morrison (2000, p. 197)

Facts/Issue/Holding/Reasoning: Court held civil remedy provision of the Violence Against Women Act of 1994 unconstitutional. Statute provided damage remedy for the victim against any person “who commits a crime of violence motivated by gender.” Congress acted based on findings that gender motivated violence affects interstate commerce by deterring potential victims from traveling interstate.

  • Court states that gender motivated crimes of violence are not economic activity.

  • Souter, dissent: Why this economic/noneconomic distinction now? Just serves a conception of federalism (to preserve state autonomy); no Commerce Clause logic or view of national economy.


Commerce Clause Doctrine Review

JR’s analysis:

  • Two methods of interpreting Commerce Clause:




E.C. Knight
Restrictive? Has expansive side too
Expansive? Has restrictive side too
Pretext Exception/Non-Textual: Restrictive Side (going to examine Congress’s end)
J. Holmes’s Dissent in Hammer
Carter Coal


  • Which of these two modes is right? McCulloch and EC Knight demonstrate two different kinds of powers conferred upon Congress

1) To achieve objectives: collect taxes, raise armies, etc. Activities part of achieving objective, do what is necessary

2) Regulate certain subject matter of interactions between individuals: interstate commerce

      • Congress can choose to what end it will regulate that subject matter, but it must stick to that subject matter.

      • Is it interstate commerce? No purposive inquiry. Purpose is not stated in the interstate commerce clause.

  • Congress had the power under Commerce Clause to regulate/ban international slave trade. Was this done for economic reasons? No, understood it was done for moral reasons.

  • Paradigm case: River flows interstate, bridge being built in one state, within that state for local purposes. Congress has right to regulate bridge building because of potential impact on interstate commerce. Elaboration of this case is Wickard v. Filburn.

  • Mistake made between Wickard and Lopez is that Court threw together Wickard and Darby. Court eliminated, through Wickard and Darby, the restrictive sides of both EC Knight and McCulloch, respectively.

    • Under Wickard, aggregate effects interpretation gives broad classification as commerce

    • In Darby, Court knocks out purposivist intent

  • Result is a Commerce Clause doctrine with no restrictions. Darby + Wickard = Unlimited Congressional Power, and from 1942-1995, not a single law by Congress was struck down as too broad under Commerce Clause

  • Why did this attempt to limit Congress’s power fail?

    • May have been a limited power when not as much interstate commerce, but then country developed. Now, virtually no purely intrastate commerce.

    • Depression context. Congress was trying to stimulate trade at higher prices because of economic despair, and there was a feeling that only federal government could remedy situation. Initially, Court was striking down such legislation. FDR proposed court packing plan (appoint seven new justices to bring to sixteen), but then one judge switched to change 5-4 balance, prompting adage “switch in time saves nine.”

  • But Lopez begins to limit congressional power under the Commerce Clause.

  • Hypothetical under Lopez: Is marriage an economic activity? The word economic originated from the household. How could you conclude marriage is not an economic activity? Is Congress regulating homosexual marriage to protect interstate commerce? Would have to apply stricter scrutiny under purposive test.

    • Conundrum: No interstate traffic in goods by someone who engaged in homosexual act. Unsolvable problem of giving Congress power over interstate commerce

    • Congress might use Commerce Clause power for other ends

3. Section 5 of the Fourteenth Amendment and the Eleventh Amendment


General Question: Can Congress enforce a liberty that courts have not recognized?


Katzenbach v. Morgan (1966, p. 222)

Facts/Issue/Holding/Reasoning: Lassiter v. Northampton Election Board (1959) held that English-language requirement did not violate the substantive guarantees of the 14th and 5th Ams. Congress passed, in Section 4(e) of the Voting Rights Act of 1965, a provision that no person who has completed sixth grade in a Puerto Rican school, where instruction was in Spanish, can be denied right to vote because of his or her inability to read or write English.

  • Court was able to perceive a enough of a basis upon which Congress might resolve the issue of providing franchise to Puerto Rican community as it did.

  • Dissent: It is judiciary’s job to define substantive scope of 14th Am, not Congress’s under §5 of 14th Am.


City of Boerne v. Flores (1997, p. 226)

Facts: Decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA). In response to Court’s decision in Dept. of Human Resources of Oregon v. Smith (the freedom of religion case involving members of native American church being denied unemployment benefits after being fired for ingesting peyote), Congress passed the RFRA to reestablish the rule before Smith. RFRA prohibits government from substantially burdening a person’s exercise of religion, unless the government can demonstrate: 1) the burden is in furtherance of a compelling governmental interest and 2) the law is the least restrictive means of furthering that interest.

Issue/Holding: Is RFRA constitutional? No. Statute exceeds Congress’ power.

Reasoning/Major Points:

  • Congress passed RFRA with the express intent of preventing violations of 14th Am. In reality, though, a substantive change to 14th Am is created, and Congress cannot pass legislation that in effect makes substantive change by imposing the substance on the states.

  • Design of 14th Am and the text of Sec 5 inconsistent with suggestion that Congress has the power to decree substance of 14th Am restrictions on the states

    • Under Sec 5: Congress can

1) Enforce causes of action that simply stop states from violating 14th Am

2) Add duties beyond those in 14th Am to states

    • Test for 2): only when the “remedy is proportionate and congruent response to identified constitutional violations”

    • Court delivers textual opinion, hinging on word “enforce”, which Court says is up to the SC, not Congress, to interpret.

  • Court says case is different from, but consistent with Morgan (where Court stated that Congress is a better fact finding body and accepted that the remedy in that case was proportional to the violation). Here, Court does not accept that RFRA is proportional and congruent to the violation.

  • Rejects part of McCulloch—restricts Sec 5. In McCulloch, Court gave Congress the right to any means as long as ends are within power. Here means must be proportional to ends.


From p. 230-31 Note

  • 11th Am provides that “the judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

  • Chisholm v. Georgia (1793, p. 230): Chisholm brought suit against GA to recover debt owed on which GA was trying to default. Brought suit under diversity jurisdiction clause (Art III, Sec 2, Cl 1), which SC upheld. Congress submitted proposal for 11th Am within three weeks of Chisholm decision.

  • Interplay between 14th Am § 5 and 11th Am: 14th Am supercedes 11th Am

  • Doctrines of state immunity taken together implies that the Constitution limits but does not eliminate Congress’s ability to choose a scheme for remedying violations of national law (p. 231).

JR’s comments:

  • Before 1995, SC held that 11th Am did not apply to suits arising under federal law.

  • In 1995, SC decided this was a bad idea, and stated that 11th Am still applies.

    • Now, unless suit can be brought under 14th Am, Sec 5, can’t be brought at all.

    • No one had really thought much of 14th Am, Sec 5 before 1995 because Congress’s powers were so broad under Commerce Clause.


Board of Trustees of the University of Alabama v. Garrett (2000, Supplement p. 37)

Facts/Issue/Holding/Reasoning: Garrett was an Alabama citizen, lived and worked there. Court held that Congress lacked power under 14th Am, Sec 5 to require that state governments pay monetary damages for their failure to comply with the requirement of the Americans With Disabilities Act (AWDA) that employers take steps to reasonably accommodate employees with disabilities. Record did not demonstrate sufficiently widespread violations of requirement against arbitrariness.

JR’s comments:

  • AWDA is constitutional under the Commerce Clause. Fits the Lopez category substantial effects test, but Court holds she can’t bring her suit and she has no remedy against Alabama because of 11th Am.

    • 11th Am doesn’t say anything about actions brought by citizens against their own states

    • US can bring case, not barred by 11th Am

  • Revisit Marbury (p. 23): “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

  • Art III provides for

    • Subject matter jurisdiction: Cases arising under federal law can be brought in federal court

    • Diversity of the parties: Can bring suit in federal court just because of identity of parties. Initially this included suits between a state and citizens of another state (ex. Chisholm)

  • 11th Am just eliminates provision of Art III that allows suits against a state by citizens of another state.

    • The SC shouldn’t read the 11th Am wording “another” to mean “same”.

    • By doing so, Court is creating an unwritten rule of state sovereign immunity (in order to avoid anomalous result of citizen of same state being able to bring suit against State under federal law but not non-citizen).

    • JR: Superior reading is that which applies 11th Am only to diversity law suits, but not those under federal law (this is NOT current doctrine).


Nevada Dept. of Human Resources vs. Hibbs (2003, Supplement p. 37)

Facts/Issue/Holding/Reasoning: Court rejected a constitutional challenge to the money damages provision of the Family and Medical Leave Act of 1993 as applied to states. FMLA satisfied requirements of congruence and proportionality in part because state laws that discriminate on basis of gender must survive higher standard of review—implying that it was easier to show pattern of state violations—and in part because of limitations on the remedy provided by the FMLA.



4. Unwritten states’ rights


CB 237-48 (New York – recommended; not required)


Printz v. United States (1997, p. 248)

Facts: Brady Act required the Attorney General to establish national instant background system by Nov 1998. Until then, gun dealers required to send form identifying purchaser to “chief law enforcement officer” (CLEO). CLEO had to make reasonable effort to ascertain whether receipt or possession would be in violation of the law, not required to notify gun dealer, but if did, purchaser must be notified of reasons for determination.


Issue/Holding: Is this constitutional? No.

Reasoning/Major Points:

  • Government relies upon the Necessary and Proper Clause to support Brady Act requirement. However, the Court holds that Congress cannot compel the States to enact or enforce a federal regulatory program and cannot circumvent this prohibition by conscripting the state’s officers directly—Anticommandeering Principle.

    • “It is the very principle of separate state sovereignty that such a law offends and no comparative assessment of the various interests can overcome that fundamental defect.”

    • “The power of the federal government would be augmented immeasureably if it were able to impress into its service – and at no extra cost to itself – the police officers of the 50 states.”

  • Stevens (dissent): Intent was to give federal power to act through local officials

    • Political system ensures proper decision making by Senators

    • Better way of enforcing than creating huge Federal bureaucracy



Reno v. Condon (2000, p. 251 Note 1)

Facts/Issue/Holding/Reasoning: Upheld federal Driver’s Privacy Protection Act (DPPA), which regulates the disclosure of personal information in the records of state motor vehicle departments. DPPA regulates states as owner of databases.

  • Court unanimously rejected the argument that statute violated anticommandeering principle, even though would require time and effort on part of state employees: “It does not require the South Carolina Legislature to enact any laws or regulations and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals” (p. 251).

  • Generally applicable not commandeering: if Congress imposes actions that are imposable on everybody, that’s constitutional. DPPA regulates entire universe of entities that participate in market for vehicle information.



Summary: When Federal Statutes are applied to:

1) Private individuals, then no Printz problem arises;

2) State actors

When state actors are treated as “objects” or “governed”, then there is no Printz problem (see Condon). This is when all are treated as objects, like private actors—minimum wage laws, for example.

When treated as instruments or governors, then Printz problem arises. US cannot tell states they must be the instruments to implement a federal statute and make state employees into their enforcement agents.



(Joseph Blocher)



B. Allocation of Powers within the Federal Government

1. The President as Lawmaker


United States v. Curtiss-Wright Corp. (1936) (p. 403)


A Joint Resolution of Congress approved in 1934 authorized the President to prohibit the sale of arms if he found that such a prohibition would contribute to the establishment of peace in a particular region. Employing the powers granted by this the resolution, the President proclaimed a prohibition on the sale of arms to Bolivia. In violationa of the resolution, the Curtis-Wright Corp. was indicted for conspiracy to sell arms to Bolivia. The lower court held that the joint resolution was an unconstitutional delegation of legislative power to the President.


Can Congress grant the President the “legislative” power to declare a sale of arms illegal?


Yes (but not because it’s a simple delegation of authority …)


The Court found that Congress may delegate much broader powers to the president in foreign affairs than in domestic ones. The enumerated powers and the necessary and proper clause take powers otherwise granted to the states and give them to the federal government. But the states never had power over foreign affairs, therefore these two restrictions are not applicable to federal action internationally. (403) The Court finds that the U.S.’s “external” sovereignty – that is, its sovereignty in foreign affairs – derives directly from its break from Great Britain at the time of Independence, not from any affirmative grants of the Constitution. Furthermore, the President is already granted with the power to conduct the external affairs of the nation. The Court even asserts that the President is the “sole organ of the federal government in the field of international relations” (ignoring Congress’ important foreign affairs roles, such as declaring war, regulating commerce with foreign nations and so on).


  • Jed absolutely hates this holding. The Curtiss-Wright Court engages in some really shady evasive maneuvers to get around the non-delegation doctrine, which is in full effect at the time but is now dead. That’s why it calls on this ridiculousness about the government’s power not deriving from the Constitution, when the whole point of our system of government is that it does.

  • Today we have no non-delegation doctrine (if we did, the whole administrative state would collapse), so this would be a pretty easy case, and wouldn’t require the same

  • Despite Jed’s righteous anger, Curtiss-Wright remains good law, and stands for the proposition that the president has special authority over international affairs.


Youngstown Sheet & Tube Co. v. Sawyer (1952) (page 336)


Steelworkers were on the verge of a nationwide strike during the Korean War. Citing the serious national interest in steel production, President Truman order his Secretary of Commerce to take possession of the steel mills and keep them running. He also notified Congress of his action, but two weeks later Congress had still taken no action. The steel mills challenged the action as unconstitutional and unauthorized by Congress. The District Court issued a temporary restraining order against the Secretary of Commerce and the order was stayed by the Court of Appeals. The SC granted certiorari.


Was the President acting within his Constitutional powers when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills?




The President’s authority to issue such an order must either stem from an Act of Congress or the Constitution itself. There was no statute that expressly authorized the President to take possession of the property as he did here, nor was there any specific Constitutional grant of power. Neither does the President’s power as Commander in Chief of the Armed Forces or other Constitutional privileges grant the President the power to take possession of the steel mills. In issuing his order, the President went beyond the powers of his office.

Concurrence (Frankfurter)

The power of seizure lies with Congress, and thus the President can only exercise that power if he is first given an explicit authorization from Congress. We as a nation have accepted the “price” of checks and balances.

Concurrence (Douglas)

It was OK for the President to act as he did, but only if the Congress subsequently approved the seizure, which it did not.

Concurrence (Jackson)

Jackson sets out a tripartite test to analyze different situations in which the President has differing levels of authority:

  1. When he acts with the explicit or implied authorization of Congress, Presidential power is at its highest.

  2. When Congress is silent, the President acts in a “zone of twilight” where tests of constitutionality are likely to be based on current imperatives and needs rather than abstract theories. (This zone is almost inevitably messy)

  3. When Congressional will explicitly or implicitly contravenes that of the President, his power is at its lowest. He can claim only his own power, minus that of Congress.

This case falls into the third category, and there is not enough support for executive power– either in the executive power provisions of the Constitution or the Commander-in-Chief designation or any other “implied” power –to justify this action.

Dissent (Vinson, Reed, Minton)

Stressing the peril to national defense and calling on historical examples from Lincoln to Wilson, the dissent argues that seizures such as this one have been accepted throughout our history. Moreover, the power of seizure is not explicitly given to Congress, either, so why deny it to the President?


  • Later USSC decisions have embraced Jackson’s concurrence, so this is one of the relatively few cases in which a concurrence is citeable.

  • The domestic/foreign affairs distinction remains important. If the President is acting in foreign affairs, the Court will never treat it as a “Category 3” case, and will instead employ the category 2 twilight zone analysis, which is inevitably messier.

    • In this case – unlike Curtiss-Wright – power is exercised domestically.



Introduction to The Two Modes of Separation of Powers Analysis

Jed used Youngstown to introduce the “Two Modes” approach. It goes a little something like this:

Mode I – “Separated Powers/Character of Action”

Mode I analysis looks at the character of the action, and attempts to identify whether it is judicial, executive, or legislative. If, as in this case, the President engaged in lawmaking, the action will be found unconstitutional. Youngstown Majority embraces this analysis. See bottom of page 337, describing the President’s actions as lawmaking. Indeed, Mode I is almost logically necessary when you’ve got a non-delegation doctrine, because you need to establish what kind of action counts as lawmaking vs. law interpreting vs. law enforcing, etc.

However, Mode I is exceedingly problematic. First of all, it’s hard to reconcile with the administrative state in which we live, where agencies perform rule-making functions which certainly look like lawmaking. Secondly, and on a related note, it’s very difficult to establish what counts as lawmaking and what doesn’t (see Chadha, below, where the USSC does backflips trying to figure this out). Lastly, Mode I doesn’t even lead to a totally satisfying solution to the specific facts of Youngstown. Do we really think that the President’s action would have been constitutional had he simply ordered generals do seize the steel mills, instead of the Secretary of Commerce?

Currently, the only instance in which Mode I is preferred is when Congress is trying to grant itself judicial or executive powers. That’s what was going on in Chadha, for example.


Mode II – “Checks and Balances/Overlapping Powers” (a.k.a. the preferred standard)

Jackson’s concurrence sets up Mode II. Notice that his tripartite test never once mentions improper lawmaking. Instead, Mode II analysis focuses on whether any single branch has too much power. If the President is not using one of his Article II powers, and Congress has not authorized the President to take an action, he is doing something constitutionally suspicious. Checks and balances “mode” applies when a branch exercises powers that infringe another branch’s ability to do its job.


Clinton v. City of New York (1998) (page 368)


In 1996 Congress passed the Line Item Veto Act which authorized the President to cancel in whole any items of new spending or any limited tax benefit. Under the Act the President cancelled sections of the Balanced Budget Act of 1997 and the Taxpayer Relief Act of 1997.


Can Congress authorize the President to amend two Acts of Congress by repealing a portion of each?




Justice Stevens found for the Court that the line item veto effectively gave the President the power to amend an already-enacted statute, and there is no provision in the Constitution that authorizes the President to enact, amend, or to repeal statutes. The President must either “approve all of the parts of a bill or reject it in toto.” The president and Congress must observe the procedures set forth in Article I, Section 7 of the Constitution, and Congress cannot alter the procedures set out in Article I, Section 7 without amending the Constitution.

Dissent (Scalia)

Really, this is just about the President declining to spend money he is authorized to spend, and that’s well within his power. The word “veto” really isn’t accurate, and the majority was basically “faked out” by it.



2. Congressional Delegation to and Vetoes of Administrative Agencies


Note: Nondelegation Doctrine and “Quasi-Constitutional” Statutes

The conventional understanding – that Congress passes laws and the executive enforces them – is not in tune with current practice (administrative agencies have considerable lawmaking powers) or with current law (there are few, if any, restrictions on Congress’ power to delegate). Congress is now free to authorize regulation of “unreasonable risks” or administration action “in the public interest,” for example. The only two outliers – in fact, the only two times the Court invalidated statutes on nondelegation grounds – were Panama Refining Co. v. Ryan (1935) (invalidating a provision of the post-Depression National Industrial Recovery Act that would have authorized the President to prohibit interstate transportation of oil produced in violation of state-imposed quotas); and Schechter Poultry Corp. v. United States (1935) (striking parts of the poultry code on nondelegation grounds because Congress had authorized industry representatives themselves to define “fair competition”).



INS v. Chadha (1983) (p. 370)


Chadha was an East Indian who lawfully entered the United States on a nonimmigrant student visa. His visa expired and the INS held a deportation hearing and the immigration judge suspended his deportation and sent a report to Congress as required by section 244(c)(1) of the Immigration and Naturalization Act. Under Section 244(c)(2) of the Act either house of Congress can veto a suspension of deportation. The House of Representatives adopted a unilateral resolution opposing Chadha’s permanent residence and Chadha was ordered to be deported. Chadha appealed and the Circuit Court held Section 244(c)(2) unconstitutional.


Can Congress employ a legislative veto to oversee delegation of constitutional authority to the executive branch?




The action taken by the House was a legislative one and had the effect of enacting legislation requiring Chadha’s deportation (it was an “action that had the purpose and effect of altering the legal rights, duties, and relations of persons”). However, the House could not act alone to do this. Congress can implement legislation in only one way: bicameral passage followed by presentment to the executive. (See Presentment clause, Art. I, Sec. 7, Cl. 2: “shall be presented to the President of the US… shall be approved by him”; bicameralism, Art. I—“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate AND a House…”). There are only four instances in which either house may act alone: impeachment, trial after impeachment, ratification of treaties, and confirmation of presidential appointments. The legislative veto is not one of these. Once Congress delegates authority, it must abide by that delegation until it legislatively alters or revokes it.

Concurrence (Powell)

One-House veto in this instance is a judicial act since it allows the House to overturn the rulings of immigration judges (no procedural safeguards, no substantive rules to guide the process). This unconstitutionally exceeds Congress’ powers.

Dissent (White)

This decision in effect is not a limit on Congress but a blank check to the agencies and a death knell for 200 other statutory provisions. Although not expressly established in the Constitution, the legislative veto was not prohibited and it is in line with Article 1 and Separation of Powers. Previous courts recognized this, and greatly expanded Congressional ability to establish executive and independent agencies, thus sanctioning the modern administrative state. Today’s Court limits congressional power to check those same agencies, and its decision is fundamentally at odds with those previous court decisions. The United States has changed, governing must change, too.


  • This is essentially a Mode I analysis. It asks what kind of power is being exercised (legislative) and by whom (legislature – OK), and finds that it does not follow the proper legislative procedure – even though it’s exercised by the legislature, there’s no presentment and no bicamerality.

  • Later decisions summarily affirming invalidations of legislative vetoes have confirmed Justice White’s suggestion that Chadha’s reach is quite broad.

  • Congress, however, is not powerless to control agencies even without a veto power: It can cut funding, terminate an agency through “sunset” legislation, or legislatively limit an agency’s authority.

  • Though Jed likes the idea of a one-house veto to limit the power of the administrative state, he believes that Chadha was in fact rightly decided. More on this in the “one house veto” note below.



3. Appointment and Removal of Administrative Officers


The Two Modes of Separation of Powers Analysis (Reloaded)

As in other areas of allocation of power analysis, there are two ways of scrutinizing statutes that deal with the appointment and removal of administrative officers.


Mode I uses what Jed calls “the separation of powers conception of the separation of powers.” This asks what role the officer plays in the constitutional system – if it’s an executive function, he should be hired and fired by the executive branch; if it’s a legislative function, he should be hired and fired by the legislative branch (assuming it’s a delegable legislative function in the first place), etc. This is the analysis used by the Court in Myers, Humphrey’s Executor, and Bowsher.



Mode II uses what Jed calls “the balance of powers conception of the separation of powers.” This seeks to preserve the balance of powers among the three branches, and not let one branch interfere unduly with the exercise of power by the other two. Essentially a balancing test – uses very nebulous questions about the balance of power. Used in Morrison and Mistretta.

We can do better than Mode II, without shifting back to Mode I - see notes at end of this section.  


Myers v. United States 272 U.S. 52 (1926) (pg. 379)


Congress passed a statute providing for the appointment and removal of postmasters by the president, with “the advice and consent of the Senate.” (Different than “good cause” limitation in Humphries – although not noted in that case) Woodrow Wilson tried to remove postmaster Myers unilaterally.


Wilson’s attempt to remove Myers was lawful because the attempted limitation (“the advice and consent of the Senate” provision) on the president’s removal power is unconstitutional under article II.


The attempted limitation on the president’s removal power is unconstitutional because a.) The act of removal is itself executive in nature and must therefore be performed by the president; b.) the “take Care” clause says that the president, not his subordinates, must take care that the laws be faithfully executed; and c.) Article II vests executive power in the president, not subordinate officials.

Dissent (Holmes, Brandeis and McReynolds)

They argue that the office of postmaster owes its very existence to Congress, and the entire office can be abolished by Congress, so Congress should have input in removing those who hold the office.


  • Article II, section 2, clause 2 provides for the appointment of officers. There is nothing in the constitution about removing officers.

  • The decision draws “considerable” support from the fact that we have a unitary, rather than plural, executive.



Humphrey’s Executor v. United States 295 U.S. 602 (1935) (page 379)


Congress passed a statute saying that the President could remove members of the Federal Trade Commission – but only for “good cause.” The history of the statute indicated that the legislative goal was to entrust regulatory decisions to a body of nonpartisan experts insulated from political pressures. Roosevelt removed Humphrey from his post, arguing not that there was a “good cause,” but that he simply had such power under Article II as interpreted in Myers.


The Court held for Humphrey. The good cause limitation (which is different than Myers’ requirement of Senate consent) on the president’s removal power is constitutional.



The Court disagrees distinguishes Myers, saying the postmaster in Myers is a purely executive officer, but the FTC commissioner is quasi-legislative, so Congress can limit the president’s power to remove him. The analysis looks at whether or not the official is performing mainly an executive, legislative, or judicial function to decide who has the power to remove him. This doctrine was explicitly overruled in Morrison, p. 458.


  • By looking to the nature of the FTC Commissioner’s activity as legislative rather than executive, the Court relies on that kind of messy Mode I analysis that drives Jed nuts.

  • Unlike in Myers, this was not an obvious expansion of Congress’ own power. That is, it limited the President’s power, but didn’t give Congress “oversight” power.



Bowsher v. Synar 478 U.S. 714 (1986) (page 381)


Congress passed the Balanced Budget and Emergency Deficit Control Act [Gramm-Rudman-Hollings Act] of 1985, under which the Comptroller General was responsible for preparing and submitting to the President a report specifying deficit reductions for a fiscal year. The President in turn was required to order the reductions specified by the Comptroller General. The Comptroller General was removable from office only by Congress. Congressman Synar and others initiated an action challenging the Act's constitutionality. The trial court ruled that the Comptroller General's role in the deficit reduction process violated the constitutionally imposed separation of powers.


The Act is unconstitutional, because it gives the Comptroller General, an officer of the legislative branch over whom Congress retained removal power, the ultimate authority to determine the budget cuts to be made, which is a plainly executive function.


The Court, as in Humphrey’s Executor, uses what Rubenfeld calls “the separated powers conception of separation of powers” (Mode I) to decide whether the powers being exercised by the Comptroller General are legislative, executive or judicial. The Court decides that the Comptroller is vested with executive power, and therefore Congress can’t be the one to discharge him. “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment… [W]e view [the Comptroller’s] functions as plainly entailing execution of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” Under Chadha, Congress cannot retain a legislative veto, which is effectively what this legislation does.

Dissent (Stevens, Marshall)

They say the policy decisions made by the Comptroller have the force of law, and therefore he’s acting legislatively and not executively as the majority says. They’d still strike down the law, however, because only Congress can make law – it can’t designate some “lesser representative of the Legislative Branch to act on its behalf.”

Dissent (White)

The majority decision is “distressingly formalistic.” Says the real question “whether the Act so alters the balance of authority among the branches of government as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law.” White sees no such threat, rather, in this case the separation between the powers of leg and executive branches make the Comptroller exceptionally independent – not more than justly dependent on congress. Moreover, because the Comptroller can only be removed through a decision of both houses and presentment to the president, the requirements of Chadha are met.


  • Bowsher is an application of Myers. It would seem after Bowsher that the Humphrey’s Executor reasoning is still intact. Is that true? NO—not after Morrison.

  • White’s dissent looks like Mode II analysis.



Morrison v. Olson 487 U.S. 654 (1988) (page 387)


Acting under power given to it by Congress in the Ethics in Government Act of 1978, the Special Division appointed appellant as independent counsel to investigate appellees for violations of federal criminal laws. The Act provides for the appointment of an independent counsel to investigate and prosecute certain high-ranking government officials for violations of federal criminal laws. Appellant caused a grand jury to issue and serve subpoenas on appellees. All three appellees moved to quash the subpoenas, claiming that the independent counsel provisions of the Act were unconstitutional.


For petitioner Morrison, opinion by Rehnquist. Independent counsel provision doesn’t violate the constitution.


Overrules doctrine used in Humphrey’s Executor

The Court disposes of two other Constitutional issues before turning to separation of powers: (1) the Act did not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division, because the special prosecutor is an “inferior officer” and Congress is authorized under “excepting clause” to place removal powers outside exec branch for such officers; and (2) the powers exercised by the Division under the Act did not violate U.S. Const. Art. III, because the prosecutor’s powers are not broad enough to interfere with judiciary

Turning then to the Separation of Powers question, the Court held: “our present considered view is that the determination of whether the Constitution allows Congress to impose a ‘good-cause’-type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’” Instead, the new doctrine seeks “to ensure that that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.” (p. 391) “Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and convictio.” (pg. 390) Congress, in other words, is not trying to expand its own powers at the expense of the Executive Branch. Congress, after all, cannot remove the special prosecutor – only the Attorney General can, and then only with good cause. This makes it an executive power. The Attorney General can also supervise and control the prosecutor.

  • This is a Mode II analysis

Dissent (Scalia)

He says that the majority opinion has “replaced the clear constitutional prescription that the executive power belongs to the President with a ‘balancing test.’” And he doesn’t like it.



Mistretta v. United States 488 U.S. 361 (1989) (p. 397)


A separation of powers challenge to the United States Sentencing Commission, the role of which is to create mandatory sentencing guidelines. The Commission has seven members appointed by the President (three must be federal judges).


Commission does not violate separation of powers principles.


Court relies on Jackson’s concurrence in Youngstown, and refers to the “twilight” area where the separation of powers is unclear. “[T]he greatest security against tyranny – the accumulation of excessive authority in a single branch – lies not in a hermetic division between the Branches, but in a carefully crafted system of checked and balanced power within each Branch.” (not in the new edition) Petitioner Mistretta argued that the judicial branch was weakened by its participation in policymaking, but the Court says that “such power as these judges wield as Commissioners is not judicial power; it is administrative power. [The] Constitution [does] not forbid judges from wearing two hats; it merely forbids them from wearing both hats at the same time…” Because service by any particular judge on the commission was voluntary, that service could not diminish the independence of the judiciary. This opinion is a clear move away from the “hermetically sealed” way of looking at the branches and toward the checks and balances Mode II method.

Dissent (Scalia)

He says “the power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power… in this case, [the] consequence is to facilitate and encourage judicially uncontrollable delegation.” Says the Commission is essentially a fourth branch of government, “a sort of junior-varsity Congress.” “This is an undemocratic precedent that we set – not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government.”

Rust v. Sullivan 500 U.S. 173 (1991) (page 1293)

*This case was only briefly referenced in separation of powers (mostly as a punching bag for Jed) and is dealt with in more detail under subsidized speech.


An existing statute said that federal funds for family services shall not “be used in programs where abortion is a method of family planning.” The Secretary of Health and Human Services interprets this rule to bar federal funding not only for abortion itself but also for all activities that “encourage, promote or advocate abortion as a method of family planning.” Clinics receiving federal funds thus couldn’t present abortion as an option for women.

Holding and Reasoning: “The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way… when the government appropriates public funds to establish a program it is entitled to define the limits of that program.”


  • The effect on the balance of power is devastating. An indignant Jed demands to know, “Why on earth does this agency have the right to make law for the rest of the country?!” A majority of Congress even passes a law repealing gag rule, but President Bush I vetos it. It wasn’t until Clinton got into power that he called up Secretary to end the rule; we had to elect a president to get rid of the gag rule. This is the way a lot of things work in the administrative state now: it entirely depends on who is president. This is scary, and unconstitutional according to Jed. The Constitution makes it really hard to make new law, it can’t be made without at least majority support in the popular houses. But it can be made NOW by administrative agencies based solely on presidential whim. It’s not what the Constitution envisioned for constitutional design. Which brings us to …


Temporary Aside: How would we deal with Rust under our two Modes?

Mode I: They don’t call it law making so it’s not lawmaking. (You can guess what Jed thinks about this one)

Mode II: It is balanced power – approved by two branches

  • Congress vests the President with this authority in granting him the power, and President has approved it by using it = check by two branches. Although Congress may want to revoke the authorization, if President does not want to release it, they have no recourse. Only new legislation can take away the President’s new toy, and the President can veto that (as Bush Sr. did).


Summary, and Separation of Powers According to Jed

If you take 1) non-delegation, 2) Chada and 3) the Myers/Humphrey’s executor holdings (all good on their own), and add them together you get an unchecked executive power. Court does not see executive agency law making as unconstitutional after the demise of the non-delegation doctrine.


  1. The demise of the non-delegation doctrine;

  2. The Myers and Humphreys Executor holdings saying that Congress cannot involve itself in the removal of administrative officers (even though it creates the offices); and

  3. Chadha’s rejection of the 1-house veto.

Any one of these might be fine on its own. But put the 3 together, and you get executive lawmaking, virtually unchecked.



Jed’s argument for a one house veto (to save us from the administrative state)

Chada is right on its facts (Congress was trying to involve itself in a judicial power given to the INS) but its impact is devastating on the balance of power. Following Chadha, Congress cannot fire an administrator who made a bad regulation, and it cannot veto the regulation. Its only recourse is to create a law, but that has to go through the President’s potential veto – see the Rust debacle.

Chada gives us a presidential lawmaking power. We need the possibility of one-house legislative veto to balance out the loss of the non-delegation doctrine. Moreover, the one house veto does not present a major conflict with Constitutional provisions. Note that under Article I § 7 there are two ways to make law: with majority of both houses and presidential approval or 2/3 majority with presidential veto. According to Jed, a one house veto replicates this structure, more or less. If either house says no through legislative veto, then the regulation is out regardless of Presidential support.



Final Thoughts on the Modes

  • Nothing in Constitution bars executive officers from making law, nor are judicial officers barred from lawmaking, nor are exec bodies barred from judicial decisions (INS, e.g.). One group, however, is prohibited from exercising the power of the other branches: Article I, Section 6, Clause 2 bars Congressmen from being executive officers. Thus Congress can’t arrogate to itself or a committee an executive or a judicial power (as it tried to do in Chadha).

    • Only in impeachment can Congress act like another branch, and that exception is explicitly provided for in the Constitution.

  • Mode II thus requires that you do Mode I-type analysis for Congress, or else its power will be unchecked because it can take on judicial and executive power for itself.

  • The major problem with Mode II is that the “test” isn’t really concrete enough. It’s one of those balancing-type test that drive Jed nuts.



4. Enemy Combatants

Refer to the end for “notes” on the cases – they were all discussed together and pretty much interchangeably in class.



Padilla v. Bush 233 F. Supp. 2d 564 (S.D.N.Y. 2003)


Jose Padilla, an American citizen, was arrested on May 8, 2002 in Chicago, pursuant to a subpoena issued by a district court, and was moved to New York. On June 7, Padilla’s court-appointed attorney, after meeting with him in prison, submitted a motion to vacate the warrant for his arrest. Two days later, the government withdrew the subpoena, and simultaneously revealed that President Bush had designated Padilla an “enemy combatant.” Padilla is now detained in a naval brig in South Carolina. He has had no charges filed against him, and is forbidden to consult with an attorney.

Padilla challenged his detention, arguing that the President lacks authority to detain him for a variety of reasons but particularly because he is a US citizen arrested on US soil, and that even if the President does have that authority Padilla must be allowed to consult with counsel.

Statutory Background

On September 18, 2001, Congress passed Public Law 107-40 (the “Joint Resolution”), which provided:

That the President is authorized to use all necessary and appropriate force against those nations organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Congress said that this was meant to be in line with the War Powers Act of 1973, which requires the President to obtain specific Congressional authorization for the commitment of US troops. Bush signed the Law, while maintaining (as Presidents since Nixon generally have) that the Act is unconstitutional (it has never been tested in court).

Pursuant to his powers under the new Law, Bush designated Padilla an enemy combatant. The order submitted to the court set out a summary of the President’s findings to support this designation, including a declaration by Michael H. Mobbs, a Defense Department employee who emphasized that Padilla had extended ties to Al-Qaeda and intended to help set off a “dirty bomb” in the US. In addition to this “Mobbs Declaration,” the government submitted a “Sealed Mobbs Declaration” the government said is “sufficient to establish the correctness of the President’s findings,” but whose contents must under no circumstances be revealed to the defense. Padilla, of course, argues that this sealed declaration must not be considered or, if it is, must be turned over to the defense.


  1. Theresa Newman, Padilla’s court-appointed attorney, may act as next friend.

  2. The 4th Circuit has jurisdiction over this case and over Secretary Rumsfeld (denying a government motion to dismiss for lack of jurisdiction or transfer the case to South Carolina)

  3. Padilla’s detention is not per se unlawful [rejecting Padilla’s arguments that 1) Congress did not declare war; and 2) the “war on terror” can have no clear end, and thus detentions like Padilla’s are potentially indefinite]

    1. As for the first point, no Congressional authorization is necessary in order for the President to respond when we have been attacked. The decision about what measures to use is a political, not judicial, decision, and arises from his constitutional authority as Commander and Chief

      1. Even if statutory authorization were necessary pursuant to 18 U.S.C. § 4001(a) (“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress), the Joint Resolution provided that authorization. Thus the President has two bases for his authority.

    2. As for the second point, indefinite confinements are not necessarily unconstitutional.

      1. Moreover, the Courts have no Article III jurisdiction to tell the President when a war is or is not over.

    3. Having rejected these arguments, the Court reviewed the four criteria of being a lawful combatant (chain of command, uniform, open arms, adherence to laws of war), and noted that different rules apply to unlawful combatants – they are usually tried by military commissions, and can be detained for the duration of hostilities.

    4. In Quirin, 317 U.S. 1 (1942), the Court found that eight German saboteurs, including one who claimed American citizenship, could be treated as unlawful combatants. The is relevant for the current case because the Quirin Court: 1) recognized the difference between lawful and unlawful combatants and the fact that different rules apply to each; and 2) it allowed the military tribunal to hand down a death sentence, so surely detention in this case is OK.

      1. Quirin (and the Padilla court) distinguished Milligan, an 1866 Civil War case finding that a citizen charged with conspiracy had the right to be tried in a judicial forum rather than a military commission.

  4. Padilla may consult with counsel, under circumstances controlled so as to prevent him from using his lawyers as intermediaries for transmitting information to others.

    1. Padilla has the right to present facts. The most convenient way for him to do that – both for him and for the court – is through counsel. The government’s arguments (including the information set out in the Sealed Mobbs Declaration) are “gossamer speculation” and not sufficient to justify denial of the right to counsel.

  5. In determining the lawfulness of Padilla’s detention, the court will be satisfied so long as Bush had “some evidence” to support his use of the enemy combatant designation.

    1. The courts owe great deference to the President in matters of foreign policy, national security, and military affairs. In this case, moreover, the President is operating at full authority under the tripartite Youngstown test.

    2. It is unnecessary at this point to decide whether or not to consider the Sealed Mobbs Declaration. If the unsealed Mobbs Declaration is insufficient to prove the government’s case, the court will revisit the issue.



Hamdi v. Rumsfeld 316 F. 3d 450 (4th Cir. 2003)


Hamdi, an American citizen, was captured in Afghanistan in a combat zone. He was confined first at Guantanamo and later on American soil in a naval brig in Norfolk, Virginia as a “enemy combatant.”

Hamdi’s father filed a habeas petition, naming Hamdi as petitioner along with himself as next friend (a designation accepted by the court). The district court certified the following question for appeal:

Is a declaration by a Defense Department official (another “Mobbs Declaration”) sufficient evidence to justify Bush’s detention of Hamdi, an American citizen, as an enemy combatant?



Yes, and no further factual inquiry is necessary or proper: “[W]e hold that, despite his status as an American citizen currently detained on American soil, Hamdi is not entitled to challenge the facts presented in the Mobbs declaration.”

The Constitution grants specific war-related powers to the legislature and to the executive, but not the judiciary. Judicial deference is thus very strong, even if not unlimited. The safeguards of criminal procedure do not translate neatly to the arena of armed conflict, especially because the detention of enemy combatants serves “at least two vital purposes”: preventing them from re-joining the enemy and relieving military commanders of the “burden” of litigating the circumstances of captures performed far away.

Hamdi argues that his detention is illegal under 18 U.S.C. § 4001 (citizens may only be detained pursuant to an Act of Congress) and under the Geneva Convention (designation as an enemy belligerent must be made “by a competent tribunal”). Neither argument is persuasive. First, Congress did authorize his detention in the Joint Resolution. As for the Geneva Convention, it is not self-executing and provides no cause of action for individuals – it is instead “vindicated by diplomatic means and reciprocity.”

The case should not be remanded for further proceedings, but rather dismissed. The Mobbs Declaration, which establishes that Hamdi served with the Taliban and was captured in Afghanistan during armed hostilities, is sufficient to meet the government’s burden, and the district court erred in evaluating it with the kind of skepticism that would have been appropriate had this been a criminal case.


The court bends over backwards for separation of powers: “Yet we speak in the end not from sorrow or anger, but from the conviction that separation of powers takes on special significance when the nation itself comes under attack.”

*If I were Jed and looking for a question, I might ask whether these decisions are applying Mode I or Mode II analysis.



Hamdi v. Rumsfeld II 337 F.3d 335 (4th Cir. 2003)


[See above] Appellees filed a petition for rehearing, and requested that it be en banc. A member of the court requested a poll on the petition for rehearing en banc.


The Court rejected the petition 7-4, with Judges Wilkinson and Traxler each writing concurrences to the denial, and Judges Motz and Luttig writing separate dissents.

Wilkinson (responding primarily to Motz)

The question is “whether the United States can capture and detain prisoners of war without subjecting the factual circumstances surrounding foreign battlefield seizures to extensive in-court review. The answer to this is now – and has always been – yes.” The courts must recognize the “caution signals” and defer to the executive.

Traxler (responding primarily to Luttig)

The fact that Hamdi was captured in a combat zone is not as disputable as Judge Luttig argues it is, and the significance the court attributes to that fact is fully justified.


First, the circumstances of Hamdi’s seizure are not as undisputed as the majority would have it. Furthermore, the court’s failure to rest its decision on deference to presidential authority (rather than, as it did, Hamdi’s disputed concession that he was in Afghanistan when seized) threatens to eviscerate the President’s power to identify enemies.


The Mobbs Declaration, by itself, is insufficient to justify the detention. A greater evidentiary showing is required.



Al Odah v. United States 321 F.3d 1134 (D.C. Cir. 2003)


Nationals of Kuwait, Australia and the United Kingdom were seized in Afghanistan and Pakistan and transferred into detention at Guantanamo Bay. Each denied engaging in hostilities against the US. In three separate district court cases, court-recognized next friends brought petitions for habeas corpus and other Constitutional protections, including the due process clause and the Alien Tort Claims Act.


“[N]o court in this country has jurisdiction to grant habeas relief … to the Guantanamo detainees, even if they have not been adjudicated enemies of the United States.”


None of the detainees can property be called “enemy aliens,” because they all denied in the pleadings that they had taken up arms against the US, and the lower court decided the case on the pleadings. That doesn’t mean that they have a claim in this court, though. See Eisentrager, a 1950 USSC decision holding that German enemy aliens confined abroad had no standing to seek habeas review. Constitutional rights such as the First, Second, Fourth, Fifth and Sixth Amendments are not guaranteed to aliens outside the sovereign authority of the United States, so it’s hard to imagine how the writ of habeas corpus would be. Guantanamo Bay may be under our control, but the US does not exercise sovereignty over it.

Judge Randolph filed a separate concurrence adding additional grounds for rejecting jurisdiction over the non-habeas claims.


Analysis and discussion of the cases

  • There a number of separation of powers issues here, including:

    • What powers does the president have during wartime?

      • There is no single “War Powers Clause”: Art I gives Congress ability to declare war, and Art II declares that the President is “Commander in Chief”. Add to this confusion the War Powers Act, which says that the President can declare war without authorization by Congress, but then must come back within specified time frame and get congressional approval

    • A new one we haven’t really addressed: What is the role of the judiciary?

  • Two propositions:

    • Proposition 1: things become difficult to consider as a result of the shift from a prosecutorial paradigm (McVeigh, Al Qaeda in the 1980s and 1990s) to a warmaking paradigm. If we call something a “war,” does that mean it actually is a war in terms of its legal effects?

    • Proposition 2: the war on terror can legitimately be classed in the new paradigm. Even if we accept the first proposition, how do we classify the current conflict? When does it end? Who is the enemy?

  • In constitutional parlance, the Joint Resolution’s grant of power to the President – “necessary and appropriate” – is about as broad as you can get.

  • The Fourteenth amendment refers not just to citizens but to persons. And that word was used deliberately to refer to aliens, not just to citizens. Does it follow that those protections refer to all people everywhere in the world? The U.S. Supreme Court has held in a number of cases that U.S. constitutional protections are not extraterritorial. They do not follow with the presence of U.S. soldiers or forces. Aliens abroad have no constitutional rights based only on their dealing with U.S. officers.

    • This confirms the implication from Youngstown and Curtiss-Wright that there is something different about the exercise of power abroad.





Bonus: Jed on the Geneva Convention and Unlawful Combatants

To be a lawful combatant, one must meet four criteria:

  1. Be commanded by a person responsible for his subordinates

  2. Have a “fixed distinctive emblem” such as a recognizable uniform

  3. Carry arms openly

  4. Follow the laws and customs of war

  • Most international lawyers think that 9/11 was a crime, not an act of war, and that the “War on Terror” was really more comparable to the “War on Poverty”: i.e., not a real war. Luckily for the US, these lawyers say, the Taliban got involved and gave the US someone to wage a “real” war against.

  • Third Geneva Convention does not apply to unlawful combatants, which is what the US says all of these defendants are. International lawyers, however, contend that unlawful combatants are actually civilians, and that their treatment should be governed by the Fourth Geneva Convention (1949), which applies to detention of civilians in wartime. Jed says this is odd, because the result is unlawful combatants must be treated better because of the civilian classification. But remember, you can prosecute unlawful combatants. If they try and kill people, they can be convicted of something. Most people thought that if you did not prosecute you didn’t have to grant the extra protections. Should the Geneva convention be amended to clarify this or to set forth specifically norms and rules to cover unlawful combatants? Jed thinks so. The European lawyers generally say there’s no problem with the Convention, it’s just that the US is violating it.

  • The question of whether citizens have standing to sue government for violations of those citizens’ rights under that treaty is understood to be a separate question from whether the treaty is a law. Sometimes a treaty is self-executing - If it clearly sets out that there is a private right of action, then fine. If not, then Congress must specifically create standing. If Congress doesn’t do this, then international “law” is only enforceable as among states. Jed says that most international law is not actually law, because of this very problem.



V. Unenumerated Rights – Historical Developments


A. The Privileges or Immunities Clause


“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”



At least some of the members of Congress who participated in the drafting of the Fourteenth Amendment expected and hoped that this clause would constitute a substantial restraint on state government action against individuals. But the Supreme Court did not take this view.



The Slaughter-House Cases 83 U.S. (16 Wall.) 36 (1873) (pages 692-98)




Louisiana passed a law giving a monopoly on New Orleans area slaughterhouses to a particular company. A group of disgruntled butchers not included in the monopoly claimed that the state monopoly constituted a denial of their privileges and immunities as citizens as expressed in the 14th Amendment.

This was the first case involving a claim that the protections granted under the 14th applied equally to the States and the Federal government. This question would later be the foundation of the “incorporation” debate with regard to other constitutional protections.



The state’s grant of monopolies does not violate the privileges or immunities clause, because the 14th Amendment does not protect the citizens of a state against the legislative power of that state.


The 14th amendment makes clear a distinction between citizenship of a state and of the US, then extends protection of privileges and immunities to citizens of the US (not citizens the states). Article IV, Section 2, Clause 1 – “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States” – means only that once the “Several states” have defined privileges and immunities for their citizens, those privileges and immunities must be applied to all citizens of the US equally. It was not the purpose of the 14th Amendment to transfer responsibility for the protection of civil rights from the states to the federal government. Rather, the clause refers only to privileges and immunities that are specifically designated in the Constitution or which are necessarily implied. The Court need not enumerate the federal privileges and immunities which the states cannot abridge, but the list would include the right to claim federal protection when on the high seas or abroad, or to travel to the seat of government to assert claims against the government or do business with it.

Dissent (Field)

The 14th does afford protection to the citizens of the US against the deprivation of their common rights by State legislation and was so intended. (p. 696) If the clause were only to refer “to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the US, it was a vain and idle enactment.” Instead, “The privileges and immunities designated are those which of right belong to the citizens of all free governments,” and the granting of monopolies clearly violated those.

Dissent (Bradley)

States have lots of power to regulate activity, that power is not without restrictions. And granting monopolies is an invasion of the fundamental right of others to choose a “lawful calling, and an infringement of personal liberty.” These rights were transferred to the citizens when the country broke from England, not when the Constitution was written (~Curtiss Wright).


  • The first sentence of the 14th Amendment, which the Court reads as creating a dual citizenship, was really simply intended to overrule Dred Scott.

  • Some scholars argue that Justice Miller (writing for the majority) was driven by a desire to avoid the post-Civil War trend toward nationalization.

  • Bradley’s assertion that we all have a right to pursue a “lawful calling” is wrong: States grant monopolies all the time, like for power or water service.

  • As a result of this case, the Privileges or Immunities clause bears the dubious distinction of having been rendered a total constitutional nullity within years of its creation. Had this not been so, perhaps the substantive due process decisions would have been decided as P&I cases instead.

  • The Court has generally held firm to Slaughter-House, treating the P&I clause a superfluous. Until 1999, no case ever gave any weight to the Privs & Imms clause. Saenz v. Roe (see below ***) ruled that the Privs & Imms clause protects a certain aspect of the right to travel (recent citizens have same rights as long-standing citizens). So, perhaps the Supremes will begin an expansion of the reading of the Privs & Imms clause. Stay tuned…



B. “Substantive Due Process”: The Lochner Era

The Road to Lochner

Economic substantive due process was born in 1905 with Lochner – before it, the prevailing view was that due process was essentially procedural – but earlier cases did set the stage.



Dred Scott v. Sanford (1857)

Without explanation, the Court asserts that Congress cannot deprive a citizen of property “merely because he came himself or brought his property into a particular [Territory].” Such a deprivation would be a due process violation.



Social and economic developments also played a part, as the rise of industrial organization created strong opposition to regulatory laws. Industry representatives argued that the regulatory laws deprived them of “fundamental” property rights and helped “interest groups” rather than actual workers.



Munn v. Illinois (1877)

The Court rejected a due process challenge to an Illinous law fixing certain grain-storage charges, finding that price-fixing could be legitimate when the effected businesses were “affected with a public interest.” The shift to substantive due process was on its way, though …



Railroad Commission Cases (1886)

The Court upheld state regulation of railroad rates but signaled that judicial deference would only go so far: “The power to regulate is not a power to destroy.” State can’t take private property for public use without just compensation, or without due process of law.



Santa Clara County v. Southern Pacific Railroad (1886)

Corporations are “persons” within the meaning of the due process clause of the fourteenth amendment, thus opening the door to challenges to regulations by corporations.



Mugler v. Kansas (1887)

“If a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relations to those objects, or is a palpable invasion of rights secured by fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.”



The Minnesota Rate Case (1890)

First time court used due process clause to strike down economic regulation (unreviewable railroad rates).



Allgeyer v. Louisiana (1897)

The final step toward Lochner, and the introduction of a “liberty of contract.” Due process liberty is not only right to be “free from physical restraint,” but also freedom to “enjoy and use faculties,” “live and work where he will,” “enter into contracts,” and some other crap. See page 817 for entire bloated quote, although the meat of it is here.



Lochner v. New York 198 U.S. 45 (1905) (page 713)


New York passed a statute providing that no employee shall “work in a biscuit, bread or cake bakery or confectionary establishment more than sixty hours in any one week, or more than ten hours in any one day.” Some employers sued.


The statute is an unconstitutional violation of due process.


The due process clause of the 5th and 14th Amendments protects private property and liberty of contract against unwarranted government interference. (Allegyer) This statute clearly interferes with the ability of an employer and employee to enter into contracts. However, the state does have legitimate police power to protect the health and welfare of society. The key question thus becomes: Is the legislation within the police power of the state or is it “an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty.” The Court finds that there is no public interest at stake, and that the statue is invalid as a labor law. It must thus be justified in terms of protecting the health of the individual baker, and this is unjustifiable as well because it would give legislatures the power to regulate just about anything, and would interfere too much with the right to contract. The Court goes on to conduct some kind of “smoking out” analysis (even citing Yick Wo) to suggest that there are “other motives” (read: socialism) behind the law.

Dissent (Harlan)

The people of New York found a reasonable, health-based reason for the law, and that’s enough to pass the means-end test that we should be concerned with here.

Dissent (Holmes)

“This case is decided upon an economic theory [strict laissez faire] which a large part of the country does not entertain.” Court precedent already allows for regulation of business far harsher than that at issue here. “[A] constitution is not intended to embody a particular economic theory.”


  • Lochner is one of the most notorious cases in US history, and has played a major part in defining the Court’s role in American government. It stands for a kind of judicial activism which we have supposedly overcome.

  • Two (problematic) concepts underlying Lochner

    • There is a fundamental right, under the Constitution, to enter into contracts.

      • There’s nothing in the Constitution that says this, or that legislatures can’t legislate based on morality. Whether there should be is a separate question – see Lawrence (below ***).

    • Suspicion of the law’s motive as potentially socialist.

  • If we think this was wrongly decided, what do we think about the fact that the Lawrence Court said that homosexual conduct cannot be barred if it’s not harming other people, and that morality alone is not enough to justify the law?

  • There are also at least two ways to say what’s wrong with Lochner:

    • Attack the supposed “right to contract” as nonexistent

    • Admit that the principle is OK, but that the employees in this case didn’t really have freedom to contract, “so it was all a lie.”

      • Even then, you’d have to have a theory of duress or something. And if you could prove that people’s sexual choices are hard-wired, there might be an argument that the government should be able to regulate sexual behavior.



Lochner, Libertarianism and the Harm Principle

  • The “harm principle” – you have a fundamental right to do what you like so long as you don’t harm anyone else – is at the root of Lochner and is the basis of libertarianism. Jed says it’s just plain wrong. Here are three reasons.

1) There is no adequate theory of harm with which you can make sense of libertarianism.

      • Mental offense is, after all, a harm in the normal sense of the word.

      • All actions cause harm in some way

      • You could just say a certain harm (such as mental harm) is out of bounds, but then you’d be doing something besides libertarianism

2) Even if we accept arguendo that people do what they’re doing without affecting anyone else, you’d then have to throw out all of our anti-discrimination laws (anti-discrimination laws are, after all, based on morality)


      • Some libertarians, of course, do this.

3) Finally, what’s so bad about harming people? Why shouldn’t I be able to harm people if I choose? In order to answer those questions, you have to take a moral position, which is precisely what libertarians say you can’t do. So really, the libertarian is not saying that government can’t legislate morality, only that government can only legislate my morality.


Note: The Lochner Era (1905-1934) & Nebbia, West Coast Hotel


From 1905 – mid 1930’s, the Supremes invalidated 200+ economic regulations, usually for due process reasons. The Court’s decisions seem somewhat inconsistent – as illustrated below – though it appears that the Court was mostly interested in the “real” reason behind legislation. If it was public interest, the law might stand.



Maximum Hour Legislation

Muller v. Oregon (1908)

Upheld maximum hour legislation for women because women’s “physical structure” puts them at a disadvantage



Bunting v. Oregon (1917)

Upheld maximum hour legislation for factory workers, overturning the specific holding of Lochner even though its principle continued to be enforced.



“Yellow-dog” Contracts

Adair v. United States (1908)

Invalidated federal and state legislation forbidding employers to require employees to agree not to join a union. “It is not within the functions of government to compel any person in the course of his business to retain the personal services of another.”



Minimum Wages

Adkins v. Children’s Hospital (1923)

Invalidated minimum wage for women as unconstitutional, finding that times had changed since Muller and the role and understanding of women is different.



Price Regulation

Williams v Standard, Ribnik v. McBride, Tyson & Brother v. Banton

Invalidating various price regulations, increasingly narrowing the “affected with public interest” standard from Munn.



Business Entry

New State Ice Co. v. Liebmann (1932)

Invalidating law requiring people to obtain a certification before producing ice.



Nebbia v. New York (1934) (page 725) – The end of Lochner


Prices in the milk industry plummeted in 1932, putting dairy farmers in a “desperate situation.” New York set up a Milk Control Board to fix prices. Nebbia, a grocery store owner, was convicted for selling milk below the minimum price.

Holding (5-4)

The price regulation is upheld.


Court looks at legislative intent and upholds the law as a reasonable “method of correcting the evils, which the report of the committee showed could not be expected to correct themselves…” Neither property rights nor the right to contract are absolute, and the 5th and 14th Amendments do not prohibit government regulation for the public welfare, they just require that it be done in accordance with due process. Price regulations, then, are only unconstitutional if “arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt. In sum:

“A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose.”


West Coast Hotel Co. v. Parrish (1937) (page 727)


The Court explicitly overruled Adkins and upheld a state law establishing a minimum wage for women.


The Constitution doesn’t refer to any freedom to contract. It refers instead to due process, and due process is not threatened by a regulation that is reasonable and adopted in the public interest. The legislature has reasonably concluded that protecting the health of women is such an interest. Moreover, the Court suggests that government “inaction” is itself a constitutionally significant decision, because exploited workers can be a “direct burden” on taxpayers.



Note 4 - United States v. Carolene Products Co. (1938) (page 729)

The Court upheld the Filled Milk Act of 1923, which Congress passed after heavy lobbying by the milk industry to prohibit the interstate shipment of “filled milk,” which is milk that’s had its butter fat replaced with vegetable oil. (Yum). If the question of fact is at least debatable, give deference to judgement of legislature.

Also note that Carolene Products set out Justice Stone’s famous Footnote Four. **



Williamson v. Lee Optical of Oklahoma (1955) (page 731)

The Court upheld a statute requiring that opthalmologists, not optometrists, fill eyeglass prescriptions is constitutional. “It is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.” A law “need not be in every respect logically consistent with its aims to be constitutional.”



Ferguson v. Skrupa (1963) (page 731)

The Court upheld a statute making it unlawful for anyone but lawyers to engage in the business of debt adjusting. “States have the power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition.” It is up to legislatures, not courts, “to decide on the wisdom and utility of legislation.”



Economic substantive due process today (from casebook)

“In Carolene Products, the Court indicated that it would uphold economic legislation if any state of facts either known o reasonably inferable could support the legislative judgment. In Lee Optical, however, the Court went even further and resorted to wholly hypothetical facts and reasons to sustain the legislation. And in Ferguson, the Court appeared to uphold the legislation without any inquiry into the rationality of the means/ends connection.”



C. The Incorporation Controversy

  • The question is, To what extent, if any, does the 14th Amedment’s Due Process Clause “incorporate” the specific guarantees of the Bill of Rights, so as to make them applicable against the states?

    • Jed: The incorporation cases are substantive due process cases.



Barron v. Mayor & City Council of Baltimore (1833) p. 702


Barron sued the city of Baltimore for ruining his wharf while constructing a street. He argued that the Fifth Amendment guaranteed him “just compensation” for this taking.


Barron has no standing, because the Amendments 1 through 8 of Bill of Rights do not apply to states.


Framers expressed no such intent – had it been their intent they would have enumerated the limitations that the first 8 Amendments place on the states – they didn’t do this, so they don’t limit the power of the states.


This is probably true – the framer’s real concern was about the distant federal gov’t. They thought that the citizen control over state government (in the form of state constitutions and representatives) was sufficient to safeguard individual liberty – Here they were wrong. In any case, the post-Civil War amendments changed the landscape.



Murray v. Hoboken Land & Improvement Co (1956) Page 703

The Constitution does not explain which processes it was intended to allow or forbid. To determine the meaning of Due Process, the Court looks to the Magna Charta.



Twining v. New Jersey (1908) page 704

Jury instructed that it can interpret a defendant’s unwillingness to testify as being a negative against him. Exemption from self-incrimination not fundamental to due process, & 5th Am doesn’t apply to states. However, the Court did open the door slightly, and suggested the due process route of incorporation. It said that the first eight amendments might in fact apply against the states, but that “If this is so, it is not because those rights are enumerated in the first eight Amendments but because they are so such a nature that they are included in the conception of due process of law.”



Palko v. Connecticut (1937) p. 704

Right against Double Jeopardy is not fundamental & 5th Am doesn’t apply to states. Only rights that are fundamental are absorbed through the 14th Amendment to apply against the states, and the kind of double jeopardy here (permitting the state to appeal in criminal cases) is not “so acute and shocking that our policy will not endure it.”



Note: By 1937, there was no longer any doubt that due process could embrace not only procedural rights but also substantive rights such as freedom of speech and religion.



Adamson v. California (1947) p. 705

The Court, in a 5-4 decision, held that the privilege against self-incrimination was not incorporated through the 14th Amendment to apply against the states. In dissent, Black, joined by Douglas, sets forth his theory of Total Incorporation (which has never been adopted, but was influential). Black rejects the “natural law” understanding of the Constitution laid out in Twining. He sees that approach as endowing the Court with boundless power to periodically expand and contract the constitutional standards to conform to the Court’s conception of what at a particular time constitutes “civilized decency” and “fundamental liberty and justice” Instead, Black believes that the writer of the 14th fully intended it to make the Bill of Rights applicable to the states (see the first section): “With the full knowledge of the Barron decision, the framers and backers of the 14th proclaimed its purpose to overturn the constitutional rule that case had announced.”



Duncan v. Louisiana (1968) page 707

Sixth Amendment right to trial by jury incorporated by 14th Am to states. The Court acknowledges that a variety of theories have been employed to explain incorporation, and says that the real question is whether “a particular procedure is fundamental” to our common-law system.



Although the Court has never embraced Black’s total incorporation theory, it has used selective incorporation to make almost all the specific guarantees of the bill of rights applicable to the states. Once incorporated, these rights apply in precisely the same away against the states as they do against the federal government:



Benton v. Maryland – 5th Am Double Jeopardy incorporated by 14th Am to states.

Robinson v. California – 8th Am Cruel & Unusual incorporated by 14th Am to states.


Schlib v. Kuebel – 8th Am Excessive Bail incorporated by 14th Am to states.
Wolf v. Colorado – 4th Am incorporated by 14th Am to states.

Roth v. United States – 1st Am incorporated by 14th Am to states.

  • Today, all of the BoR (except 9 and 10) have been incorporated against the states, with four exceptions, which Jed expects us to know:

    • Second Amendment

    • Third Amendment

    • Seventh Amendment

    • Grand Jury clause of the Fifth Amendment



VI. Unenumerated Rights – Modern Developments


A. The Right of Privacy

Although the court employed substantive due process in the Lochner era primarily in the realm of economic regulation and the liberty of contract, not all of its decisions were so limited


1. Antecedents of Roe

Meyer v. Nebraska, 262 U.S. 390 (1923) (page 810)


Nebraska passed a law that prohibited the teaching of any modern language other than English in public or private schools.


Does the law violate a fundamental liberty?




“[The ‘liberty’ guaranteed by the due process clause of the fourteenth amendment] denotes not merely freedom from bodily restraint byt also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The legislature can only infringe on this liberty if it has a “reasonable relation to some purpose within the competency of the state to effect.”



Pierce v. Society of Sisters, 268 U.S. 510 (1925) (page 811)


Can the state pass a law requiring all children to attend public school (disallowing private and parochial school attendance)?




The statute “unreasonably [interfered] with the liberty of parents and guardians to direct the upbringing and education of children under their control.”



Griswold v. Connecticut, 381 U.S. 479 (1965) (page 811)


A Connecticut law prevented the use of contraception. Griswold, the Executive Director of the Planned Parenthood League of Connecticut, and co-appellant Buxton, physician and professor at Yale Medical School, provided contraceptive information, instruction, and advice to married couples. Both were prosecuted under the law. They challenged the CT statute on Fourteenth Amendment grounds.


Does the Constitution protect the right of (married) couples to use contraception?


Yes, but court rejects using Lochner as a guide (“we do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of the that relationship”) (p. 811)


“[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and meaning.” Various guarantees create “zones of privacy”:

    • The First Amendment implicit right of association – in NAACP v. Alabama the Court found the 1st Amendment prevented the government from forcing disclosure of membership lists. “In other words, the FA has a penumbra where privacy is protected from gov’t intrusion”

    • The Third Amendment protection from having to quarter troops

    • The Fourth Amendment protection against unreasonable search and seizure; requirement for “probable cause” for a warrant.

    • The Fifth Amendment right not to self-incriminate.

    • The Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

This case thus “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” The CT law is too broad because “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” [quoted from NAACP v. AL]

By the end of the opinion, it’s clear that Justice Douglas has moved beyond even the Bill of Rights – “We deal with a right of privacy older than the Bill of Rights ….Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

The concurrence by Justice Goldberg and joined by the Chief Justice and Justice Brennan was based on past precedents and also on the Ninth Amendment. The Ninth Amendment would be superfluous if it didn’t protect more rights than are already listed in the first eight amendments, and the “basic and fundamental” right to marriage is certainly one of those.

Justice Harlan’s concurrence was based on the idea that the “statute infringes on the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values ‘implicit in the concept of ordered liberty,’” not that it violates some right assured by the letter or penumbra of the Bill of Rights.

Justice White’s concurrence recognizes the right “to marry, establish a home and bring up children” from Meyer, as well as the holdings in Pierce and Skinner. Given these rights, Connecticut’s law fails to mean a “reasonable relation” to a valid state interest. [language from Meyer.]

Justice Black with Justice Stewart dissented on the grounds that the Court does not have the power to announce unenumerated rights because that is the role of a legislative body. The majority opinion engages in the same “natural law due process” used in Lochner and since repudiated. The Courts are in no position to determine what principles are rooted in the “[collective] conscience of our people.”

Justice Stewart dissented, “I can find no such general right of privacy in the BoR, in any part of the Constitution, or in any case ever before decided by this Court.”



Griswold suggests the first real move from an understanding of privacy as locational to privacy as informational. Roe will complete the move to privacy as a substantive right to action.



Skinner v. Oklahoma, 316 U.S. 535 (1942) (page 736)


Oklahoma’s Habitual Criminal Sterilization Act allowed the attorney general to bring a court action ordering forced sterilization against those convicted three times of a felonies “involving moral turpitude.” The act did not apply to those convicted of violating prohibitory laws or revenue acts or found guilty of embezzlement or political offenses.


Does the Act violate the Equal Protection Clause?



Reasoning (Douglas)

“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.”

The Court doesn’t reach the question of due process, because the equal protection violation is so clear. Because some classes of felons are excluded from the law, those who in effect do the same thing but are guilty technically of different crimes (like embezzling instead of stealing) are treated differently under the Act. The law must face strict scrutiny because by distinguishing between types of crimes the Act engages in invidious discrimination, and OK makes no showing that people who commit larceny “by trespass or trick” have biologically inheritable traits which “he who commits embezzlement lacks.”

Chief Justice Stone concurred on the grounds that the Act violated the due process clause (not equal protection) by invading the personal liberty of a felon without giving him the opportunity to show that his is not the type of case deserving sterilization. Jed: Stone is suggesting that there’s a fundamental right at issue here, and that that’s why there’s a constitutional issue in the first place.


Eisenstadt v. Baird, 405 U.S. 438 (1972) (page 821)

The Court extended Griswold to unmarried couples by invalidating on equal protection “rational basis” review a Massachusetts statute prohibiting the distribution of contraceptives to unmarried persons.


The statute violates EP because it provides dissimilar treatment of married and unmarried couples, and none of the state interests presented is sufficient to justify the classification: not deterrence of premarital sex (at best a “marginal” goal of the law); not protecting the health of the community (not all contraceptives are potentially dangerous); and not on moral grounds (because Griswold already established that contraceptives are a right of married couples, and the supposed “evil” would be the same for married and unmarried couples)



2. Abortion


Roe v. Wade, 410 U.S. 113 (1973) (page 823)


Texas passed a law banning abortion except where necessary to save the life of the mother.


Does the Constitution confer a right to abortion?


Yes, as part of the right to privacy.


The right to privacy, whether founded in the Fourteenth Amendment (preferred) or alternately the Ninth Amendment, protects the woman’s right to choose. For the purposes of the Constitution, “person” does not include any pre-natal life. The right, though fundamental, is not absolute, and the state can regulate abortions when the state has a compelling state interest. The state has interests in both the health of the pregnant woman and in the “potentiality of human life.” Blackmun fashions a balancing test by which the right to an abortion grows weaker as the pregnancy advances and the state’s interest in protecting the potentiality of life and the health of the mother increase as the pregnancy advances and eventually becomes compelling:

  1. Before the end of the 1st trimester abortions cannot be proscribed.

  2. After the 1st trimester the state has a compelling interest to preserve the health of the mother, so the state can regulate abortions to protect the mother’s health. Prior to the end of the 1st trimester the mortality rates from abortions are lower than the mortality rate from carrying a baby to term.


  1. The interest in the potentiality of life does not become compelling until viability. After viability the state can proscribe abortion so long as it makes exceptions for the health of the mother.

Justice Stewart concurred citing the “liberty protected by the DP clause of the 14th recognized in Eisenstadt when the Court said the state could not intrude on the decision whether “ ‘to bear or beget a child.’” CSI not so strong as to abridge that liberty.

Justice Douglass concurred on the grounds that some of the “time-honored rights” that were “retained by the people” and can be included in the meaning of “liberty” mentioned in the Fourteenth Amendment are:

“First is the autonomous control over the development and expression of one’s intellect, interests, tastes, and personality.”

“Second is freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.”

“Third is the freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.” [page 827]

Justice White with Justice Rehnquist dissented saying the Court abused its power of judicial review in announcing a right that cannot be found in the Constitution.

Justice Rehnquist dissented saying this case did not involve the right to privacy because when a patient goes to a doctor for an abortion this transaction is not private. The Court is “lochnerizing” – creating a right to come up with outcome it wants. The fact that most states had outlawed abortions is fatal to the contention that the right to abortion is “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” [page 961] Since at the time of the writing of the Fourteenth Amendment 36 laws existed prohibiting abortion, it cannot be said that the authors of the Fourteenth Amendment included the right to abortion as one of the liberties protected by the amendment.

Notes and class discussion about how Roe could be justified

  • Equal Protection: It’s about equalizing burdens faced by men and women

  • Establishment clause: proscribing abortion means buying into a particular religious viewpoint about when life begins (Dworkin)

  • Liberty of contract between a woman and her doctor: But freedom of contract isn’t necessarily recognized in medicine – the FDA can regulate things, after all.

  • Property/bodily integrity interest: A woman has a fundamental property interest in her own body and her ability to work, study, etc. State can’t force women to have abortions, as that would violate bodily integrity, so the same argument should apply on the flipside.

  • Harm principle: But it’s hard to say that abortion doesn’t harm anyone.

  • Self definition: But, Jed says, just about anything is about “self-definition,” and moreover there can also be community self-definition (these communities are defining themselves by proscribing abortion).

  • Jed’s conscription theory: See below for details. ***



Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (page 850)


The Pennsylvania Abortion Control Act of 1982 required that a woman give informed consent before having an abortion, the woman be provided with information at least 24 hours before the operation, a minor either get the informed consent of her parents are go before a judge to get consent, a married woman get a signed statement from her husband saying he has been notified of her intention to get an abortion. The Act provided an exception for when the woman faces a “serious risk.”


Should Roe v. Wade be upheld?


Yes – the “essential holding” at least: 1) woman have a right to choose abortion prior to viability, without any undue state interference; 2) the state can restrict abortions after viability, so long as there is a mother’s health exception; and 3) state has legitimate interests throughout the pregnancy in both the health of the mother and of the fetus.



Establishes idea of undue burden, which shifts the burden to the individual to prove that state is crossing line. In other fundamental right questions the standard is compelling state interest, with a burden on the state to prove interest is compelling.



Reasoning (Justice O’Connor, with Justice Kennedy and Justice Souter and Justice Stevens in part)

The right to privacy, a liberty protected by the Due Process Clause of the Fourteenth Amendment, extends to the right to have an abortion (substantive right not just process used by state) and is not limited to those rights protected at time of the 14th Amendment’s passage. Abortion is a unlike and important privacy right, similar to the right to contraception rightly upheld in Griswold, Eisenstadt, etc.

The Court puts for a number of reasons why stare decisis requires upholding Roe:

  • Roe has not proven unworkable.

  • People have come to rely on Roe.

  • There have been no relevant intervening changes in legal doctrine.

  • The relevant facts (medical technology, etc.) have not changed so much as to change the point of Roe.

Concluding this paean to stare decisis, O’Connor says that the Court would damage its own legitimacy if it were to overturn Roe. She then goes on to reject the trimester framework (not part of Roe’s “essential holding”) because it “misconceives” (ha!) the nature of the pregnant woman’s interest and undervalues the state’s interest in potential life. In its place, she puts forward the “undue burden” test:

Prior to viability the state can regulate an abortion – even if it “has the incidental effect of making it more difficult or more expensive to procure an abortion – so long as the regulation does not impose “an undue burden on a woman’s ability to make this decision.” The state can regulate abortion to protect the health of the woman AND to persuade the woman not to have an abortion. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Post-viability, the state can proscribe abortion (with an exception for the life or health of the mother) as it could under Roe v. Wade.

Applying this analysis to the Pennsylvania Act:

  • “Serious risk” as defined by the Court of Appeals does not put an undue burden on the woman.

  • The information and informed consent requirement do not place an undue burden on the woman and serves a legitimate state interest.

  • Requiring a signed statement by the husband does place an undue burden because a husband may threaten domestic violence and thus prevent the woman from being able to make a meaningful decision. It also harks back to the common law doctrine that woman were the property of their husbands.

  • The requirement of parental consent is not an undue burden. O’Connor assumes that minors benefit from the advice of their parents and parents have their children’s best interests at heart, which cannot always be said of a husband. [page 1003]

Justice Blackmun concurring with the judgment in part and dissenting in part said the Pennsylvania Act should be invalidated. All restrictions on abortion require strict scrutiny review, and the Act fails.

  • “First, compelled continuation of a pregnancy infringes upon a woman’s right to bodily integrity by imposing substantial physical intrusions and significant risk of physical harms.”

  • Second, the state takes away the woman’s right to make decisions about reproduction and family planning, both of which have been recognized by the Court as components of the right to privacy.

  • Restrictions on the right to abortion also impinge gender equality. “By restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption – that women can simply be forced to accept the ‘natural’ status and incidents of motherhood – appears to rest upon a conception of women’s role that has triggered the protection of the Equal Protection Clause.”

Blackmun takes also issue with Rehnquist’s statement that the question of abortion should be left to the democratic branches. “While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman’s right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box.”

I just like this because it’s so human, especially coming from the Justice who wrote Roe and received a lifetime’s worth of death threats for it: “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.”

Justice Stevens concurring in part and dissenting in part also found the Pennsylvania provision requiring information and the 24-hour waiting period to be unconstitutional. Stevens said the interest in protecting potential life is not in the Constitution, and thus the state cannot require information be given to the woman to persuade her not to have an abortion. The 24-hour waiting period is invalid because it puts up a severe burden and lacks a legitimate, rational justification.

Chief Justice Rehnquist, with Justice Scalia and Justice Thomas, dissenting in part and concurring in part. (Dissenting with the upholding of Roe and concurring with the upholding of several of Pennsylvania’s provisions).

The right to an abortion is not fundamental nor can the destruction of potential life be dismissed. Stare decisis does not require the upholding of a law that was not constitutional to begin with. It is inconsistent that the Court can abandon the trimester framework in Roe and yet claim they must follow stare decisis and uphold the right to abortion. It does not matter that women have become accustomed to having the choice.


Since the Constitution does not subject the regulation of abortion to strict scrutiny, Pennsylvania’s laws need only be “rationally related to a legitimate state interest,” which they are.

Justice Scalia, joined by Justices Rehnquist, White and Thomas, concurring in part and dissenting in part. There is no constitutional protection for the choice to have an abortion: it is not explicitly in the Constitution, and prohibiting abortion was traditional in the states. Applying the rational basis test, the Act should be upheld in its entirety.



Stenberg v. Carhart, 120 S. Ct. 2597 (2000) (page 871)


Nebraska law prohibiting partial birth abortions is held unconstitutional because (1) it does not have a clause protecting the mother’s life and (2) it impinges on a woman’s ability to choose to have a D&E abortion, thereby burdening the choice to have an abortion itself.


Three established principles determine the issue before the Court:

(a) Before “viability … the woman has a right to choose to terminate her pregnancy.”

(b) “A law designed to further the state’s interest in fetal life which imposes an undue burden on a woman’s decision before fetal viability” is unconstitutional.

(c) “Subsequent to viability the state in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother.”

The Court recounts in relatively graphic detail the abortion procedure. A few points:

  1. About 90% of abortions in the US take place in the first trimester. During the first trimester the predominant abortion method is “vacuum aspiration.”

  2. Approx. 10% of all abortions are performed during the second trimester. The most commonly used procedure (95%) is a D&E – “dilation and evacuation.”

  3. D&E is similar to the vacuum aspiration procedure although the cervix must be dilated more widely because surgical instruments are used to remove large pieces of tissue.

  4. At times, it is necessary to dismember the fetus. When this is needed, the doctor may have to pull part of the fetus through the cervix and into birth canal.

  5. The D&E procedure carries certain risks (perforation by surgical instruments or bone fragments, tissue left in the patient)

  6. There is another procedure called an “intact D&E.” When the extraction is a breech extraction (feet first) the procedure is also known as a D&X – “dilation and extraction.”

  7. Despite certain technical differences, the intact D&E procedure and the D&X procedure are sufficiently similar to use the terms interchangeably.

The state law fails for two reasons. First, the state’s interest in regulation abortion previability is considerably weaker than postviability. Since a health exception is required to validate a postviability abortion regulation (see Roe), then “at a minimum” the same exception is needed to validate a PRE-viability abortion regulation.

Secondly, one could apply the statute’s definition of a partial birth abortion to the common D&E procedure (see above for stats). The difference between the two is a matter of body parts – an arm or leg versus the body up to the head. The question is not whether the legislature wanted to ban D&X but whether the law was intended to apply only to D&X. The plain language covers both procedures, and the threat of prosecution for the common D&E procedures creates an undue burden upon a woman’s right to choose abortion.



From Jed Rubenfeld. “The Right of Privacy.” 102 Harv.L.Rev. 737 (1989)

Rubenfeld basically started with the premise that the Court had announced a Right of Privacy but the principle behind it had not yet been firmly established. The existing philosophical explanations for the right of privacy could not adequately reconcile Meyer, Pierce, Griswold, Loving and Roe with Bowers v. Hardwick. Rubenfeld debunks the personhood (or personal autonomy) theory and offers his own to replace it. “[T]he fundament of the right to privacy is not to be found in the supposed fundamentality of what the law proscribes. It is to be found in what the law imposes. The question, for example, of whether the state should be permitted to compel and individual to have a child – with all the pervasive, far-reaching, lifelong consequences that child-bearing ordinarily entails – need not be the same as the question of whether abortion or even child-bearning itself is a ‘fundamental’ act within some normative framework. The distinguishing feature of the laws truck down by the privacy cases has been their profound capacity to direct and to occupy individuals’ lives through their affirmative consequences.” (pages 739-740)

  1. The Personhood Theory (“a person must be free to ‘define himself’”)

    1. “The personhood thesis is this: where our identify or self-definition is at stake, there the state may not interfere.” (page 754)

      1. But those who espouse the theory have failed to state a rule of what is defining.

      2. There is no adequate explanation of why prostitution, homosexual sodomy, adultery and incest are not defining behaviors that must be protected.

        1. The argument that the behaviors are “bads” is not satisfactory because that is highly subjective

        2. The argument that those behaviors harm others and thus can be regulated is not satisfactory because it creates a balancing test by which we must weigh whether the definitional importance of the behavior to one’s identify outweighs the cost in the form of a harm to someone else.

    2. A major deficiency is that there are two types of self-definition: individual self-definition (liberalism) and communal self-definition (Rubenfeld calls it republicanism, it sounds like communitarianism to me), by which we democratically make our laws to fashion that identity we democratically choose.

      1. It is impossible to say which self-definition should prevail. Allowing individual self-definition would allow people to undue the collective self-definition democratically choosen.

      2. Harwick provides an example. Hardwick would argue he was engaging in individual self-definition but Georgia would claim it’s laws represented a collective self-definition.

    3. Many people connect the privacy cases as having to do with sexuality and the important role sexuality plays in personhood. But Foucault says sexuality does not determine identity – thus the justification for the privacy cases disappears.

      1. Assuming that personhood theorists would say Hardwick was wrongly decided, the idea that homosexuality is critical to self-definition because a homosexual identity is distinct from a heterosexual identity is an invidious classification.

      2. “In defending homosexuality because of its supposedly self-definitive character, personhood reproduces the heterosexual view of homosexuality as a quality that, like some characterological virus, has invaded and fundamentally altered the nucleus of a person’s identity.” (page 780)

      3. “We must reject the personhood thesis, then, not because the concept of ‘self-definition’ is analytically incoherent, nor because it is too ‘individualistic,’ but ultimately because it betrays privacy’s – if not personhood’s own – political aspirations. By conceiving of the conduct that it purports to protect as ‘essential to the individual’s identify,’ personhood inadvertently reintroduces onto privacy analysis the very premise of the invidious uses of state power it seeks to overcome.” (page 782)

  2. Rubenfeld’s Conscription Theory

    1. The right of privacy “is the fundamental freedom not to have one’s life too totally determined by a progressively more normalizing state.” (page 784) The danger is a “creeping totalitarianism” that takes over individual’s lives. This theory can explain the privacy decision pre-Hardwick

      1. Meyer and Pierce can be understood as preventing the state from using the schools to “standardize” children.

      2. “Anti-abortion laws produce motherhood: they take diverse women with every variety of career, life-plan, and so on, and make mothers of them all. … For a period of months and quite possibly years, forced motherhood shapes women’s occupations and preoccupations in the minutest detail; it creates a perceived identify for women and confines them to it; and it gathers of a multiplicity of approaches to the problem of being a woman and reduces them all to the single norm of motherhood.” (page 788) The state “involuntarily drafts” women to reproduce the state’s populace. This models people into “instrumentalities of the state, rather than as citizens with independent minds who themselves constitute the state.” (page 790)

      3. Griswold also prevented standardization. Denial of contraception, when abortion was illegal, was basically forced child-bearing. It pressured chastity until marriage, which created social standardization.

      4. Loving v. Virginia can be understood as prohibiting the state from trying to keep “the races ‘pure.’” Miscegenation laws were state-sponsored eugenics, which is the most scientific example of the state’s totalitarian attempts at standardizing its people.

      5. Moore v. City of East Cleveland, in which the Court struck down a law limiting occupancy in homes to immediate family members, is necessary because preventing people from living with those they see fit has the effect of crimping cultural expression and exposure.

      6. The state cannot prohibit people living with machines to have those machines moved because such a prohibition would enable the state to dictate such people live their lives confined to hospitals attached to machines.

      7. But the state can prohibit suicide because doing so does not narrowly define the life a suicidal person must live.

      8. The state could prohibit a woman from having a third or fourth child because the law would not have the effect of taking over the woman’s life the way ordering her to bear a child would.

    2. Laws prohibiting homosexual sex forces people into reproductive sexuality. This promotes gender roles. “It is this aspect of the ban on homosexuality – its central role in the maintenance of institutionalized sexual identities and normalized reproductive relations – that have made its affirmative or formative consequences, as well as the reaction against these consequences, so powerful a force in modern society.” (page 800) Such laws should be seen as impermissibly creating heterosexuals.


    1. The Constitutional basis of the right to privacy then is no one amendment but rather the spirit (assumptions) of the document in its entirety. The Constitution is based on the premise that the government is accountable to the people. “The very possibility of accountability to a people presupposes that the bodies and minds of the citizenry are not to be too totally conditioned by the state that the citizenry is meant to be governing. IF they were, self-government, although it might continue to exist in form would in fact by wholly illusory.” (page 805) The people cannot shape the government if the government is shaping them. Thus any state attempts at standardization or forcing the people into one model is anathema to the premises on which the Constitution is based.



Unenumerated Rights and the Ninth Amendment

  1. It’s illegitimate to have any unenumerated rights and substantive due process.

    1. If you’re against Lochner you have to be against Roe

    2. If you’re going to be against substantive due process, then what about the incorporation of the Bill of Rights to the states? The strict constructionists say that is different because the incorporated rights are enumerated rights. But that is unsatisfactory because you incorporate through a substantive reading of the due process clause. The incorporation would have made much more sense against the Privileges and Immunities Clause.

    3. You can’t ignore the Ninth Amendment. This means there are other unenumerated rights. The reading that the first 8 amendments are exhaustive completely contradicts the Ninth Amendment. So the strict constructionist who says you can’t have unenumerated rights is going against the Ninth Amendment.

  2. There is a perfectly legitimate reading that the constitution allows for unenumerated rights: The Ninth Amendment, which gives a perfectly plausible textual warrant for granting unenumerated rights.

    1. You still need a theory of what the unenumerated rights are. You can’t say the Ninth Amendment allows judicial enforcement of whatever rights they think are good ones.

    2. Rubenfeld: Judges should be prepared to read unenumerated rights into the constitution if there is a case to be made that the right in question is necessary to the whole project of constitutional self-government/democracy. Constitutionalism is an effort to memorialize some commitments – Free Speech, No Slavery, etc. -- and live up to them over time regardless of what the popular will might be at any particular moment. Some of these implicit commitments include: Judicial Review, the Right to Travel, the Right of Privacy. These rights are implicit in the premises on which the Constitution is based. The Constitution lacks meaning without them.

      1. The right of privacy is crucial to prevent totalitarian encroachments in our lives. Allowing the state to take over our lives would prevent the ability of the people to hold the state accountable. The people must shape the state; they cannot do this meaningfully if the state shapes the people.

      2. This understanding of the Constitutional basis for the Right of Privacy reconciles the annunciation of some unenumerated rights with the Courts decision in Lochner. The Right to Contract was rightfully not recognized in Lochner because the right to contract is not necessary to preserve an anti-totalitarian state. This is the value of the Conscription (Totalitarian) Theory over the Personhood (Personal Autonomy) Theory. Under the autonomy theory Lochner and Roe would have to have come out the same way; the Conscription Theory explains why Lochner and Roe were correctly decided differently.



Class discussion on abortion was … wide-ranging, and hard to sum up.


3. Homosexuality


Bowers v. Hardwick, 478 U.S. 186 (1986) (page 896)


An adult male was criminally charged for violating Georgia’s sodomy statute by committing a consensual sexual act with another adult male in his own home. After the prosecutor elected not to present this case to the grand jury, the respondent brought suit in federal court challenging the constitutionality of the statute. The district court upheld the statute, the court of appeals reversed.


The statute was constitutional as there is no “fundamental right to engage in homosexual sodomy.”


Proscriptions against sodomy had “ancient roots.” The rational basis of the law – the beliefs of the majority of the Georgia electorate – was held to satisfy the rational basis requirement as “the law is … constantly based on notions of morality.” (Jed says this is the critical paragraph in the opinion – see page 898). The Court distinguished Stanley (First Amendment prevents conviction for ownership of pornography in one’s own home) by saying that Stanley protected “conduct that would not be protected outside the home but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution.”

Concurrence (Burger)

Adds that condemnation of homosexual sodomy “is firmly rooted in Judeo-Christian moral and ethical standards.” [See Lawrence for Kennedy’s reply ***]

Concurrence (Powell)

The statute can stand, but the 20-year prison sentence it allows might present Eighth Amendment issues.

Dissent (Blackmun, with Brennan, Marshall, and Stevens)

This case is about the “most comprehensive of rights – the right to be let alone… We protect those rights…because they form so central a part of am individual’s life.” The Court should have looked harder at the justifications offered for the law.

Dissent (Stevens)

The statute’s “damnation” applies to both hetero- and homosexual relations. The statute did not provide an exemption for married couples. However, married couples do have a right to privacy under Griswold. Since the law cannot be enforced as written, the state must apply the statute selectively. The ramifications of such a policy are insupportable.



Lawrence v. Texas, 539 U.S. __ (2003)


Texas passed a statute making it a crime for two persons of the same sex to engage in “certain intimate sexual conduct.” Lawrence was arrested, charged, and convicted after police entered his home and found him engaging in consensual sodomy with another man.

  1. Do the convictions violate the 14th Amendment’s guarantee of equal protection?

  2. Do the convictions violate the petitioners’ “vital interests in liberty and privacy” as protected by the 14th Amendment’s guarantee of due process?

  3. Should Bowers v. Hardwick be overruled?

1) Not addressed. 2) Yes. 3) Yes.

Reasoning (Kennedy …)

The Court traces the history of due process cases from Griswold up until Bowers, and finds that the substantive due process liberty rights were expanding. The Bowers Court “misapprehended” the liberty claim before it when it talked about a “fundamental right to engage in homosexual sodomy” – the real claim is one of control over a personal relationship. Likewise, Bowers (specifically, Burger’s concurrence) misread legal history when it suggested that there is a history of laws punishing homosexual sodomy. The history is more complex and mixed than Bowers suggests, and some authorities (including the British Parliament and the ECHR) point “in the opposite direction.” (See also Casey and Romer).

Bowers “demeans the lives of homosexual persons” and imposes a non-trivial stigma on them. The force of stare decisis that guided us in Casey is not applicable here, because there has been no reliance on the decision. Bowers is hereby overruled. The Court instead adopts Stevens’ Bowers dissent (see page 117), recognizing that due process protects this “conduct.”

Concurrence (O’Connor)

Would have upheld Bowers, and struck down the statute on equal protection grounds. “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by law.’”

Dissent (Scalia, with Rehnquist and Thomas)

The majority ignores Casey’s rightful support of stare decisis, and overrules Bowers while downplaying the fact that under the Court’s reasoning Roe should also be overruled. Homosexuality is totally indistinguishable from other “morals” offenses, which is why Bowers rejected a rational basis challenge. Moreover, it is totally beyond question that homosexual sodomy is not a fundamental right.

Dissent (Thomas)

The law before the Court is “uncommonly silly,” and I would vote against it if I were a legislator, but the law is not on the side of the petitioners.


  • Why aren’t these decided as equal protection cases? Perhaps because the Justice are wary of recognizing homosexuals as a suspect class.

  • This decision is reminiscent in some ways of Romer (another doozy of Kennedy opinion), which was concerned with the intent behind the law.

  • Notice that the Court’s language tries to suggest that it does not mean to protect homosexual marriage (Supp. Page 117).

  • It looks like the Lawrence court is not being radical and libertarians; it looks like in the zone of intimate relationships the state can’t regulate morality. In that sense it would not be a reversal of that “morality” paragraph of Bowers.



4. Other Applications


Moore v. City of East Cleveland 431 U.S. 494 (1977) (page 883)


Appellant lived with her son and her two grandsons, one of whom was the her son’s nephew. Under a city ordinance, the son’s nephew could not live in the house because he was not “sufficiently related” to his uncle and cousin under the ordinance’s definition of “family.”


The Court invalidated the ordinance on 14th Amendment Due Process grounds.


Court said that the government can regulate families in order to prevent overcrowding, minimizing traffic congestion, and avoiding an undue financial burden on school system, but that the ordinance in question fails the means/ends test. “Appropriate limits on substantive due process come [from] careful respect for the teachings of history [and] solid recognition of the basic values that underlie our society … Our decisions establish that the Constitution protects the sanctity of family precisely because the institution of family is deeply rooted in the Nation’s history and tradition.” [italics added]


Concurrence (Stevens)

Stevens supported Court’s result but likened the situation to a taking of property without due process and without compensation.



Zablocki v. Redhail 434 U.S. 374 (1978) (page 887)

The Court invalidated on equal protection grounds a Wisconsin statute that said people with child support obligations could not marry without a judicial determination that the support obligation would be met and the children would not become wards of the state. The Court found that the state statute interfered directly with the right to marry and furthermore the state had other means by which to insure the fulfillment of support obligations.



Boddie v. Connecticut 401 U.S. 371 (1971) (page 777)


Any individual seeking divorce in CT was required to pay court fees and costs of approx. $60.


The Court invalidated the fee requirement as it applied to indigents, on due process grounds.


The state requirement which denied them access to its courts if the individuals could not pay the fees was the “equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of marriage and in the absence of a sufficient countervailing [justification], a denial of due process.” The Court emphasized that “we do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause [but only that] given the basic position of the marriage relationship in this society … due process does prohibit the [state requirement].

Concurrence (Douglas)

This case is distinguishable from Griffin (finding a due process violation in regard to the costs of a criminal prosecution), because it is a civil matter.



Roberts v. Jaycees (1984)


Jaycees is a non-profit single-sex membership corporation. The Minnesota Department of Human Rights found that the Jaycees’ exclusion of women violated the Minnesota Human Rights Act, which prohibited discrimination on the basis of sex.


The Court held that the Minnesota Human Rights Act did not violate the first amendment right of association.


Freedom of association has two facets: one concerned with the exercise of first amendment rights, and the other concerned with “intimate human relationships.” The latter include things like marriage, childbirth, the raising and education of children, and cohabitation with one’s relatives. These “intimate human relationships” merit “a substantial measure of sanctuary.” The Jaycees, however, are obviously engaging in the first kind of free association.

The Act was not aimed at the suppression of speech and it did not discriminate in regards to viewpoint. The Court also found that the Jaycees had failed to show that the Act imposed “serious burdens” on the male members’ expressive association. The Act required no change in the Jaycees’ mission and the inclusion of women would not necessarily conflict with the views of the organization.

[See the freedom of association stuff below *** for more on the Court’s first amendment holding]


Washington v. Glucksberg 521 U.S. 707 (1997) (page 911)

Facts and Holding

Washington state prohibition against “caus[ing] or aid[ing]” a suicide does NOT violate the 14th Amendment.


Old Anglo-American common law tradition holds suicide as a crime. Although this viewpoint is not full embraced in modern times, it has been in no way superseded by the belief that assisted suicide is a fundamental liberty. Rather, the issue is still being discussed in the public forum (see OR and CA). By extending constitutional protection to an asserted right the Court places the matter outside the arena of public debate. So the Court resists doing so.



Due process analysis has 2 features:

  1. Protects rights ‘deeply rooted in the Nation’s history and tradition’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ (quoting Palko v. Connecticut)

  2. Substantive due process cases require a ‘careful description’ of the asserted fundamental interest.



Constitution also requires that the ban be rationally related to legitimate government interests. Court says the state has a legitimate interest in:

    1. Preservation of all human life

    2. Protecting the ethics of the medical industry

    3. Protecting vulnerable groups (elderly, poor) from abuse, neglect, and mistakes.

    4. Protecting ill people from prejudice (sick and elderly are less valuable that young and healthy).

    5. Might also want to protect against the encouragement of involuntary euthanasia (the “slippery slope” argument).

Washington’s ban on assisted suicide is “at least reasonably related” to these interests, so the Court upheld the statute.



In its final bit of dicta, the Court says that its holding allows for discussion on the subject to continue as it should in a “democratic society.” The case was remanded for further proceedings consistent with the Court’s findings.



Troxel v. Granville 120 S. Ct. 2054 (2000) (page 892)


A Washington statute allowed any person to petition the Court for visitation rights at any time and authorized the Court to grant visitation rights whenever “visitation may serve the best interest of the child.” The Troxels had petitioned a court for the right to visit their grandchildren. The children’s mother sought a limitation on the visitation rights. The court overrode the mother’s wishes and ordered significantly more visitation than the mother wanted.


The Court held (on substantive due process grounds) that the statute was unconstitutional as applied.


Reaffirming Meyer and Pierce, the Court suggested that the Due Process Clause has a substantive component encompassing ‘the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ Because the law was so broad, the Court found that it impinged upon this right. There was no evidence that the mother was unfit – nor did she try to cut off visitation entirely. The lower courts had disregarded these facts and “contravened the traditional presumption that a fit parent will act in the interest of his or her child.”

Dissents included:

  • Stevens: Child’s interest may be more than just protection from serious harm.

  • Scalia: Right of parents = unenumerated right that is not protected by the Constitution

  • Kennedy: Conventional nuclear family should not be the default standard for every domestic relations case.


  • Jed: Lots of state regulation of the parent-child relationship. The State tells parents what to do all the time. Mandatory schooling (esp. w/o options of home schooling or private institutions) determines child’s activities for 6-8 hours a day. If we didn’t have state action doctrine, 90% of US families would be unconstitutional thru the Establishment Clause when they taught their children about religion.


(Brandon Fail)

VI. Unenumerated Rights – Modern Developments


B. The Right to Travel

CB 781-86 (Shapiro, Saenz)



Shapiro v. Thompson, 1969. CB 781.



Two states and DC had passed laws denying welfare to residents who had not resided within their jurisdictions for at least one year. The Court found this unconstitutional.

Brennan, for the majority:

• The effect of these laws is to create two classes of needy residents, otherwise indistinguishable, and to deny equal protection of the laws to one of the classes. The states propose several interests that they claim justify this discrimination, but the Court says these purposes are either unconstitutional or not “compelling state interests” sufficient to justify denial of equal protection.

• (1) Deterring the indigent from entering a state is not a constitutionally permissible goal, because the Court “long ago recognized” that the right of travel, though unenumerated, was elemental to the constitution.

• (2) Likewise, it is also impermissible to try to keep out those who are trying to enter a state only to obtain welfare benefits.

• (3) It is impermissible to distinguish between new and old residents on the basis of the contribution they have made to the state through taxes.

• It is permissible to try to limit state expenditures, but not by using an invidious classification.

• Finally, the Court dismisses a number of justifications for the “waiting limit,” like its administrative convenience, its use in encouraging employment, etc.



Justice Harlan, in dissent, writes that it is not equal protection that is at stake here, but due process, since it is a fundamental right that is being hindered, not the way it is being done that is important. Using balancing-test analysis, he concludes that the laws (“clothed with the authority of Congress” since a DC law is involved) should be held constitutional.



Saenz v. Roe, 1999. CB 786.



California had amended its welfare program to provide welfare benefits to new residents for their first year of residence to the benefits they would have received in their original home state. The Court held that the change violated the privileges and immunities clause of the 14th Amendment.



This case is the modern-day reaffirmation of Shapiro. The Court began its analysis by listing 3 components of the right to travel:

  1. the right to enter and leave another state, for which there is no textual basis,

  2. the right to be treated as “a welcome visitor rather than an unfriendly alien when temporarily present,” a right it rooted in Art. IV § 2,

  3. and “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state. This was the right at issue in Saenz, and the Court adhered to Shapiro.

The Court wrote that the citizenship clause of the 14th amendment does not allow for 45 subclasses of citizens (the # of other states when Shapiro was written).

California argued that Congress’s approval had been granted, because the Secretary of HHS and Congress itself had approved the measure. But according to the Court congress cannot authorize a state to violate the Fourteenth Amendment.



Rehnquist and Thomas dissented. Rehnquist wrote that anyone who has finished his journey is no longer traveling. Thomas wrote that privileges and immunities referred to fundamental rights, rather than every public benefit a state decides to make available.



CB 787-91 (Note 1-3(c))



• Note 1 offers different justices’ views at different times on the difference between finding a state purpose “constitutionally impermissible” and finding it permissible but insufficient to satisfy a “compelling” interest standard. In Zobel v. Williams (1982), the court invalidated an Alaska statute which had distributed the income derived from natural resources depending on length of residence. The majority wrote that rewarding past contributions was an illegitimate purpose. O’Connor’s concurrence wrote that it was a legit purpose but not sufficient when “tested” against the “strength” of the constitutional purpose of creating a union rather than a federation of states. Brennan wrote in reply in his concurrence that any scheme of classification based on duration of residence created classes of residents in which “some citizens are more equal than others,” a premise rejected in the equal protection clause.

• Note 2 points out the fallacy that the exercise of a constitutional right is being penalized in these laws—since those contemplating travel to another state are made no worse off than they would be with respect to welfare benefits if they never moved at all.

• Note 3 points to a case in which a Tennessee law imposing a one-year waiting period for voting was challenged and found unconstitutional. TN had argued that, unlike in the welfare cases, this requirement did not actually deter travel. The Court responded that what was at stake there was to any findings that travel (a fundamental right) was ever deterred, but that a law penalized the exercise of that fundamental right. It didn’t matter what the result of imposing those penalties was.

C. “Positive” Rights – Minimum Entitlements


CB 772-74 (Grifffin, Douglas)



Griffin v. Illinois, 1956. CB 772.

A state must furnish an indigent criminal defendant with a free trial transcript if such a transcript is necessary for adequate and effective appellate review of his conviction.

• Even though states are not required to provide appellate review in criminal cases, those that do (all states at the time of the opinion) may not do so in a way that discriminates against some convicted defendants on the grounds of poverty. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” In the opinion, importantly, both equal protection and due process are evoked.



Douglas v. CA, 1963. CB 773.

A CA law was challenged that required state appellate courts, on the request by a poor defendant for counsel on appeal, to go through the record and appoint counsel only when it would be meaningful or helpful to the Court. The court found the rule unconstitutional.

This case relied on Griffin and extended its reasoning, saying that the denial of counsel on appeal to an indigent would at least as invidious a discrimination as the that condemned in Griffin. These were cases of appeal as of right



CB 775-76 (note 4 – Ross)



In Ross v. Moffit, 1974, the Court defined the limit of Griffin and Douglas. It wrote that the constitution does not require states to provide counsel for indigent defendants when state appeal was discretionary or when appeal was to the U.S. Supreme Court. Neither due process not equal protection, both at issue in Douglas, required it.



CB 792-95 (Dandridge and Note)


Dandridge v. Williams, 1970. CB 792.

The court upheld a provision of Maryland’s AFDC program that granted most families their computed standard of need but capped monthly grants at $250 regardless of family size or need.

In the area of economics and social welfare, where bill-of-rights guarantees are not affected, the court is not going to strike down laws simply because they are unwise or out of harmony with a particular school of thought, as it did in Williamson v. Lee Optical. A state does not violate the equal protection clause because classifications are imperfect. When the state’s action is rationally-based and free from invidious discrimination, it is fine.



The note explains that since Dandridge, rational basis has generally been the standard of review in welfare cases. In U.S. Dept of Agriculture v. Moreno, the Court defined the limits of Dandridge. In that case, it declared unconstitutional a provision of the Food Stamp Act excluding from participation any household containing an individual who is unrelated to any other household member. Though the govt’s purpose was to cut down on fraud, the court found that there was no rational basis, since the real effect of the law was not to cut down on fraud but to leave without food those families who could not afford to live as the law wished them to.



CB 795-802 (San Antonio)



San Antonio Indep. School District v. Rodriguez, 1973. CB 795.

The lawsuit challenged TX’s use of locally-financed school districts on the grounds that it produced substantial interdistrict disparities in per-pupil spending. A federal district court, applying strict scrutiny, found that the scheme violated equal protection. The Supreme Court reversed.

Powell delivered the majority opinion. First, it asked whether the law disadvantaged a suspect class, or whether a fundamental right was at stake. If so, it would apply strict scrutiny; if not, it would apply a rational-basis test.

• The law did not disadvantage a suspect class. Griffin and Douglas were improper wealth classifications because (1) in those cases, poverty rendered the poor completely unable to pay; and (2) as a result, they were unable to enjoy a the benefit. Neither is true in school district cases. First, the poor are not singled out, and many are better off since they live in industrial high-tax districts. Second, there is no absolute deprivation.

• Education is not a fundamental right. Though it is important (see Brown) that does not mean it evokes equal protection.

• Therefore the court applies rational basis, and does not want to set texas’s education policy for the people of TX. It upholds the system.







[Notes from this section are relatively short because Rubenfeld quickly covered these cases and returned to the abortion issue.]



Unenumerated right of travel has been there for a long time. Should a state be able to wall itself off? One route to finding a right of travel comes from its fundamentality and another comes from the U.S. being a union.



What about entitlements? Dandridge shuts down EP-style heightened scrutiny review of welfare laws—-since there is no fundamental right to welfare.



What about criminal procedure cases like Griffin and Douglas?



p. 773: Griffin v. Ill: there can be no equal justice where the kind of trial a man gets depends on how much money he has. That has nothing to do with American law.



Could you have a constitutional regime that equalized things? Yes, you could cap lawyers’ fees and provide lawyers. We don’t have that, instead we have minimum requirements. They’re fundamental procedural fairness cases, not equality cases. There’s not much fundamental right here, it’s about fairness, not unenumerated rights.



San Antonio: the court does not rule out that it would hold that a state education system was unconstitutional if it did not satisfy minimum educational requirements. But it refuses to apply heightened scrutiny because ed is not a fundamental right.









VII. The Freedom of Speech

A. Introduction: speech and conduct


CB 1302-07 (O’Brien)


U.S. v. O’Brien, 1968. CB 1302.

This is the draft-card burning case. The court held constitutional the law banning the burning of draft cards.

• Nobody argues that the law is permissible on its face. It no more abridges freedom of speech on its face than a law prohibiting the destruction of a driver’s license, or a tax law prohibiting the burning of records.

• O’Brien argued it was unconstitutional (1) in its application to him, and (2) because congress’s purpose was to suppress freedom of speech.

• Analysis of (1) its application to O’Brien: You can’t just label your conduct speech and have it be exempt from limits. Even if O’Brien was attempting to express himself by burning his draft card, the court must still ask the following four questions (the O’Brien test) about the law:

  1. is it within the constitutional power of the Government?

  2. does it further an important or substantial governmental interest?

  3. is the governmental interest unrelated to freedom of expression?

  4. and is the incidental restriction on freedom of expression no greater than is necessary to achieve the objective?

Under this test, the Court finds the law ok.

• Analysis of (2) congress’s purpose: the Court will not undertake to examine the purpose of Congress. “it is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”



CB 1310-12 (notes 6-7)



Note 6 points to the difference between direct and incidental restrictions on speech. At issue in O’Brien were incidental restrictions—restrictions in which speech is not itself targeted but one incident of purported speech is made illegal as a result of the law. The Court has rarely found incidental restrictions unconstitutional, though a notable exception was NAACP v. Alabama, in which the court found unconstitutional the requirement that out-of-state corporations doing business in AL had to submit membership lists. That was a case in which the effect on speech would be substantial.



Note 7 points to several cases in which the court has singled out executive and administrative motives, but it explains that generally the court has been reluctant to inquire into the purposes behind legislation. There are 3 main explanations: the difficulty of ascertaining the “actual” motives of a legislative body; the futility of invalidating a law that could be reenacted with ostensibly wiser motives; and the inappropriateness of impugning the integrity of a coordinate branch.



CB 1314-17 (notes 4-5)



Note 4 refers to TX v. Johnson, the flag-burning case, in which the Court found a law banning flag-burning unconstitutional. In that case, the Court wrote that the O’Brien standard permitted the banning of expressive conduct so long as the governmental interest was unrelated to the suppression of free expression. The state’s interest in protecting the flag is in protecting its meaning; and johnson’s burning of the flag could only affect that meaning if it were intended to communicate; so a ban on his burning the flag is necessarily content-based. The dissent highlighted that Johnson could have chosen other means of expression of the same idea.



Note 5: after that case, Congress passed the Flag Protection Act of 1989. though that act made illegal all desecration of flags, whether in public or private, communicative or not, it was still unconstitutional (5-4) because the government’s interest was still related to the suppression of free expression. The government’s interest was related to protecting the flag’s status as a symbol. Mere private destruction could not damage the symbolism in any way. This was a purposivist interpretation—the point was that the law was intended to affect expression.



CB 1320-22 (City of Erie)


City of Erie v. Pap’s A.M., 2000. CB 1320

Erie, PA, enacted an ordinance banning public nudity. The stated purpose was to respond to the increase in live nude entertainment, which adversely impacts the public health, safety and welfare by creating an environment conducive to violence, harassment, public intoxication, prostitution, the spread of STDs, etc….The ordinance was challenged by the owner of Kandyland. The Court upheld the ordinance.

O’Connor delivered the plurality decision. She wrote that the ordinance in Erie was one aimed at the harmful secondary effects of expressive activity. Secondary effects analysis, while not doctrinally identical to “incidental burdens” analysis as in O’Brien, should receive the same treatment. The government can ban public nudity, even when such a ban places incidental burdens on some protected speech. The reason for the law is that one occurrence of nudity produces harmful secondary effects.

Because Erie’s purpose was unrelated to the erotic message, the law was ok. (O’Connor also notes that any effects on erotic expression were de minimis because the dancers were still free to wear pasties and G-Strings).

In dissent, Stevens and Ginsburg point out that the plurality conflate incidental burdens, in which speech is not targeted, and secondary effects, in which speech is directly targeted because of its effects. They believe the purpose of the law is to limit a protected form of speech because of its effects, and when the harms of speech are what’s at stake, they would try to circumscribe but not ban it altogether, through, e.g., zoning.



CB 1360-61 (notes 2-3)



Note 2: In WV State Bd. Of Ed. v. Barnette, the Court held unconstitutional a law requiring all public school children to salute and pledge allegiance to the flag. The purpose of the Bill of rights was to keep individuals free from officials’ prescriptions of what would be orthodox in politics, nationalism, religion, etc.



Note 3: in Wooley v. Maynard, the court held that NH could not criminally punish individuals who covered up the state motto, “live free or die,” on their license plates. The Court held the law to a compelling interest standard. The state’s interest in identifying vehicles could be met by less drastic means; and the state’s interest in appreciating history, individualism and state pride were not ideologically neutral. A state’s interest in advancing a viewpoint cannot outweigh a First Amendment right. Rehnquist disagreed, saying people were still free to place bumper stickers stating their disagreement.

  1. Dangerous speech


CB 993-98 (Section A through note 6)



These notes explain the evolution of freedom of expression. In English society, that freedom evolved slowly, from a time when the king had to license all publication and punished with death those with opposing views to a time when that had gone out of fashion. In the colonies, meanwhile, though there was diversity of opinion early on, each colony or smaller society was intolerant and eager to punish those with outsiders’ views. It is unclear exactly what the framers intended to preserve and prevent when enacting the first amendment.



CB 1006-09 (Shaffer, Masses)


Shaffer v. U.S., 9th Cir 1919. CB 1006.

Shaffer published a novel which opposed entry into WWI, and which violated the espionage Act because it would supposedly lead to obstruction of the enlistment and draft process. He was convicted, and the Ninth Circuit upheld. The court wrote that the intent and effect of his writing was to prevent enlistment, which congress had banned.



Masses Publishing Co. v. Patten, SDNY 1917. CB 1007.

The postmaster refused in advance to allow the shipment of a monthly revolutionary journal on the grounds that its results would produce violations of the law and hamper the government in the conduct of war. The journal sought an injunction to force the postmaster not to stop the mailing. The court granted it. Learned Hand wrote that speech can only be prevented that urges on others that it is their duty or interest directly to resist the law. the language and cartoons in the publication (“the Masses”) held up lawbreakers as martyrs and heroes but did not directly counsel anyone to break the law.



CB 1014-17 (Abrams)



Abrams v. U.S., 1919. CB 1014

Three Russian immigrants, self-proclaimed socialists and anarchists, distributed leaflets by throwing them from a window, calling the American sending of marines to Vladivostok during ww1 an attempt to crush the Russian Revolution. They were convicted of espionage. The Court upheld the conviction, but Justice Holmes dissented:

Holmes claims that freedom of speech can only be abridged when there is present danger of immediate evil or an intent to bring it about.



CB 1022-23 (Gitlow (Holmes, J., with Brandeis, J., dissenting))



Gitlow v. NY, 1925: Holmes and Brandeis dissenting. CB 1022.

A defendant was charged with criminal anarchy, because he was a member of the Left Wing of the Socialist Party, which openly an in publications advocated the violent overthrow of government. The majority upheld the conviction, but Holmes and Brandeis dissented.

In the dissent Holmes writes that he still believes, as he wrote in the Abrams dissent, that the present danger test should rule, and that for the same reason the majority was ruling incorrectly. The majority believed the pamphlets in question were not theories but incitements; but Holmes says the only difference between a theory and an incitement is the author’s enthusiasm. The real test, he claims, should be the speech’s chance of starting a present conflagration.





CB 1024-28 (Whitney)



Whitney v. CA, 1927. CB 1024.

Whitney was a communist who attended a convention in Oakland where a militant platform was adopted. She was charge under a CA act which prohibited membership in organizations advocating the illegal means of affecting change in ownership or political control. The court ruled that what the act made illegal was akin to conspiracy, and upheld her conviction.

Brandeis concurred. He called it “settled” that free speech could only be restricted when it would produce or was intended to produce “a clear and imminent danger of some substantive evil which the state may constitutionally seek to prevent.” He then states (at length) that although clear, imminent, and substantive have not been well defined by the court, there had better be a real risk of actual, immediate, and serious danger in order to abridge free speech. The speech must be incitement, not advocacy. When free speech rights are violated, the state must show it has grounds. Its findings and the law itself were said to be rebuttable presumptions that there were grounds. And, according to Brandeis, Ms. Whitney had not produced enough evidence in court to overcome this presumption. That is why he concurred.



* CB 1040-42 (Brandeburg)



Brandenburg v. Ohio, 1969. CB 1040.

A KKK leader was convicted under an Ohio criminal syndicalism statute similar to the statute in Whitney. The statute made it illegal to be a member of a group that advocates violent means to effect change. The court overruled its Whitney decision, ruling the Ohio statute unconstitutional.

The court wrote that the statute failed to distinguish between advocacy and incitement (the latter of which would bring about or was intended to bring about imminent harm), and that a law which banned abstract advocacy intruded upon First and 14th amendment freedoms. Douglas, in a concurrence, wrote that the clear and present danger test was the wrong standard, and that only when speech is clearly an “act,” as in shouting fire in a crowded theater, should it be prosecutable.



CB 1043-44 (notes 3-4)



Note 3: the court has adhered to Brandenburg in subsequent cases. In Hess v. Indiana, 1973, the court would not allow the conviction of a man who had shouted “we’ll take the fucking street later.” Nor did it find that an NAACP leader’s threat that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck” to meet the Brandenburg test.

Note 4 lists additional variations where the speech itself was not the immediate cause of the harm according to Brandenburg: Herceg v. Hustler Magazine, a 5th Circuit case in which a 14-year-old boy was found hanging in his closet with a copy of Hustler at his feet open to an article on autoerotic asphyxiation; Olivia N. v. NBC, a CA case in which teenage boys copied a rape they had seen on TV with a “plumber’s helper.”

By contrast, in Rice v. Paladin Enterprises, a 4th circuit case in which a murderer followed the instructions on how to commit a murder from a book called Hit Man, and the family of the victim sued the publisher, the court held that Brandenburg did not control because the publisher intended that the manual would be used by people attempting murder.



CB 1228-30 (notes 1-2(d))



These notes involve pornography and the victimization of women. They present a model statute banning pornography that shows women in degrading roles; and then three different theories are provided, each of which argues that pornography is dangerous and harmful to women. The fourth theory argues that pornography does not deserve first amendment protection because rather than convey ideas in rational form, it conditions men by means that bypass conscious deliberation—and therefore plays no role in the search for truth.

CB 1230-31 (note 2(g) – Hudnut)



American Booksellers Assn v. Hudnut, 7th cir 1985. CB 1230.

This case involved an anti-pornography statute in Indianapolis that defined pornography by its demeaning depiction of women and banned it. The Seventh Circuit found that the law was unconstitutional. The court did not deny the harms that could result from the viewing of pornography. But the Supreme Court, it said, had found some speech less worth of protection because of the type of speech and not the content of speech. The law in question, by contrast, singled out the use of sexually explicit speech to convey a particular viewpoint: since porn that portrayed women in subordinate positions was banned but porn that portrayed women in positions of equality was lawful. This “created an approved point of view” and was therefore thought control since the government was deciding what ideas were correct.




C. Content-Neutrality, the Public Forum, and Time, Place and Manner Regulations


CB 1235-38 (Schneider through Kovacs)



Schneider v. State, 1939. CB 1235.

Schneider had distributed leaflets and was arrested under a law that prohibited the distributing of leaflets in “any street or way.” The Court helf the ordinance invalid.

The court explained in this early case that when speech is impaired by a law, that law must be fore more important purposes than laws that abridge other non-fundamental rights. When speech is abridged, it falls to the courts “to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation.” The purpose advanced here was to prevent litter, and the court deemed that this was not sufficient. [The court did a balancing test.]



Martin v. City of Struthers, 1943. CB 1236.

A Jehova’s Witness was convicted of violating a law prohibiting ringing doorbells to distribute handbills. The Court held the ordinance invalid.

The court claimed it was “weighing the conflicting interests” of the parties at stake. It wrote that the freedom to distribute info of any kind is vital to the preservation to a free society, and that going door to door was an important means of doing so. Because the dangers the law tried to stop (nuisance and the possibility of crime) could be easily stopped by other means, the only purpose left was the restriction of ideas, which is forbidden by the constitution.



Kovacs v. Cooper, 1949. CB 1236.

The court upheld a law that prohibited the use of a “sound truck” or other loud instrument on any public street.

Freedom of speech, the court wrote, does not require legislators to be insensitive to citizens’ claims of comfort and convenience. Where there were other means of speech available (newspapers, human voice, etc) the regulation was ok. The dissent argued that the law favored some means of speech over others, and this tended to favor the speech of those who could afford newspaper or radio ads, for example. It also argued that the law could have been tailored in a permissible way, by, e.g., controlling only the volume or the hours limited but not banning the medium.



CB 1239-40 (Ladue, NAACP)



City of Laude v. Gilleo, 1994. CB 1239.

The court unanimously held that a city could not constitutionally prohibit homeowners from displaying signs on their property. At issue was a 24x36” sign reading “say no to war in the Persian Gulf, call Congress now.”

The court wrote that elimination of an emtire medium has the danger of suppressing “too much” speech. The city argued the law was merely a “time, place, or manner” regulation, but the court replied that time, place, and manner regulations must leave open ample alternative channels, and this law did not, because: displaying a sign from one’s residence carries meaning in itself. Moreover, this intrudes on the cherished privacy of the home. And, the city could have limited but not banned the use of signs.



NAACP v. Alabama, 1958. CB 1240.

AL had a law requiring out-of-state corporations to disclose names and addresses of local members before doing business in the state. The court ruled with respect to the NAACP that while this was otherwise a constitutional law, it could not constitutionally be applied to the NAACP.

Harlan wrote for the majority that there is a vital relationship between freedom to associate and privacy in one’s association, particularly when a group espouses dissident beliefs. The NAACP made a “showing” that in the past the revelation of identity had led to reprisals, loss of employment, threats, etc. this was sure to dissuade people from joining and might lead some to withdraw membership. Whatever interest the state had in its requirement could not overcome that constitutional objection.



CB 1208-09 (Renton)



City of Renton v. Playtime Theatres, 1986. CB 1208.

The court upheld an ordinance prohibiting adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.

Rehnquist, writing for the majority, wrote that there is a distinction between content-based restrictions (which violate the constitution presumptively) and “content-neutral time, place, and manner regulations” which are acceptable so long as they serve a “substantial governmental interest” and “do not unreasonably limit alternative avenues of communication.” The court concluded that the Renton ordinance was not aimed at that content of the films, but at the secondary effects on the surrounding community (that it is “justified without regard to the content of the regulated speech”), and that it therefore should be considered as a content-neutral law for analysis. The court then applied a relatively lenient standard of scrutiny, according the city’s interest “high respect,” and rejecting the theater’s claims (1) that the city ignored better options, (2) that the law was underinclusive because it didn’t include bars, massage parlors, etc., and (3) that 5% of the city’s land was not sufficient alternative space for the speech.

Brennan and Marshall dissented, pointing out that the Renton ordinance was on its face not content-neutral. That secondary effects may ensue is relevant to assessing the strength of the city’s justification, but that should take place under the standard for content-based restrictions.



Supp. 171-73 (Alameda Books)



City of LA v. Alameda Books, 2002. Supp. 171.

An LA law banned more than one adult establishment in the same building, based on findings that concentrations of adult entertainment was correlated with crime. Alameda ran a bookstore and adult video arcade in the same building and challenged the law on the grounds that there was no evidence that combining these two activities in one location causes higher crime rates. The Court upheld the law.

O’Connor, Rehnquist, Scalia and Thomas delivered the plurality opinion. That opinion relied on Renton, saying that LA had showed that this ordinance was designed to serve a substantial governmental interest and that reasonable avenues of communication remained available. They agree with Kennedy that a zoning ordinance like this requires intermediate scrutiny, but only if it is a TP&M regulation and not a ban.

Kennedy concurred. He said that Renton notwithstanding, this ordinance was content based “and we should call it so.” But so long as the “purpose and effect” of the zoning ordinance was to reduce the secondary effects and not the speech, he was okay with the law. Zoning laws do not automatically raise strict scrutiny because the zoning context provides a built-in legitimate rationale, which rebuts the usual presumption that content-based regulations are illegitimate. He is concerned that there be another place for the business to go that is forced to move. If it is forced to close, that might not withstand intermediate scrutiny.

Souter, Ginsburg, Stevens, and Breyer dissented, saying that even “content-correlated” restrictions aimed at secondary effects raise the possibility of censorship and that the city’s strategy was probably to drive establishments like Alameda out of business by forcing them to double overhead by running 2 locations, and that there was no finding of correlation between the combination and crime.



CB 1246-48 (Davis, Hague)



Davis v. MA, 1897. CB 1246.

Davis, a preacher, was convicted under a city ordinance that forbade giving a public address on the Boston Common. Holmes, then a MA Supreme Judicial Court justice, upheld the conviction, and the U.S. Supreme Court embraced his position.

Holmes’s argument was that the law was not aimed at free speech generally, but at the modes in which Boston Common may be used. As a representative of the public, the legislature may control the park or highways in the same way a person could control his own home. Since the legislature could close a park and end its public use, it could also limit public use to certain purposes. The Supreme Court adopted the same view.



CB 1243-44 (notes 1-2)



Note 1: courts have interpreted as content-based laws which hinge on “communicative impact”—as in laws which forbid speech that will cause a hostile response or disturb the peace. The rationale is that it is the content of the message that triggers the reaction.



Note 2: the court is backing away from its stance in Renton that secondary-effects laws are content-neutral. One example was Boos v. Barry in 1998: the court invalildated an ordinance prohibiting the display of signs within 500 feet of foreign embassies if the signs tended to bring the foreign government into disrepute.



CB 1249-52 (notes 1-5)



“Regulating the Public Forum”

  1. In U.S. v. Grace, 1983, the Court invalidated a law banning signs promoting parties, organizations or movements in front of the Supreme Court. It said that the sidewalk there was a “public forum” and that the government’s ability to restrict expression there was very limited. The government can enforce TPM standards only if they are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication. It may absolutely prohibit a particular type of expression only if the prohibition is narrowly drawn to accomplish a compelling governmental interest.

  2. In Grayned v. Rockford, 1972, the Court upheld a law prohibiting noise that disrupts classroom learning, as applied to protesters on the sidewalk outside a school. The law, the court held, was narrowly tailored for a compelling interest; punishes only disruptive conduct and gives no license to punish anyone because of what he says.

  3. In Frisby v. Schultz, 1988, the Court upheld an ordinance that banned protests that focus on and take place in front of a particular residence. The law left open ample means of communication and was narrowly tailored to serve a significant governmental interest.

  4. In Clark v. Community for Creative Non-Violence, 1983, the Court upheld the National park Service’s decision to allow a tent-city-style protest in Lafayette Park to demonstrate the plight of the homeless but did not allow protestors to sleep in the tents because of the ban on camping in the park. The court assumed arguendo that sleeping in the tent had expressive value but upheld the regulation as a reasonable T,P,M standard.

  5. In Ward v. Rock against Racism, 1989, the court upheld a NYC law requiring the use of city-provided sound systems and technicians for concerts in Central Park. The justification was noise-related, and avoiding undue noise was held to be substantial. The Court in this case provided a novel definition of “narrowly tailored,” though. In response to the claim that the law was not sufficiently narrowly tailored because it could have merely limited volume levels and left entertainers to provide their own systems, the Court replied that narrow tailoring does not require that the regulation be the “least restrictive.” Instead, it requires only that absent the regulation the substantial interest would be served less effectively.







CB 1260-65 (notes 3-7; ISKCON)



These notes involve the question of what is to be considered a public forum: a military base is not, despite other public functions permitted there; a state fair differs from the street because of the state interest in traffic flow and info distribution there and reasonable TPM standards can include the requirement of a booth and specific location for pamphleting; a mailbox is not a pblic forum—because there is neither historical nor constitutional support for the idea that a person’s mailbox is public property; and a public utility pole is not.



International Society for Krishna Consciousness v. Lee, 1992. CB 1263.

ISKCON sued the Port Authority of NY and NJ because it had banned solicitation, along with sales and pamphleting, within airport terminals. The Court upheld the ban on solicitation but invalidated the ban on sale and distribution of literature.

• Rehnquist wrote for the Court (including O’Connor) that airport terminals were not public fora, because they did not meet the standard of having been public fora for time immemorial, and because their owners did not wish for them to be open to public purposes.

• Kennedy wrote for four justices (the minority) that airport terminals are public fora because the purpose of public forum doctrine should be to recognize that open public places and thoroughfares which are suitable for discourse may be public fora regardless of their historical pedigree.

• On solicitation, Kennedy thus assumed airports were public fora, but still found that a ban on solicitation was a reasonable TPM restriction, aimed at preventing fraud and duress for travelers. That vote joined the votes under Rehnquist (who believed airports were not public to begin with) making a majority saying ok to a ban on solicitation.

• On sales and distribution of literature, Kennedy wrote for the same four justices (this time a plurality) that the ban violated the first amendment because the same problems and nuisances did not inhere for travelers offered pamphlets or products for sale. Justice O’Connor still maintained that airports were not pubic fora, but agreed with Kennedy’s result because she nevertheless found the restriction “unreasonable.” This made her the fifth vote in favor of overturning that ban.





CB 1286-88 (Arkansas Educational)



Arkansas Educational Television Commission v. Forbes, 1998. CB 1286.

The AETC, which runs TV stations in AL, planned a series of debates among federal-office candidates, but limited the debates to candidates who were of major parties or who had received major support in the press or polls. Forbes was excluded on these grounds, and he claimed this violated his First Amendment rights. The Court rejected his claim.

The Court (Kennedy) distinguished between a designated public forum, in which the government makes property generally available to classes of people, and a nonpublic forum, in which the government reserves eligibility to a particular class, who must then apply for use. The latter was the case with the candidate debate. And, this kind of forum furthers First Amendment interests because it encourages the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all. The limit on candidates who had received appreciable public support was constitutional because it was not based on the speaker’s viewpoint and was reasonable in light of the purpose of the property. In another part of the opinion, Kennedy noted that, in programming other than debates, public television stations were not public fora or nonpublic fora—they were “not a forum at all,” which meant that day-to-day programming need not be subjected to editorial control to avoid viewpoint discrimination.

D. Unprotected Speech

1. Overview and Libel


CB 1066-68 (Chaplinsky)



Chaplinsky v. New Hampshire, 1942. CB 1066.

A Jehova’s Witness pamphleting in Rochester, NH, shouted angry words, like “you are a god damned racketeer” and “a damned fascist,” etc, at passersby and the City Marshall, or may have, and there was a public disturbance after which he was arrested. The Court affirmed the conviction.

This is the “fighting words” case. The Court lists categories of speech that have “never” received protection: “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Those words are of no part of an exposition of ideas and of “such slight social value as a step to truth that any benefit … is clearly outweighed by the social interest in order and morality.” The test was an objective one, of words that would be likely to cause the average person to fight. The statute thus does not contravene the constitution.


CB 1114-19 (New York Times)



NY Times v. Sullivan, 1964. CB 1114.

Four black Alabama clergymen ran an ad in the NY Times, in which they stated several falsehoods concerning official conduct in Montgomery (that police had circled a campus, e.g., when they had in fact not done so), which Sullivan, one of three elected Commissioners, took to be libel against himself. He sued the NYTimes and won $500,000; the court of appeals upheld. the Supreme Court reversed.

Although libel is not protected when it is against private individuals, the question at hand was “libel” against public officials acting in their public capacity. Neither factuality nor defamatory character matters to the issue: erroneous statements are inevitable and often necessary in free debate. And, the fact that a public figure’s reputation suffers as a result of the statement makes the criticism effective, not inappropriate.

Next, the court notes that the Sedition Acts, while never tested in Court, have been found unconstitutional in the court of history. And if a government cannot punish criminally a kind of speech, it cannot levy fines in civil court either. A newspaper living in fear of similar suits does not operate in an atmosphere in which First Amendment freedoms can survive. Sullivan argued that the paper’s defense could be the truth of the statement. But the Court replies that a rule compelling a critic to guarantee the truth of his statements deters speech in the first place, either because of doubt he can prove it is true or hesitance to risk the expense. That would dampen the vigor of public debate and is inconsistent with the first and fourteenth amendments.

So the standard should be a federal rule which prohibits public officials from collecting on defamatory falsehoods relating to official conduct unless the statement was made with “Actual malice”—knowledge of falsehood or reckless disregard for its truth or falsehood. There is a symmetrical privilege for officials speaking about private individuals within the perimeter of their duties.

The note following says that the case implies that the central meaning of the First Amendment was to keep the censorial power in the people over the government and not vice versa. Several authors celebrate this, as well as the fact that the Court finally pronounced the Sedition Acts unconstitutional.



CB 1123-28 (Gertz)



Gertz v. Robert Welch, 1974. CB 1123.

This case defined the limits of the NY Times libel rule.

Gertz, an attorney, was representing a family whose son had been killed in its lawsuit against the police officer who had shot him. Welch, a publisher at the John Birch Society’s publication, American Opinion, published false statements about Gertz (that he had a criminal record and communist affiliations). He sued for libel, and the trial court concluded that NY Times applied since it was a “public issue.” The Supreme Court reversed.


The issue at stake was whether a newspaper/broadcaster who publishes defamatory falsehoods about an individual who is not a public figure or a public official can claim a constitutional privilege against liability.

• Under the Constitution there is no such thing as a false idea; nevertheless there are false facts: “there is no constitutional value in false statements of fact.” Neither intentional lies nor careless errors advance society’s interest in robust public debate. They belong to the categories that are unprotected in Chaplinsky.

• But errors of fact are inevitable in free debate, and the first amendment requires that we protect some falsehood in order to protect speech that matters.

• Nevertheless that is not the only value at stake. There is also a legit state interest in protecting people from libel.

• The first remedy for any victim is self-help. Public officials, as in NY Times, are able to exercise self-help easily. Private individuals are not. Moreover, an individual who pursues governmental office accepts certain necessary consequences, risking closer scrutiny (likewise for other public figures); while the private person does not. The private person has not relinquished his interesting protecting his good name.

• (The Court orders states to limit libel awards in private cases to actual damages, in order to inhibit first amendment freedoms no more than necessary—so no punitive damages).

• The lawyer in this case, Gertz, was not a public figure, even though he was active in community affairs and practicing in a high-profile case. Absent general fame or notoriety, the question of whether someone is a public figure is best answered with reference to the individual’s participation in the particular controversy.



O’Brien: Draft-card burning. The court assumes that his behavior is sufficiently communicative to be “speech.”



à But it doesn’t follow that it is not subject to regulation. They articulate the O’Brien test:



  1. Action within power of the government

  2. The law has to substantially further a significant government interest

  3. Interest must be unrelated to suppression of expression

  4. Restriction on expression (tailoring) should be “no greater than is essential” to the interest.



The court approves the law under these standards.



The court discusses purpose or motive. The court will not strike down an otherwise constitutional law on the basis of alleged purpose (JR: !). But it is a familiar idea that the court WILL strike down otherwise constitutional laws when the purpose is wrong… see Washington v. Davis, see all the redistricting cases, etc. For well over 100 years, the court looked to illicit motive in equal protection contexts. Which makes this an extraordinary statement.



A key feature of mere rational basis review is that you can’t challenge the alleged basis of the law.

This is neither that standard nor strict scrutiny: it is an intermediate form of review.



What if the O’Brien test failed on a test of the 55mph speed limit because 55 doesn’t really further any governmental interest. How do we avoid that result? If we interpret prong 2 in a purposivist fashion… but that is not what the court is saying.



Ahh, but there’s a “0” prong: that the test only applies if the conduct has to be some kind of speech. That’s a qualifying test for the test itself. Speeding wasn’t speech. That is how the doctrine answers the question.



TX v. Johnson


The casebook skips over the section in the handout--See first paragraph in handout.



First, is it speech? If it is, then second, is the state’s interest related to expression? If not, then apply the low O’Brien test. If so, it must pass strict scrutiny.



In any case, the person must first show that his conduct was related to speech at all. He does so by applying the Spence test. Is there intent to convey a particularized message, and is there likelihood that it would be understood by those who viewed it.



So, first apply Spence, then apply O’Brien unless another motive is found (if it were found then in that case you would then apply strict scrutiny).



The Spence test only applies when you don’t use words, of course. Does this Spence standard work in the case of abstract sculpture?



The Spence test doesn’t do it:

  1. it’s a terrible test because it loses art. Art is protected speech but it very very infrequently has a clear and particularized message.

  2. The speeder can satisfy it, it’s not that hard or crazy to construct a hypothetical like that.



Suddenly, it seems like every time you violate the law and you get people to see that you are trying to send a message you can get the court to sit as a superlegislature to see that the law doesn’t further any governmental interest.



  1. One more way it doesn’t work: Suppose everyone wears a t-shirt with a symbol that says you are against the mayor. So the mayor passes a law saying you will go to jail if you wear that shirt. In that circumstance, the doctrinal framework works perfectly. It passes Spence, it fails O’Brien.



But, it doesn’t work perfectly for the poor hapless tourist, who sees it on sale and buys it and puts it on, and he accidentally speaks, so he doesn’t pass the Spence test.



If you were at a rally, but you weren’t part of it, and you weren’t speaking, then you could be fired based on that. The first amendment doesn’t come into play.










An Appellate court case dealing wit an anti-pornography ordinance. The argument is that pornography leads to violence against women. The court strikes down anti-pornography legislation despite that assertion.




Speech that is

  1. intended to incite

  2. imminent lawless conduct

  3. and has to be likely that such conduct would occur.



All 3 have to be satisfied to ban the speech. The speech in Hudnut doesn’t satisfy these criteria. How come the court doesn’t say that?



Does expression have to express a view to be protected, and does it have to express a political view?





Here’s one view: it’s a kind of tort law question, the probability and magnitude of the harm are what counts. Why would you care about imminence unless imminence is a proxy for certainty?



If you support the Hudnut case, it’s because you are fighting the hypothetical that this speech causes these harms. The court assumes for the sake of argument that the speech does cause the harms. Suppose you do accept these claims. Can harms outweigh the right to speak? Surely they can, you can’t carbomb the white house. And once you start thinking this way, the Brandenburg test seems not to work—you can not intend to incite anything, the harm can be far in the future, etc. Hudnut therefore must be all about harms, so Brandenburg doesn’t make all that much sense anywhere—what about anti-abortion speech, or even the Bible?



We wont insist on politicality but we can recognize that it adds value to speech, and this impacts our balancing.






First Amendment


First we saw, is there a test for determining what is speech? Yes. If it is words, and if it is conduct that passes the Spence test. That’s expressive activity. But the doctrine treats laws that regulate conduct differently from laws that limit speech. Laws that regulate conduct are subject to the O’Brien test. Laws that limit speech are subject to stricter scrutiny.



There are problems with the Spence test, though, as evidenced by the example of the speeder who says that the 55mph speed limit is a bad law and breaks it. Nor does it protect art or the accidental shirt-wearer.



Then we turned to dangerous speech: the Hudnut case. The court accepts arguendo that the speech in question will cause extraordinary harms but holds it nevertheless constitutionally protected and the ordinance unconstitutional.



Well, the speech in Hudnut does not pass the Brandenburg test, which makes it ok—even granting the harm. There is an argument that the Brandenburg test applied to Hudnut, so why didn’t the court apply it? Because the Brandenburg test was seen by the 7th circuit as only applying to incitement—speech that advocates unlawful conduct. The argument might go: speech that advocates unlawful conduct is advocating political disobedience; it is political, protected speech, and therefore needs careful protection, so only prohibit it when it is very clear it will instantly cause a violation. Whereas pornography is not political speech like that. Other courts have applied Brandenburg to pornography, though.



Some people said it’s not imminent and it’s not intentional, so that’s why Hudnut is not an easy case. The Brandenburg test doesn’t apply to fireworks that are expressive that might harm others; but why? If harm is enough to outweigh it there, why isn’t it enough in Brandenburg? Why have an intentionality or imminence argument. Where we are prepared to stop expressive activity, we don’t care about intentionality.



Isn’t Brandenburg all about harm? The Supreme Court law had never struck down a single statute on speech grounds before the 20th century. Sedition laws in the first world war, e.g. Today’s law is a twentieth century judicial creation. You might say that it all traces back to justice Holmes’s dissent in the early cases like Abrams. He started to change his mind after approving convictions. It wasn’t threatening anybody so Abrams had to have a right to distribute the literature.



Holmes articulated a clear and present danger test—unless there is a clear and present danger the government cannot prohibit the speech. That sounds like a harm test, but presence is like imminence. How do we understand that: a person cannot falsely shout fire in a crowded theater. Because it will cause harms. If you think about it like that it sounds like a compelling state interest test. Then the Brandenburg test sounds like: the intentionality and imminence requirement are proxies for likelihood of harm. And such an economic analysis of the law doesn’t care about intent. The economic pt of view is only concerned with the magnitude and probability of the harm. Imminence and intentionality don’t fit unless you think of them as proxies (poor proxies) for probability. Thus it makes no difference if you stipulate that the harm will occur at some point in the future. JR’s point: there is an oddity in looking at this as a harm-based test.



For sure we can’t understand the Hudnut case if you stipulate that the harms will occur.





Rubenfeld: All the Spence problems are solved if we take a purposivist view.



The puposivist view says what makes laws unconstitutional under freedom of speech is whether they have a purpose that violates that freedom. Are they punishing people because of the speech they engaged in, or for some other reason? Even if you were speaking by speeding, that doesn’t mean that you were given a ticket because you were speaking. I don’t care what you were trying to do by speeeding, it makes no difference. Trying to express your opinion by breaking the law doesn’t give you the right to do so. The question is, is the law punishing you for your speech? Suddenly, the Spence test falls out, so art is back in. The hapless tourist is ok too. The actor’s purpose is irrelevant, it is the government’s purpose that is at stake.



The O’Brien case did not articulate a purposivist analysis because there was evidence there was purpose to ban speech. Yet, the court’s test can be seen as purposivist nevertheless, even though it doesn’t look at legislative history.



In Brandenburg, Rubenfeld has suggested that you can’t make good sense there from a harm point of view. Imminence and intentionality can be seen as proxies for harm, but that is not the best way to look at Brandenburg.



Rubenfeld: Governments can stop people from robbing banks: the law is aimed at protecting banks, not stopping speech. People rob banks in several ways: they go inside and rob it, but they also bring about the same result thru speech. People make plans and arrange for conduct. Going to jail for conspiracy: should we regard that as being punished for engaging in speech? No, we should regard it as the state punishing me as engaging as an accomplice in a bank robbery—whether my role is the getaway driver or the furnisher of info, the thing the state is punishing is the aiding in a bank robbery, and as long as it does so equally it’s ok. The state has to show that I intended to be participating in a bank robbery—hence the need for intentionality.



Basic principle: you cannot be punished for anything you say. You can be punished for expressing something, but not for the expression. No element of the crime can be the expressive goal of the action.



When I am punished for speech leading to third party acts, I had better have been so involved in the conduct that I am punished as a part of the act itself and not simply for the expression.





What if we were committed to the concept that there are no harmful opinions, that there are no harmful ideas, that nobody should be punished for expressing a view that the majority views as harmful? Start with that premise, and what happens? That commits you to a strong, non-consequentialist, deontological view.



The Bible causes harm.



This non-consequentialist view makes hate speech laws unconstitutional. Hate crimes laws, Rubenfeld says, though, are different—you can be guilty of a hate crime without having tried to communicate your hatred. The hate crimes law can be fully stated without showing that the criminal expressed the view to anyone.





A state bans begging on the boardwalk—is that ok? How do you work thru the doctrine?



First, the activity: is it speech or conduct?

If it’s speech, it triggers protection.

If it’s conduct, is it expressive conduct (Spence test)?

If not, then no protection.

If so, then it triggers the four-prong O’Brien test.



If it is speech:

Then, place: is it a public forum, or non-public forum?

A place is a public forum if

(1) it has time immemorial been used for expressive activity, or

(2) it has been opened thereto (test in Krishna, p 1263).



In not a public forum, the law at first had to be (1) reasonable and (2) content-neutral (according to U.S. v. Kokinda, the Postal Service case, at p. 1262). [[this contradicts the prior holding in Greer v. Spock]]. O’Connor changed the formulation again from content-neutrality [consistent with Greer v. Spock] to be official opposition to the speaker’s view. The non-public forum test is now (1) reasonable and (2) viewpoint-neutral.



Let’s say Congress passes a law banning spam in email mailboxes. Is the mailbox a public forum? The postal svc case says no. Nor does it pass the two-prong test.



Does it follow that Congress can ban all email based communications? Would it be reasonable? Maybe not—but reasonable is very very broad. It is viewpoint-neutral. So what do you do about this?



There must be a third category of location: public and non-public fora, and private property. Public forum = place owned by government which has been opened up. The public forum doctrine arises in the following way: of course the government can pass more stringent regulations on its own property. But there are some places on government property where the ability to restrict speech doesn’t apply. The doctrine thus arises as an exception to government ability. Streets, parks, and boardwalks have always been that way, (1) since time immemorial or (2) if the govt has intentionally opened it up.



But private property doesn’t even get you into this analysis. In public fora, as on private property, the full normal first amendment analysis applies. It only doesn’t apply where govt can regulate.



Thus private property and public fora are equivalent (more speech must be allowed); non-public fora are different (more restriction is ok).



Private property and public fora require full protection.








  1. Speech



  1. Conduct

    1. Expressive

à Spence test à O’Brien test

    1. Non-expressive / mere conduct

à no protection at all.





What about speech? Chaplinsky says, not all speech is protected by the first amendment.






Here is the analysis so far:



  1. Speech

    1. Unprotected (profanity, fighting words, lewd and lascivious, libel, tending to cause breaches of the peace) à no protection? Not necessarily. You have to pass thru hoops first.

    2. Protected à forum analysis

      1. Government property

        1. a non-public forum à reasonable, viewpoint-neutral (NOT content-neutral)

        2. a public forum à full protection.

      2. Private property à full protection



Is the “unprotected speech” unprotected because it is “low-value”?



Just to say that libel is unprotected speech, you need to say what libel is. So maybe the court isn’t just knocking out these categories, it is narrowing the previous common-law definitions. That the government says it is regulating libel doesn’t make a law ok without anything further.



What is full protection?



Full protection: you ask whether the law is:

  1. content-neutral. If it is, then a “time, place, and manner” regulation is ok, if the law:

1. Furthers a substantial governmental interests.

2. leaves open ample alternative channels of communication.

3. is narrowly tailored.

  1. content-based. If it is, you apply strict scrutiny.



Note that content-based categories are ok above, in the chaplisnsky test of what is unprotected speech to begin with. Whether it is content-based at this point is a separate question.



You could say instead, that the content-based regulations above are narrowly-tailored. That’s not the way the doctrine works or what Rubenfeld thinks.



In fact, there is a less-protected form of speech, in between “unprotected” and “protected” above: that applies to commercial speech.



In Playboy, they apply strict scrutiny—it was a content-based law. It is the program’s content that is creating the effects.



What about the regulation of begging, under Renton?



In the alameda books case, the court holds that the law is content-based. The court is trying to deal with the idiotic holding in renton. That court claimed a content-based law was content-neutral. On 172 in alameda, they say it was fixed. If the statute describes speech by its content it is on its face, content-based.



Renton causes problems. The court is backing away from that analysis but upholding that conclusion—that a law is subject to intermediate scrutiny even though it was content-based.



Split opinions later say intermediate scrutiny is ok in these cases even though it is content-based. This contradicted playboy. Justice kennedy’s concurrence in alameda books rejects this, says we shouldn’t be so rigid in our framework—this is adult, in its just place, not a total ban, so I’m satisfied that intermediate scrutiny applies.



So, put Renton aside. Of course it was content based. The real question is whether to put a crack in the first amendment rule that if it is content based you employ strict scrutiny. In renton they are able to avoid the problem by pretending it is not content based. But in alameda they can’t get a majority who will say that.



Alameda books doesn’t square with playboy. Renton squares with playboy but only because it falsely contends that the law is content neutral. Kennedy and 4 justices in the dissent aren’t willing to engage in the fiction anymore.



4 justices in the plurality don’t go so far as to say this is a content-based law. they stick with renton. 4 other justices in the dissent apply strict scrutiny because it is content based and they want to strike it down. Kennedy alone is prepared to say it is content based, lets face it, but we should apply intermediate scrutiny anyway.



So, for now, it seems like there is an exception for zoning regulations of adult material.



In playboy we are not dealing with obscene speech. Obscenity is not protected; laws against it are not scrutinized. But much indecent material is not obscene. The Miller test essentially separates hardcore and softcore porn, although those are lay terms. If it was obscene they could just ban it altogether, but mere pornography is protected, as in Playboy.



The court’s decision in Cohen—“fuck the draft”—knocks out profanity from the unprotected category. The compelling governmental interest of protecting children is upheld under strict scrutiny.



But Cohen says you can’t throw someone in jail for having that word on his back. But this seems wrong to Rubenfeld. Cohen is just regulating one manner of expressing an anti-draft opinion. So what if he can’t use that word in a courthouse?? It should have been tested under the lenient T,P,M test.



Why isn’t Cohen wrongly decided?



First, we need to distinguish between content and viewpoint. Can you tell me whether Cohen broke the law without telling me what he said? No. Therefore, the law is content-based. Cohen restores profanity to content, knocking it out of the unprotected category.



Does the doctrine conform to this definition? Every case does except Renton.



In the Boooze case, asking whether people can carry picket signs near an embassy, in the 80s, the court abandoned the renton analysis. The govt argued that it was the secondary effects like in renton. The court says, listeners’ reactions are not the secondary effects we meant in renton, whatever we meant in renton. If the supposed harm the law is trying to prevent runs thru the reactions of the listeners, then it is content-based.



So the law is consistent in every case except renton.





Begging in Ft. Lauderdale (11th cir):



Begging is speech, not conduct.

It is protected speech (they do not raise the argument that it is commercial speech)

The beach is a public forum à full protection

Content-neutral test, since the city’s interest is in providing a safe, pleasant environment, and tourism. They formulate the narrow tailoring and say that it doesn’t overburden free speech to fulfill this goal. This narrow tailoring is not strict scrutiny narrow-tailoring. It is more lenient under T,P,M analysis. It need not be the least restrictive or least intrusive means. It’s just that it can’t burden substantially more speech than it needs to. This is a lenient narrow-tailoring test.



Rubenfeld: of course it’s content-based. What is begging? You can’t solicit money for charity for yourself.



What would be wrong with the same analysis if Ft. Lauderdale tried to ban the solicitation of votes?



The court fails to see that it is content based. You can’t uphold a ban on begging and not soliciting votes. The doctrine is trying to do some sort of weighing of values.



To have an opinion that says cities can declare whether the interest in tourism outweighs the interest in free speech should be unconstitutional, says Rubenfeld. To say begging is different, you need to (1) jam it in an unprotected category, or (2) say it is lower-value speech.



Asking people for money is not a strongly protected value by the first amendment, this argument goes. Rubenfeld: it is like comparing a pound of iron to the number 5. Do you need sociologists and cultural studies experts to tell you how important, e.g., “sports speech” is?



JR: The first amendment protects every opinion. You cannot be punished for expressing an opinion that the majority disagrees with, even by some balancing test because tourism would suffer, e.g. Rubenfeld thinks that ok for obscenity but not for any other unprotected category. With the exception of obscenity we should not view the basic structure of first amendment law in a way that divides the world into high, medium, and low value speech. We shouldn’t have judges saying how valuable opinions about the weather are. Judges aren’t called upon to take an opinion on that.



That shows that we don’t question the social value of the opinion.



But sometimes that’s what it looks like the court is doing.



Rubenfeld: The reason the court applied the TPM test and not OBrien in the sleeping-in-the-park case is because they are the same test. This makes sense because every regulation of conduct regulates a manner of expression. Sleeping in the park is like the expressive speeder. So it does make sense that the two tests are the same.



Rubenfeld: verbal and expressive conduct should not be treated differently. The question should be what is the state trying to do?





Categories of unprotected speech


NYTimes v. Sullivan: libel law is subject to constitutional limitations. Libel is not merely unprotected speech. There is the odd feature that libel operates thru private rights of action. (libel = written, slander = oral).



Creates a special rule: in cases of libel against public officials, there can be no libel unless the plaintiff can show actual malice. This does not mean ill-will. “actual malice” is a term of art, meaning knowing them to be false or with reckless disregard of truth or falsity. “public official” is expanded later to cover public figures. There is debate about how to define that term.



In Gertz, a rule for libel against private figures. The constitution protects false ideas but not false facts. False facts enjoy no protection by the first amendment. For private individuals, states can make liability laws (libel is a tort) as long as they don’t impose strict liability.




  1. intentional/knowing

  2. reckless

  3. negligent

  4. “strict liability,” or “no fault”



“Actual malice” covers (1) and (2)—that is the public figure standard.

With result of private figures, states can come down into (3) but not (4).



If you make a reasonable attempt to check that something is true (ask 15 people, e.g.) then you are not negligent. Sticking someone with no-fault liability is unconstitutional. p. 1125.





Why is libel unprotected when they meet these standards?



  1. there’s something about false statements that makes them less valuable; they don’t contribute to debate; they are unworthy of protection because they don’t have the right characteristics. This section, p. 1124, cites Chaplinsky for unprotected, low-value speech:

    1. no essential part of any exposition of ideas.

    2. of such slight social value that the interest in order and morality outweigh it.

  2. False statements do harm.

But: that they are harmful to individuals is not the reason they are not protected.



This paragraph is not supposed to open the door to the suppression of ideas.



Does the Chaplinsky assertion give you a handle on what speech is really protected and what isn’t? The lecture on deconstruction is not supposed to be unprotected. What about Beethoven’s Fifth Symphony? That’s not an idea or an opinion. It is not a step to truth, etc. It doesn’t seem to meet the Chaplinsky formula.



If art fits into this sentence why is it protected? Or if it is protected then why are the unprotected categories unprotected.



If you say, why is obscenity unprotected, and you answer, because of chaplinsky, then you have also ruled Beethoven unprotected.



If you take out “as a step to truth,” then you are dealing in just a test of social value, and art has social value.



We could stop thinking, as the court does, that there are categorical exclusions from the first amendment, since some false statements of fact do have constitutional value, as fiction.





A novel, it could be said, is not full of false statements of fact, everybody knows it is a work of fiction. That means it doesn’t hold itself out as a statement of fact. Does this end our problems? No, because if we took the chaplinsky test seriously, you could still ask whether the novel is an essential part of any exposition of ideas. Whether it has value as a step to truth. Even if we expand truth, then it seems false statements of fact would be back in too.



So if you are going to try to make sense of chaplinsky the best thing to do is just get rid of the language about steps to truth.



There are plenty of false statements of fact that are steps toward truth, as in science.



But intentional lies and careless errors (Gertz) are different from false statements of fact. If there’s no strict liability, then what is not protected is just intentional lies and misleadings. Why is that unprotected?





(Laura Smolowe)


What are the categories of unprotected speech?

    • From Chaplinsky we have:

      • Lewd and Lascivious

      • Profanity

      • Libel

      • Insulting or “Fighting Words”

    • Other:

      • Threats

      • Incitements

      • Solicitations (of unlawful conduct, e.g. bribes and prostitution)

      • Conspiracy

      • Fraud

      • Perjury

      • Misrepresentation



    • 3 Basic Subdivisions of Unprotected Speech

  • Offensive Speech (Lewd and Lascivious, Profanity, Obscenity)

    1. Rubenfeld: from a Purposivist view, no speech can be prohibited because it is offensive

    2. Only obscenity is still unprotected. Rubenfeld thinks obscenity should be no exception (though you could still restrict the time and place)

  • False Speech

    1. This has been extremely restricted since Chaplinsky

    2. It has to be false statements of fact to be unprotected

    3. Why should this be unprotected?

      1. 1st amendment gives less protection to statements of fact than statements of opinion

      2. You can be jailed for disclosing true facts if they are confidential

      3. Facts can belong to people

      4. But no one can be penalized for daring to imagine anything; we have freedom of speculation about the world, but not of statements of fact in a narrow sense

  • Breach of the Peace speech (this is any criminal speech, e.g. crimes and unlawful conduct)

    1. Think about guy who is participating in bank robbery through speech. He can be punished as an accomplice so long as the law doesn’t single him out because he participated through speech



    Rubenfeld on 1st Amendment tests:

      • Conduct

        1. Expressive (Spence)à Use the O’Brien Test

        2. Non-Expressiveà No protection

      • Speech (apply Chaplinsky: Not all speech is protected by the 1st amendment

        1. Full Protection (if it doesn’t fall into one of the narrow cateogories of unprotected speech, it’s protected):

          1. To see if government can pass laws restricting Protected Speech, you ask whether the law is

            1. Content-neutral

              1. If so, use the Time, Place and Manner test, see p 1209

                1. has to further a substantial government interest

                2. has to leave ample alternative avenues of communication

                3. has to be narrowly tailored

                  1. see e.g. United States v. Grace, p. 1249 at bottom

            2. Content-based, use strict scrutiny, must be the least restrictive alternative

            3. Government Property


              1. If a non-public forumà test to see if it’s a reasonable restriction and is viewpoint neutral (not content-neutral)

              2. If a public forumàgets full 1st Amendment Protection

            1. Private Propertyàfull 1st Amendment protection

        1. Less Protected speech

          1. This has a middle tier test, used for such things as commercial speech (that is content-based)

      1. Rubenfeld: the 1st Amendment protects EVERY opinion and we shouldn’t do a balancing test

        1. Obscenity is banned because people think it’s immoral

        2. Other than that, we shouldn’t view 1st amendment as hierarchical, and shouldn’t question the social value of speech




Relationship between O’Brien Test and Time Place and Manner Test

O’Brien test:

  1. Has to be within governmental power

  2. Has to substantially further significant government interests

  3. Has to be unrelated to the suppression of expression

  4. Has to use the least restrictive means


    • Prong 1 has nothing to do with the 1st amendment

    • The “least restrictive” prong has never been applied after O’Brien. SC has been much more lenient.



The TPM test:

  1. Has to be content-neutral

  2. Has to be narrowly tailored to further a significant governmental interest

  3. Has to leave ample alternative channels of communication.


NOTES: these tests are very similar because every regulation of conduct is some kinds of time, place, or manner regulation. It makes sense that they’d b e basically the same.


2. “Indecency,” Pornography, Obscenity


Cohen v California (1971, p. 1184)

Facts: Paul Robert Cohen was arrested and convicted in LA municipal court for violating an LA ordinance that prohibited “willfully disturbing the peace or quiet” for wearing a shirt that said “Fuck the Draft”

Issue: Can California excise as “offensive conduct” this one phrase “Fuck the Daft” from public discourse without violating the 1st Amendment?

Holding No

Reasoning/Major Points:

  • Justice Harlan

    • This speech IS protected, so use strict scrutiny

    • The speech is ok because

      • It was not directed at anyone

      • It was not aimed as a personal insult

      • There was no intentional provocation of a hostile reaction

      • There was no incitement to riot or violence

    • The ability of Government to shut off discourse solely to protect others from hearing it is dependent on a showing that substantial privacy interests are being invaded in an essentially intolerable manner

    • To allow this regulation would be to give boundless authority to the stateàhow would you distinguish it from other offensive words?

    • If you forbid words you are forbidding certain ideas as well, which isn’t OK

  • Dissent—Justice Blackmun

    • This was conduct and not really speech

    • Regardless, profanity should fall under the Chaplinsky test and should not be protected

  • NOTES:

    • Profanity is no longer in the unprotected category

      • Can be regulated to protect kids

      • Can’t regulate it just because it’s really disgusting

      • Can’t throw someone in jail for their message

    • This can’t be considered just a manner regulation because you don’t get to the TPM test until you determine that the act is content neutral

    • Since you have to say what Cohen said or did or wrote to say how he broke the law, the law is not content neutral

      • (NB: a law could also be content neutral but enforced in a discriminatory manner, which would not be OK either)



Miller v California (1973, p 1171)

Facts: Miller sent pornographic pamphlets advertising adult material in the mail to random people. He was convicted under a CA criminal obscenity statute for sending unsolicited obscene material through the mail.

Issue: Is CA’s criminal obscenity statute constitutional?

Holding: Yes

Reasoning/Major Points:

  • Burger:

    • The law’s requirement that the jury evaluate the materials with reference to contemporary standards of the state of California is constitutionally adequate

    • Obscene material in general NOT protected by 1st amendment

    • Test to see if obscene materials have 1st amendment protection

      • Does the work appeal to the average person’s prurient interest?

      • Does the work depict or describe sexual conduct as defined by applicable state law?

      • Does the work lack serious literary, artistic, political, and scientific value (but doesn’t have to be UTTERLY without social value)?

  • Dissent—Douglas

    • Judges shouldn’t be defining what is obscene—people should pass a constitutional amendment if they want it

  • Dissent—Brennan

    • Statute is unconstitutionally overbroad, and so invalid on its face



FCC v. Pacifica Foundation (1978, p 1192)

Facts: George Carlin recorded a monologue entitled “Filthy Words”, which included lots of swearing. A New York radio station owned by Pacifica broadcast it, and a listener complained to the FCC. The FCC decided that the broadcast was indecent under 18 U.S.C. § 1464. The DC Circuit Court reversed, and the SC reversed back.

Issue: Can the FCC regulate a radio broadcast that is offensive but not obscene on the basis of its content?

Holding: Yes

Reasoning/Major Points

  • Justice Stevens:

    • The words were not the speakers’ ideas, if they had been, even offense would not have been enough to suppress them

    • Patently offensive things on the radio affect the listener in the privacy of his own home, where he has the right to be left alone

    • The radio is available to kids, shouldn’t be exposing kids to this kind of stuff

    • FCC’s decision was OK because it was made on a nuisance rationale based on a host of variables

  • Concurrence- Powell and Blackmun

    • FCC sought to channel the monologue to a time when fewest kids could hear it—on a time place and manner rationale this leant support to FCC’s decision

    • The broadcast is harmful to kids

    • Broadcasting comes directly into the home

    • People can still purchase Carlin’s record on their own

    • Judges should NOT decide what is more valuable and deserves 1st amendment protection vs what is less valuable and does not

  • Dissent –Brennan and Marshall

    • The FCC failed to accord proper weight to people who wanted to hear the broadcast

    • The idea that the content of a message can be divorced from the words that are the vehicle for its expression is transparently fallacious

    • Some reasonable people in this country think differently from the court


Sable Communications, Inc. v FCC (1989 p. 1198)

Facts Federal statute prohibited the interstate transmission of “indecent” commercial telephone messages (“Dial-a-porn”)

Issue Is the statute constitutional?

Holding No

Reasoning/Major Points

  • Justice White (for a unanimous court)

    1. Dial-a-porn is different from radio (see FCC v. Pacifica, supra) because here everyone involved is an active participant

    2. Government’s interest in protecting children could be achieved by means other than a total ban

    3. This statute has the invalid effect of limiting the content of adult conversations to that which is suitable for kids to hear



United States v Playboy Entertainment Group, Inc (2000, p. 1202)

Facts: § 505 of the1996 Telecommunications Act required cable operators to scramble porn or to limit showing it to between 10pm and 6am. Since scrambling is so expensive, many operators chose to just limit the transmission to those hours

Issue Is § 505 constitutional?

Holding No

Reasoning/Major Points

  • Justice Kennedy (for a 5-4 court)

    1. Statute is content basedà has to withstand strict scrutiny

    2. People can block channels themselves, and probably would if they didn’t want to see them

    3. Government has not shown that this blocking alternative would be insufficient to secure its objective of keeping this material from kids

  • Dissent, Justice Breyer

    1. The specific question is whether the opt out alternative is less restrictive AND similarly practical and effective to protect children

    2. The opt out alternative is NOT as effective, so §505 should be constitutional

  • NOTES:

    1. The SC is right in Playboy not to use the Time, Place, and Manner test. The Court correctly used Strict Scrutiny because the law is content-based

    2. This case squares with Renton officially because the SC in Renton pretended the law was content-neutral (wasn’t really though)

      1. However, this case doesn’t really square with Alameda Books, which uses Intermediate Scrutiny because it’s a TPM regulation and not an all-out ban EVEN though the SC recognized the law was content-based

      2. Here, in Playboy, we have a TPM regulation and not an all-out ban but the SC uses Strict Scrutiny

    3. One way to reconcile:

      1. Obscenity is unprotected speech, but lots of pornography is not obscene

      2. The Playboy test (having to use the least restrictive means) only comes into play BECAUSE the government was trying to ban something that was NOT obscene—ie, lots of the Porn being regulated was protected speech so needed Strict Scrutiny



Ashcroft v The Free Speech Coalition (2002, Supp p. 166)

Facts: The Child Pornography Protection Act prohibited child porn with computer-generated kids

Issue Is the statute constitutional?

Holding No

Reasoning/Major points

  • Justice Kennedy

    1. Prospect of crime by itself does not justify laws suppressing protected speech

    2. Statute proscribes the visual depiction of an idea that is a fact of modern society and has been a theme in art and literature throughout the ages

    3. Virtual child porn is not intrinsically related to the sexual abuse of kids

      1. Government has shown no more than a remote connection between speech and resulting child abuse


Smith v. City of Fort Lauderdale, Florida (11th Cir. 1999, handout)

    • City in Florida bans begging on beach boardwalk

    • See Footnote 2, the court doesn’t discuss whether or not this is constitutional

    • Court determines begging IS fully protected speech because it is a charitable solicitation in a public forum

      1. It’s content neutral so use the TPM test

      2. It leaves alternative channels open, is narrowly tailored, and serves a significant governmental interest (eliminating nuisance activity on the beach, preserving a safe and pleasant environment, promoting tourism)

      3. It doesn’t burden substantially more speech than is needed to serve the governmental interest

* Problem with this analysis is that the law IS content-based, so it should be strict scrutiny instead of the TPM test


3. “Fighting Words”/ “Hate Speech”


Black Letter: To be considered “Fighting Words” they must tend to incite an immediate breach of the peace



Gooding v Wilson (1972, p. 1070, note c)

Facts: During an anti-war demonstration when a police officer was trying to restore access to an Army Induction Center, Gooding said to police “ you white son of a bitch, I’ll kill you”. He was convicted under a GA statute prohibiting ‘abusive language that tends to cause a breach of the peace.”

Issue: Is statute constitutional?

Holding: No

Reasoning/Major Points

  • SC did not decide whether GA could constitutionally punish Gooding’s speech

  • Invalidated statute on its face as overbroad

    1. State courts had interpreted the statute as reaching clearly protected expression, e.g. speech that might cause a breach of the peace in some future time




Beauharnais v. Illinois (1952, p 1211)

Facts: Beauharnais, president of White Circle League, distributed leaflets and a petition calling for the Mayor and the City of Chicago to unite and prevent the encroachment of black people and their “aggressions, rapes, robberies, knives, guns, marijuana.” The leaflets included an application for membership. Beauharnais was arrested and convicted an under IL statute that prohibits negative characterizations based on race, color, creed, or religion.

Issue Can a state constitutionally punish libels aimed at groups or certain races as opposed to at individuals?

Holding Yes

Reasoning/Major Points

  • Justice Frankfurter (5-4 decision)

    1. If a state can punish it when it’s about an individual, it can punish it about a group (unless it is a purposeless restriction unrelated to the peace and well-being of the state)

    2. Libels about racial and religious groups promote strife

    3. To be able to excuse libel on the grounds that it is the truth you need the facts to be true AND you have to have good motives and justifiable ends. Even assuming the first is true, Beauharnais didn’t have the second.

    4. Don’t have to get to the Clear and Present Danger analysis, because libel is unprotected here

  • Dissent- Black and Douglas

    1. This “group libel” law is just state censorship

    2. “Fighting Words” are not the main part of what was going on, mostly Beauharnais was just trying to get people into his groupàshouldn’t abridge freedom of the press and speech because incidentally there was this “group libel”


  • Beauharnais would not pass constitutional muster today because

    1. In NY Times v Sullivan SC said libel is not immune from constitutional limitationsà i.e. it’s somewhat protected

  • Libel is now considered of “low” first amendment value


R.A.V. v. City of St. Paul (1992, p. 1219)

Facts: RAV charged with burning a cross on a black family’s lawn under a St Paul MN ordinance that prohibits burning a cross, swastika, or other symbol that one knows or has reason to know “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” MN State Supreme Court upheld conviction. US SC reversed

Issue: Is the statute constitutional?

Holding No

  • Justice Scalia

    1. Ordinance is facially unconstitutional because it limits speech solely on the basis of subject matter, even though the speech is already classified as unprotected

    2. You can proscribe libel, but not libel only on a particular subject

      1. Government can criminalize threats of violence, but not only, for example, those threats that mention President’s foreign policy on aid to inner cities

      2. This would be akin to a state banning libel only against Republicans, because that would be viewpoint discrimination.

    3. This ordinance only applies to words that provoke violence on the basis of color, creed, etcàthis ordinance prohibits bias-motivated hatred

    4. Should try and confront this bigotry, but not by selective limitations on speech

    5. “Fighting Words” are unprotected because their content embodies a particularly intolerable (and socially unnecessary) mode of expressing their idea

    6. Problem is that St Paul has not prohibited all threatening language—but only that that is threatening on the basis of racial, gender, etc.

    7. The government may NOT discriminate among sub-classes of “Fighting Words” based on hostility or favoritism towards a non-proscribable message (e.g. racial intolerance) they contain. The regulation of "Fighting Words" may not be based on non-proscribable content.

    8. Apply strict scrutiny, but law doesn’t pass:

      1. There IS a compelling objective (ensuring basic human rights of members of traditionally discriminated groups)

      2. BUT there ARE other content neutral alternatives, and danger of censorship means that content-based statutes should only be used when absolutely necessary to further the compelling governmental interest

  • Concurrence—White, Blackmun, O’Connor, Stevens (in part)

    1. It’s inconsistent to say that the government can proscribe an entire category of speech because of content, but may not treat a subset differently without violating 1st amendment

    2. They would decide this case on over-breadth grounds instead

      1. The mere fact that an activity causes hurt feelings, offense, or resentment does not render the expression unprotected


  • Black letter Test from RAV is that when content based discrimination in a category of unprotected speech is based on the very same thing that makes the content unprotected that discrimination is unconstitutional

  • SC honors the state court’s interpretation and strikes the statute down because it is under-broad (it doesn’t prohibit all fighting words, only some words)

    1. BUT if ALL fighting words are unprotected (including these at issue) how is this a 1st amendment case at all?

      1. If the statute has a viewpoint-discriminatory purpose it is unconstitutional

      2. This may be a case of viewpoint discrimination WITHIN an unprotected speech category





Wisconsin v Mitchell (1993, p 1224)

Facts: After watching Mississippi Burning, in which a white kid beats up a black kid, Mitchell (black) and friends beat up a white kid. Mitchell was convicted of aggravated battery and given more than the usual maximum sentence because it was a “hate crime” under state law, because the victim was singled out by his race. WI Supreme Court said the statute violated 1st amendment.

Issue: Is the hate crime statute constitutional?

Holding Yes

Reasoning/Major Points

  • Rehnquist (for a unanimous court)

    1. Physical assault is NOT expressive conduct protected by 1st amendment

    2. Different from RAV, because that was speech, (or messages) this is conduct

    3. State’s desire to redress harms is an adequate explanation for penalty-enhancement

NOTES: this case is somewhat inconsistent with RAV




Virginia v Black (2003, Supp p. 174)

Facts: Barry Black, Richard Elliott, and Jonathan O’Mara were each convicted of violating VA’s cross burning statute (Black for leading a KKK rally, Elliot and O’Mara for burning a cross on a neighbor’s lawn)

Issue: Is VA’s statute unconstitutional?
Holding: Yes

Reasoning/Major Points

  • Justice O’Connor

    1. It treats any cross burning as prima facie evidence of intent to intimidate, and so is overbroad and unconstitutional

      1. HOWEVER, the Government COULD have banned ALL cross burning with intent to intimidate—that’s OK

    2. Burning a cross is not always meant to intimidate, but often means people to fear for their lives

    3. The State may punish “true threats”, this type of content-discrimination doesn’t violate 1st amendment

    4. VA can ban cross burning with intent to intimidate, without having to ban all intimidating messagesà can regulate this subset in light of cross burning’s pernicious history as a symbol of impending violence

    5. Here, the “prima facie” part is unconstitutional because prohibits ANY cross burning, even if it was just political speech, which is just the type of speech 1st amendment designed to protect

      1. E.g. cross burning at a rally may arouse a lot of anger and resentment, but unlike a cross burning on a black person’s lawn, it may not be designed to intimidate or be a threat of impending violence

  • Dissent- Thomas

    1. Cross burning is NOT expressive, just conduct, so no need to pass 1st amendment tests

    2. Even if it is expression, there is no constitutional problem with allowing a jury to infer intent to intimidate just from the cross burning itself

  • Scalia- dissent in part and concur in part

    1. State can ban cross burning with intent to intimidate

    2. Shouldn’t invalidate the provision on its face because prima facie evidence doesn’t prove something for good, just proves intent to intimidate until defendant comes forward with rebuttal evidence

  • Souter, Kennedy, Ginsberg- dissent in part, concur in part

    1. VA statute makes a content-based distinction within category of punishable intimidating or threatening expression, and that’s OK

    2. But should invalidate the statute anyways because it doesn’t fall into the RAV category of OK to regulate because the RAV example was not clearly associated with a particular viewpoint

    3. The effect of this law is to skew jury deliberations toward conviction where evidence to intimidate is weakàskews the statute towards suppressing ideas


  • How can we make sense of this case in the context of RAV?

    1. The majority said any cross burning that is actually a threat would be OK to prohibit BECAUSE it’s a threat (not because it’s cross burning). It’s true that this would single out one particular expression, which we associate with a particular message, but it doesn’t single out a viewpoint because any such conduct is ALWAYS illegal when it has an intent to intimidate

    2. RAV said you could criminalize only a part of unprotected speech

    3. So, Virginia satisfies RAV because you can have an under-broad statute as long as there is no viewpoint discrimination.



E. The “Freedom of Expressive Association”


Roberts v. Jaycees (1984, p. 1353)

Facts: Jaycees was a non-profit membership corporation whose objective is to provide young men with opportunity for personal development and achievement and an avenue for intelligent participation in the affairs of the community. Regular Membership was limited to men aged 18-35, and Associate Membership was extended to older men and women—these Associate members can’t vote, hold office, or participate in certain leadership training programs. MN Dept of Human Rights found this policy violated MN Human Rights Act, which prohibits discrimination on the basis of sex


Issue: Does the MN law violate Jaycees’ 1st amendment freedom of expressive association?

Holding: No

Reasoning/Major Points

  • Justice Brennan

    1. The right to associate not absolute

    2. Test: infringements are OK if they serve compelling state interests, unrelated to the suppression of ideas, that can’t be achieved through less restrictive means

      1. MN’s compelling interest in getting rid of sex discrimination justifies impact on Jaycees

      2. The Act doesn’t aim at the suppression of speech and doesn’t distinguish activity based on viewpoint

      3. Jaycees failed to demonstrate that the Act imposes any serious burden on their freedom of association (i.e. admission of women as full voting members vs only associate members is not a serious burden, says the SC)





Boyscouts of America v. Dale (2000, p. 1356)

Facts: Dale was fired from his scoutmaster position when Boy Scouts learned he was gay and a gay activist—NJ Public Accommodations Law, which prohibits discrimination on basis of sexual orientation was interpreted by state courts to forbid boy scouts from doing this.

Issue: Does the NJ law violate boy scouts right to expressive association?

Holding: Yes

Reasoning/Major Points:

  • Justice Rehnquist

    1. Test: a Statute infringes on freedom of association if affects in significant way group’s ability to advocate public or private viewpoints

    2. Boy Scouts seek to transmit values into young boysà this is protected expressive conduct

    3. Forced inclusion of Dale would significantly affect ability to advocate viewpoints, say the Boy Scouts, because they don’t want to promote homosexuality as legitimate

    4. SC will defer to Boy Scouts own view of what would impair/burden their goal and accept that Dale’s position as assistant scout master burden this goal

    5. So NJ law violates 1st amendment

      1. Distinguishes from Jaycees because admitting women wouldn’t alter/interfere with ideas sought to express

  • Dissent—Ginsberg, Souter, Breyer, Stevens

    1. Never before has Right to Expressive Association been allowed as a means to trump anti-discrimination laws

    2. Freedom of association isn’t a right to discriminate at will, nor a right to maintain an exclusionary membership policy simply out of fear of what the public reaction would be if the group’s membership was opened up

    3. Anyways, Dale’s inclusion wouldn’t significantly burden the Boy Scouts message (ie DON’T defer to Boy Scouts own definition of what would burden their message)

    4. Majority’s reasoning is that gays are so different from everyone else that they can be singled outà this is tantamout to a badge of inferiority


Rubenfeld, this case is inconsistent with the holding in Jaycees, no matter what the court says

  • Unlike in Jaycees, the SC asks here if the law impairs what the association claims its message is, and this is a lot of deference!

  • BUT---this law is regulating CONDUCT, not speech, AND it’s a content-neutral law, so why are we not using the O’Brien Test, how did we even get into strict scrutiny?

    1. SC says it’s doing the strict scrutiny balancing test, but doesn’t actually balance NJ’s interest in preventing discrimination against the boyscouts’ right to express themselves; there is no discussion of how the SC actually plans to balance these interests

    2. Rubenfeld: “This is just a conclusory statement with no analysis”

  • Lots of conduct impairs people’s ability to express themselves the way they want (e.g. I want to drive my car at 85 mph)

  • The only way to resolve this case is to see a special 1st amendment right to association that makes it more special than other conduct

  • SC has identified 2 types of freedom of association

    1. Freedom of intimate association

    2. Freedom of expressive association

  • EVERY anti-discrimination law burdens (b) because discrimination is very expressive

  • All cases before this one that challenged anti-discrimination laws on free speech grounds lost, this is the first one that won



Rubenfeld on 1st amendment law:

  • 1st amendment law is structured by the same kind of heightened scrutiny we saw in Equal Protection/14th amendment lawàstrict scrutiny that is triggered by content-based regulations and semi-strict scrutiny for other laws that are not-content-based

  • All “Scrutinies” can be looked at as 1) consequentialist, or 2) purposivist

1) If you take the consequentialist position you have to do a balancing test

    1. You get decisions like Smith (e.g. the Beggers’ interest/value in begging speech v. the City’s interest in tourism, etc)

    2. Or you might find, as in Boy Scouts, that anti-discrimination laws can burden speech because discrimination is expressive too

    3. Since we use strict scrutiny for racial discrimination but only intermediate scrutiny for gender, on the consequentialist (effects based) view we might have to assume that the state’s interest in eradicating racial discrimination is more important than eradicating gender discrimination

2) If you use a purposive analysis you don’t have to do this

    1. Instead, gender discrimination uses intermediate scrutiny because we have lots of laws (like bathroom laws) that don’t automatically evoke suspicion that some unconstitutional PURPOSE is at foot, but not because state interest is less strong in eradicating sexism



Applying purposivist view to 1st amendment law:

    • On Freedom of Associative Expression

      1. There is no freedom of association in the 1st amendment

      2. Association by itself is conduct; the reason why anti-discrimination law s are OK to stop people from only selling to whites is not because in a balancing test the state’s interest wins, but because selling only to whites is conduct so don’t get into a strict scrutiny analysis

      3. That conduct is expressive (all conduct is) doesn’t mean it gets heightened scrutiny whenever someone wants to violate the law

      4. There is no right to exemptions from generally applicable conduct laws for people who want to violate them for expressive reasons (unless state is specifically targeting the message that conduct is expressing)

      5. If the state goes after someone BECAUSE of antipathy towards views or messages –this is where 1st amendment applies and has to go through

        1. e.g. NAACP membership list cases (state can’t demand the lists)

        2. Could state demand that KKK reveal membership lists? Probably not.

        3. But where an otherwise generally applicable conduct law applies to a specific organization, claims that making us follow the law would force us to send a message that we endorse those law DOESN’T give it 1st amendment scrutiny

        4. Just as a restaurant owner cannot use race as a proxy to see if you’ll be a good employee, an association cannot use race as a proxy for beliefs to see if you’ll be a good member

This encompasses all 1st amendment law EXCEPT Boy Scoutsàpeople almost ALWAYS lose the O’Brien cases because you don’t just get a free pass out of generally applicable conduct laws because it inhibits your expression




F. Equalizing Political Speech


Miami Herald Publishing Co. v. Tornillo (1974, p. 1389)

Facts: Florida had a “Right of Reply” statute that said that if a candidate for political office’s personal character or official record was assaulted by any newspaper, he had the right to demand that the newspaper print, free of charge to the candidate, the candidate’s reply to the charges. Reply must be in as conspicuous a place and same kind of type as the charges which prompted the reply

Issue: Is FL’s “right of reply” statute constitutional?

Holding: No

Reasoning/Major Points:

  • Chief Justice Burger (for a unanimous court)

    1. This statute is tantamount to prohibiting newspapers from printing specific matterà CANT FORCE the paper to print something

    2. The statute exacts a penalty on the content of the paper in the form of the cost of printing

    3. Were this statute to stand, newspapers might well determine that it’s better to avoid controversy and not print lots of stuffàthis would dampen the vigor and variety of public debate

    4. Even if didn’t cost newspapers anything, the statute would still be unconstitutional because illegitimately intrudes into exercise of editorial control and judgment

  • Concurrence Brennan

    1. This decision implies no view on the constitutionality of “retraction” statutes affording plaintiffs who are able to prove defamatory falsehoods a statutory right of action to require publication of a retraction



Red Lion Broadcasting Co. v. FCC (1969, p. 1391)

Facts: FCC had a “Fairness Doctrine” that included a regulation governing personal attacks and political editorializing. This doctrine imposed on Radio and TV broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of debate must be given fair coverage; when personal attacks are made, the attacked person must be given notice, a transcript, and a reasonable opportunity to respond. There was also a political editorializing rule that a broadcaster, when he endorses or opposes a candidate, must notify the opposed candidate or opponents of endorsed candidate and give them reasonable opportunity to reply.

Issue: Is the Fairness Doctrine constitutional?

Holding: Yes

Reasoning/Major Points

  • JusticeWhite

    1. Not everyone can broadcastàmore people would like to broadcast than there is room on the air for. Only some can be licensedàso there is not an unlimited right to broadcast

    2. When someone is licensed, he has no constitutional right to monopolize a radio frequency to the exclusion of fellow citizens

    3. The public has a 1st amendment right to receive suitable access to social, political, moral, and other ideas and experiences

    4. If the FCC didn’t force broadcasters to permit answers to personal attacks, etc, they would have unfettered power to make time available only to highest bidder, and people with whom they agreed

    5. There is no sanctuary in the 1st amendment for unlimited private censorship when operating in a medium open to all


  • Think about Tornillo and its application to newspapers

    1. Can you apply the Fairness Doctrine from Red Lion to newspapers?

    2. Tornillo is distinguishable from Red Lion because the Government does not grant licenses to newspapers



Buckley v. Valeo (1976, p. 1324)


Facts: The Federal Election Campaign Act of 1971 and related provisions of the Internal Revenue Code of 1954, all were amended in 1974 so that a) individual political contributions and expenditures relative to a clearly identified candidate were limited, and campaign spending by candidates for various federal offices was subject to prescribed limits; b) contributions and expenditures above certain threshold levels must be reported and publicly disclosed; c) a system for public funding of the Presidential campaign activities was established; and d) a Federal Election Commission (“FEC”)was established to administer and enforce the legislation

Issue: Do the challenged provisions violate 1st amendment freedom of communication?

Holding: Yes and No. The SC upheld the individual contribution limits, the disclosure and reporting provisions, and the public financing scheme, but invalidated the composition of the FEC and the limitations on expenditures

Reasoning/Major Points

  • Per curiam

    1. To uphold contribution and expenditures provisions Appeals Court relied on O’Brien

    2. Don’t agree with lower court. Shouldn’t be the O’Brien test here because although it seems like conduct, it’s actually speechà should be strict scrutiny

  • Contribution limitations are OK

    1. Contributions are acts of expressive association that people have a right to, restricting contributions restricts freedom of political association

    2. That freedom is not absoluteà

      1. Test: use strict scrutiny to see if the restriction is OK here (ie “sufficiently important governmental interest and closely drawn means”

      2. Prevention of corruption is an acceptable governmental interest sufficient to justify $1000 contribution ceiling for major-party challengers and minor party candidates and $5000 by political committees

      3. Further, the expression of contribution doesn’t depend on how much money you have, all your contribution leads to the same expressionàCaps are OK as long as you are still allowed to give SOME money

  • Expenditure Limitations are not OK

    1. Expenditures are different from contribution because the amount of money you give directly relates to how much expression you get

    2. So using strict scrutiny, caps are unconstitutional—while neutral as to ideas expressed, they limit political expression

    3. Government can’t restrict the speech of some in order to enhance the relative voice of anotheràthe interest in equalizing voices is not a constitutionally permissible interest

      1. You don’t get to a balancing test here because the ends are illegitimate

    4. Government can’t decide that too much spending to promote political views is wasteful, excessive, or unwise

  • Burger, concur in part and dissent in part

    1. Contribution limitations should be unconstitutional too

  • White, concur in part and dissent in part

    1. Expenditure limitations should be ok too

    2. Compulsory bargaining is ok, so is this

    3. Expenditure limits help get rid of corruption

    4. It’s important to restore public confidence in elections


  • This lays the groundwork for all developments and loopholes in campaign finance laws

  • SC says 1st amendment is about a strict scrutiny balancing test (p. 1329); so you give the facts and information, and balance at the interests the law/action is said to further v. the freedom it impinges upon.

  • SC says interest is equalizing voices is not constitutionally permissible

  • Can this be squared with Red Lion, which WAS a case where the Government restricted the speech of some to enhance the relative voice of others?

  • Rubenfeld doesn’t think there is any contradiction between Buckley and Red Lion because there is Governmental licensing and extreme bandwidth scarcity in Red Lion so it’s more understandable that the Government would be regulating

    1. Still, the extraordinary thing about Red Lion is that one is pretty surprised that the court does not apply the Red Lion reasoning to Tornillo

    2. Red Lion p. 1392, SC writes that the 1st amendment is not a right of individuals to express their views but the collective right of the public to receive “suitable access to social, political, esthetic, moral, and other ideas and experiencesà don’t want one broadcaster with too much influence

      1. This paragraph suggests a radically different conception of the 1st Amendment

      2. Buckley rejects this conception

    3. If you take this seriously, you might take issue with the New York Times being so influential, but this is not the American 1st amendment as we know it

  • Rubenfeld argument for Buckley

    1. If you believe in the public right to suitable access a la Red Lion then the Government will have to decide what is appropriate or suitable access, and this is problematic

    2. Better to take a PURPOSIVIST account of the 1st amendment: the Government cannot take action with the purpose of correcting certain kinds of harms

      1. Government can’t stop communication because they are worried that the ideas might be persuasive and accepted

    3. The purposivist view is NOT that you can suppress a book even if you are opposed to what the message might lead to as long as you are not opposed to the message itselfàthat is be communicative suppression too

      1. Government can’t act with the purpose of suppressing communication no matter what harm down the road its worried about

    4. If you accept the purposivist view, the problem with the Expenditure caps is the idea of equalizing speech in the public forum

      1. The Interest in equalizing voices is NOT a constitutional interest

      2. There is no problem with rich people buying up time so they will influence elections: if people see their ads and are persuaded and vote accordingly that should be fine. The alleged harm is in the effectiveness of the speech, but the Government shouldn’t be able to stop this

    5. Buckley got it right because the contribution limitations were really intended to curb corruption while the expenditure limits were worried that too many people would be convinced by the speech



  • So what does the 1st Amendment protect?

    1. Chaplinsky suggests that speech is usually valuable to society and where it isn’t valuable it isn’t protected. But if you take this view you are committed to a cost-benefit analysis

    2. RAV confuses this

      1. If speech isn’t protected when not valuable, then it shouldn’t matter what you do to a subsection of the unprotected speech because its already unprotected

      2. But RAV says that even within unprotected speech the Government can’t discriminate based on viewpoint

    3. 1st amendment is about prohibiting the Government from acting in a certain way towards certain ideas





First National Bank of Boston v. Bellotti (1978, p. 1340)

Facts: MA statute prohibited corporations from making contributions or expenditures to influence the vote or voters except on issues materially affecting the property, business, or assets of the corporation (tax doesn’t count). State court upheld the statute saying that corporation’s 1st amendment rights are limited to those materially affecting its business, property or assets

Issue: Does the statute abridge expression that the 1st amendment was meant to protect?

Holding: Yes

Reasoning/Major Points:

  • Justice Powell (for a 5-4 court)

    1. Protected speech doesn’t lose its protection just because it’s a corporation and not a person that’s speaking

    2. Corporate advertising may influence the electorate, but the fact that the corporation’s advocacy might work is not reason to suppress it (see Buckley, supra)

    3. People can make their own judgments about whether the corporation’s views are worth supporting

  • Dissent, White Brennan and Marshall

    1. Corporate expression doesn’t at all further “principal 1st amendment expression,” which is the use of communication as a means of self-expression, self-realization, or self-fulfillment

    2. MA has a legitimate interest in preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the state for economic purposes from using that wealth to acquire unfair advantage in political arena

  • Dissent, Rehnquist

    1. The corporation is an artificial being, and has only those properties which its charter gave it. It doesn’t automatically get freedom of speech.

    2. State newspaper has freedom of press because that is necessary to its business, but the right of political expression is not necessary for a corporation



Austin v. Michigan Chamber of Commerce (1990, p. 1342)

Facts: § 54(1) of the Michigan Campaign Finance Act prohibited corporations from using corporate treasury funds for independent expenditures in support of or in opposition to any candidate for state office, but allowed expenditures from segregated funds (e.g a Political Action Committee) to be used solely for political purposes.

Issue: Is the statute constitutional?

Holding Yes

Reasoning/Major Points

  • Justice Marshall (for a 6-3 court)

    1. Corporations can amass resources in economic marketplace to obtain unfair advantage in political arenaàthis is not an indication of popular support for corporation’s political ideas, but of economically motivated decisions of investors and customers

    2. The state has articulated sufficiently compelling rationale to support restrictions

    3. It is narrowly tailored because it is precisely targeted to eliminate the distortion caused by corporate political spending while also allowing corporations to express their political views through separate segregated funds

  • Dissent, Scalia

    1. Corporation’s large bank accounts are not a sufficient justification for the suppression of political speechà the government can’t discriminate just because corporation is rich

  • Dissent, Kennedy, Scalia, O’Connor

    1. Argument that a Political Action Committee is an alternate means is a costly and burdensome disincentive to speech


G. Subsidies, Penalties, and Government Speech


Maher v. Roe (1977, p. 835)

Facts: A state regulation granted Medicaid benefits for childbirth but denied them for non-medically necessary abortions.

Issue Does this statute unconstitutionally impinge upon a fundamental right explicitly or implicitly protected by the Constitution or violate the 14th amendment Equal Protection clause?

Holding: No

Reasoning/Major Points


  • Justice Powell (for a 6-3 court)

    1. Doesn’t violate equal protection

      1. State doesn’t have to pay for poor pregnant women’s care, but when it does, manner is subject to constitutional limitations

      2. However, here there is no discrimination against a suspect class (Poor pregnant women are not a suspect class. Indeed, Financial need alone has never been held a suspect class)

    2. Roe v. Wade only protects women from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy—She does not have an unqualified right to an abortion

    3. Statute places no obstacles on poor women

    4. Women suffer no disadvantage because the state pays for childbirth but not abortions, and the statute imposes no restrictions that were not already there

    5. There is a big difference between this case and Roe because in Roe there was direct state interference and here it is simply state encouragement of alternative activity

    6. So it passes rational basis test because government has a rational interest in encouraging normal childbirth and protecting unborn life

  • Dissent, Brennan, Marshall, Blackmun

    1. Majority shows a distressing insensitivity to plight of poor women

    2. The statute infringes on a privacy right by bringing financial pressures on indigent women that force them to bear kids they otherwise wouldn’t have

    3. SC has held other withholding of grants and financial benefits unconstitutional (see e.g. Sherbert v. Verner, when the SC held unconstitutional a statute that denied unemployment compensation to a woman who for religious reasons could not work on Sundays)à this is the same thing

    4. This restriction DOES unduly burden right to choose

  • Dissent, Marshall

    1. Government is simply trying to impose a particular moral viewpoint here



Harris v. Mcrae (1980, p. 838)

Facts: The Congressional “Hyde Amendment” prohibited the use of federal Medicaid funds for abortions except in cases of life endangerment, rape or incest.

Issue: Does this amendment unconstitutionally impinge on a woman’s right to abortion?

Holding: No

Reasoning/Major Points

  • Justice Stewart (for a 5-4 court)

    1. Just because a woman has a right to abortion doesn’t mean she has constitutional right to the financial resources to avail herself of full range of choices

    2. Though the state can’t impose burden on the right to abortion, it does not have to remove them either

    3. Don’t use strict scrutiny here because there is no suspect class and no invasion of a fundamental right

    4. Hyde Amendment passes rational basis test easily

  • Dissent, Brennan, Marshall, Blackmun

    1. Same basic reasons as Maher, supra


Rust v. Sullivan (1991, p. 1293, 1556)

Facts: Title X of the 1970 Public Health Service Act provides that no Title X funds should be used in programs that provide abortions as a method of family planning; organizations receiving these funds can’t provide abortion counseling or referral, even upon request. They also can’t engage in activities that “encourage, promote, or advocate abortion”, and have to be physically and financially separate from prohibited abortion activities

Issue: Does this statute violate the 1st amendment by discriminating based on viewpoint?

Holding: No

Reasoning/Major Points

  • CJ Rehnquist (for a 5-4 court)

    1. Government can make a value judgment favoring childbirth over abortions

    2. To hold that congress unconstitutionally discriminates on the basis of viewpoint by choosing to fund a particular program would render many government programs constitutionally suspect, e.g. when Congress established a National Endowment for Democracy it didn’t have to establish competing ones for communism and fascism

    3. Congress is not singling out a disfavored group on the basis of speech, but is only refusing to fund certain activities, including speech, which are specifically excluded from the scope of the project funded

    4. Government is not denying a benefit, just insisting that public funds go to certain purposes

  • Dissent, Blackmun, Marshall, Stevens

    1. This is the first time SC has upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds

    2. Government’s interest in distorting doctor/patient dialogue falls far short of that necessary to justify suppression of truthful information and professional medical opinion regarding constitutionally protected conduct



Legal Services Corp., v. Velasquez (2001, Supp. 196)

Facts: Congress established the Legal Services Corporation in 1974 to distribute government funds to eligible grantees for legal assistance to poor people, and included the restrictions that you couldn’t challenge the legality or constitutionality of welfare laws

Issue: Do the prohibitions on challenging welfare laws violate1st amendment and constitute viewpoint discrimination?

Holding: Yes

Reasoning/Major Points:

  • Justice Kennedy (for a 5-4 court)

    1. Distinguished from Rust

      1. Viewpoint based restrictions are OK when the government is the speaker as in Rust, where the government used private speakers to transmit information pertaining to its own program

      2. But here, the subsidizing funds are there to encourage a diversity of private speech and viewpoints, government can’t just exempt welfare speech

      3. Note: this is a pretty weak distinction, are the doctors in Rust really the equivalent of government actors?

    2. Distorts the legal system when the Government restricts what lawyers can say to their clients

    3. Particularly problematic because if the attorney withdraws, poor person may not be able to find another lawyer

      1. Note: again, isn’t this the same problem with the abortion cases, that if the doctor doesn’t provide abortions the woman may not get one? But there the SC said that it didn’t make her any worse off than if she had never had the doctor in the first place???? See dissent…

  • Dissent, Scalia, Rehnquist, O’Connor, Thomas

    1. These people don’t have any rights to this money, it’s just a subsidy

    2. Doesn’t matter if there is no other option for the welfare recipient, because he would be in no worse a position than before he had the lawyer


  • In Velasquez SC changes direction from cases like Rust

  • In banning viewpoint discrimination in the allocation of Government funds Velasquez seems in conflict with Rust v. Sullivan

    1. The SC turned Title X clinic doctors into Government employees to make this argument, which seems a bit of a stretch

  • Key point: when the Government speaks it CAN express opinions, there is no requirement of viewpoint neutrality. I.e. an organ of the Government can express pro-democratic and anti-communist opinions

  • Line of cases: distinction between subsidies and penalties

    1. If it’s only a subsidy and not a penalty it is probably OK, unless the purpose is illegitimate or if the subsidy penalizes people for exercising their constitutional rights







United States v. American Library Association (2003, Supp. 201)

Facts: Two federal programs provide funds to public libraries to help them expand onto the internet, but the Children’s Internet Protection Act (CIPA) says libraries will not get money unless they install obscenity blocks. Libraries, library patrons, and web sites sued. Lower court held the CIPA unconstitutional.

Issue: Does the statute violate 1st amendment by attaching restrictions onto freedom of speech as a condition of receiving these funds?

Holding: No

Reasoning/Major Points:

  • Rehnquist (for the plurality of Rehnquist, O’Connor, Scalia, and Thomas)

    1. While it’s true that sometimes non-porn sites get blocked too, the library can delete specific blocks to minimize this

    2. Congress has wide latitude to attach conditions to the receipt of federal assistanceà government has broad discretion to make content-based judgments in deciding what private speech to make available to the public

    3. The goal of public libraries is not to provide universal coverage but to provide requisite and appropriate materials that would be of the greatest benefit and interest to the community

    4. Might be embarrassing to have to ask a librarian to unblock a site, but Constitution doesn’t guarantee the right to acquire info at a public library without embarrassment

    5. When the government appropriates public funds for a program it can define the limits of that program

    6. Because public libraries use of blocking software doesn’t violate their 1st amendment rights, CIPA doesn’t induce libraries to violate constitution and is a valid exercise of Congress’ spending power

  • Concurrence: Kennedy

    1. Adults can unblock it easily, so they are not very burdenedà statute is certainly not unconstitutional

  • Concurrence: Breyer

    1. Should apply heightened scrutiny—not rational basis (because CIPA does restrict public’s receipt of information) but shouldn’t apply strict scrutiny either

      1. Look at the legitimacy of statute’s objectives, the extent to which it will achieve that objective, and whether its harm is out of proportion with its objective

      2. Government has legitimate and compelling objectives to restrict access to obscenity and child porn, which are harmful to minors

      3. Blocking software is over and under-inclusive but there is no better alternative

      4. There is an exception to the over-blocking because adults can ask to unblock a site

  • Dissent: Stevens

    1. We should leave this issue to local decision-makers

    2. CIPA is too imprecise; Government may not suppress lawful speech as the means to suppress unlawful speech

  • Dissent, Ginsberg

    1. It’s censorship




The 14th Amendment has a State Action requirement: states cannot deny Equal Protection and Due Process. So there is a condition that the state actor must be doing the violation to bring a claim. The cases brought in this block are the difficult cases. Most cases are not difficult—if any state official has taken the action in question, it’s obviously state action.



But what happens when private actors take the action in question—are there any circumstances in which private action can be seen as state action?

There are 3 different ways that private parties’ actions can be attributed to the State:

  1. Judicial intervention. Calling on the courts to settle a dispute.


  1. Entanglement. Did state actors get entangled in a manner that makes a private party’s action State action?

  2. Public function. Does the private party perform a public function that makes it a state actor?


A. Background


The Civil Rights Cases (1883, p. 1502)

Facts: The Civil Rights Act of 1875 mandated equal rights to the enjoyment of accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theatres, and other places of public amusement to everyone regardless of color or previous condition of servitude, and was punishable by fines and criminal penalties

Issue: Is this statute unconstitutional because it is not authorized by any substantive grant of power to the federal government?

Holding: Yes

Reasoning/Major Points:

  • Justice Bradley (for 8-1 court)

    1. Congress has no power to do this in 13, 14 or 15th amendments

    2. 14th amendment is prohibitory in character and aimed at the states; invasion of individual rights not covered

      1. This Act steps into the domain of local government by laying down rules for individual behavior

    3. 13th amendment argument doesn’t work because the refusal to serve someone in public accommodation was no more than an ordinary civil injury and not a badge of slavery

  • Dissent, Harlan

    1. “The substance and spirit of the amendments have been sacrificed by a subtle and ingenious verbal criticism”

    2. Black freedom necessarily involves immunity from and protection against all discrimination

    3. 14th amendment isn’t all prohibitory; § 1 (including privileges and immunities clause) is very affirmative

    4. Civil Rights Act benefits citizens of every race and color


DeShaney v. Winnebago County Department of Social Services (1989, p. 1507)

Facts: Custody of Joshua DeShaney was given to his father when Josh was 1 years old. They moved to Winnebago County, then Dad beat Josh. Social Services had reports on this but did nothing. At 4-years-old Dad beat Josh so bad he got permanent brain damage, retarded, and confined to an institution for life. This case was an action by Josh and his mother claiming that state conduct deprived Josh of liberty in violation of 14th amendment due process.

Issue Does the state’s INACTION here constitute a state action that takes liberty without Due Process in violation of the 14th amendment?

Holding: No

Reasoning/Major Points:

  • CJ Rehnquist

    1. State doesn’t have to protect individuals’ life liberty and property from other citizens

    2. State only has an affirmative duty when it imposes limits on persons’ liberty itself, DOES NOT have a duty arising from its knowledge of the individual’s predicament or from its expression of intent to help him

  • Dissent, Marshall, Blackmun

    1. Focus on the action that Wisconsin HAS taken towards Josh and other kids like him, rather than inaction of state

    2. This action invites citizens and other government entities to depend on social services to protect kids like Josh

    3. So, kids are made worse off when a program exists and then people don’t do their jobs





Flagg Brothers v. Brooks (1978, p. 1509)

Facts: Brooks was evicted from her apartment. The city marshal arranged for storage in a warehouse (by Flagg Brothers), and then disputes arose over payments for moving and storage. Flagg Brothers threatened to sell all the goods in accordance with New York Uniform Code §7-210, and Brooks filed suit, saying that violated 14th amendment denial of property without Due Process.

Issue: Is a warehouseman’s proposed sale of goods entrusted to him for storage, as permitted by NY Uniform Code §7-210 an action properly attributable to the state of NY and thus a violation of Due Process?

Holding: No

Reasoning/Major Points:

  • CJ Rehnquist

    1. Brooks named no public officials as defendants

    2. Brooks says NY delegated its authority to Flagg Brothers, but Brooks could have sought a contractual waiver barring warehouse from selling her stuff

    3. Settlement of disputes between debtors and creditors is not a traditionally public function

    4. Brooks’ main argument is that state has refused to act, but statutory refusal is no different from an ordinary statutory limitations

  • Dissent: Stevens, White, Marshall

    1. Question is really whether a state statute which authorizes a private party to deprive a person of his property without consent must meet requirements of Due Process clause

    2. Answer has to be yes unless state has unlimited power to transfer interests in private property without procedural protections

    3. Majority argues that state PERMITS but doesn’t compel the sale, and doesn’t delegate a power EXCLUSIVELY reserved to the state. Majority characterizes this as purely private action

    4. But you can’t draw a bright line between the private and the public, this borders on the public



Lugar v. Edmondson Oil Co. (1982, p. 1513)

Facts: Lugar was indebted to Edmondson Oil, who filed an ex parte petition for attachment of Lugar’s propertyàthen sequestered the property. Lugar sued saying that the State and Edmondson deprived him of property without Due Process

Issue: Did the attachment of Lugar’s property constitute state action and so violate 14th amendment Due Process?

Holding: Yes

Reasoning/Major Points

  • Justice White (for 5-4 court)

    1. Private use of challenged state procedures with the help of state officials constitutes state actionàLugar has alleged sufficient state involvement to make out a due process violation

    2. To be state action the conduct has to be fairly attributable to the state

    3. Has to be caused by the exercise of some right or privilege created by the state or rule of conduct imposed by the state or a person for whom the state is responsible

    4. Must be a person who can fairly said to be a state actor

    5. Distinguished from Flagg Brothers

      1. Unlike in Flagg where there was no real state action, here the party’s joint participation with state officials in seizure of disputed property is sufficient to characterize that party as a state actor

  • Dissent: Powell, Rehnquist, O’Connor

    1. This is a private citizen who did no more than commence a legal action of a kind traditionally initiated by private partiesà NOT state action


B. Judicial Intervention


Shelley v. Kraemer (1948, p. 1518)

Facts: Black families purchased homes burdened by restrictive covenants (Court enforcement of private homeowner agreements excluding blacks). Kraemer sued in state court to enforce covenants, state court upheld the covenants and ordered injunction

Issue: Are these private discriminatory covenants covered by the 14th amendment and so unconstitutional?

Holding: Yes

Reasoning/Major Points:

  • CJ Vinson

    1. 14th amendment protects property rights and rights of occupancy

    2. Restrictive agreements alone are constitutional, because there is no state action

    3. But because of participation of state courts in enforcing the covenants, there is state action and so unconstitutional

  • NOTES:

    1. If this logic was extended any enforcement of private rights could be considered public actionà this has not been the case over the years

      1. BUT in Barrows v. Jackson (1953, p. 1523 Note. 4a), SC held Shelley logic did extend to money damagesà i.e. blacks moved into neighborhood in spite of restrictive covenant and white guy sued for money damages against the white guy who broke the covenant by selling to the blacks. SC said Shelley barred the suit.


C. Entanglement


State Enforcement of discriminatory testamentary and inter vivos dispositions of property (Note 4(b) p. 1524)

  • Pennsylvania v. Board of Directors of City Trusts (1957), SC held that a private will that established a school for “poor white male orphans” to be run by the city of Philadelphia was unconstitutional. On remand, state court appointed private trustees instead but Court of Appeals held this substitution was unconstitutional as well

  • Evans v. Newton (1966), US Senator Bacon executed a will that left a tract of land to be used as a park in Macon, GA for white people only, city was the trustee. When city began to admit black people, the board of managers sued asking that the city be removed as trustee. City resigned, and state court appointed private trusteeàSC held that park could not be run on a segregated basis. Park should be treated as a public institution because it was serving a public function.

  • Evans v. Abney (1970) back from the remand of Evans v. Newton. State court said Senator Bacon’s will was impossible to fulfill and land should revert to his heirs. SC affirmed, saying that GA eliminated the discrimination by eliminating the park itself

    1. Dissent: Brennan

      1. Shelley stands for the proposition that where parties of different races are willing to deal with each other a state court cannot keep them from doing so by enforcing a privately devised racial restrictionàthis is a case where a state court is enforcing a racial restriction to prevent willing parties from dealing with each other and is thus a violation of 14th amendment Equal Protection

      2. Closing the facility conveys an unambiguous message of community involvement in racial discrimination




Burton v. Wilmington Parking Authority (1961, p. 1527)

Facts: Eagle Coffee shop refused to serve Burton because he was black. Eagle was in a building owned and operated by the Wilmington Parking Authority, which was an agency of the state of Delaware.

Issue: Does Eagle’s action constitute discriminatory state action in violation of 14th amendment Equal Protection?

Holding: Yes

Reasoning/Major Points:

  • Justice Clark

    1. Land and building were publicly owned

    2. Building was dedicated to public use

    3. Eagle received such benefits as, for example, no increased taxes because it resided in a building owned by a tax exempt government agency

    4. Could not have a building wherein one part everyone has equal rights, but one part discriminates

    5. This is not a universal test because SC doesn’t know how to create one to measure state agency, (YIKES!, we’ll just do it on an ad hoc basis) but in this case, this is definitely state action

    6. SC thinks its important that there were state and national flags hanging out of the roof of the buildingàexemplifies public property


  • Concurrence: Stewart

    1. Supreme Court of Delaware in saying it wasn’t state action relied on a statute saying you can exclude people who would be offensive to most customers. There were no suggestions that Burton would be offensive to most customers.





Rendell-Baker v. Kohn (1982, p. 1533)

Facts: Petitioners were employees of New Perspectives School, a school for problem kids. The school was regulated by the state, got most of its students from public institutions, and 99% of operating budget came from public funds. Petitioners were discharged for disagreeing with school policies, and claimed their discharge violated free speech and procedural due process

Issue: Can these discharges be considered state action?

Holding: No

Reasoning/Major Points:

  • CJ Burger

    1. School’s receipt of public funds doesn’t make discharges a state action

    2. There is no symbiotic relationship between school and state like in Burton

  • Dissent: Marshall, Brennan

    1. State delegated to the school its statutory duty to educate kids with special needs

    2. School receives almost all of its funds from the state and is heavily regulated

    3. Nexus between school and state is so substantial that the school’s action must be considered state action


  • Had the school been discriminating on racial grounds it probably would have been considered a state actor, e.g. Burton

  • Maybe SC felt that because it was not the Government that influenced or was the inducement for the discharges, there was not a very strong case for Entanglement

  • SC pretends to be applying the same analysis as in Burton but with racial discrimination they seem to more likely to find Entanglement than in Procedural Due Process cases like Rendell-Baker

    1. Maybe this is because the SC thinks it’s ultimately a question of responsibility, and wants the Government to take more responsibility for race discrimination so it’s a quicker trigger

- Official Doctrine: Burton and Rendall-Baker have the same official doctrine but they don’t square too well





San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1987, p. 1534)

Facts: Congress granted US Olympic Committee the exclusive right to word “Olympic.” Committee sued San Fran A & A for the slogan “gay Olympic games.” SF A & A responded that committee had let other groups use term Olympic, and this was state action and discriminatory selection in violation of 5th amendment Due Process.

Issue: Does Committee’s action constitute State Action and therefore violate 5th amendment DP?

Holding: No

Reasoning/Major Points:

  • Justice Powell

    1. Committee’s choice on how to enforce its right isn’t state action

    2. The Fact that Congress granted the committee a corporate charter does not render it a government agent. Nor is the trademark. All enforceable rights in trademarks are created by some governmental act.

  • Dissent: Brennan, Marshall

    1. There is a symbiotic relationship here between the government and the Olympic Committee as well as a connection in the public eye

    2. It confers mutual benefits, there are financial and legislative links

    3. This connection is enough to render Committee’s action state action


  • This case might be inconsistent with Burton

  • Why isn’t the lower court’s action in enforcing the trademark state action a la Shelley?

  • No one even argued this because Shelley is pretty much dead law; courts do not hold that when a lower court enforces the rights of private parties that constitutes state action because this would mean no real distinction between state and private action

  • But once we can’t take Shelley on its face, how can we take NY Times v. Sullivan?

    1. The difference is that the libel law in NY Times singled out speech for punishment, while in Shelley the only law you have is a race neutral law of property and the party that is acting on the basis of race is a private party



Public Utilities Commission v. Pollack (1952, p. 1537)

Facts: Capital Transit, a bus and streetcar company, installed a “music as you ride” program, wherein a radio program was played through loudspeakers in the streetcars and buses. In 1949, the Public Utilities Commission, which regulated Capital, ordered an investigation of the program and said program was OK because it was consistent with public convenience, comfort and safety. Some passengers appealed. The Appeals Court reversed and said deprived passengers of liberty without due process

Issue: Does Capital and the Commission’s action constitute state action and make this a violation of the 1st and 5th amendments?

Holding: Yes and No

Reasoning/Major Points:

  • Justice Burton

    1. This is State Action

      1. 1st and 5th amendment DO apply

    2. But not unconstitutional



Moose Lodge No. 107 v Irvis (1972, p. 1538)

Facts: Moose Lodge was only for whites and prohibited members from bringing blacks into the dining room and bar. A Black guest sued Moose and the Pennsylvania Liquor Authority and sought an injunction requiring that the liquor authority revoke Moose Lodge’s license so long as it continued its discriminatory practices. Lower court ruled for him.

Issue: Does the fact that PA liquor authority gave Moose Lodge a liquor license make Moose Lodge’s discriminatory service practices state action and thus unconstitutional under 14th amendment Equal Protection?

Holding: No

Reasoning/Major Points:

  • Justice Rehnquist

    1. If the impetus for the action is private, the state must be invidiously involved for it to be state action

    2. There is no symbiotic relationship like there was in Burton

    3. PA law doesn’t discriminate in giving liquor licenses or to purchase and consumer in public accommodation

  • Dissent: Douglas, Marshall

    1. In PA it is hard to get liquor, you basically have to go to private clubs. By granting licenses to establishments that discriminate, the State is unconstitutionally restricting the ability of blacks to obtain liquor

  • Dissent: Brennan, Marshall

    1. There is an intertwining of the PA liquor licensing board with Moose Lodge that unconstitutionally lends the state’s authority to racial discrimination





Jackson v. Metropolitan Edison Co (1974, p. 1540)

Facts: Metropolitan Edison is a privately owned utility that has a certificate of public convenience issued by a state utility commission. It is subject to extensive state regulation, and can disable service for non-payment. It disabled Jackson’s, who sued for a violation of the 14th amendment by taking property without Due Process.

Issue: Does the Edison’s termination of Jackson constitute state action and so is unconstitutional?

Holding: No

Reasoning/Major Points:

  • Justice Rehnquist

    1. The mere fact that a business is subject to state regulation does not by itself convert its action into state action for purposes of the 14th amendment, nor does the fact that the state regulation is extensive and detailed, as it is with most public utilities

    2. That the state may have granted a monopoly also doesn’t make it state action necessarily

    3. Though the state approved the termination process, it did not order Jackson’s termination (unlike in Pollack, where the Public Utilities Commission actually commenced its own investigation of Capital’s radio programming)

  • Dissent: Marshall

    1. SC’s distinction is that utilities are “natural monopolies”, therefore somehow the state involvement is less significant because the state’s purpose in regulating it is not to aid the company but to prevent its charging monopoly prices

    2. Too much turns on this narrow distinction





Brentwood Academy v. Tennessee Secondary School Athletic Association (2001, Supp. 237)

Facts: TN Secondary School Athletic Association was incorporated to regulate interscholastic athletic competition among public and private secondary schools. No school is forced to join, but most public schools do. Member schools can only play against another member team, without special dispensation to do otherwise. Association charged Brentwood Academy with violating a rule about recruiting for writing to prospective students and parents about spring football. Brentwood was fined, put on probation for 4 years, and was ineligible to participate for 2 years

Issue: Does enforcement of the rule constitute state action so that the Association can be properly named as a § 1983 defendant?

Holding: Yes

Reasoning/Major Points:

  • Justice Souter

    1. Statewide Association regulating interscholastic athletic competition is state action

    2. There is a pervasive entwinement of public officials and institutions with the Association

    3. So Brentwood does properly name the Association as defendant in a §1983 complaint

    4. Don’t decide whether they should win or lose on their constitutional claims, just decide whether it can be state action

  • Dissent: Thomas, Rehnquist, Scalia, Kennedy

    1. Entwinement not enough for state action

    2. Common sense shows the Association to be a private actor

    3. There is no symbiotic relationship

    4. The Association does not fulfill a function traditionally reserved to the states

    5. The Association is not an entity controlled and created by the government

    6. State of Tennessee exercised no coercive power


D. Public Function


Marsh v. Alabama (1946, p. 1544)

Facts: Chickasaw is a suburb of Mobile, AL that is owned by Gulf Shipbuilding Corporation. Other than its corporate ownership it’s exactly like any other town. Marsh is a Jehovah’s Witness who came into town and wanted to distribute religious literature. There were signs in store windows saying that it was private property. Marsh was told she needed a permit to distribute his literature and that no permit would be issued to her. Sheriff arrested her and charged her in state court with violating a statute that makes it criminal to remain on private property after being asked to leave. Marsh sued saying this violates 1st and 14th amendments. State courts convicted her.

Issue: Can people who come to Chickasaw be denied freedom of press and religion because a single company has legal title to the town?

Holding: No

Reasoning/Major Points:

  • Justice Black

    1. Ownership doesn’t settle the issue, the more an owner opens up his property for the public use, the more he becomes circumscribed by the statutory and constitutional rights of those who use it


    1. So owners of private bridges, ferries, etc cant operate them as freely as would a farmer his farm

    2. Whether a municipality or corporation owns it, there is an identical interest in the functioning of the community so that the channels of communication remain freeà neither can deny constitutional rights

    3. Use a BALANCING test: constitutional property rights of owners vs freedom of press and religion. Individual freedoms win.

  1. Dissent: Justice Reed

    1. The Court shouldn’t allow people to stay on private property against owners’ willà slippery slope

  2. NOTES:

    1. In the last 3 decades, SC has demonstrated a growing reluctance to use the Public Function doctrine to burden private entities with constitutional requirements

    2. Very few functions are now “public functions” for purposes of the state action doctrine

    3. BLACK LETTER DOCTRINE: a function must be traditionally an exclusive state function (exhaustively and traditionally performed by the state) in order to be subject to the Constitution

      1. So, shopping center owners NOT bound by the constitution, nor are public utilities companies

      2. Marsh is an exception to this that makes us think about why we have the Public Function Doctrine



    • Why do we have a State Action doctrine/ Rubenfeld on how to interpret Shelley

      1. There are some entities/communities that we want not to be bound by the state as places of resistance and independent from the state—even from the state’s constitutional values

      2. Rubenfeld: Parents send their children to the churches of their choice. If the state tried to do that it would be unconstitutional under the 1st amendment. You could say, it’s wrong for parents to coerce children into religion. But our constitution doesn’t stop that. A constitution that did stop that would be a very different constitution. That’s why you need something like a state action doctrine. What you allow parents to do is not what you allow the state to do.

      3. There are constitutional values that make no sense without a state action doctrine, e.g. freedom of speech

        1. This does not mean that every time the State Action doctrine does not apply it’s constitutional

      4. When should an actor be bound by the state action doctrine?

        1. When somehow or other people collectively start passing laws to govern their own and other peoples lives

        2. If people elect and incorporate their town, elect a city council, and the council says that no one can sell their property to people of another race

          • This triggers the State Action doctrine because this is a “political entity” performing a state action. It incorporated and passed laws

        3. What if it hadn’t incorporated but had just passed property laws, i.e. cleverly had not made itself facially a state actor but put this racially discriminatory covenant in its deeds?

          • This is effectively state action also; we can’t let people get away with this just because they don’t call themselves a “political group” because in effect it is a lawàbasically a public function





    Note 3(a), p. 1547

    • White Primary cases

      • SC held that discriminatory policies of private parties could be attributable to the states

        • Nixon v Herndon (1927)– 14th amendment violated when blacks denied ballots in the state Democratic primary

        • Nixon v Condon (1932) –denial of franchise to blacks unconstitutional, even though the State Executive Committee and not the state was now running the primaries (TX had changed the law after Nixon v. Herndon)

        • Grovey v Tonsend (1935) – SC held no state action and OK when the state party convention adopted a racial exclusion policy

          • Because there was no specific statutory authorization àVOLUNTARILY adopted by the Democratic party, it was not state action and thus was OK

        • Smith v Allwright (1944) – overruled Grovey, Democratic Party’s exclusionary policy COULD in fact be attributed to the state and thus was unconstitutional (SC’s reasoning for suddenly making this state action was a bit unclear)

        • Terry v Adams (1953) – SC held that the private primary held by Jaybird Democratic Association, a Texas political association that was private but the winner ALWAYS got the Democratic bid, couldn’t exclude blacks

        • Tashjian v. Republican Party (1986)—SC upheld Republican party’s constitutional challenge to a state law that prohibited non-party members from voting in the primary. Republicans wanted to let Independents vote in their primary. SC said statute implicated Freedom of Association and was unconstitutional





    Jackson v. Metropolitan Edison Co. (1974, p. 1551)

    As relates to Public Function doctrine. For detailed facts and issues in this case see “Entanglement”, supra.

    Holding: Not a state actor

    ReasoningMajor Points:

    • Rehnquist

      1. Furnishing of utility services is neither a state function nor a municipal duty

      2. If you let Metropolitan be “affected with the public interest,” then slippery slope: every store, doctor, everything would be affected with the public interest.

      3. That aspects of it are in the public interest or that it is regulated by the state doesn’t necessarily make it a state actor

    • Dissent: Douglas

      1. It’s true that doctors, lawyers, etc are not transformed into state actors because provide goods regulated by the state.

      2. But in this case, it’s the only public electric utility in the state. Without power the home is unlivableàthis can legitimately be considered state action

    • Dissent: Marshall

      1. That Edison supplies an essential public service should weigh heavily

      2. Majority says a particular service is not a public function if the state hasn’t required that it be government operated, but this defeats the whole purpose of the public function cases, which is to look behind a state’s decision to provide public services through private parties

      3. A utility service is traditionally identified with the State through universal public regulation or ownership sufficient to render it a public function

      4. There are no interests furthered by protecting privately owned utility companies from meeting the constitutional standards that would apply if the companies were state owned



    Post Jackson Developments (Note 1, p. 1552)

    1. Shopping Centers

        1. Amalgamated Food Employees Union v. Logan Valley Plaza (1968) SC held that shopping centers covered by Marsh

        2. Lloyd Corp. v. Tanner (1972) SC limited Logan by holding that it was inapplicable to hand-billing protesting the Vietnam War at a private shopping center

          • Distinguished Logan because in that case picketers would have been effectively denied the opportunity to convey their message to patrons of the store in question had they been denied access to the shopping center whereas in Lloyd the center was surrounded by public sidewalks and the picketers could just wait there.

        3. Hudgen v. NLRB (1976), SC held that reasoning in Logan Valley couldn’t be squared with Lloyd and so overturned Logan Valley

    2. Dispute Resolution

      1. Flagg Brother v. Brooks (see above) SC held that resolution of disputes between debtors and creditors is not a public function

    3. Schools

      1. Rendell-Baker v. Kohn (supra) SC held that private school for troubled kids not subject to constitutional constraints, despite the fact that students were placed in the program by public officials and that virtually all of the school’s funding came from public sources

    4. Nursing Homes

      1. Blum v. Yaretsky (1982) SC held that nursing homes in receipt of federal Medicaid funding were not performing a public function when they decided on a level of care for their patients.

    5. Amateur Sports

      1. San Francisco Arts and Athletics, Inc. v. United States Olympic Committee (supra) SC held that the US Olympic Committee was not a state actor

    6. Peremptory Challenges

      1. Edmonson v. Leesville Concrete Co. (1991) SC relied in part on the public function doctrine to hold that private litigants in civil cases were state actors for constitutional purposes when they utilized peremptory challenges to eliminate jurors on the basis of their race because a jury is a quintessential governmental body, having no attributes of a private actor.

      2. Georgia v. McCollum (1992) SC held that a defense attorney in a criminal trial who utilizes peremptory strikes on a racially discriminatory basis is a governmental actor for constitutional purposes






    A. Background


    Everson v. Board of Education (1947, p. 1411)

    Facts: New Jersey authorized its local school boards to repay parents with children in private schools for the cost of bus transportation to the schools. Most of the private schools were Roman Catholic parochial institutions.

    Issue: Does NJ’s action violate the establishment clause?

    Holding: No

    Reasoning/Major Points:

    • Justice Black (5-4)

      1. State can pay the fares “as part of a general program under which it pays the fares of pupils attending public and other schools”

      2. This satisfies the 1st Amendment requirement that the “state be neutral in its relations with groups of religious believers and non-believers

      3. History of religion in the countryàpeople were persecuted for their religious beliefs, and all dissenters compelled to pay tithes and taxes to support government-sponsored churches

      4. This aroused indignationà 1st amendment arose out of conviction that individual religious liberty could be achieved best under a government that was stripped of all power to tax, support, or otherwise assist any or all religions, or to interfere with the beliefs of any religious individual or group

      5. Establishment Clause means that neither a state nor Federal government can set up a church, nor aid one religion or all religions, or prefer one religion over anotheràestablishment clause intended to erect “a wall of separation between church and state”

      6. NJ law doesn’t violate that wall

    • Dissent

      1. Agreed with Justice Black’s description of the history, but argued that NJ statute breached the wall





    B. Free Exercise


    Employment Division, Department of Human Resources v. Smith (1990, p. 1476)

    Facts: Smith was a member of the Native American Church, which has as part of its religious ritual the supervised consumption of Peyote, a “controlled substance” under Oregon law. Smith was fired from his job at a private drug rehabilitation clinic (Ironic, anyone?) because he took Peyote as part of church ritual. He sought unemployment benefits, but was denied because he’d been fired for work-related misconduct. Oregon Supreme Court held that state criminal laws did not contain exemptions for religious consumption of Peyote, so the criminal ban was unconstitutional in this setting and Smith should get the unemployment benefits.


    Issue: Does Oregon’s general prohibition on Peyote violate 1st Amendment Free Exercise of religion of people like Smith, for whom taking Peyote is part of their religion?

    Holding: No

    Reasoning/Major Points:

    • Justice Scalia

      1. Free exercise means the right to believe and profess whatever religious doctrine one chooses

      2. Free exercise does NOT mean the right to opt out of a generally-applicable law because it happens to violate your religious principles (e.g. people whose religions are against taxes aren’t exempt from paying them)

      3. Rejects Smith‘s argument that SC should use the balancing Strict Scrutiny test from Sherbert v. Verner, which holds that individual has an obligation to obey a law that goes against his religion only after the government demonstrates a compelling interest

        1. this would produce a private right to ignore generally applicable lawsàconstitutional anomaly

        2. Cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order

        3. Would force courts to determine the centrality of a particular religious belief in that religion, and that is not the job of the courts

        4. This situation is not comparable to the other places where strict scrutiny is used (Equal Protection, Freedom of Speech stuff) which is used to produce equality of treatment and an unrestricted flow of contending speech

      4. Many states have made exemptions for religious Peyote use in their laws. But just because it’s permitted doesn’t mean it’s required

    • Concurrence: O’Connor, (& Brennan, Marshall, Blackmun as to the result but not the reasoning)

      1. Religious conduct should be presumptively protected by the 1st amendment

      2. Should use the compelling interest test, case-by-case determination

      3. Oregon’s prohibition satisfies the compelling interest test (designed to prevent the harm of illegal drugs)

    • Dissent: Blackmun, Brennan, Marshall

      1. Should use the compelling state interest balancing test

      2. Oregon’s interest is not compelling because it is abstract and symbolic

        1. OR never sought to prosecute Smith or other religious users of Peyote

        2. Symbolic preservation of an un-enforced prohibition

      3. OR offered no evidence that the religious use (supervised) or Peyote ever harmed anyone

      4. Many states have an exemption, clearly it can be easily done

      5. During prohibition exempted Catholics’ right to take communion with wine!

      6. This logic wouldn’t work with every drug. With those (like Marijuana and heroin) that have significant illegal traffic a religious exemption would not be practical without compromising the drug laws. But the religious use of Peyote is not incompatible with drug laws

      7. Peyote is essential to the religious rituals. If OR can constitutionally prosecute them, they might be forced to moveàCourts have to protect their religious freedom


    • Pre-Smith law was a balancing test

      • When a law banned conduct that restricted an individual’s religious freedom, state had to satisfy a balancing test: costs of making the exemption v. religious freedom

    Smith is a rejection of balancing test approach to Free Exercise

    • The reasoning here is the same as in the free speech cases. You don’t get a special exemption because the reason you’re doing something, like speeding or not paying taxes, is religious (or expressive). Smith makes religion law consistent with free speech law and makes them both consistent with the Purposivist model.

      • The big exception of course is Boy Scouts.





    Church of the Lukumi Babalu Aye v. City of Hialeah (1993, p. 1485 Note 2(e))

    Facts: Hialeah banned “ritual slaughter” and religious killings and Santeria killings explicitly but exempted secular killings. The Church conducted animal sacrifices as part of its practice of the Santeria religion.

    Issue: Does this ban violate Free Exercise?

    Holding: Yes

    Reasoning/Major Points:

    • Suppression of Santeria worship service was the object of the ordinances

    • Demonstrates animosity towards Santeria members

    • Suppress much more religious conduct than necessary

    • Not drawn in narrow terms to achieve objectives of protecting animals from inhumane slaughter or avoiding unhealthy methods of disposing of animal carcasses.

    * Concurrence: O’Connor, Blackmun

    - when a law discriminates against religion as such, it automatically fails strict scrutiny.


    • Two principles articulated in these cases

      • Anti-establishment principle: Violated when the Government tries to promote religion

      • Free exercise: Violated when the Government tries to suppress religion



    C. Establishment


    Lynch v. Donnelly (1984, p. 1438)

    Facts: In cooperation with the downtown retail merchants’ association, the City of Pawtucket, Rhode Island, erects a Christmas display as part of its observance of the holiday season. Display is located in a part of the city owned by a non-profit in the heart of the shopping district. The display includes, among other things, a Santa Clause, a Christmas tree, and a Nativity scene (the “Crèche” at issue). Court of Appeals held that it violated the establishment clause.

    Issue: Does the “crèche” violate the establishment clause?

    Holding: No

    Reasoning/Major Points:

    • There is no single test or criterion to be used when evaluating an establishment claim

      1. Some useful ones are whether the law or conduct has a secular purpose, whether its principle or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion

    • When viewed in the context of the holiday season, there is insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kinds of subtle governmental advocacy of a particular religious message

    • City is simply taking note of a significant historical event long celebrated in the Western World

    • Display is sponsored by the City to celebrate the Holiday and to depict the origins of that holidayà this is a legitimate secular purpose

    • There is no threat here that the government is trying to impose a state-sponsored church





    County of Allegheny v. American Civil Liberties Union (1989, p. 1444 Note 1)

    Facts: There was a freestanding display of a nativity scene on the main staircase of a county courthouse and a display of a Jewish menorah placed next to the city’s Christmas tree andnext to a statement declaring the city’s “salute to liberty”.

    Issue: Do the Nativity scene and the menorah violate the establishment clause?

    Holding: Yes and No, respectively

    Reasoning/Major Points:

    • Justice Blackmun for himself

      1. Adopted O’Connor’s “no endorsement” analysis as a general guide in establishment clause cases

      2. Nativity scene is unconstitutional

      3. Menorah is OK because its message is not exclusively religious and it stood next to the Christmas tree and the liberty sign effectively creating an “overall holiday setting”

    • Brennan, Marshall, and Stevens

      1. Dissent only as to the menorah

      2. Brennan: the Christmas tree was a religious symbol and Chanukah did not have secular dimensions

      3. Government’s use of religion to promote its “liberty” cause was undoubtedly offensive to those whose religious beliefs were not bound up with their attitudes towards the nation

    • Kennedy, Scalia, Rehnquist, White

      1. Reject “no endorsement” test because it is unjustifiably hostile towards religion

      2. Absent coercion, the risk of infringement of religious liberty by passive or symbolic accommodation is minimal



    McGowan v. Maryland (1961, p. 1448)

    Facts: Certain laws required most large-scale commercial enterprises to remain closed on Sundays.

    Issue: Do they violate the establishment clause?

    Holding: No

    Reasoning/Major Points:

    • Sunday laws were originally efforts to promote church attendance, but are today of a secular rather than a religious character. The goal is to provide a uniform day of rest for all citizens

    • To say that states cannot prescribe Sunday as a day of rest for those purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and state





    Walz v. Tax Commission (1970, p. 1448)

    Facts: Every state had a property tax exemption for churches.

    Issue: Does this exemption violate the establishment clause?

    Holding: No

    Reasoning/Major Points:

    • Every state has one

    • Federal income tax since its inception exempted religious organizations

    • This history shouldn’t lightly be cast aside

    * Concurrence: Brennan

      1. The more longstanding and widely accepted a practice, the greater its impact upon constitutional interpretation

      2. There are two secular purposes for the exemption

        1. Churches, like other exempt groups, contribute to the well-being of the community in a variety of non-religious ways

        2. Churches uniquely contribute to the pluralism of American society





    Marsh v. Chambers (1983, p. 1448)

    Facts: Legislative sessions opened with prayers led by a state-employed chaplain

    Issue: Does this prayer violate the establishment clause?

    Holding: No

    Reasoning/Major Points:

    • Relied on the “unique history” argument

    • History ran from colonial times to the present and included the first Congress’s hiring a chaplain in 1789, only 3 days before it reached the final agreement on the language of the 1st amendment

    * Dissent: Brennan, Marshall

      1. Legislative prayer intrudes on the right to conscience by forcing some legislators either to participate or to make their disagreement a matter of public comment

      2. SC shouldn’t rely on actions taken by first congress

        1. Legislators do not always pass sober constitutional judgment on every piece of legislation they enact



    The School Prayer Cases (p. 1450 Note 3)

    • Stone v. Graham (1980)- SC held unconstitutional a KY statute requiring that a copy of the 10 commandments be posted on the walls of each public class room because it had “no secular legitimate purpose”

    • Engel v. Vitale (1962)—SC said it was unconstitutional NY Board of Regents to recommend school districts to recite a prayer because government can’t compose official prayers


    • Abington School District v. Schempp (1963)—SC held unconstitutional a state law requiring that ten verses from the Bible be read aloud at the opening of each public school day. Using Bible as religious instrument; can only use for non-religious purposes.

    • Wallace v. Jaffree (1985)—SC held unconstitutional an Alabama statute authorizing schools to set aside one minute at the start of each school day for “meditation or voluntary prayer”. Statute amended an earlier statute authorizing a moment of silence for meditation. SC said statute served NO secular purpose not already authorized by the meditation statute



    Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987, p. 1487)

    Facts: § 702 of the Civil Rights Act of 1964 exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion. Amos was a janitor at the Deseret Gymnasium, a nonprofit facility open to the public but run by the Mormon church. He was fired after he failed to qualify for a certificate stating he was a member of the church eligible to attend its temples because he observed the church’s standards involving church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.

    Issue: Does applying the § 702 exemption to the secular non-profit activities of religious organizations violate the Establishment clause?

    Holding: No

    Reasoning/Major Points:

    • Justice White

      1. Apply the Lemon test

        1. Law at issue must serve a “secular legislative purpose” but doesn’t mean law’s purpose must be unrelated to religionàpurpose here is to alleviate governmental interference with the ability of religious organizations to define and carry out their religious missions

          • It is a significant burden on a religious organization to require it to predict which of its secular activities a court will find to be religious in nature

        2. Law’s primary or principle effect can’t advance or inhibit religion because government’s purpose is to lift a regulation that burdens the exercise of religion, it’s ok that the statute singles our religious entities for benefit

        3. Passes Lemon test, so don’t have to pass strict scrutiny, only rational basis test

        4. § 702 is rationally related to the government’s legitimate purpose

    • Concurrence: Brennan, Marshall

      1. A case-by-case inquiry of whether the nature of nonprofit activity is religious or secular is inappropriate because it would produce excessive government entanglement with religion and create the danger of chilling religious activity

    • Concurrence: O’Connor

      1. There is a tension in the SC’s use of the Lemon test to evaluate an establishment clause challenge because on the one hand it invalidates legislation exempting religious observers from generally applicable government obligation to promote the free exercise of religion but on the other hand, judicial deference to all legislation that purports to facilitate Free Exercise would mean any statute pertaining to religion could be allowed

      2. In this case the court is tending towards the second because they are saying that the second prong of the Lemon test isn’t implicated as long as the government action can be characterized as “allowing” religious organizations to advance religion in contrast to government action directly advancing religion

      3. Inquiry should be whether the government’s purpose is to endorse religion, it isn’t here so should be OK





    Texas Monthly v. Bullock (1989, p. 1491)

    Facts: Statute exempted religious publications from a state sales tax.

    Issue: Does the exemption violate the establishment clause?

    Holding: Yes

    Reasoning/Main Points:

    • Justice Brennan (joined by Marshall and Stevens)

      1. Government policies with secular objectives may incidentally benefit religion, but benefits have to flow to a large number of non-religion groups as well

      2. This exemption isn’t OK because it is a subsidy exclusively for religious organizations that is not required by the Free Exercise clause and that either burdens non-beneficiaries markedly or cannot reasonably be seen as removing a state-imposed deterrent to the free exercise of religion

      3. Instead, it provides unjustifiable awards of assistance and so conveys government message of endorsement of religion

    • Concurrence: Blackmun, O’Connor

      1. Exemption is unconstitutional because it was limited to the sale of religious literature by a religious organization

    • Dissent: Scalia, Rehnquist, Kennedy

      1. Tax exemption was permissible accommodation of religion because imposing a general sales tax on the sale of religious publications was arguably unconstitutional as a burden on religion

    NOTES: This case pre-dates Smith. Nobody gets a Free Exercise right to an exemption anymore.


    Content of viewpoint-based discrimination (p. 1497 Note 1)

    Involves disbursement of university funds for secular but not for religious activities. Unconstitutional viewpoint discrimination.



    • Capitol Square Review and Advisory Board v. Pinette (1995) – SC held no establishment clause violation in allowing a private group to display a Latin cross on public property and so required the board to permit the display




    Zelman v. Simmons-Harris (2002, Supp. 229)

    Facts: Ohio school voucher system gave tuition aid for certain students in the Cleveland City School District to attend participating public or private schools of their parent’s choosing and tutorial aid for students who chose to remain in public school. In 1999-2000 82% of the participating private schools had a religious affiliation, no public schools participated, and 96% of participating students were enrolled in religious schools.

    Issue: Does the school voucher program violate the establishment clause?

    Holding: No

    Reasoning/Major Points:

    • Rehnquist

      1. Program enacted for the valid secular purpose of providing educational assistance to poor kids in a demonstrably failing public school system

      2. The incidental advancement of a religious mission or the perceived endorsement of a religious message is reasonably attributable to the individual recipient, not the government

      3. Only government preference is for low-income families, not for religion

      4. That most schools participating are religious doesn’t violate establishment clause, would only be a violation if Ohio was coercing kids into going to religious school, and this is not the case

    • Dissent: Souter, Stevens, Ginsberg, Breyer

      1. Espoused neutrality is just verbal formalism. Majority says there is neutrality because most of TOTAL state educational expenditure goes to public schools. But if regular public schools (which get no voucher payments) “participate” in a voucher scheme with schools that do get payments and public expenditure is still predominantly on public schools, the SC would find neutrality even if there were no secular private schools at all in the scheme—this is just a verbal neutrality and nothing more


    • This is a law of general applicability

    • Lots of law support religious value, but when one type of value is promoted, is raises the Establishment Clause antenna.

    • Neutrality regime is relatively recent and doesn’t handle the Sunday laws.

    • Neutrality regime is getting stronger and stronger, more and more systematically applied.

      1. But Court won’t strike down polygamy or other laws though they may promote religion.





    Rubenfeld on Establishment:

    • Establishment clause as first enacted meant:

      1. Congress can’t establish national church

      2. Congress can’t pass laws that restrict the ability of States to establish religion

      3. These laws weren’t thought of as establishing religion

    • CJ Kent (People vs. Ruggels NY, 1811): Man convicted of blasphemy, for calling Jesus a bastard and his mother a whore.

      1. Court upheld conviction, saying that we’re not required to punish all attacks equally

      2. Case assumes we are a Christian country

    • Two hundred years later, the Constitution has been built up to an extent to where we have a real paradigm of religious neutrality

      1. But still doesn’t sit well with laws/practices that still recognize Christian heritage





    A. The “Public Use Requirement”


    Hawaii Housing Authority v. Midkiff (1984, p. 958)

    Facts: Land Reform Act of 1967 created a mechanism for condemning residential tracts and for transferring ownership of the condemned land to the existing lessees. Hawaii legislature intended to make the land sales involuntary to make the federal tax consequences less severe while still facilitating the redistribution of land. Tenants living on single-family residential lots are entitled to ask the Hawaii Housing Authority (HHI) to condemn their property.

    Issue: Does this constitute a taking and so require compensation?

    Holding: No

    Reasoning/Major Points:

    • O’Connor

      1. Dealing with the police power

      2. Where the exercise of the eminent domain power is rationally related to the a conceivable public purpose, it’s not a taking

      3. Hawaii Act’s purpose is to reduce perceived social and economic evils of land oligopoly. Regulating oligopoly is a classic exercise of a State’s police powers, and is a comprehensive and rational approach to correcting market failure

    • NOTES:

      1. Establishes that sometimes taking from A to give to B is OK

      2. This translated into a “public purpose” requirement à legitimate state interest à mere rationality, so then it was easy

      3. Abandons any effort to define “public use” narrowly so as to impose some substantive constraints on the subject of “publicness”



    B. Determining whether a “taking” has occurred


    • What kinds of laws deprive people of property or property rights constitute takings?

      1. Government exercising Eminent Domain is definitely a taking

      2. What if government leaves you in possession, but does other things?

    • The constitution has a very different requirement when the state just deprives you of property: the 5th Amendment

      1. The constitution articulates 2 different protections. State only has to pay when it takes something for public use. When the state doesn’t use it, it must only comply with due process.


    Pennsylvania Coal Co. v. Mahon (1922, p. 960)

    Facts: Suit brought by Mahon to prevent PA Coal from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their home. Rely on the Kohler Act, a PA law that forbids the mining of anthracite coal in such way as to cause the subsidence of, among other things, any structure used as a human habitation.


    Issue: Is this a taking?

    Holding Yes

    Reasoning/Major Points:

    • Holmes

      1. Act can’t be sustained as police power so far as it affects mining of coal under streets or cities or places where the right to mine has been reserved

      2. Property may be regulated, but if it goes too far it’s a taking

      3. This is a taking

    • Dissent: Brennan

      1. Coal is land here, and the right of the owner to use his land is not absolute

        1. Can’t create a public nuisance or seriously threaten the public welfare

      2. Restrictions imposed to protect the public health, safety, or morals from dangers is not a taking


    • Established that there could be regulatory takings

    • Was a taking because it rendered the property valueless.


    Miller v. Schoene (1928, p. 963)

    Facts: Acting under the Cedar Rust Act of Virginia, the state entomologist ordered Miller to cut down large number of ornamental red cedar trees on their property because they were infected with a disease (Cedar Rust) which would kill the apple orchards next door.

    Issue: Is this a taking?

    Holding: No

    Reasoning/Major Points:

    • Justice Stone

      1. State had to choose between preservation of one class of property and that of another. In such a case state doesn’t exceed its constitutional powers by deciding upon the destructions of one class of property to save another of greater public value



    Other Takings cases (p. 974 Note 2)

    • Andrus v. Allard (1979)—The Eagle Protection Act banned the sale of bald or golden eagle parts taken before the effective date of the statute. SC said no taking, where owner possesses a full “bundle” of property rights, the destruction of one “strand” is not a taking

    • Hodel v Irving (1987)—In 19th century Congress divided communal Sioux property into individual allotments. In 1983 Congress passed Indian Land Consolidation Act which provided that you couldn’t have undivided fractional interest in land but land would go to tribe if the interest represented 2% or less of the total acreage. SC held this unconstitutional because you have the right to pass your land to your kids.

    • Euclid v. Ambler Realty Co (1926)—SC upheld a zoning ordinance that took certain industrial land and limited to certain residential purposes, thereby decreasing the value

    • Kaiser Aetna v. United States (1979)—Army Corps of Engineers attempted to grant access to Kuapa Pond, a lagoon in Hawaii that was contiguous to a navigable bay. Kaiser owned land and didn’t want to permit commercial use. SC said there WAS a taking because it was an actual physical invasion.

    • Riverside Bayview Homes v. United States—Army Corps of Engineers required landowners to get permits before discharging fill material into adjacent wetlands—SC said not a taking because requiring a permit doesn’t actually TAKE the land

    • Pruneyard Shopping Center v. Robins—SC held that requiring shopping centers to allow protesters on the property doesn’t constitute a taking

    • Loretto v. Teleprompter Manhattan CATV Corp (1982)—SC held that a NY law providing that landlords must permit cable TV company to install cable facilities WAS a taking

    • FCC v. Florida Power Corp (1987)—SC upheld a federal statute authorizing the FCC to regulate rates that utility companies charge cable operators for the use of utility poles. Distinguishable from Loretto because that REQUIRED landlords to permit cable company’s occupation. Here the act simply authorizes the FCC to review rents of landlords who have already voluntarily entered into leases with cable company tenants

    • Connolly v. Pension Benefit Guaranty Corp (1986)—SC upheld a statute requiring an employer withdrawing from a multiemployer pension plan to pay its proportionate share of the plan’s unfunded vested benefits

    • United States v Causby (1946)—SC held that frequent flights immediately above a landowner’s property WAS a taking

    • Bowen v Gilliard (1987)—SC held NO taking in the amendment to Aid to Families with Dependent Children (AFDC) that required recipient families to assign to the government child support payments received from a non-custodial parent for a child living in the covered household, the effect of which was to reduce the level of support payments received by the household. Congress is allowed to reduce the benefit level.



    Lucas v. South Carolina Coastal Council (1992, p. 984)

    Facts: In 1986 David Lucas paid $975,000 for 2 residential lots on the Isle of Palms in Charleston County to build single-dwelling homes. In 1988 SC legislature passed Beachfront Management Act, which had direct effect of barring Lucas from erecting any permanent habitable structure on the land.

    Issue: Is this a taking?

    Holding: Remand for lower courts—but direct what analysis is to be used

    Reasoning/Major Points

    • Scalia

      1. When state seeks to sustain regulation that deprives land of all economically beneficial use, it’s a taking unless the state can show that the proscribed use interests were not part of his title to begin with

      2. So remand, but to win its case South Carolina will have to do more than say that Lucas’ desired uses are inconsistent with the public interest, it will have to identify background principles of nuisance and property law that prohibited the uses he intends.

    • Concurrence: Kennedy

      1. Should be looking at whether the state regulations were in accord with the owner’s reasonable expectations and so was sufficient to support a severe restriction on property

    • Dissent: Blackmun

      1. State has full power to regulate property if the use would be harmful to the public

      2. Why this background principle stuff? If judges in the 18th and 19th centuries could distinguish harm from a benefit, judges today can too

    • Dissent: Stevens

      1. Court’s new rule is arbitrary, because landowner whose property is diminished 95% will get nothing but 100% will get everything

      2. We should allow the common law to adapt, don’t just look at what it was like in the 18th century

      3. Some legislative redefinitions of property will effect a taking and need compensation, but not every movement away from the common law will do this

      4. Even if the Act rendered Lucas’ property valueless, there was no taking


    • These cases are a question of economic loss and diminution of value

    • If the property loses 100% of its value, it’s a Taking, if it loses less, then there is a balancing test

    • Did Lucas overrule Andras v. Allan?

      1. In Andras there was a complete loss of value, how was that not a Taking?

      2. No, it didn’t overrule Andras because Andras just eliminated a particular “strand” of usage, not the “whole bundle”

        1. Also, Lucas applies to land, not property



    Eminent Domain

    • When the Government takes over your property for a special use (ie We need to build a Mill), it’s a Taking

    • If background nuisance principles already prevented you from doing it, then the Government can come and take it without it being a Taking

      1. What about contraband laws? If, say, cigarettes suddenly become illegal, would people holding cigarettes have to be compensated?

        1. No because its harmful

      2. Contraband is a situation where the Government just takes it away (not for a particular use), you don’t get compensated here










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