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|Constitutional Law Fall 2003|
Also available: First amendment outline.
Constitutional Law I
I. The Constitution of the United States
Other Restraints on Governmental Actors
Important Points on the Constitution
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.
[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.”]
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.
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)
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.
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.
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.
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.
Strict Scrutiny (“SS”)
TEST: Law must be “narrowly tailored to further a compelling state interest”
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.
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.
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.
From pp. 519-21 (Notes 1-2)
What about if disproportionate racial impact is intentional?
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.)
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.
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?
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.
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.
Equal Protection Doctrine Review
Question: What is the appropriate standard of review?
1) Strict Scrutiny
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.
2) Rational Basis
**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:
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.
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.
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.
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.
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.
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.
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
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.”
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.
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.
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.
IV. The Separation of Powers
A. The Allocation of Powers between the Federal Government and the States
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Commerce Clause Doctrine Review
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
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.
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.
1) Enforce causes of action that simply stop states from violating 14th Am
2) Add duties beyond those in 14th Am to states
From p. 230-31 Note
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.
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.
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.
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.
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).
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.
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.
It was OK for the President to act as he did, but only if the Congress subsequently approved the seizure, which it did not.
Jackson sets out a tripartite test to analyze different situations in which the President has differing levels of authority:
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?
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.”
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
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.
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
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.
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.
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
Bonus: Jed on the Geneva Convention and Unlawful Combatants
To be a lawful combatant, one must meet four criteria:
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.
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.
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).
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.
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.
“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, Libertarianism and the Harm Principle
1) There is no adequate theory of harm with which you can make sense of 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)
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.
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.”
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.
Williams v Standard, Ribnik v. McBride, Tyson & Brother v. Banton
Invalidating various price regulations, increasingly narrowing the “affected with public interest” standard from Munn.
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.
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
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.
Roth v. United States – 1st Am incorporated by 14th Am to states.
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”:
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?
“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)
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:
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
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:
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:
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.
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:
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)
Unenumerated Rights and the Ninth Amendment
Class discussion on abortion was … wide-ranging, and hard to sum up.
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.”
Adds that condemnation of homosexual sodomy “is firmly rooted in Judeo-Christian moral and ethical standards.” [See Lawrence for Kennedy’s reply ***]
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.
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.
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.”
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.
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.
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]
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].
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:
Constitution also requires that the ban be rationally related to legitimate government interests. Court says the state has a legitimate interest in:
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.”
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:
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.
CLASS NOTES ON THE RIGHT TO TRAVEL AND POSITIVE RIGHTS:
[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:
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.
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”
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.
CLASS NOTES ON FREEDOM OF SPEECH:
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:
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:
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.
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
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 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.
à Spence test à O’Brien test
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:
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. Furthers a substantial governmental interests.
2. leaves open ample alternative channels of communication.
3. is narrowly tailored.
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.
“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?
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?
What are the categories of unprotected speech?
Breach of the Peace speech (this is any criminal speech, e.g. crimes and unlawful conduct)
Rubenfeld on 1st Amendment tests:
Speech (apply Chaplinsky: Not all speech is protected by the 1st amendment
Relationship between O’Brien Test and Time Place and Manner Test
The TPM test:
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?
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?
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?
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?
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?
Dissent, Justice Breyer
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?
Smith v. City of Fort Lauderdale, Florida (11th Cir. 1999, handout)
* 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?
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?
Dissent- Black and Douglas
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?
Concurrence—White, Blackmun, O’Connor, Stevens (in part)
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?
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?
Scalia- dissent in part and concur in part
Souter, Kennedy, Ginsberg- dissent in part, concur in part
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?
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?
Dissent—Ginsberg, Souter, Breyer, Stevens
Rubenfeld, this case is inconsistent with the holding in Jaycees, no matter what the court says
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
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:
1) If you take the consequentialist position you have to do a balancing test
2) If you use a purposive analysis you don’t have to do this
Applying purposivist view to 1st amendment law:
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?
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?
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
Contribution limitations are OK
Expenditure Limitations are not OK
Burger, concur in part and dissent in part
White, concur in part and dissent in part
Rubenfeld argument for Buckley
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?
Dissent, White Brennan and Marshall
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?
Dissent, Kennedy, Scalia, O’Connor
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?
Dissent, Brennan, Marshall, Blackmun
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?
Dissent, Brennan, Marshall, Blackmun
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?
Dissent, Blackmun, Marshall, Stevens
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?
Dissent, Scalia, Rehnquist, O’Connor, Thomas
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
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?
VIII. STATE ACTION
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:
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?
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?
Dissent, Marshall, Blackmun
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?
Dissent: Stevens, White, Marshall
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?
Dissent: Powell, Rehnquist, O’Connor
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?
State Enforcement of discriminatory testamentary and inter vivos dispositions of property (Note 4(b) p. 1524)
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?
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?
Dissent: Marshall, Brennan
- 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?
Dissent: Brennan, Marshall
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
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?
Dissent: Douglas, Marshall
Dissent: Brennan, Marshall
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?
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?
Dissent: Thomas, Rehnquist, Scalia, Kennedy
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?
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?
Note 3(a), p. 1547
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
Post Jackson Developments (Note 1, p. 1552)
Hudgen v. NLRB (1976), SC held that reasoning in Logan Valley couldn’t be squared with Lloyd and so overturned Logan Valley
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?
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?
Concurrence: O’Connor, (& Brennan, Marshall, Blackmun as to the result but not the reasoning)
Dissent: Blackmun, Brennan, Marshall
Smith is a rejection of balancing test approach to Free Exercise
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?
* Concurrence: O’Connor, Blackmun
- when a law discriminates against religion as such, it automatically fails strict scrutiny.
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?
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
Brennan, Marshall, and Stevens
Kennedy, Scalia, Rehnquist, White
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?
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?
* Concurrence: Brennan
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?
* Dissent: Brennan, Marshall
The School Prayer Cases (p. 1450 Note 3)
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?
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
Passes Lemon test, so don’t have to pass strict scrutiny, only rational basis test
§ 702 is rationally related to the government’s legitimate purpose
Concurrence: Brennan, Marshall
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?
Concurrence: Blackmun, O’Connor
Dissent: Scalia, Rehnquist, Kennedy
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.
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?
Dissent: Souter, Stevens, Ginsberg, Breyer
Rubenfeld on Establishment:
CJ Kent (People vs. Ruggels NY, 1811): Man convicted of blasphemy, for calling Jesus a bastard and his mother a whore.
Two hundred years later, the Constitution has been built up to an extent to where we have a real paradigm of religious neutrality
X. THE JUST COMPENSATION CLAUSE
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?
B. Determining whether a “taking” has occurred
The constitution has a very different requirement when the state just deprives you of property: the 5th Amendment
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?
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?
Other Takings cases (p. 974 Note 2)
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
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