You are on page 1of 106

Constitutional Law Fall 2015 - Notes

Three components of the course


1. Judicial Review and Justiciability
a. Accepted power of the courts to review/judge the constitutionality of decisions
made by the other two branches (Legislative/Executive)
b. What do the courts do when they review sources of law that are constitutional or
sub-constitutional (i.e. statutes, etc)? What does a statute mean? Is it
constitutional?
c. Judicial review exists in both the federal system and in every state.
d. Justiciability a collective doctrine that covers review of a decision by the other
two branches in a case where there would other be judicial jurisdiction.
i. You can bring a constitutional civil case as long as you have personal and
subject matter jurisdiction but can the court hear it?
ii. i.e. National guard citizen claims wars in Iraq/Afghanistan are
unconstitutional. Can the court decide the case? No, b/c of Political
Question doctrine. (Branches get to decide political questions)
e. Generally accepted here in the USA but worldwide it is not as common. We give
our judges lots of power that other countries do not.
2. Individual Rights
a. 14th Amendment Due process and equal protection
3. Government Structure

Part I: Judicial Review and Justicability


Constitution and Limiting Government Power
1. Individual Liberties
a. Mostly in the Bill of Rights, the 14th Amendment, and some later amendments
b. Most individual rights and liberties are not in the original 1787 document of the
Const.
i. The purpose of the framers was to create a structure of government when
we didnt have one NOT to create individual rights.
ii. Most in the bill of rights or AFTER the civil war.
2. Structure of Government
a. Horizontal allocation separation of powers
b. Vertical allocation Federalism between the federal government and the states.
c. Ratification of 9 of the 13 states was good enough to pass the Const. but in
reality they really needed 13 states so everyone had to follow the Const.
i. Article I Legislature (Congress)
ii. Article II Executive (President)
iii. Article III Judiciary (Supreme Court and inferior courts)
3. Traps:
a. Supreme court isnt the whole party. Lots of people have a stake in interpreting
the constitution, not just SCOTUS.
i. American society is reflected in the constitutional cases that are brought.
b. Dont discount state constitutions. They can be more protective of the rights of
citizens of a particular state than the US const. and federal protections.
Difference Between the Federal Constitution and a Statute
1. Durability
a. ONLY had one Constitution since 1789. Replaced the Articles of Confederation.
b. Statues are enacted in multitudes every year and amended regularly. They are
not meant to be that durable. There is flexibility there.
2. Difficulty of Amendment
a. There are only two ways to amend the federal constitution (meant to be difficult)
i. Two thirds of both houses must propose Amendments, and three fourths of
the states must ratify it. (42 states)
ii. You can use Congressional initiative, or a second const. convention. The
second has never happened in the Federal Gov. Missouri has had three or
four conventions.
iii. Has only happened 14 times outside of the Bill of Rights and Civil War
amendments.
b. Statutes are much easier to amend, purposefully.
c. MO const needs just a majority vote in both houses and in the electorate.
3. Breadth
a. Constitute is meant to be much broader in scope (bare bones)
b. Statutes are usually very narrow
4. Anti-majoritarian
a. Constitution is subject to difficult provisions of amendment to protect the
minority.
Other Notes:
1. The subject matter of the Const. and statutes is different.
a. Const. represents an attempt by society to limit itself to protect the values it
most cherishes.
2. If at all possible, courts will avoid constitutional decision-making by deciding cases on
sub-constitutional grounds whenever possible.

3.
4.

5.
6.

a. Ashwander v. TVA (1936): Brandeis concurring; as a matter of judicial restraint,


the court should try to decide on statutory grounds so Congress can amend
statute instead of Const. grounds where you need a Const. Amendment.
Easier to add things to State const than the Federal Const. MO. Const is WAY longer and
includes info about transportation and lottery, that would NEVER show up in the federal
const.
Pledge Protection Act of 2005: not enacted. Did not want the federal or SCOTUS to get
their hands on the UNDER GOD part of the pledge and its application to the
supremacy clause of the Const. Ashwander v. TVA (1936): Brandeis concurring; as a
matter of judicial restraint, the court should try to decide on statutory grounds so
Congress can amend statute instead of Const. grounds where you need a Const.
Amenment.
West Virginia State Board of Ed v. Barnette (1943)
a. Remove certain subjects from politics to protect the minority population.
Is it a good idea to call a Constitutional convention?
a. Maybe, Senate is VERY under representative of America. Lifetime tenure for
federal judges can be a problem. Campaigns and Electoral College are bad (few
states decide everything). Prospect of starting over from scratch is SCARY.

Federal Judicial Power


Judicial Review
1. The authority of Judicial Review Marbury v. Madison (1803)
a. The case may have been a set-up case.
b. Reason we had the lawsuit is that Marbury did not get his commission in time,
even though he was a midnight appointment. The question is who is at fault for
Marbury not getting his commission in time.
i. John Adams Secretary of State is the culprit. (John Marshall) who was also
chief justice of SCOTUS. He had both positions, but you cant do that
anymore.
ii. Jefferson and Marshall were frenemies and second-cousins.
c. John Marshall was sitting in judgment for his own mistake.
d. Issue:
i. Writ of Mandamus: court order that commands a government official to
do something they must do. It has to be ministerial and not merely
discretionary.
ii. John Marshall probably should have recused himself in the case because
he was a key witness (being Secretary of State) but todays standards
dont apply in 1808.
iii. Marbury sues in the first instance to SCOTUS. He was asking SCOTUS to
play trial court, not appellate court like they are today.
1. He uses Section 13 of the Judiciary Act to argue that
SCOTUS can grant mandamus in the first instance because
of original jurisdiction because it is allowed under Section
13.
iv. Marshalls Goals (generally):
1. Strengthen the federal government.
2. Strengthen the federal constitution.
3. Strengthen the federal judiciary, especially SCOTUS.
v. Marshall wanted to create judicial review without getting impeached.
e. Questions for the Court:
i. Does Marbury have a right to the commissions?
1. Yes! He does. The seal was affixed.
ii. If, so, does the law afford him a remedy?
1. Yes! Where there is a right there is a remedy.
iii. If yes, is a writ of mandamus issued by SCOTUS the right remedy ?
1. No! Whether Congress could expand the original jurisdiction of
SCOTUS, as the Judiciary Act of 1789 had granted the Court original
jurisdiction over petition for writs of mandamus.
2. Marbury argues there is a discrepancy under Article III and the
Judiciary Act. Article II says Marbury is off base because it doesnt
involve the three requirements to get original jurisdiction. Court
looks at Judiciary Act which is a Congressional statute which was
one of the first passed by Congress. What comes after the semi
colon can be read as either applying to what was before the semi
colon (i.e. SCOTUS can issue writs of mandamus) or it can be read
as standing by itself (i.e. SCOTUS can issue writs anytime it wants,
even when SCOTUS is acting as a trial court).
3. The problem is that Judiciary act reading giving SCOTUS original
jurisdiction for the writ of mandamus directly conflicts with Article III
and therefore is unconstitutional. Statute is inconsistent with the
constitution.
4. What do we do with a statue that is in direct conflict with
constitution?

f.

2.

3.

4.

5.

If any of the questions were answered no, Marshall wouldnt have been able to
create Judicial review. Marshall cant cite anything because there isnt any case
law. Where he has a pen he can make the law
g. Marshall pulled off a Houdini Act. Jefferson didnt like judicial review. Marbury lost
and didnt get his commission, Jefferson won but got judicial review in the
process (which he didnt want).
h. With judicial review you have unelected officials making decisions. This is a weak
argument because they are Presidential appointees who are approved by
Congress.
i. Somebody has to make the decision, so its best to use judges who are
insulated from transient majorities.
Marshalls rational for Judicial Review:
a. Judicial enforcement of const. limitations is necessary
b. Inherit judicial role to enforce statutory overreaching b/c we cant trust Congress
to strike down their own statute and fix their own mistakes.
c. Article III implications that the courts shall review the laws that come before
them. It does not create judicial review.
d. Judges take an oath to uphold the Const .(but all Congress/Exec do that too)
e. Supremacy Clause says that judiciary has to enforce Const. constraints.
How does this apply today?
a. Judicial review includes:
i. The Const, and federal laws and treaties, are the supreme law of the land
thanks to the supremacy clause.
ii. Courts may interpret the Const. (and legislative/executive acts) in cases
before it.
iii. The judicial interpretation is final and controlling over the views of the
other two branches.
1. I.E. courts may nullify a law they find unconstitutional in all cases,
not just the pending case.
iv. The political branches may overrule the Courts constitutional decision by
const. amend. (and a statutory decision by statutory amend.)
b. We ask a lot of judges to interpret the Const. and Congressional Statutes. They
basically have to tell people they cannot have everything that they want. Even
when its not used, it still looms large over the branches when they are making
decisions about laws and statutes.
c. Most judges believe in judicial restraint and they understand that the people do
not elect them.
Alternatives to Judicial Review:
a. Each branch could determine the const. of their own acts.
b. Lincolns approach: Court could refuse to apply acts it finds unconstitutional in
this case, but the act remains on the books for future application
c. One branch reviews constitutionality, but not necessarily the courts.
d. Council of Revision (courts).
Byproducts:
a. Marshall did not invent judicial review. They were in the federalist papers
although probably not the exact same way Marshall decided.
b. Why is judicial review ultimately accepted?
i. The courts didnt really exercise the power, since it took them 54 years to
strike down another federal statute. (Dredd Scott)
c. Even when its not exercised, the prospect of it affects the way statutes are
written and passed. If the legislature really cares about the law staying on the
books, they are careful the first time so its done right, and not likely to be
overruled.

Congressional Control of Judicial Review

1. Does the pledge protection act of 2005 violate the Const? Its a jurisdiction removal
bill. (They basically never pass!)
a. The purpose of these jurisdiction-stripping bills is to achieve a change in the
substantive law using a procedural device.
b. If they were ever passed, would they be constitutional?
c. Its a direct congressional act to limit the subject matter jurisdiction of the
courts.
2. Article III is very vague when it comes to jurisdiction removal.
3. Article III requires the establishment of a Supreme Court! You have to have SCOTUS.
a. You do not have to have lower courts, but you probably should.
b. If Congress abolished the lower courts, it would NOT be unconstitutional but it
might be anti-constitutional.
i. Meaning it would greatly upset the national equilibrium. They just
shouldnt do it, not that they cant if they wanted to.
4. When looking at jurisdiction removal bills: (this is a gray and hazy area of law)
a. Does the Const. authorize Congress to limit SCOTUSs appellate jurisdiction?
i. Exceptions Clause (Article III, section 2): does not say that SCOTUS can
have all appellate jurisdiction except for one tiny exception, but pretty
close.
ii. Such exceptions as Congress shall make.
iii. Const. permits Congress to determine the jurisdiction of SCOTUS.
b. Does the Const. authorize Congress to limit the jurisdiction of the lower federal
courts (district and court of appeals)?
i. Under Article III, Section 1 Congress cannot regulate the jurisdiction of
lower federal courts. They can create them, but not regulate their
jurisdiction.
ii. The argument that since Congress created the courts they have the power
to determine jurisdiction is a valid argument, but probably not true based
on the language of Article III.
c. How should we assess the wisdom of jurisdiction-removal bills?
5. Ex Parte McCardle (1868):
a. McCardle was a newspaper publisher who supported the Confederacy and was
held in custody upon charges founded upon the publication of articles highly
crucial of Reconstruction.
b. He was a civilian arrested by military authorities, even though there were civil
courts at the time. He then files a Habeas Corpus claim.
i. Judicial Act of 1789: Congress creates Federal Courts subject matter
jurisdiction for people held in federal custody.
ii. 1867: Statute that provides for Habeaus relief for people held either in
federal or state custody.
c. He is confused about why he is being held in military court despite committing a
crime that is at best civil (possibly 1st amend. Argument).
d. Congress is afraid of SCOTUS striking down Reconstruction and repeals the 1867
Act for the express purpose for getting this case off the SCOTUS docket.
e. SCOTUS then hears whether a repeal of Supreme Court jurisdiction is
Constitutional.
f. Held:
i. Congress can control subject matter juris. of SCOTUS but only if an
alternative means of SCOTUS jurisdiction exists.
ii. SCOTUS ended up hearing the case based on the Judiciary Act of 1789
jurisdiction since the 1867 statute was repealed.
iii. Court did not have jurisdiction to hear the appeal because of Congress
authority to create exceptions and regulations to the Courts appellate
jurisdiction.

iv. Opponents of jurisdiction statutes say this case only stands for the
proposition that Congress may engage in a partial removal of jurisdiction,
but proponents say that Congress can strip jurisdiction (and it cant be
reviewed).
6. Chicken and Egg Theory of Con. Law
a. Congress enacts a law that strips jurisdiction
b. Claim filed in court saying an act violates rights
c. State says court must dismiss case because of statute
i. Question is whether a federal district court, court of appeals, or the SC can
hear a claim that the jurisdictional-stripping bill is Constitutional, or does
the court lose its jurisdiction?
d. McCardle stands for the proposition that the court can review a case for removal
of jurisdiction.
7. Why have so few jurisdiction removal bills become law?
a. Doubts about constitutionality
b. Anti-constitution vs. unconstitutional
c. Passions fade cooler heads prevail
i. Loyalty oaths were a big deal in 1950s, not really an issue anymore.
ii. Even Miranda which was an issue in the 1960s, but even the people who
dont like Miranda still comply with it and dont really object.
d. Concerns about freezing the law
i. When you remove federal court jurisdiction you basically freeze the law.
The same opinion might not follow through 10, 15, 20 years after the
court has made a decision. Its probably better to let the federal courts run
their course and change their minds if they decide they want to
e. State-court decisions survive
i. They ONLY remove federal court jurisdiction, NEVER state court
jurisdiction.
ii. Most federal claims have concurrent state and federal court jurisdiction.
You can file federal claims in state court (most of the time). If you file in
state court, you can remove it to federal court. Removal does not work if
Congress has passed a jurisdictional-removal bill. It just has to be heard in
one of the 50 state courts.

Supreme Court Review of State Court Decisions


1. Martin v. Hunters Lessee (1918):
a. Case involved two conflicting claims to land within VA. Martin claimed he had
inherited the land from a British citizen who owned the property, but Hunter
claimed that VA had taken the land before a treaty protecting the rights of British
citizens to own land in the U.S. came into effect, so he owned it.
b. After SCOTUS held that the treaty established Martins ownership, VA courts
declared that SCOTUS lacked authority to review state court decisions and
refused to obey.
c. This is a Supremacy Clause problem.
i. Gets authority from Judiciary Act of 1789, which gave SCOTUS the power
to review decisions from highest state court decisions.
ii. SCOTUS looks at Art. III, Section 2 which talks about judicial power and the
Supremacy Clause (Article VI(2)).
d. Held: appellate power of the US extends to state court judgment.
i. SCOTUS has jurisdiction to review final decision of the state courts.
ii. Article III talks about all cases and looks to the Supremacy Clause,
deciding the federal government should have the power to determine if
state laws are consistent with the const.
e. Marbury deals with horizontal allocation and Martin deals with vertical
allocation.
2. Final determiner of a state statue/const. is the state court, UNLESS under the
Supremacy Clause, a state court decision violates the federal const./treaty/statutes.
a. If there is not federal conflict, the case ENDS in state Supreme Court.
b. SCOTUS may not review decisions involving state law and state constitutions,
but they can review state court decisions on federal constitutional issues.
3. If SCOTUS lost the ability to review state court decision on federal law, we wouldnt
have uniform federal law.
a. Justice Oliver Wendell Holmes said if SCOTUS lost the ability to review Congresss
statutes that are maybe unconst., we would still have uniform federal law. If
SCOTUS could not review state court decision, you would have LOTS of different
state decisions. They would no longer be able to create nationally uniform
federal law.
b. SCOTUS usually strikes down more state statutes than federal statutes.
c. We need uniform federal law to keep on keeping on as a country.
Adequate and Independent State Ground Doctrine
1. Goodridge v. Department of Public Heath (Mass 2003):
a. Case saying prohibition on gay marriage violated the Mass. Const SCOTUS has
no say in this.
b. This was a case that held it was a violation of the Mass. Const. to deny individual
protections, benefits, and obligations of civil marriage because they are gay.
c. Why did claimants raise the claim ONLY in Mass and not under the Equal
Protection Clause?
i. Hypo: Say they did raise both claims (state and federal) state supreme
court says gay marriage is okay. Then cert is applied for, is there adequate
and independent state ground for gay marriage in Mass? If appeal was
brought on state and federal claim, SCOTUS could say that state
requirement stands by itself.
ii. They did it this way because it was a matter of strategy and it worked.
They were trying to win for themselves and keep the same sex claims
away from the federal court. They thought they could get a better deal
under state const. than Equal Protection.
d. Hypo: Suppose that there was a 28th Amendment that said marriage is a
man/woman and the const. of any state cannot allow the union of a man and

2.

3.
4.

5.

woman. Then NY says the gay people can get married in NY, its not an adequate
independent state ground. A const. issue exists and the Supremacy Clause says
that NY cant have that rule.
Allows state courts to give a greater amount of protection for their own people than
federal courts (State are the final expositors of state law)
a. This doctrine enables the state court to find greater protections for it citizens
than the federal constitution would provide.
b. Also happens in Search and Seizure cases.
Issues of federal law resolved by state courts will not be reviewed by SCOTUS if the
state courts judgment rests upon an adequate and independent state ground.
Rule has two branches:
a. Procedural - arises when the state court has refused or simply failed to rule on
the merits of the federal law issue because they were not presented to the court
in the manner required by state procedure.
b. Substantive where a state court has held a state statute to be invalid under
both the United States and states constitution; sole issue is whether the state
substantive ground is independent, or whether the state claim would come out
the same no matter what.
42 USC 1983 has created a cause of action of deprivations of federal rights by state
officials, but there isnt a statute providing for a cause of action for denial of Const.
rights by federal officers.
a. SCOTUS has held that the Const. creates a limited cause of action against
federal officers under 1331 (Federal question statute) which provides for
jurisdiction in all cases arising under the Const. of laws of the US.

Justiciability
1. Doctrine determines which matters federal courts can hear and decide and which
should be dismissed.
2. Sources of Justiciability Doctrines (underlying policy)
a. Article III, Section 2(1) defines judicial power in terms of cases or controversies
b. Separation of Powers
c. Prudential consideration prudent that the federal courts refrain from decision
for policy reasons.
2. Prohibition against Advisory Opinions
a. Federal courts CANNOT issue advisory opinions.
b. What is an Advisory Opinion?
i. Question asked by executive or legislature without a case or controversy.
ii. Collusive suit: 28 U.S.C. 1359 A district court shall not have jurisdiction
of a civil action in which any party, by assignment or otherwise, has been
improperly or collusively made or joined to invoke the jurisdiction of such
court
iii. Suit in which there is no substantial likelihood that the court decision will
have some affect on the aprties.
iv. Dicta? Could it be an advisory opinion, as it doesnt answer a question
that was actually present to the court?
c. In 1793, George Washington submitted 29 questions to SCOTUS. Justices replied
that there were strong arguments again the extra-judicially deciding the
questions.
d. More relevant and influential to states because several states have advisory
opinions.
3. Based on Advisory Opinion Ban
a. Article III
i. No case or controversy- you need this to satisfy Article III. Not just
questions.
ii. Separation of powers
iii. Advisory opinion is not a judicial act
b. Prudential
i. Avoid interference with the legislature and executive unless litigants raise
actual judicial dispute
1. Lets not decide questions that have not even been asked.
ii. Conserve finite judicial resources (its expensive to have court and it takes
a lot of time)
iii. Judicial restraint Judges are very dependent on the parties because there
is just a lot of knowledge that cannot be had by everyone.
iv. Efficient, effective decision-making
1. Adversary parties are supposed to submit opposing briefs. You cant
get a good argument if the judges cant hear the arguments from
each side. You need to have people presenting both sides for it to
work.
v. Collusive suits
4. Prudential Basis FOR Advisory Opinions (only in some states)
a. Could help smooth relationships between the executive and the judiciary. It
avoids later collision among the branches.
b. Encourage enactment of constitutional legislation
c. Net savings of finite judicial resources.
i. You dont have to wait for a case to come about, you can decide it now
and not wait until later.

10

5.

6.

7.

8.

ii. There is a lot of judicial ink spilled when cases have to be worked up
through every level of the court. You could save resources and time if the
court decides the case early on, rather than waiting for circuit splits.
Limited Authority in 45 States - if the Court wishes too
a. This includes Missouri.
i. RSMO 477.004 Allows the courts the discretion to take cases it wants
and issue advisory opinions.
ii. Says that SC of Mo may answer questions of Missouri law certified to it by
the Supreme Court, a Court of Appeals of the US, a US District Court or a
US Bankruptcy Court, IF there are involved in any proceeding before the
certifying court questions of MO law which may be relevant to the cause
then pending and as to which it appears to the certifying court there is no
controlling precedent in this state.
1. If a US Court is looking at a controlling issue of MO law that is not
currently available, they can ask for a certified question.
iii. MO has a pretty restrictive statute.
b. Purpose is to give the Mo SC the opportunity to decide what Missouri law is,
rather than letting a federal court decide for it. This way Mo gets to decide Mo
law, and not anyone else.
c. This usually happens in Erie cases (diversity) questions. It happens a lot, where
Federal courts get cases that involve controlling issues of state law.
Dicta is not an advisory party because Article III allows the judge to decide on the
whole case or controversy. As a prudential matter, dicta could be seen as an advisory
opinion because its on a point that the parties have not pointed out or argued. They
try not to have dicta but they really do. Its a prudential concern, but not an Article III
problem.
Summary:
a. To avoid being dismissed for seeking an advisory opinion:
i. Filing must present an Article III case or controversy between truly
adverse litigants, AND
ii. MUST be a substantial likelihood that a favorable federal court decision
will have some affect on the parties.
How can you raise constitutional issues that affect a person?
a. If the statute is made the basis of a claim or defense in a suit between private
individuals, the const. issue can be litigated.
b. If the Fed or State Gov brings a civil suit based on the statute, the claim of
unconstitutionality can be a defense.
c. If the gov. institutes criminal proceedings based on the statute,
unconstitutionality of the statute is a defense.
d. One damaged by government action claimed to be unconstitutional may be able
to raise the issue in a suit for damages.
e. Persons held in official custody may challenge the constitutionality of their
detention by a writ of habeaus corpus.
f. One may bring a suit seeking an injunction or a declaratory judgment as to the
constitutionality of a statute (most common way!).
g. SCOTUS has suggested that a gov official sued for damages for violating the
Const. who wins in the lower court under qualified immunity can see SCOTUS
review as long as the official desires to continue to engage in the allegedly
unconstitutional conduct as a part of job performance.

11

Standing
1. Generally:
a. Standing is the determination of whether a specific person is the proper party to
bring a matter to the court for adjudication.
b. Cases decided on standing are NOT decided on the merits at all.
c. If you fail Article III standing then youre out. If you make it through Article III but
then you fail the prudential considerations test, youre out!
d. Standing is really messy. Its really case-by-case and hard to determine with
black letter law.
2. Policy Considerations for Standing:
a. Constitutional avoidance
b. Separation of Powers Judicial Restraint
c. Ban on Advisory Opinions
d. Improved Judicial Decision-making
e. Avoidance of decision-making
3. Sub-Constitutional (Statutory or Common Law) Standing:
a. P MUST be within the plaintiff class defined by the applicable statute or the
common law.
i. You have to show that you are within the class of people that the statue or
common law was meaning to include.
4. Constitutional Standing
a. Article III
i. Injury in Fact sometimes the language is different but its generally
about the same thing.
1. Has to be an imminent threatened or actual injury
2. A distinct and palpable injury to himself
3. Any threatened injury must be imminent and personally suffered.
ii. Causation
1. Alleged injury must be fairly traceable to Ds conduct
2. Ds conduct must have caused the harm
3. Doesnt have to be the sole cause but it has to be significant
iii. Redressability
1. Must be likely that a favorable court decision would redress the Ps
injury
2. You need to be able to have a remedy.
b. Prudential Considerations
i. Generalized Grievance citizen or taxpayer standing
1. P has to allege more than just a generalized grievance widely
shared by all or a large class of citizens
2. Such grievances are most appropriately addressed to the political
branches.
ii. Third-Party Standing
1. P generally must assert its own legal rights and interests, not the
rights and interests of third parties.
iii. Collusive Suits
Conventional Standing Case Law
1. Warth v. Seldin (1975)
a. Ps brought an action against the Town of Penfield claiming that the towns
zoning ordinance effectively excluded persons of low and moderate income from
living in the town.
b. This was an enforcement action, not common law. They were trying to overturn
the zoning laws. This case does NOT concern sub-constitutional standing.
i. Group 1 of Plaintiffs were four people of low and moderate income (and
members of minority groups)

12

2.

3.

4.

5.

ii. Group 2 is taxpayers.


1. They argued that the property taxes were too high, and they would
be lower if there was a better tax base b/c of higher density
housing. Court says there was no legally cognizable injury.
Taxpayers do not have a right to pay a certain level of taxes.
iii. Group 3 is Associations (Metro-act, Home builders and housing council)
1. Argued that the failure of the zoning board for low and moderate
housing deprived them of the opportunity to live in a diverse
neighborhood. Court said that this was arguing the rights of absent
third parties.
c. SCOTUS held that Ps challenging exclusionary zoning practices must allege
specific, concrete facts demonstrating that the challenged practices harmed him
and that he personally would benefit in a tangible way from the courts
intervention. NO STANDING for any group.
i. Indirect harm is not enough.
d. Dissenters said that the Court denied standing b/c they didnt want to decide the
case and wanted to keep Ps out of court.
U.S. v. SCRAP
a. Clinical law school group from GW filed suit in federal court against the Interstate
Commerce Commission. The students argued that the decision from the
commission to raise freight rates, injures them (they have standing) b/c by
raising the rates recycled goods are deterred from being shipped via railroad,
causing injury. Also, the use of more natural resources means more mining and
pollution and therefore problems breathing.
i. Injury was claimed that a lack of recycling increases environmental
pollution.
b. SCOTUS said that the students had standing because they breathed the air.
i. This was different from Warth.
ii. Aesthetic and environmental injuries are sufficient for standing so long as
the plaintiff claims to suffer the harm personally.
iii. Mere interest in the environment is not enough (Sierra Club v. Morton).
Linda R.S. v. Richard D.
a. Unwed mother sought to have the father of her child prosecuted for failure to
pay child support. The state court said it only covered children of parents who
were married, so the woman filed an appeal, claiming a violation of equal
protection.
b. SCOTUS held that there was no standing b/c it was speculative that the relief
requested (jailing father) would remedy the injury.
Village of Arlington Heights v. Metropolitan Housing Development Corp
a. Builder of low and moderate incoming housing contracted to purchase a site in
the Village. K was contingent upon them securing zoning clearances from the
Village. P submitted detailed plans of the project to the Village, which refused to
rezone the property to permit construction of multiple-family housing. Court
found that the Ps (development corp and three individuals) had standing.
i. B/C specific plans were developed and court found that there was
sufficient probability that this housing project would be built.
ii. Contrasted this situation with Warth.
Mass v. EPA (2007)
a. SCOTUS said Mass. has standing to challenge EPAs decision not to regulate four
particular greenhouse gases under the CAA.
i. The widely shared nature of climate change risks didnt minimize Masss
interests in the outcome, so there was an injury in fact.
ii. Causation was satisfied, despite EPAs argument that contributions to
Mass were insignificant.

13

iii. Court could rule on whether EPA has duty to take steps to slow or reduce
global warming through greenhouse gas regulation (redressability).

14

Third Party Standing:


1. A P must assert his own legal rights and interest and cannot rest his claim to relief on
the legal rights or interests of a third party. You have to be before the court. You can
only argue your own legal rights, not the rights of parties not before the court.
a. Prudential standing only.
2. Why the general rule against third party standing?
a. Affected third parties may be satisfied with the status quo.
b. Third parties may be bound by the decision as a practical matter, even though
they do not have an opportunity to be heard in court (Mullane v. Central
Hannover bank- said that you cant be bound by a decision if you arent in front
of the court)
c. Parties who allege their own rights usually litigate more carefully than parties
who allege someone elses rights.
d. Judicial Restraint Separation of Powers
3. Craig v. Boren (1976)
a. Craig wants to buy beer at a convenience store in Stillwater, OK at the Honk-NHoller. OK had a minimum drinking age like a lot of other states had. Boys had to
be 21 to drink, girls only had to be 18. Craig filed a gender discrimination claim
(with another P, who owned the store that wanted to sell beer).
b. Store owner suffered injury because she is loosing money (economic loss) since
she cant sell to boys. Violation of equal protection.
i. She was only able to go forward because she had Article III standing. She
had an injury, statute caused it, it could be redressed by the court.
ii. The problem is that you dont have a legal right to make money, but there
is an equal protection violation. 18 to 21 year old guys are the ones being
harmed. She has to argue the equal protection of absentee people (b/c
Craig had was 21 at the time and no longer injured).
c. This case was the first case to use heightened scrutiny.
d. Real question can she argue the rights of absentees? This is prudential after
she had already established Article III standing.
i. Prudent for SCOTUS to reach a judgment on the merits because it was a
good case that needed to be ruled on.
e. Under Article III, no other prudential considerations can be considered (i.e. this is
a good case, well litigated below, etc.).
i. Third party standing does consider prudential information but only AFTER
Article III standing has been established.
f. Once the court found she had Article III standing, can she come in with the Equal
Protection argument even though she was not injured by the lack of equal
protection (since the right to make money is not protected) but gender IS!
4. Bond v. United States (2011)
a. SCOTUS held that a federal criminal defendant has standing to challenge and Act
of Congress that forbids know possession or use of a chemical b/c it interferes
with the powers reserved to the states under the 10 th Amend.
i. D had Article III standing because incarceration constitutes a concrete
injury, caused by the conviction and redress able by invalidation of the
conviction. An individual has a direct interest in objecting to the laws that
upset the balance between the Feds and the states when the enforcement
of the laws causes injury valid under Article III.
5. Mass v. EPA (2007)
a. Mass got third party standing because they have a stake in protecting their own
quasi-sovereign interests and EPAs refusal to regulate GHG presents a risk of
harm that is actual, imminent and the judicial relief requested would prompt EPA
to take steps to reduce that risk. Just because risks are widely shared does not
mean Mass doesnt have an outcome in the litigation.
6. Exceptions to the Rule Against Third Party Standing:

15

a. Where a close relationship exists between the P and the third party (Craig v.
Boren vendor/purchaser)
b. Where an association sues on behalf of its injured members (Warth v. Seldin)
i. You just need them or their members to get Article III standing then you
are fine. You need a strong relationship
c. Where the third party is unlikely to be able to sue (Bush v. Gore)
i. Interest groups finance litigation. It costs about mill to bring a case to
SCOTUS, but interest groups do.
d. First Amendment over breadth doctrine (Coates v. Cincinnati)
Taxpayer Standing
1. Taxpayer standing is generally denied if citizens are only alleging that they should
have standing because they dont like the way Congress is spending their money and
only allowed under Flast if violation of a certain provision of the Constitution is alleged.
2. Frothingham v. Mellon (1923)
a. Federal taxpayer brought suit challenging the constitutionality of the Maternity
Act of 1921 (alleging 10th Amend. Violation, as infant health care is a state
function). Court held that taxpayers lacked standing to challenges the
expenditures, because any injury was remote, fluctuating and uncertain.
b. RULE: No standing if you are simply suing as a taxpayer.
c. Court gets concerned because every single statute that Congress passes costs
the taxpayers money.
3. Flast v. Cohen (1982)
a. Stands for the proposition that a taxpayer can have standing to challenge
spending of money as a violation of the Establishment Clause.
b. Court said that you can have standing as a taxpayer IF (a) you are suing and
establishing a misuse of funds under the spending power clause AND (b) You
are alleging a violation of specific clause of the Constitution.
Generalized Grievance suit:
1. Citizen Suit:
c. Roosevelt appointed Justice Hugo Black (Senator from AL). Shortly after he was
appointed and confirmed, he and his wife went on vacay to Europe and the
media reported that he had joined the KKK. Black made a radio statement saying
he would resign. A citizens suit was field under the Emoluments Clause (Art. I,
Sect. 6(2)). Court dismissed the case on the ground that it was a citizens
lawsuit, and the only complaint was a generalized grievance.
d. Allows for separation of powers, limits judicial review of some acts of Congress
and the President that SCOTUS probably wouldnt take anyway.
4. Some things, despite Marbury v. Madison, are beyond the scope of review because of
standing. Some provisions of the Const. are beyond the right to sue because of Article
III standard and the prudential standing. You just have to hope that Congress wont do
these things.
5. Lujan v. Defenders of Wildlife (1992):
a. Looks at relationship between article III standing and prudential considerations.
b. Effort by Congress to create citizen standing by statute. This is statutory
standing, not Article III standing.
c. FACTS: Defenders said the regulation exceeded its authority. They are arguing it
was inconsistent with the statutory authority created.
d. ESA says any person has statutory standing if the US or any other agency is
alleged to be in violation of the act. P filed suit seeking a declaratory judgment
that a 1983 regulation stating that ESA of 1973 only extended to actions taken in
the U.S. or on the high seas was in error as to its scope.
e. SCOTUS held that Ps lacked standing to bring the action because they did not
have an injury-in-fact (despite claims by individual Ps that they intended to

16

observe animals when overseas and were afraid they wouldnt be there when
they went back?
i. Ps needed a discrete injury. There is no Article III standing here so court
didnt even look at prudential concerns.
ii. Courts sometimes take generalized grievance cases and decide them
on Article III grounds so that Congress has no power to overrule the
decision.
f. SCRAP is probably not good law because there is no concrete injury. It has not
been overturned by SCOTUS.
6. Federal Commission v. Aiken (1998)
a. Challenge to the federal election commission.
b. Court held 5-4 (like Lujan) that the P have standing to challenge the regulation.
Justice Bryer dissented in Lujan but wrote the majority in this case. Scalia did the
opposite.
i. This is not one of these deminimus allegations of standing. The statute
requires that the FEC file a report that is publically available for anyone. P
claimed they are entitled to it, and there was no report done. This was
NOT like breathing the air but different.
ii. SCOTUS said that injury relating to voting was sufficiently concrete and
specific such that the fact that it was not widely shared didnt deprive
Congress of the power to authorize its vindication in the federal courts.
c. Some of these standing decisions will be 5-4 because its tricky stuff.
d. Broader view of standing means more const. claims get in on the merits, a strict
reading means less get into the court.
e. Some cases have such a minor injury in fact that they cant get through Article III
standing to even make it to prudential considerations.
7. Hollingsworth v. Perry:
a. Facts: California had a statute that limited marriage to man and woman. Cali SC
said that it violated the state constitution and struck it down. Prop. 8 then comes
about when citizens put on the ballot a proposal to amend the state const to
prohibit gay marriage. It passes with 52%.
i. Proponents of same-sex marriage file in Federal District Court claiming the
proposition violates 14th Amen and equal protection. They strike it down.
ii. The State of California then declines to appeal the case because they are
happy with the result. They agreed that not allowing same sex marriage
violates the 14th Amendment.
b. Official Proponents: people who got the signatures, raised the money, and put
the proposition on the ballot in the first place.
c. 9th Circuit upholds the standing of Official Proponents. SCOTUS shoots it down.
i. Proponents said they had standing, even after the state refused to file the
appeal because they are not just interested citizens, they are official
proponents under a proposition/initiative system, b/c citizens organize the
lawsuit because the state wont do it. They have a special interest
because they are doing what the gov. should do but isnt. Not a bad
argument but it didnt win.
d. All parties agree that in the Dist. Court, P who wanted to strike down the ban on
same sex marriage had standing. They had standing to challenge a state statute
under the Equal Protection Clause b/c they wanted to get married and they state
wont let them. SCOTUS has always said marriage is a fundamental right.
e. SCOTUS didnt say anything about same sex marriage and the equal protection
clause since the case was dismissed for standing.
f. Hypo:
i. Voters of Cali pass Prop 8 by 75%, where does the federal dist. Court get
to the authority to say a state statute violates the equal protection clause?

17

Supremacy Clause. Also, Calis stuff gets stuck down for being unconst. all
the time!
ii. If Cali chose to appeal the lawsuit, would the state have had standing?
Yes! They are defending their own statute.
8. Raines v. Byrd (1997) this will be relevant to this new suit from John Bahner against
Obama where Congress is suing the President.
a. President has to veto the whole thing or nothing. This means both parties in the
legislature add tons of pork to the bills. In Mo, they Gov. does have line-item veto
authority.
b. Ps alleged the Line Item Veto Act injured them directly and in their official
capacities in three ways:
i. Altered the legal and practical effect of all votes they may case on bills
containing such separately veto-able items
ii. Divested them of their constitutional role in the repeal of legislation
iii. Altered the const. balance of powers between the Legislative and Exec.
Branches.
c. Congress wanted a Const. ruling on the Act, so they grant citizen standing to
members of Congress who had voted against the bill. They wanted to allow
citizens from Congress to challenge whether or not the line-item veto bill was
Const.
9. Clinton v. New York
a. Court found injury-in-fact because P actually suffered monetary loss b/c of a line
item veto (it was a business). The part Clinton struck down injured them by
canceling a tax provision that would have benefitted sellers in a transaction, but
not a cooperative that was purchasing their co) vent though theyd passed the
bill.
b. This is the opposite of Raines where they didnt find standing.
Mootness
1. If events subsequent to the filing of a case resolve the dispute, the case should be
dismissed as moot.
2. General RULE in federal cases.
a. An actual controversy must exist at stages of appellate or cert. review, and not
simply at the date the action is initiated. Roe v. Wade (1973)
3. Examples of Moot Cases
a. Legislature repeals or amends the statute the plaintiff sues under (or the statute
that is the basis of Ps claim), particularly in an injunctive action.
b. The criminal D dies, or the civil P dies and the cause of action does not survive
death.
c. The prosecutor drops the charges during trial.
d. Civil parties settle the case.
e. Students sue but graduate before the suit is resolved.
4. Craig v. Boren and Mootness:
a. Craig was 21 by the time the case was pending. Craig only raised an injunctive
claim, not a damages claim. Whitener (vendor) raised a damages claim and an
injunctive claim. Craigs claim could be dismissed on mootness grounds.
5. Regents of the Univ. of Cali v. Bakke (1978):
a. P, a white male, was denied admission to the Univ. of Cal-Davis Medical school
and filed suit challenging the set-aside of 16 slots in the entering class of 100 for
minority students. Court rejected Ds argument that P lacked standing b/c of
redressability (since he might not be admitted regardless of the policy) and said
that the injury was Ps inability to compete for all 100 spots.
6. DeFunis v. Odegaard (1974):
a. P applied to the Univ. of Washington Law School and was denied admission. He
alledged that the procedures and criteria employed by the school discriminated
against him on account of his race in violation of the equal protection clause and

18

brought the suit asking the court to issue a mandatory injunction commanding
the Ds to admit him as a member of the 1L 1971 class. By the time his appeals
reached SCOTUS he had registered for his final quarter of law school.
i. Court dismissed because of mootness, holding that the controversy
between the parties had ceased to be definite and concrete and no longer
touched the legal relations of the parties having adverse interests.
ii. P will never again be required to apply to law school so his claim isnt
capable of repetition.
7. Exceptions to the Mootness Doctrine:
a. Capable of repetition, yet evading review
i. Must first be a reasonable expectation that the same plaintiff could be
subject to the same wrong again.
1. Mere theoretical possibility of repetition is not enough.
2. It is not enough that someone else might suffer the same harm in
the future.
ii. Injury must also be of such sufficiently brief duration that a suit about it
would almost always be concluded before federal court litigation is
completed.
iii. Roe v. Wade wasnt moot, even though McCorvey was no longer pregnant
when the case was heard. Every time she had a chance for the case to be
heard, she wouldnt be pregnant by the time it got to the Court, so it was
capable of repetition yet evading review (an exception to the mootness
doctrine).
b. Collateral Injuries remaining after primary injury is resolved.
c. D voluntarily ceases unlawful conduct, but remains free to resume the
conduct at any time
i. D says hell stop trespassing on Ps land but actually free to go on the land
at any time.
ii. City of Erie v. Paps AM: Several members of this Court can attest that
the advanced age of paps owner (72) does not make it absolutely clear
that a life of quiet retirement is his only reasonable expectation. His age
didnt impact the fact that he could choose to re-open the Kitty Kat
Lounge at any time, making it so that the alleged injurious conduct would
again impact him.
d. Certified Class Actions
i. If the named Ps claim becomes moot, class action will not be dismissed
as long as ONE member of the class has and ongoing injury.
Ripeness
1. Ripeness doctrine seeks to separate matters that are premature for review from those
cases that are inappropriate for federal court action.
2. While standing focuses on whether the type of injury alleged is qualitatively sufficient
to fulfill the requirements of Article III and whether P personally suffered that harm,
ripeness centers on whether the injury has occurred yet.
a. Basically when a party may seek a pre-enforcement review of a
statute or regulation.
3. Ripeness Weighing the Interests
a. Hardship to the parties of withholding judicial decision
b. Fitness of the issues for judicial decision.
4. If something is too ripe, youre essentially asking for an advisory opinion.
5. United Public Workers v. Mitchell
a. Group of employees sought an injunction forbidding the Civil Service
Commission from enforcing an aspect of the Hatch Act forbidding certain classes
of federal gov. employees from taking any active part in political management or
political campaigns. SCOTUS held only one of the plaintiffs, who actually

19

engaged in the forbidden activity and had proceedings underway to discharge


him, could maintain the action. It was not ripe for the others.
6. Alder v. Board of Education:
a. When Plaintiffs brought suit in the NY courts seeking judgment declaring
unconstitutional the Feinberg law, which required that teachers who belonged to
allegedly subversive groups be discharged, the Court decided the case on the
merits without considering issues of ripeness or concreteness.
i. Courts decision reflected a conclusion that there was substantial hardship
to denying review in that teacher had to refrain from joining organizations
or risk loosing their jobs.
ii. Frankfurter dissented, saying the allegations fell short of those found
insufficient in Mitchell.
7. Poe v. Ullman:
a. Doctor and his patients brought declaratory judgment actions in Conn. Courts
seeking a determination that a Conn. Statute making it a crime to use birth
control devices was unconstitutional. SCOTUS dismissed the appeals on the
grounds that there was no real controversy since the Conn. Statute was hardly
ever enforced therefore no fear of personal jeopardy.
8. Younger v. Harris:
a. When suit was brought in federal court to enjoy the DA of LA County from
prosecuting Ps under the Cali. Syndicalism Act, the court found that Harris had
been indicted and was actually being prosecuted for a violation of the act at the
time the suit was filed, so he had an acute, live controversy with the State and
its prosecutor. None of the other ps had such a controversy.
Political Questions Doctrine
1. Refers to Subject Matter that the court deems to be inappropriate for judicial review.
2. Political question dismissal says that there are some issues that should be
resolved by the other branches of government so courts shouldnt hear the case.
Some issues are so sensitive and controversial that other branches should be allowed
to make decisions.
3. For Example:
a. When P filed suit alleging that the Iraq War is unconstitutional (b/c thered been
no declaration of war), 10th Circuit dismissed the case as a political question and
did not reach on the merits.
b. If it was a reservist waiting to go to war, they would have standing definitely, but
with a political question, it doesnt matter who the plaintiff is, the case will be
dismissed regardless.
4. If you dismiss a case for a political question, it goes to the nature of the claim, not the
nature of the plaintiff. This is unlike dismissing a case for standing, where a different
person could still bring the case.
a. Determining which elected Representatives can take office is NOT a political
question (Powell v. McCormack (1969)) b/c SCOTUS gets to interpret the Const,
not the House of Representative.
5. They dont come up often. But they can come up in:
a. Some foreign relations cases
i. Are we at war? questions. Especially with groups not states. Congress
hasnt declared war since 1941. When should war begin or end? When we
recognize a foreign government?
b. Cases disputing the process for ratifying constitutional amendments
i. Courts dont want to get in the process of ratifying const. amendments
because thats a job for Congress.
c. The Guarantee Clause
i. Leading case is from 1844. Congress cannot impose a monarchy on the
states.

20

ii. Article IV, Sect. 4 U.S. shall guarantee to each state a republican form of
government.
d. Impeachment
i. Nixon v. US (1993): Federal Dist. Judge went to prison for badness, he
never gave up his appointment and wanted to resume the judge-ship. He
wouldnt resign. House voted to impeach him, then it went to trial and
Senate appointed a committee to write a report. Judge Nixon sued saying
it was an unconstitutional impeachment b/c not all 100 senators would be
there. SCOTUS said no, its a political question.
1. Sensitive b/c impeachment is the way you get rid of SCOTUS judges
so Congress should handle it.
2. No evidence that the framers wanted judicial review in the context
of impeachment powers.
6. Old Political Questions: legislative reapportionment (redistricting) but this was over in
1946. Overturned by Baker v. Carr in 1962.
a. Court held that a suit by voters seeking reapportionment b/c the apportionment
of a state legislature denied them equal protection of the laws involved a
justiciable question.
i. Case basically upheld the principle of one person, one vote. Political
question does not equal political case.
ii. You can only divide up districts by POPULATION, not by county or any
other methods.
Policies of Political Questions:
1. Reasons Against Political Questions:
a. Constitution limits gov. power
b. Courts role is to enforce provisions of anti-majoritarian Constitution.
c. Abdication of judicial review (Marbury?)
2. Reasons For Political Questions:
a. Maintain courts legitimacy and authority by avoiding some particularly
controversial constitution questions.
b. Allocates some const. decision-making to the political branches, in areas in
which these branches have better expertise than the courts.
c. Minimize judicial intrusion in sensitive areas of decision making
d. No way to enforce some court decisions (war constitutionality)
Part II: Individual Liberties and Selective Incorporation of the Bill of Rights
Selective Incorporation
Prime Sources of Constitutional Liberties
1. Original Constitution
a. Best way to win a Constitutional Challenge is to use a Procedural Challenge. This
allows you to win if you cant win on a substantive challenge.
b. Article 1, Section 10, Clause 1 No state shall pass any law impairing the
obligation of contracts
i. Applied to state of GA in Fletcher v. Peck (1810), where state tried to
rescind sale of land it previously approved.
ii. Doesnt add up to much today (were afraid at the time that state
legislature may forgive debtors obligation)- most authors of the const.
were creditors.
c. Article I, Section 9, Clause 3 No bill of attainder or ex post facto law shall be
passed.
i. Ex Post Facto cases say you cant enforce something that wasnt in effect
when the person committed the crime. You cant change the levl of
punishment later.

21

ii. Bill of Attainder laws used to be enforced in England (someone would sign
something saying X committed treason and is sentenced to hang
conviction by legislature)
d. Article VI, Clause 3 No religious test shall ever be required as a qualification to
any office or public trust under the US (NOT common)
e. Article I, Section 9, Clause 2 The privilege of the writ of habeus corpus shall
not be suspended, unless when in cases of rebellion or invasion of the public
safety may require it
f. 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.
i. Includes protection by the government, enjoyment of life and liberty, with
the right to acquire and possess property of every kinds, and to pursue
and obtain happiness and safety; subject nevertheless to such restrains as
the government may justly prescribe for the general good of the whole,
etc. (see page 410).
ii. Corfield v. Coryell (1823): Privilege of fishing belongs to all of the citizens
or subjects of a state. A NJ regulation saying only NJ residents could fish
upheld under P&I of Article IV.
iii. Paul v. Virginia (1868): Corporation not a citizen protected by the clause.
SCOTUS upheld a state law imposing special burdens on insurance
companies incorporated in other states as a condition of doing business
on the ground that a corporation is not a citizen protected by P&I of Article
IV.
2. Bill of Rights
a. Barron v. Baltimore (1833)
i. Barron ran a private dock. Baltimore started doing internal improvements,
which substantively changed the water table. Barron sued alleging that
Baltimore took his process with just compensation in violation of the 5 th
Amend. Maryland did not have a takings clause (thats how we built
America, after all, because states stole the land from locals). Does the 5th
Amend. Apply to state actions or only constrain the Federal Gov? John
Marshall held that Bill of Rights was designed to only constrain the Federal
Gov.
ii. Marshall was correct, because framers in 1787 aimed to not have states
limit their own power, just to limit the federal government. Barron lost
because he cant use 5th Amend against the state of Maryland.
iii. He could today because 5th Amend was incorporated by the 14th Amend.
later on!
iv. SCOTUS held that the Bill of Rights applied only to the federal
government, not the states.
3. Civil War Amendments (13th 15th)
a. After debate as to whether the Constitution itself should be changed, the
amendments were placed at the end so that the original Const. could be left in
tact.
b. Constitution said that three fifths of other persons were to be counted for
determining the number of Reps. and amounts of taxes.
c. 13th Amendment (1865)
i. Proposed before the end of the Civil War. It was adapted by 1865.
Southern states could not be admitted back to the union without radifying
these amendments.
ii. Southern states wanted to keep slavery but call it a different name. Using
black codes which made newly freed slaves unemployed and homeless,
therefore making them criminals. Once sentenced by a judge, you could
then work off your sentence by working for no pay on a plantation.
iii. Text:

22

1. 1. Neither slavery nor involuntary servitude, except as


punishment for a crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject
to their jurisdiction.
2. 2. Congress shall have power to enforce this article by appropriate
legislation.
d. 14th Amendment (1862)
i. 1. No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection
of the laws.
ii. 5. The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.
iii. In 1866, Congress passed a statute that dealt with the way states could
deal with freed slaves. It was vetoed by Andrew Johnson and then
overturned by Lincoln-Republicans.
iv. Sections 2-5. Most of the discussions in Congress dealt with how a state
re-enters the union, how do you deal with people who took arms against
the union. Not much said in the debate about immunity, due process,
equal protection.
e. 15th Amendment
i. 1. The right of citizens of the United States to vote shall not be denied or
abridged by the United State or by any state on account of race, color, or
previous condition of servitude.
ii. 2. The Congress shall have the power to enforce this article by
appropriate legislation.
Slaughter-House Cases (1872) and the Privileges & Immunities Clause
4. Facts: Arose in NOLA. The legislation that was under these cases was perfectly
reasonable public safety legislation. There were about 1,000 slaughterhouses in NOLA
and adjoining states had an overabundance of cattle.
a. It was a health hazard to slaughter 300k cattle because of the lack of sewage
control, lots of problems with throwing carcasses in the Mississippi or on the
ground somewhere. Risk of lots of infections and diseases for the public.
b. The biggest problem was race. White butchers didnt want to be told by an
integrated legislature what to do. Crescent City Slaughterhouse illegally bought
and bribed their way to a monopoly and you had to slaughter your animals
there.
5. Holding/ Outcome:
a. Court narrowly construed all of the provisions and rejected Ps challenge to the
legislatures grant of monopoly. Court said the purpose of the 13th/14th Amends
was solely to protect former slaves.
b. Court refused to expand the privileges and immunities clause to the States and
drew a phony distinction between rights of State citizenship and rights of
Federal citizenship (and also misquoted Art. IV of the several states instead
of in the several states.
c. This basically means that the privileges or immunities clause is removed as a
basis for applying the Bill of Rights to the states or protecting any rights from
state interference; the clause was rendered a nullity by the decision.
d. Court expressed doubt as to whether concepts of due process means anything
other than fair procedure & whether the equal protection clause means anything
other than protecting freed slaves.

23

6. Sanez v. Roe (1999):


a. CA law limited welfare benefits for new residents in the state to the level of the
state they moved from for their year of residence. Court held that the law was
unconstitutional, as this aspect of the right to travel (to be treated the same as
longer-term residents of the state) is protected by the privilege or immunities
clause.
i. This brought new life to the once dormant P&I clause.
b. The right of newly arrived citizens to the same privileges and immunities
enjoyed by other citizens of the same state protected not only by the new
arrivals status as a state citizen, but also by her status as a citizen of the U.S.
c. States cannot choose their citizens, but citizens have the right to choose to be
citizens of whatever state they want, regardless of economic status.
Incorporation Today
1. To say something is incorporated means that the incorporated provision applies to
the states exactly as it applies to the federal government.
2. In deciding whether something is incorporated,
a. The question has been asked whether a right is among those fundamental
principles of liberty and justice which lie at the base of all our civil and political
institutions whether it is a basic function in our system of jurisprudence and
whether it is a fundamental right essential to a fair trial. Duncan v. Louisiana
(1968).
3. Since the Slaughter-House Cases, most of the Bill of Rights has been incorporated
through the 14th Amendments Due Process clause.
4. Amendments:
a. 1st Fully incorporated
i. establishment clause; free exercise clause; protections of speech, press,
assembly and petition
b. 2nd Fully incorporated
c. 3rd No SCOTUS decision (right not to have soldiers quartered) but probably not
fully incorporated
d. 4th Fully Incorporated
i. Protection against unreasonable search and seizures and requirement for
a warrant based on probably cause.
ii. Exclusionary rule, preventing the gov. from using evidence obtained in
violation of 4th Amend.
e. 5th Partially incorporated (not clause guaranteeing criminal prosecution only on
a grand jury indictment)
i. Prohibition against double jeopardy; protection against self incrimination;
requirement that govt pay just compensation when it takes private
property for public use.
th
f. 6 Fully incorporated
i. Requirement for a speedy and public trial, by an impartial jury, with notice
of the charges; chance to confront adverse witnesses and to have
compulsory process to obtain favorable witnesses; Chance to have
assistance of counsel if the sentence involves possible imprisonment.
th
g. 7 NOT incorporated (Palko v. Connecticut (1937))
h. 8th Partially incorporated (no ruling on prohibition of excessive fines)
i. Protection against cruel and unusual punishment; prohibition against
excessive bail
i. Technically the Bill of Rights applies only to the Federal Gov. (Barron)
j. When a case involves a state or local violation of a provision, it involves that
provision as applied to the states through the Due Process Clause of the 14 th
amend.
5. Williams v. Florida (1970)

24

a. State law permitting conviction by six unanimous jury of six in all non-capital
criminal cases is allowed under the sixth amendment and incorporated by the
14th.

25

Substantive Due Process


6. Generally
a. 14th Amendment, Section I Nor shall any state deprive any person of life,
liberty, property without due process of law.
b. 5th Amendment No person shall be deprived of life, liberty, or property,
without due process of law.
c. Deciding Substantive Due Process Cases
i. No life, liberty or property interest
ii. Assume or find a protected interests
1. Interest fundamental (strict scrutiny)
2. Interest NOT fundamental (Rational basis review)
d. Distinction Between Procedural & Substantive Due Process
i. Procedural Due Process claimant challenges the procedure the gov. used
to reach the decision (e.x. notice, impartial decisionmaker, opportunity to
be heard)
ii. Substantive Due Process claimant challenges the gov. decision itself
(denial of life, liberty or property interest without due process of law).
7. Difference Between Due Process and Equal Protection
a. Due Process
i. Const. issue is whether the governments interference is justified by a
sufficient purpose.
ii. If the law denies a right to everyone, due process would be the best
grounds for analysis.
iii. Substantive due process cases end in saying the statute is invalid.
b. Equal Protection
i. Issue is whether the govt discrimination as to who can exercise the right
is justified by a sufficient purpose.
ii. If a law denies a right to some, while allowing it to others, the
discrimination can be challenged as offending equal protection (or the
violation of the right can be objected to under due process).
iii. Equal protection cases come down so that the discrimination needs to
end.
8. Economic Substantive Due Process
a. Historical Background
i. Before Lochner, Congress was not in the business of passing social
economic legislation. The 5th and 14th Amendments were NOT heavily
litigated.
ii. The Slaughter-House dissent had said theres a substantive component to
due process.
1. Although the majority had expressly rejected such a claim, the idea
was controversial.
iii. Farmers had begun to demand regulation from their state governments
(as the state governments were helping Railroads by giving them land).
This was the beginning of the labor movement.
iv. There was a period of social darwinsim AND there was a lot of tension
between industrial interests and that of farmers and laborers.
9. Economic Substantive Due Process During the 19th Century
a. Munn v. Illinois (1876):
i. Court upheld a state law that set maximum rates for grain-storage
warehouses & stated, Rights of property which have been created by the
common law cannot be taken away without due process; but the law itself,
as a rule of conduct, may be changed at the will, or even at the whim, of
the legislature, unless prevented by constitutional limitations.
ii. In 1886, Court ruled that Corporations were considered persons within
the meaning of the 14th Amdt. & hence able to assert due process claims.

26

b. Mugler v. Kansas (1887):


i. Court upheld as constitutional a state law that prohibited the sale of
alcoholic beverages but noted that state laws would be invalidated as
violating due process unless they truly were an exercise of the states
police power. The courts are under a solemn duty, to look at the
substance of things, whenever they enter upon the inquiry whether the
legislature has transcended the limits of its authority.
c. Allgeyer v. Louisiana (1897):
i. Court declared unconstitutional a state law that prohibited payments on
marine insurance policies issued by out-of-state companies that were not
licensed or approved to do business in the state. The Court found that the
LA law interfered with freedom of K and thus violated the due process
clause of the 14th Amdt.
The Lochner Era (1905-1937)
1. Lochner v. New York (1905): Mr. L owned a bakery in upstate NY, & the legislature
enacted a statute providing for maximum hours for bakery workers (b/c of findings that
bakery employment was hazardous). Statute said 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. The Court declared the law
unconstitutional as violating the due process clause of the 14 th Amdt. b/c it interfered
with freedom of K and did not serve a valid police purpose.
a. State had argued that it was trying to protect the health of the bakers, so the
legislation was necessary, but L argued that it deprived him of liberty of K and
property w/o due process (a substantive violation, as he said nothing about the
procedures employed by the legislature in enacting it).
b. TEST: Is this a fair, reasonable, and appropriate exercise of 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, or to enter into those [Ks] in
relation to labor which may seem to him appropriate or necessary for the
support of himself and his family?
i. Court says reasonableness is something for the court to determine, but
its not substituting judgment.
ii. Abrams says this certainly is a substitution.
c. This was a 5-4 decision, with Justices Harlan and Holmes filing dissenting
opinions. Theres some indication that one justice flipped his vote, maybe b/c
NYs brief wasnt as good as Ls.
d. In sum: 14th Amdt. due process regulates both procedure and substance and
permits courts to scrutinize both economic and civil liberties regulation, &14 th
Amdt. liberty protects liberty of K.
i. Govt may interfere only on a valid exercise of the police power.
ii. Courts must carefully scrutinize legislation to make sure it reasonably
serves a valid police power purpose.
2. Nebbia v. New York (1934):
a. NY statute provided for the fixing of maximum and minimum prices for the sale
of milk. The court upheld the statute. Nebbia was underselling competitors and
he argued Lochner saying that he is allowed to sell milk for whatever price he
wanted.
i. Result is that he lost 5-4. This case was a 1930s indication that the court
was relaxing its reliance on Lochner.
b. Price control is unconstitutional only if arbitrary, discriminatory, or
demonstrably irrelevant to the policy the Legislature is free to adopt, and hence
an unnecessary and unwarranted interference with individual liberty.

27

c. The statute was enacted during the Great Depression so that NY dairy farmers
wouldnt go under.
d. This was a slap in the face to Lochner, as the court seemed to question its basic
premise.
e. Pre-1937 Swing Votes: Chief Justice Evan Hughes, Owen Roberts
i. Roberts was a justice that had no judicial philosophy at all b/c he flipped
his vote and other justices couldnt stand him. When he retired in 1945
and there was no letter written for him. Haha.

Post- Lochner Economic Substantive Due Process:


1. West Coast Hotel v. Parrish (1937):
a. This case overturned Lochner.
b. Court expressly overruled Adkins & upheld a state law that required a minimum
wage for women employees.
i. Court made it clear it was abandoning the principles of Lochner, noting
Regulation which is reasonable in relation to its subject and is adopted in
the interests of the community is due process
c. Owen Roberts switched sides to make it 5-4.
2. United States v. Carolene Products Co. (1938):
a. Found under 5th Amend. Due Process b/c its a Congressional statute.
i. Last nail in the coffin of economic substantive due process under Lochner.
ii. Stone wrote the opinion. Was he trying to create new doctrine in the
footnote or not? The FN is dictum and he was not announcing a new
holding.
iii. Only 7 justices sat on the court, so this footnote was only adopted by 4/7.
b. This case would be irrelevant without footnote 4. Abrams hates textual
footnotes.
c. Court upheld the Filled Milk Act, which prohibited filled milk, a substance
obtained by mixing milk and vegetable oil. The court said that economic
regulations should be upheld so long as they are supported by a conceivable
rational basis, even if it cannot be proved that it was the legislatures actual
intent.
i. Whether Congress knew what it was doing or not is irrelevant. Congress
argued it was an adulterated product. It was special interest legislation.
d. Case rejected Lochner. Court stated that we assume the legislature acts
rationally, and the party challenging the assumption has the burden of proving
otherwise.
e. How do you know whether economic regulation violates due process?
i. Rational Basis
ii. Very deferential test (applies to most statutes today).
iii. As long as the legislature is rational (not always right) they are okay.
f. The legislature doesnt have to be right & doesnt have to prove the legitimacy
of the legislation it just has to be rational.
3. Footnote 4: There may be a narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a specific prohibition
of the Const., such as those of the first ten Amendments, which are deemed equally
specific when held to be embraced within the Fourteenth.
a. Most famous footnote in SCOTUS history.
b. Suggests that rational basis test applies to economic legislation, but there might
be a narrower scope for legislation affecting other areas.
c. FN was pure dictum, but it became persuasive as those ideas have now come
into being.

28

4. Does the rational basis the court finds does it have to be the same one that Congress
thought about, or can it be another rational basis that the court/attorney comes up
with? Does congress have to have actually thought about the particular rational basis?
a. NO! Rational basis that upholds the statute in court, does NOT have to be the
same that Congress thought about because we dont put Congress on the stand
to testify. It can be ANY rational basis, even if there is a new one that the judges
thought up.
i. You can use legislative history, etc. to look for the rational basis but you
dont have to.
b. This is SO VERY deferential. Hard to show that something isnt rational.
c. Since 1937, NOT ONE state or federal economic regulation has been found
unconstitutional as infringing liberty of K as protected by due process clauses.
5. Court has made it clear that economic regulations will be upheld when
challenged under the due process clause so long as they are rationally
related to serve a legitimate gov. purpose.
a. Purpose can be any goal not prohibited by Const., and any conceivable purpose
is sufficient.
b. Law need only seem a reasonable way of attaining the end; it does not need to
be narrowly tailored to achieving the goal.
c. Virtually any law can meet this very deferential requirement.
Levels of Scrutiny
1. The level of scrutiny is the test that is applied to determine if the law is constitutional.
a. Strict, intermediate, rational-basis
2. The level of scrutiny tends to be outcome-determinative.
a. If rational basis review is applied, the law is likely to be upheld.
i. Challenger has burden of proof! They have to show that Gov. actions are
totally irrational. This is really hard to prove and the claimant usually
looses. If you look hard enough, you can find a rational basis for a law
from the legislature.
ii. I.E. Age discrimination cases are nearly impossible to win!
b. If strict scrutiny is used, the law is likely to be struck down and gov. usually
looses.
i. Legislature rarely passes laws that are overtly discriminatory to suspect
classes.
3. For equal protection and all due process cases.
Strict Scrutiny
4. The gov. must show that the challenged classification serves a compelling state
interests and that the classification is narrowly tailored to serve that interest.
a. Government has the burden of proof.
b. Court must regard the govt purpose as compelling. Law must be shown to be
necessary as a means to accomplishing the end. Also requires proof that the law
is the least restrictive or least discriminatory alternative.
c. Suspect Classifications:
i. Race
ii. National Origin (except immigration cases)
iii. Religion (either under Equal Protection or Establishment Clause analysis)
iv. Alienage (whether or not the person is a US Citizen)
d. Classifications Burdening Fundamental Rights
i. Denial or Dilution of the Vote
ii. Interstate Migrations
iii. Access to the Courts
iv. Other rights recognized as fundamental

29

Intermediate Scrutiny
5. The gov. must show that the challenged classification serves a legitimate important
state interest and that the classification is substantially related to serving that
interests.
a. Govt interest must be more than just a legitimate goal for government to
pursue; court must regard the purpose as important.
b. Means chosen must be more than a reasonable way of attaining the end; the
court must believe that the law is substantially related to achieving the goal.
c. Govt has the burden of proof.
6. Quasi-Suspect Classes
a. Gender
b. Nonmarital children (illegitimacy)
i. Few and far between at the Const. level. Historically, the discrimination
faced by illegitimate children was great and pervasive. In 1969, SCOTUS
said that the lifetime legal stigma on children who cant control how they
are born.
ii. Now we have the uniform parentage age which is a statute that removes
the discrimination, so cases come under that statute and not under the
14th.
c. Undocumented alien children with regard to education
d. Regulation of commercial speech and speech in public forums
7. Usually the claimant wins, but not as often or reflective as strict scrutiny.

Minimum (or Rational Basis) Scrutiny


8. Challenger must show that the challenged classification is not rationally related to
serving a legitimate state interest.
a. Gov. objective only needs to be a goal that is legitimate for gov. to pursue.
b. Goal need not be the actual purpose of the litigation but, rather, an conceivable
legitimate purpose.
c. Challenger has burden of proof.
9. All Classifications other than those listed above. Although some SCOTUS
decisions suggest that courts may apply a slightly closer scrutiny in cases involving, for
example, classifications that disadvantage mentally handicapped people, homosexuals,
or innocent children of undocumented aliens. Age is another example.

30

Fundamental Rights Under Due Process


1. Court has held that some liberties are so important that they are deemed to be
fundamental rights and that the gov. generally cant infringe upon them unless strict
scrutiny is met.
a. When the court talks about whether something is a fundamental right, theyve
said a right is fundamental if its strongly based in our nations history or our
national heritage; the question boils down to whether we have a historicallybased interpretation or whether we have a living constitution.
2. Recently, SCOTUS has derived the word liberty as a special constitutional protection
for privacy, personal autonomy and some relationships, requiring special justification
for state infringements on those interests.
3. Framework for analyzing Fundamental Rights:
a. Is there a fundamental right?
b. Is the right infringed?
c. Is the governments action justified by a sufficient purpose?
d. Are there means sufficiently related to the goal sought?
Reproductive Autonomy
1. Griswold v. Connecticut (1965):
a. Ds were involved with the Planned Parenthood league of Ct. and were arrested
for providing contraceptives to a married woman. Court found unconstitutional
the state law prohibiting the use and distribution of contraceptives.
b. Court noted that the right to privacy (Justice Douglass) was a fundamental right,
and marriage warrants a privacy older than the Bill of Rights.
i. Its a shadow of the first amendment (and others including 4 th, 5th and 9th).
c. We dont sit as a super legislature to determine the wisdom, need, and
propriety of laws that touch economic problems, business fairs, or social
conditions Douglass
d. This is not substantive Due Process but rather a right of privacy.
i. Cites 3rd Amendment (which is hardly ever cited) b/c its privacy too!
e. Privacy is not an enumerated right. This case hasnt really been followed by
SCOTUS because they havent used penumbras to extend to other rights
that are in the shadows.
2. Court holds marriage as a fundamental right and therefore subject to strict scrutiny.
Court could have decided this on Equal Protection Grounds.
a. They didnt focus on a right to avoid procreation or make reproductive choices,
but on the need to protect privacy in the bedroom.
b. Dissent: Argument is that the right to privacy is NOT a const. right. Black and
Stevens said they both value privacy, but they are not Const. rights. Black is a
strict constructionist.
3. Due Process Claim purpose is to get a court order that says the statute is invalid. Its
an attack on the statute itself.
4. Equal Protection Claim attacks an alleged discrimination.
a. Some people think Griswold should have been an equal protection claim b/c poor
women were most hurt/affected by the anti-contraceptive statute.
5. Since Griswold, the Court has decided very few claims that the state had
unconstitutionally invaded privacy in the sense of requiring disclosure of personal
matters.
6. SCOTUS: If the right to privacy means anything it is the right of individuals to be free
from unwarranted governmental instruction into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.
Right to Abortion
1. Roe v. Wade (1973)

31

a. Texas statute that made it a crime to procure an abortion or to attempt one


(except where necessary to save the mothers life). Court held that the Const.
protects a right for a woman to choose to terminate her pregnancy prior to
viability and ruled that the govt may not prohibit abortions prior to viability and
that govt regulations of abortions had to meet strict scrutiny.
i. States Compelling Interests:
1. Protecting womens health
2. Maintaining medical standards
3. Protecting potential human life
4. NOT the unborn (for obvious reasons)
b. One of the last cases that created a fundamental right, i.e. abortion. These are
HUGE because they are the difference between Const. protection and not. P
looses on rational basis scrutiny and that happens when something is NOT a
fundamental right.
c. Court reviewed this history of abortion and discussed development of medical
technology.
i. Its all about viability when the fetus could typically survive outside the
womb.
ii. First Trimester - abortion decision left to medical opinion of womans
attending physician.
iii. Second Trimester state may regulate abortion procedures in ways
reasonably related to maternal health.
iv. Third Trimester state may regulate, or even proscribe, abortion, except
when necessary (in appropriate medical judgment) to preserve mothers
life or health.
d. The Constitutional basis for the decision was right to privacy under the 14 th
Amendment and (not in the BOR penumbra)
e. Claimants right was a fundamental right to privacy a right to decide whether
to have an abortion.
f. Two concurrences, and a plurality opinion.
i. Dissent: right to privacy is not at play because its not even a distant
relative of the freedom from search and seizure under the 4 th. Its too
confusing to use the compelling state interest test from Equal protection
and apply it to Due Process. Also, we shouldnt just be creating new
constitutional rights out of thin air.
2. Planned Parenthood v. Casey (1992)
a. Penn. Statute required 24 hour waiting period, physician informing women about
the availability of information about the fetus, parental consent for unmarried
minors abortions, reporting and recordkeeping, and woman informing her
husband before an abortion.
b. 14th Amendment Due Process liberty case (like Roe).
c. Court Held:
i. Reaffirmed Roe, and held that the government cannot ban abortions prior
to viability.
ii. Court rejected the rigid trimester framework of Roe and ruled that the
government may regulate abortions before viability so long as it does not
place an undue burden on access to abortions.
iii. All of Penns statutory requirements, except the notification of the
husband, were upheld.
d. NEW TEST: Does a state regulation of abortion have the purpose or effect of
placing a substantial obstacle in the path of a woman seeking an abortion of a
non-viable fetus?
i. States were trying to whittle away at Roe, and this is the closest a case
came to overruling Roe (5-4 decision with a fractured plurality opinion)

32

ii. Court says there are other rights in the 14th Amendment than just those
incorporated from the Bill of Rights (i.e. right to privacy).
iii. Court said the essential holding of Roe should be retained and
reaffirmed (still based on viability).
1. Womans right to choose before viability
2. States power to restrict after viability
3. States legitimate interest in protecting mothers health and fetuses
life.
e. Because of stare decisis, decisions should only be overruled when
conditions are right: (Comes up in Const. and non-Const. cases)
i. Was the earlier decision unworkable?
ii. Little or no reliance on the prior rule?
iii. Was there evolution of legal principles?
iv. Did the facts change?
f. Court says Roe was not unworkable, women relied on it, and it worked. Court
didnt find an evolution of legal priniciples and said the essential facts of the
abortion decision are the same.
g. The Courts power lies in its legitimacy, a product of substance and perception
Court doesnt want to make it look like the new people on the Court just
wanted a change.
h. State won 80% of this case (4 out of 5 restrictions). Its all about rational basis
not fundamental rights, even though the court never actually says that. Its
basically implied rational basis standard.
i. Dissenters Disagree (and all 4 expressly said that Roe should be overruled):
i. Roe has been unworkable; the States have dealt with the Const. decision
and are moving towards more liberal abortion laws. However, it should
have been left with the States to being with and its been the spark of lots
of controversy.
ii. Cases that overruled Lochner, and Plessy were simply recognizing a
disagreement and change of heart, Roe is the same.
3. Gonzalez v. Carhart (2007)
a. In considering whether the Partial-Birth Abortion Ban act of 2003 is
constitutional, the Court found that the Act was constitutional on its face (and
attacks should have come as applied challenges). The act did not impose an
undue burden and it was not void for vagueness.
i. Second partial birth abortion case. In the first one they used undue
burden and the state statute was struck down.
ii. This case was picked because of the interesting nature of the facts.
b. Ps brought a facial challenge (unconstitutional on its face) because they
thought an as-applied challenge might not be of much use to people in the
future and there might not be time for a decision.
c. It looks like this court used rational basis review, although its unclear.
i. Court comes close without expressly mentioning the test.
1. Congress has a rational basis to act
2. Majority won votes of Scalia and Thomas
3. medical and scientific uncertainty persists thus the holding.
4. Dissenters said that the majority applied rational basis.
d. Court applies the undue burden test used in Casey, even though Roe said we
were talking about a fundamental right.
i. Government won (b/c they usually win rational basis cases).
ii. As-Applied argument wouldnt have worked because they were no longer
pregnant. They wanted to get the entire statute struck down, showing that
there is NO const. application of this statute. If they would have won on an
as-applied then it would have shown that there are const. applications

33

of this statute and therefore took away from Roe and other protections. It
would require more litigation to get the whole thing struck down.
iii. This is a strategy decision by the legal team. They have to decide what to
do, whether they want a facial challenge or as-applied challenge. Its too
hard because the abortion can only happen in a certain timeframe. You
could really never make that challenge.
e. Congress made a finding that there was no medical basis for allowing this type
of procedure to protect the health of the mother, so there was a rational basis for
the statute.
i. Kennedy made it clear that it was a narrow decision that was hardly ever
used and doesnt speak to abortion generally.
f. Dissenters tried to say that Congress was so wrong they were irrational, but they
got nowhere.
g. Legacy Congress passed a statute to invite the federal courts (enable them) to
write an opinion that has a lot of ticking time bombs for the next case. Emphasis
is not on health of mother, but actually on the mothers second-thoughts,
medical necessity, tragedy of the situation. Lots of ticking time-bombs.
4. Sternberg v. Carhart, seven years earlier, declared unconstitutional a state law
prohibiting partial birth abortion, so dissenters said the only different between the two
cases was the justices.
a. Fundamental right means strict scrutiny under substantive due process.

5. Differences Between Facial and As-Applied Challenges


a. Facial Challenges there is no possible constitutional application to this statute.
It could never be constitutional.
i. I.e. no person may sell a newspaper within 100 yards of a law school
building. Its a first amendment violation and would never be
constitutional.
ii. If the court strikes down the statue as applied, the statue remains on the
books, waiting for future constitutional applications.
iii. Harder to win a facial challenge because you are claiming that this statute
has no const. application AT ALL and that the legislature made a terrible
mistake.
b. As-Applied Challenge Statute may be constitutional as applied to other people
in other circumstances, but not as to this plaintiff at this time.
i. i.e. No person may behave on a street in a way that is annoying to
passersby
ii. If the court strikes down the statute as applied, the statute remains on the
books, waiting for future constitutional applications.
iii. Easier to win b/c its just about saying its unconstitutional to one person
in one fact pattern, not generally.
iv. There is an exception (get to that later)!
Fundamental Rights and Griswold
6. Court is ALL OVER THE PLACE in determining what is a fundament right.
a. Court hasnt found another one since Roe. (Congress CANNOT find them)
7. Fundament rights should only be allowed in implicit cases of National history or
tradition.
a. How do you then define the rights of states? Douglass (majority) said it was a
right of marital privacy which is in our national history/heritage.
8. Whats in our history:
a. Rights inhering in marriage (obviously)
b. Privacy in marital decision-making (less so)
c. Any couples right to access contraception

34

i. There have pretty much always been state regulation on that has limited
that right, so probably not fundamental
d. Married Couples right to contraception
i. How narrow should this be? When you narrow it down, you look at
history/heritage and see if its supported. Thats how you limit the critisim.
1. Michael H (footnote):
a. Married woman had an affair and ultimately a child with another man. The WA
statute says that the guy she is married to is the father, regardless of who really
is. The cheater man wants to be named as the father. He needed to establish a
fundamental right to a relationship with his biological daughter. He looses b/c
Brennan said that the fundamental right is to parenthood, and thats it.
b. Footnote: Fundamental right must be in the narrowest level of extraction
(not parents rights case) in substantive due process claim.
c. Four members of the plurality refuse to sign to the footnote because its not the
law. Only two justices went along with the footnote.
d. It all depends on HOW you state the right.
Medical Care Decisions
2. Washington v. Glucksberg (1997):
a. Washington had two statutes. One said it was illegal to aid a person to commit
suicide. One said that withdrawing or withholding life-sustaining treatment, at
the patients direction, is not illegal under that first statute. This mostly applies
to doctors.
b. Brought as substantive due process and not equal protection b/c if you are going
to bring an equal protect case, you have to show that the gov. is discriminating
against similarly situated people. You dont proceed unless you can show that
both groups are similarly situation, if they arent, then you dont have
discrimination.
i. In this case you cant make that argument. Patients who are terminally ill
are not the same as other patients who come in for a broken arm, or
whatever.
c. Plaintiffs claim was that there was a liberty interest.
i. State said there is a liberty interest in withholding life-saving treatment
ii. Physicians claimed there was a liberty interest in assisting a competent,
terminally ill patient who wants to have deadly drugs administered. They
should be able to head the wishes of their terminally ill patients.
d. Doctors (Plaintiffs) had Article III standing, even thought the patients were
already dead, b/c the injury-in-fact was the inability to treat their patients.
They want to treat their patients with illegal drugs but there is a criminal statute
saying they cant.
i. Physicians were asserting their own rights to do this because if they didnt
follow the rules they would go to prison. They also argued the rights of the
deceased patients, (under Craig v. Boren) because of the strong
relationship between the physician/patient. Its a close enough
relationship for third party standing.
e. Doctors lawyers know that rational basis means they will lose so they argue a
fundamental right. Its a facial challenge, and the court notes the possibility
of an as-applied challenge.
f. Court held that the statute prohibiting assisted suicide was not unconstitutional
on its face and found that the asserted right to assistance in committing
suicide is not a fundamental liberty interest protected by the due process clause.
i. Held its not a fundamental right and goes with a rational basis
test, finding many legitimate interests.

35

1. Rational bases preserving life, protecting medical professions

integrity, protecting vulnerable people from abuse, neglect and


mistakes, and protection against euthanasia.
ii. Not moot because its capable of repetition as to these doctors.
iii. Court doesnt follow Michael Hs most specific/restrictest level of
abstraction test but requires a careful description/examination of the
asserted interest (somewhere in the middle).
iv. People of the state should decide whether the legislation is appropriate.
g. Cases seem to empathetically reject a constitutional right to physician-assisted
suicide.
United States v. Windsor (2013):
1. Dealt with extraordinary facts. Two issues: is there standing? Whether or not the
statute satisfies due process/equal protection on the merits.
a. Challenge to the constitutionality of a section of DOMA. DOMA was passed in
1996 (by Clinton) and had two major provisions.
b. Section 2 (not at issue in this case) full faith and credit clause section.
i. As States began to think about if a particular state allows same-sex
marriage, do other states have to recognize the marriage if they move to
a state that doesnt allow same sex marriage? I mean we dont know.
Full faith and credit has sort of evolved into a public policy exception.
1. MO has a state and const. provision that does not recognize samesex marriages.
ii. It reaffirmed that states could evoke a public policy exception that
probably already existed anyway.
c. Section 3 Struck down
i. Amended the Dictionary Act. Title 1 of USC defines terms that appear in
many other statutes across the US code.
ii. Issue says that anytime the word marriage or spouse appears in the US
Code, it only means a man and a woman, nothing else. It affected about
1,000 other sections of the US code, including the internal revenue code
and criminal code (it has broad implications)
2. Facts: Windsor got married in Canada, they lived in NY where NY recognized the
marriage. When her partner dies, Windsor claims that it she has a lawful marriage and
should be eligible to the estate tax exclusion (worth about 300k). IRS said that under
DOMA you are not a spouse under Federal Law/Code.
3. Standing both Article III components and prudential concerns.
a. Collusive Lawsuit
i. They sometimes arise when the parties agree to a stipulation of facts and
then it becomes clear to the court that the agreed stipulation to facts is
inconsistent to what the facts really are. (Basically setting up the case).
ii. If the same interest group is funding both sides? It smells collusive.
iii. Wanting the same result or remedy?
1. This is the category that was lurking in Windsor since both sides
said the statute was unconstitutional. Money was the only divider.
b. Was there standing? Majority said yes, dissent said no. Windsor files a claim in
the district court. She had Article III standing in the dist. court? YES! It was NOT
collusive in the District Court. Gov. agrees that DOMA is unconstitutional but
they will not give her the 300k she should be entitled too.
c. The intervener argues in defense of the statue. They argue no Article III standing
b/c there is no adversity. Windsor and Gov. both say its unconstitutional.
d. Majority says they should hear the case because someone else would have to
bring it later, and there are prudential reasons to hear it since Windsor has Art III
standing because she wants the money and they wont give it to her.

36

e. Dissent It was collusive and shouldnt have been granted standing.


4. On the Merits Is section 3 of DOMA constitutional?
a. Substantive Due Process (decided as this, NOT equal protection)
i. Claim has to say that a life, liberty or property right/interest is at stake.
Windsor said her liberty interest was to marry whomever she wanted to.
Court did not decide that even though Windsor could have turned this into
a same-sex marriage case.
ii. Level of Scrutiny
1. Windsor argued for a fundament right. Majority never told us what
level of scrutiny they were applying. They didnt tell us if there was
a liberty interest at stake. They just said it was a substantive due
process liberty violation.
2. Scalia (dissent) said that if you dont say its fundamental right then
it HAS to be rational basis.
iii. Establishment (or non-establishment) of violation.
5. Lawrence v. Texas we have a rational basis for the statute because they are enforcing
public morality. Court said majority notions of public morality did not create a
legitimate state interest. Scalia said that if public morality is not an issue, then samesex marriage bans/polygamy bans/ other crazy things are not constitutional. Most court
of appeals (federally) have struck down the same-sex marriage bans but that they
werent really sure about it.
a. Abrams thinks they are waiting for the first court of appeals to uphold a samesex marriage ban so there is a circuit split (since its one ground for granting
cert).
b. It was a 14th Amend due process case but the court punted and didnt engage in
strict scrutiny analysis. They did find it wasnt enough if there was a legitimate
state interest and texas statue might pass a rational basis test, the Court applied
some form of heightened scrutiny
c. 5 years after Glucksberg SCOTUS allows the liberty interest to be phrased
generally (i.e. const. protection for all individuals in the most intimate and
private aspects of their lives; states absence from the home).
d. It overruled Bowers v. Hardwick (1986) which held that the right to privacy
doesnt extend to private consensual homosexual activity.

37

Equal Protection Clause of the Fourteenth Amendment


1. Generally creates and aspires to political equality. Gov. must treat similar situated
people in similar ways, and dissimilar people in dissimilar ways.
a. Never has been applied literally because legislation classifies and
discriminates against people all the time. The question in these cases is whether
or not the gov had a sufficient basis for discrimination or not?
i. i.e. 21 drinking age. Yes it discriminates people and classifies them. Its
lawful anyway.
ii. Doesnt outright ban the discrimination, but decides whether or not it is
constitutionally sufficient.
b. Is the classification Constitutionally sufficient?
i. Look at the scrutiny level and decide.
1. Age discrimination gets rational basis since there is no fundamental
right to be treated equally because of your age. We had to draw the
line someplace.
2. Gender gets intermediate scrutiny. Plaintiff usually wins.
3. Race, alienage, etc. gets strict scrutiny.
c. Widely used only since the 1950s.
i. Came into the Const. in 1868. It had lots of potential. It didnt mean very
much until Brown v. Board of Education.
ii. Slaughter House cases said that he doubted equal protection would go to
anything but race. By 1927, Buck v. Bell basically said that people use
equal protection when they had nothing else, that it was basically
worthless for certain things. Railway Express in 1949 said that claims of
denial of equal protection are frequently asserted, they are rarely
sustained.
iii. When Brown v. Board came around in 1954. Today the equal protection
clause is more of a first resort, one of the more litigated provisions in the
const.
iv. There has been a reduction in equal protection claims because we have
MORE civil rights statutes than ever before. Most cases are decided on
statue and not on Const. interpretation.
1. I.e. Age discrimination statue. SCOTUS held that Age gets rational
basis review so people dont bring it. If you do run amuck from the
statute, the claim is brought as a violation of that statute, not a
Const. challenge.
d. Tests only the validity of the classification.
i. Which group someone falls into is widely contested but is NOT a
constitutional issue.
e. Sustaining the equal protection claim invalidates only the classification
i. It only applies to the states. Does that mean that the Fed. Gov can deny
equal protection? NOPE. Bolling v. Sharpe (which was brought the same
time as Brown) challenged racial segregation in DC public schools.
f. Equal protection is incorporated into Fifth Amendment Due Process
i. Reverse incorporation thanks to Bolling. 5TH Amend brings in the 14th
Amend Due Process clause. Whether its state or federal, the claims are
the same. Due process claims challenge the final decision clause. Equal
protection challenges only the discrimination or classifications (Griswold).
ii. The requirements of the EP are the same whether the challenge is to
federal government under the 5th Amendment or to state gov. under the
14th amend.
g. Sometimes equal protection is a way for the courts to render their
decision while still leaving a lot of discretion to the
legislature/executive.

38

i. Due process claims challenge the final decision clause. Equal protection
challenges only the discrimination or classifications (Griswold).
ii. Same Sex Marriage when the court takes and decides the case it will be
decided under equal protection.
1. Hypo: court holds that equal protection strikes down bans on samesex marriage. State legislatures could decide that everyone could
get married, or no-body can (highly unlikely).
2. Equal protection strike-down would likely be the end of this story
(but not every time).
iii. Litigation strategy when writing the complaint or brief, be careful of the
claims you argue. If you just throw a bunch of weak claims out there, it
makes the strong ones look weaker. If you can allege due process and
equal protection, its two ways to solve the problem.
h. All Equal Protection cases look to whether the govt classification is
justified by a sufficient purpose, which depends entirely on the type of
discrimination.
Substantive Due Process v. Equal Protection
2. Substantive Due Process Is the governments decision justified by a sufficient
purpose?
a. Discrimination can be so unjustifiable as to violate of Due Process (when SCOTUS
said there could not be racial segregation between public schools in DC,
federally)
3. Equal Protection Is the govs classification justified by a sufficient purpose?
4. Generally:
a. There are times when there are overriding national interests that justify selection
federal legislation that would not be okay for an individual state.
b. The approach of both is generally the same.
c. 5th amend. forbids the federal government from denying equal protection of the
laws, under the substantive due process clause. 14 th Amend. provides equal
protection for state and local laws.
Analyzing Equal Protection:
1. What is the classification?
a. Is there even one at all, and if so, what is it?
2. Does the classification distinguish among similarly situated people?
a. NOT Glucksberg, where statute included ALL terminally ill people and only
excluded those who werent)
b. Basically, does the classification look silly? Does it even make any sense?
3. Whats the level of scrutiny?
a. Example: discrimination against blond-haired person would get rational basis
scrutiny.
Type of Classification
1. Facial Classification:
a. The law in its very terms draws a distinction among people based on a particular
characteristic.
b. Strauder v. West Virgina (1880): Statute limited jury service to whites and the
court invalidated it.
c. Example: No woman may serve on a jury
2. Facial Neutrality, but with discriminatory impact
a. Law is facially neutral, but there is a discriminatory impact.
b. Example: All police officers must be at least six feet tall and weight 160 lbs
(40% of men qualify but only 1% of women).
3. Facial Neutrality, but with discriminatory application

39

a. Yick Wo v. Hopkins (1886): Statute said that anyone who wanted to start a
laundry had to get a permit. There is a good reason for that since buildings were
made out of wood. Reality was that basically every Chinese-American was
denied a permit, but Caucasian Americans were not.
Relationship of Means to the End (how do we decide what is narrowly tailored and substantially
related)
1. Under-Inclusive
a. Law does not apply to some people who should be included for the gov to
achieve its purpose
b. Does not apply to individuals who are similar to those to whom the law applies
2. Over-Inclusive
a. Applies to some people who need not be included for the gov. to achieve its
purpose.
3. Laws may be both under and over inclusive
a. Example: Govt sets minimum age for drivers license (rational basis b/c of age).
Purpose is probably highway safety/road safety. The statute is under-inclusive in
that it excludes unsafe drivers who are on the road (regardless of age) and overinclusive in that it includes people who would be perfectly fine drivers (but
younger than minimum age requirement).
i. Most statutes are over inclusive to some extent, and under inclusive in
some sense. Its hard to reach everyone who needs to be reached and
excludes every person who should be excluded.
b. Example: Governments decision to evacuate and intern all Japanese
Americans on the West Coast during WWII was radically over-inclusive, as
individuals were evacuate and interned without any determination of their
threat, so large numbers of people were unnecessarily harmed. However, it was
also under-inclusive in that it did not identify all people who were a threat to
security (assuming that was the purpose) b/c it ignored other races.
4. How much over- or under-inclusiveness the govt will tolerate depends on the
levels of scrutiny.
a. The real question is how much are they over/under inclusive before the court
will strike down the statute?
i. Courts are HARSHEST for strict scrutiny for over and under inclusive
statutes. They are the hardest on over-inclusive restrictions with a
fundamental right.
ii. Courts are LAXEST on rational basis and the relationship between state
interest and the over/under inclusiveness.
Scrutiny Levels
1. Strict Scrutiny
a. Challenged classification must serve a compelling state interest and be narrowly
tailored.
2. Intermediate Scrutiny
a. Classification must serve an important state interest & be substantially related
to serving it.
3. Minimum Scrutiny
a. Classification must be rationally related to serving a legitimate state interest.

40

Rational Basis Decisions


(legitimate purpose + reasonable means)
1. Unless the government action is a type of discrimination that warrants the application
of intermediate or strict scrutiny, rational basis review is used.
2. The law WILL be upheld unless the challenger can prove that the gov. has no legitimate
purpose or that the means are not a reasonable way to accomplish the goal.
3. Legitimate State Purpose:
a. Traditional subject of the police power protecting public safety, public health, or
morals
b. Almost any goal not forbidden by the Constitution.
4. Railway Express Agency v. New York (1949)
a. NY law prohibited the operation of an advertising vehicle but created an
exception for business notices upon business delivery vehicles, so long as such
vehicles are engaged in the usual business or the regular work of the owner and
not used mainly for advertising. Purpose was to prevent traffic accidents. It was
REALLY passed because it was special interest legislation (like Filled Milk Act) b/c
NYC had at least 10 daily newspapers, and the newspaper industry wanted to
get all advertising to the newspapers and not the trucks.
b. The court applied the rational basis test and found that the legislation could
stand, as it had the legitimate purpose of enhancing traffic safety because the
city might perceive that the prohibited advertisements could be more
distracting.
c. Gov. might have perceived some difference among the ads and it was irrelevant
to whether the govt failed to deal with even greater distractions to motorists.
5. Rational Relationship there has to be a minimally rational relationship between the
means chosen by the government and the state objective
6. Ascertaining Legislative Purpose for Rational Basis Review
a. SCOTUS does not require that legislative bodies articulate the purpose of a
statutory classification, or be held to an identifiable actual or even reasonably
presumable purpose for the classification to survive judicial review for
reasonableness.
7. Court does sometimes invalidate legislative classifications in modern times but NEVER
for solely economic regulation or distribution of government benefits.
a. Rational basis (Gov.) almost always wins, and never wins under those two things.
Other Types of Discrimination that get Rational Basis Review
1. Discrimination based on disability
a. City of Cleburne v. Cleburne Living Center (1985): this was an as applied
decision.
i. City ordinance required a special permit for the operation of a group home
for the mentally disabled. Court used the rational basis test to declare the
law unconstitutional, rejecting the citys justifications for discriminating
against the mentally disabled.
1. The justifications were either not legitimate purposes or the
ordinance was not a reasonable way of accomplishing that goal
(city seemed to be irrationally prejudiced toward the mentally
disabled, as they didnt require a permit for nursing homes,
fraternities, etc.
ii. Court said that rational basis applied, but in the 5 th circuit applied quasisuspect analysis. That looks more like somewhere between intermediate
and rational basis. City would have to show important state interest and it
had to be substantially related.

41

iii. Case does NOT stand for the proposition that you can never deny a permit
to maintain a group home for the mentally disabled. It was an as-applied
decision.
1. Gov. usually wins in rational basis, but in this case the P won, and
the city lost.
b. Court explicitly says that EP clause requires only a rational means to serve a
legitimate end (but this was rational basis scrutiny with a bite).
c. Was this city ordinance under inclusive?
i. The purpose of the statute was a public safety measure. It was GROSSLY
under inclusive which is normally okay for rational-basis stuff since they
law can move slowly. That wasnt true here. This was an economic
regulation case. Normally, you just have to be rational, NOT right but not
in this case. It was an ananomly.
2. Wealth Classifications
a. Legislative classifications disadvantaging the poor more frequently take the form
of financial charges applied to the indigent as well as the relatively more
affluent, or withholding of welfare or other assistance from some ingredients not
others.
b. Claimants argued that the right to public assistance benefits was a fundamental
right seeking out suspect classification analysis, but they didnt win.
i. If they did win, it would be hard for governments to deny people public
assistance benefits.
c. The state and local decision makers have discretion to determine who can get
benefits and who cant. They have rational basis discretion.
d. Court generally states that welfare classifications are not suspect.
i. Jefferson v. Hackney (1972): states formula for dividing a pool of AFD
funds did not violate the 14th amend.
ii. Lindsey v. Normet (1972): the need for decent shelter is not a
fundamental right under 14th Amend equal protection.
iii. Dandridge v. Williams (1970): SCOTUS may not second-guess state
officials allocation of public assistance funds.
e. Poverty is NOT an immutable characteristic.
3. Non-Marital Children:
a. If in 2014 the court got its first non-martial children case, they would probably
use rational basis and NOT intermediate scrutiny like in the past.
i. The court today would also likely use rational-basis plus for disability
cases today (just a guess)
b. Most states have a Uniform Parentage Act which eradicates more discrimination
for illegitimate children. SCOTUS rarely hears these cases.
c. Levy v. Louisiana (1969) state of LA had a wrongful death statute. Only children
who could recover were ones of a martial union. Court implied intermediate
scrutiny and required an important state interest.
i. Today, some important state interests are there between marital and nonmarital children, mostly in estates and trusts issues. If you die without a
will then the children are differentiated, all to prevent fraud.
d. Really there are nearly no cases like this. 37% of babies born in the US are born
to single mothers.
4. Age
a. Most age-discrimination cases today are fought at the statutory level. Its not
terribly beneficial to bring it under equal protection because its nearly
impossible to win under rational basis.
b. 1976 Mass case where the state had a statute that said police had to retire at
the age of 50. Cops brought a suit claiming age discrimination and the state
argued that being a police officer is a stressful/difficult job and that 30 years of

42

that is enough. Statute was grossly over-inclusive but under rational basis is
okay.
c. Younger people are discriminated against all the time, but the court says its
okay.
d. This is NOT a suspect classification.
5. Sexual Orientation
a. Sup. Ct. has not yet ruled as to whether discrimination based on sexual
orientation warrants the application of intermediate or strict scrutiny.
b. However, almost all of the U.S. Cts. of Appeal to rule on the issue have found
that only rational basis review should be used.

43

Suspect Classifications (Strict Scrutiny)


1. Equal Protection:
a. Invidious discrimination disadvantages one or more members of the minority
group
b. Benign classification benefits one or more members of the minority group.
2. 14th Amendment does not mention citizens so state actors can violate equal
protection in actions towards aliens.
a. Alienage classification based on non-citizenship
b. National origin classification based on ancestry or ethnicity
Invidious Discrimination
3. Tick Wo. v. Hopkings (1886)
a. City ordinance required that laundries be located in brick or stone buildings
unless a waiver was obtained from the board of supervisors. P alledged that over
200 petitions by those of Chinese ancestry had been denied, but all but one of
the petitions filed by non-Chinese individuals were granted. Court unanimously
reversed Ps conviction for violating the ordinance.
i. Not discriminatory on its face but as applied by evil people, it becomes
discriminatory.
4. Korematsu v. United States (1944)
a. Court upheld the constitutionality of the relocation of Japanese- Americans
during WWII. Court accepted the government claim that there was a serious risk
to national security from Japanese- Americans who were disloyal to the US and
that there was no way to screen the identity of such individuals.
i. Korematsu was not excluded from the Military Area because of hostility to
him or his race. He was excluded because we are at war with the Japanese
Empire, because the properly constituted military authorities feared an
invasion of our coast
ii. Murphy J, dissenting The evacuation of Japanese Americans was one
of the most sweeping and complete deprivations of constitutional rights in
the history of this nation.
iii. Conviction of Korematsu was later overturned, and Ford signed a
proclamation repealing the internment order.
5. Adarand Constructors, Inc. v. Pena (1995)
a. Subcontractor who filed suit challenged the affirmative action. The appellate
court applied basically intermediate scrutiny because it was benign
classification. The law wasnt clear after Korematsu.
i. One case applied strict scrutiny, another applied intermediate scrutiny.
Court overrules the intermediate scrutiny and ruled that all types of racial
discrimination get strict scrutiny. This is still true today, regardless of it is
invidious or benign discrimination.
b. OConnor wrote the opinion that said that racial classifications have strict
scrutiny that could be used in certain cases, but in other cases we still need
intermediate scrutiny.
1. Not in CASEBOOK OConnor came back and use stare decisis (like Casey). There
were two inconsistent precedents here as well and the criteria used to look at the
problem.
c. Did anyone as a practical matter relied on the prior rule?
i. OConnor said the court should overrule Metro Broadcasting (even though
it was only 5 years) because businesses hadnt relied on the ruling yet. It
was different than Roe which was 25 years later.
ii. If this criterion is applied, it allows a basis to overrule a more recent
precedent. If no one paid attention to it, then it can be overruled easier.
The longer you wait, the more people rely on it.
6. Practical tip use your disposition to tell the court what you want.

44

a. This court punted this case. They did overrule one case and settle conflicting
precedents but sent it back to the lower court and let them figure out the details.

Begin Classifications
1. Court is moving toward eliminating (but hasnt yet) benign classifications.
a. J. Thomas thought that affirmative action programs undermine the moral basis of
equal protection principles. He thinks the classifications have a destructive effect
on the party in society.
b. Today affirmative action programs stand up today as long as they are
narrowly tailored.
i. All racial classifications get strict scrutiny.
2. Does Constitutional Law include greater societal developments or visa versa?
3. Fisher v. Univ. of Texas (2013)
a. Long awaited decision where a lot of groups were banking that this decision
would be definitive and get rid of affirmative action in higher ed. Thats not what
happened. It was a 7-1 decision but LOTS of opinions, so still no concrete law.
b. Facts - Univ. of Texas had a program that encouraged racial and ethnic diversity,
called the Top 10 program, all high schools in Texas would have guaranteed
admission for the top 10% of students in their high school. Everyone else had to
go through the regular admissions process, which included a lot of factors
including race and ethnicity.
i. The produced racial and ethnic diversity because of so much residential
segregation.
c. In a strict scrutiny case, it has to be narrowly tailored and a compelling state
interest.
i. Texas DID have a compelling state interest for affirmative action in higher
education b/c the case law says the producing a diverse class at a state
university is a compelling state interest.
1. Producing a diverse class of students
ii. Narrow tailoring there has to be an inquiry into whether or not there is a
LESS restrictive way to meet that same end.
4. ALL Racial classifications get strict scrutiny. Plan has to be narrowly tailored. It
depends on what context the case comes up in about the narrow tailoring.
a. Public employment making up for past discrimination is a compelling state
interest.
b. In higher ed, making up for past discrimination is NOT a compelling state
interest.
5. Affirmative action is okay as long as you are trying to create a diverse student body,
you dont assign points to particular groups and the narrowest way to get diversity is
the way being used.!
Privileges and immunities applies only to citizens, equal protection and due process applies to
EVERYONE.
6. This is where classification based on alienage and national origin. They usually get
strict scrutiny but there are exceptions that get rational basis review.
i. The right to vote is restricted to citizens.
ii. Serve on juries.
iii. Hold political office.
iv. Immigration area (Art. 1, Section 8) said that Congress gets to choose
immigration stuff and not the courts.

45

Quasi-Suspect Classifications (Intermediate Scrutiny)


1. Generally:
a. Equal Rights Amend Proposed: Amendment to the Const. stating that
Equality of rights under the law shall not be denied or abridged by the US or by
an State on account of sex was proposed in 1972 but was not ratified by the
original or extended date.
b. Gender discrimination cases are a good example of how the court was applying
equal protection without historical factors or original intent.
c. Sandra Day OConnor Women were treated poorly and intended them to be
treated poorly in the past but times have changed.
d. Myra Bradwell tried to get admitted to the Illinois bar in 1872 but she was
turned down because she is a woman. She went to SCOTUS and lost.
2. Legitimate State Purpose/ Interest
a. Traditional subjects of the police power public safety, public health, or
morals.
b. Almost any goal that is not prohibited by the constitution (i.e. does not
perpetuate discrimination that the law prohibits.
c. Other purposes that the law recognizes as legitimate.
Gender
1. Geduldig v. Aiello (1974):
a. Californias disability insurance program is allowed to exclude pregnancy as a
coverage option because the state has a legitimate interests in maintaining a
self-supporting insurance program and keeping the costs down. It also does not
disadvantage women because it doesnt create a protection for men that it
doesnt provide for women. They do not have to expand their insurance program
just because theres a risk outside the programs protection.
i. You can provide sick leave pay for non occupational disabilities other than
pregnancy but you cannot deny female employees returning to work after
a pregnancy the seniority accumulated given to other sick people who
werent pregnant.
2. Hoyt v. Florida (1961)
a. The jury was all male. Court upheld a state law that made men eligible for jury
service unless they requested and were granted an exception, whereas women
were automatically exempted unless they waived it and expressed a desire to be
included in the jury rolls. Court applied the rational basis test. It was later
overruled.
b. Reed v. Reed finally struck it down using rational basis.
c. 1976 Craig v. Boren was the first one that used intermediate scrutiny. No
SCOTUS court has made gender discrimination strict scrutiny.
d. Gender discrimination cases are more unpredictable than strict scrutiny or
rational basis. They are more of a toss up!
3. Craig v. Boren (1976)
a. SCOTUS didnt care about history or intent they just used any person and
applied what they wanted. Dissent wanted history to play a part in the decision.
b. SCOTUS finally agreed on intermediate scrutiny as the appropriate level of
review for gender classifications and declared unconstitutional and Oklahoma
law that allowed women to buy low percentage alcohol at age 18 but prevented
men from doing so until 21.
4. Personnel Administrator of Mass. v. Feeny (1979)
a. State law gave preference in hiring veterans. P repeatedly took civil service
exams for particular positions and received high scores but was placed on a list
of veterans with lower scores and only 1.8% of the veterans were female.

46

b. It was not facially discriminatory, but rather had a discriminatory impact. It was
brought as a gender discrimination case NOT discrimination against nonveterans because it would be rational basis. Gender got heightened scrutiny,
therefore the P were more likely to win.
c. Court upheld the state law because it was facially neutral, even though it had a
substantial discriminatory impact on women. Court rejected the claim of gender
discrimination because the law providing a preference for veterans was genderneutral and the discriminatory impact was not sufficient to prove the existence
of a sex-based classification. There must be PROOF of a discriminatory purpose.
5. Mo. statutory code mostly has hes instead of men and women pronouns because
they were passed before the 1980s. As the statutes get amended, they are putting in
gender neutral language.
6. Analyzing Gender Discrimination:
a. Show facial discrimination.
b. Statute is facially neutral but has a discriminatory impact.
c. Facially neutral but not discriminatory necessarily, but the actual implication is
discriminatory (check this last point).
7. Generally:
a. Court generally strikes down gender classifications that benefit women based on
(what the court concludes) are gender stereotypes Hogan.
i. In Hogan, court applied intermediate scrutiny to declare unconstitutional a
statute providing that a state-supported professional nursing school was
available only to women.
b. Court has generally permitted gender classifications benefitting women that (the
court concludes) are meant to remedy past discrimination against them
Califano v. Webster.
i. Court upheld a provision in the Social Security Act that calculated benefits
for women in a more advantageous way than was used for men. Court
said the difference in the formula was permissibly based on redressing
long standing disparate treatment and operated to compensate women
for past economic discrimination.
c. Court upholds gender classifications if (the court concluded) that the important
state purpose is based on genuine biological differences between the
sexes (unwed fathers).
i. This is a rare exception where biological differences matter.
ii. Mother is present for the birth whereas the father doesnt have to be.
Gender classification that benefitted women based on the biological
differences between men and women.
iii. Stanley v. Illinois (1972): Court declared unconstitutional a state law that
denied the father of any hearing or due process before a non-marital child
was placed for adoption.
iv. Nguyen v. INS (2001): Court upheld the law requiring affirmative steps to
be taken if the citizen parent is the father, but not if the citizen parent is
the mother because Congress decision to impose the requirements was
based on the significant difference between their respective relationships
at the time of birth. The gov. interests were ensuring a biological parentchild relationship exists, and ensuring the potential to develop a real
relationship.
Legitimacy (Non-Marital Children)
6. This would probably be rational basis today because they dont really come up. But the
case law says intermediate, although if it went before the court it probably wouldnt be
that.

47

7. Intermediate scrutiny is applied in evaluating laws that discriminate against nonmarital children.
a. Laws that provide a benefit to all marital children, but no non-marital children,
are always declared unconstitutional.
b. Laws that provide a benefit to some non-marital children, while denying that
benefit to other non-marital children, are evaluated on a case-by-case basis
under intermediate scrutiny.
c. Laws that create a statute of limitations for the time period for evaluating
paternity must provide enough time for those with an interests in the child to
present his or her rights and must be substantively related to the states interest
in preventing false claims.
8. There are still some circumstances where there are important state interests in
distinguishing between martial and non-marital birth (i.e. intestacy statutes).
a. Otherwise, its not constitutionally permissible to distinguish between marital
and non-marital births.

Fundamental Rights; Privilege or Immunities of the Fourteenth Amendment (These get


STRICT scrutiny.)
Voting Rights
1. Basis of most other political rights we have. US Senate from about 1880 to 1960s
would not pass federal anti-lynching legislation.
2. Right to vote is regarded as fundamental under the equal protection clause because
it is essential in a democratic society; laws infringing on the right must meet strict
scrutiny.
a. States used poll tax and literary tests to keep people (blacks) out who they
didnt want voting. This went well into the 20 th Century.
i. 1965 black vote in southern states didnt go into double digits until after
this date
3. Constitution and Amendments on Voting
a. Original Const. left it to the states to determine who should have the right to
vote
b. Fifteenth Amendment (1870)
i. Provided that the right of criticized to vote shall not be denied or abridged
by the US or by any state on account of race, color, or previous
condition of servitude.
c. Nineteenth Amendment (1920)
i. The right of citizens of the United States to vote shall not be denied or
abridged by the US or by any state on account of sex.
ii. Before, some women were able to vote in state elections, but could not
vote in federal elections
d. Twenty Fourth Amendment (1964)
i. Became unnecessary in 1965 b/c of the civil rights act and how it got rid
of the poll tax problem.
ii. This amendment prohibits poll taxes in elections for federal office.
e. Twenty Sixth Amendment (1971)
i. Created the 18 year old voting age after Vietnam and the argument that if
you can die for your country, you can be able to drink.
ii. Congress had authority to lower the age for federal elections but NOT
state ones.
4. Minimum Requirements for Ballot Access
a. Compelling state interests:
i. Minimize voter confusion

48

ii. Produce winner with a majority or strong plurality


iii. Preserve integrity of the voting process
5. Denying Some Citizens the Right to Vote
a. Qualifications on Voters
i. Hill v. Stone (1975): Court held a Texas statute invalid that limited the
right to vote in city bond issue elections to persons who have rendered or
listed real, mixed or personal property for taxation in the district,
reasoning that the TX requirement erected a classification that
imperissibly disenfranchised persons otherwise qualified to vote, solely
because they have not rendered some property for taxation.
ii. You cannot be denied the right to vote in a primary election because you
voted in another partys primary in the past 23 months.
b. Felony Disenfranchisement
i. Richardson v. Ramirez (1974): Court held valid constitution provisions and
implementing statutes disenfranchising persons convicted of an infamous
crime.
1. 14 states still say you cant vote for life after you have been a felon,
other states (Iowa) have struck down that statute.
c. Requirement of a gov. issued photo ID
i. Crawston v. Marion County Election Board (2008): Court held valid Indiana
law requiring the presentiaton of a gov. issued photo ID in order to vote.
The court noted under Harper, even rational restrictions on the right to
vote are invidious if they are unrelated to voter qualifications, but
evenhanded restrictions that protect the integrity and reliability of the
electoral process itself are not invidious and satisfy.
Durational Residency Req. vs. Bona Fide Residency Req.
6. Durational Residency Requirement where a person must live in the jurisdiction for a
specified amount of time in order to receive a benefit.
a. Draw a distinction among current residents based on their length of time in the
state.
b. Seen as potentially inhibiting interstate travel
7. Bona Fide Residency Requirements provide a benefit to current residents that is not
available to nonresidents
a. No distinction is drawn based on length of time in the state
b. Not viewed as infringing on the right to travel
8. Hypo:
a. The state of MO denies welfare benefits because the Jones family moves from
Columbia to Joplin.
i. There is a fundament right to inter-state travel.
b. John Jones wants to go to Cuba but we cant get a passport.
i. He is not protected. Commerce Clause wants to avoid a situation where
each state isolates itself intentionally. Inter-state travel is a fundamental
right when its from one state to another. The restrictions get rational basis
scrutiny and NOT strict scrutiny.
Right to Interstate Travel
1. Supreme Court has held that theres a fundamental right to travel and to interstate
migration within the US.
a. Laws that prohibit or burden travel within the U.S. must meet strict scrutiny (i.e.
used in evaluating durational residency requirements).
b. Restrictions on foreign travel, however, only have to meet a rational basis test.
2. It is protected by the Priv. and Immunities Clause of the 14 th because of national
citizenship human beings dont fit nicely into commerce and putting rights in
commerce means that eventually human rights might be diminished.

49

Durational Rights for State Elections


3. Reasonably appropriate durational limit is okay as long as it is narrowly tailored.
4. 50 days is okay (in Arizona) because it would be difficult to do the necessary
paperwork in any shorter period before the election.
5. Shapiro v. Thompson (1969):
a. Two Classifications:
i. Anyone who qualifies for welfare benefits but had lived there long enough
ii. Those who qualified but hadnt lived there a year.
b. SCOTUS said that a CA law requiring a 1 year residency requirement was
unconstitutional as a prerequisite for welfare eligibility.
i. Fiscal integrity was not a legitimate concern in the 1960s but it IS today.
ii. The right of interstate travel (even if not physically restrained) may
involve strict scrutiny b/c its a fundamental right as long as it is for a
discrete period of time.
iii. Later decisions have upheld decisions for shorter periods of time (less
than a year).
c. State argues they need to be able to budget and dont have money for people
who just show up, but the Court said the interest wasnt compelling.
i. They say that Congress had approved the one year durational
requirement, under a joint state/federal statute (with each paying a part of
the benefits cost). Congress said you could have a residency requirement
but SCOTUS said it doesnt matter b/c of Marbury (the court determines
the law, and Congress by statute cannot tell the court what equal
protection means).
d. Purpose was to discourage migration of indigent persons into the state and likely
impact would be to prevent such travel.
e. Stands for the proposition that theres a fundamental right to travel inter-state
under equal protection clause.
f. Dissents (two):
i. Taxing and Spending power lets Congress spend money at its discretion
for the public welfare. Today, Congress puts a condition on getting the
money.
ii. Harlan says the Equal Protection jurisprudence is new and heightened
scrutiny should apply only in race cases b/c that was the purpose of equal
protection.
g. Certain impediments to moving get strict scrutiny, but travel between states
gets rational basis scrutiny.
6. Dunn v. Blumstein (1972):
a. TN law is unconstitutional when it provides that in order to vote one must be a
resident of the state for one year and of the country for three months before the
election. Such a law forced a person who wished to travel and change residence
to choose between travel and the basic right to vote.
b. As soon as you become a resident, you are allowed to enroll in schools.
7. Classifications, which operate to penalize persons who have exercised their
constitutional right of interstate migration, must have a compelling state interest.
Durational residency requirements do impose a potential cost on migration, but some
waiting periods may not be considered penalties.
Bona Fide Residency Requirements
1. McCarthy v. Philadelphia Civil Service Commission (1976): Court rejected a city fire
department employees challenge and upheld a regulation-requiting residents in the
city as a condition for employment after applying rational basis scrutiny and finding the
requirement was bonafide.
a. Rationales include the idea of a more devoted service, better understanding of
local conditions and the salary from taxpayers.

50

2. Saenz v. Roe (1999):


a. California restricted a new residents welfare benefits to the level of the state
where the person moved from for the first year of residence. The court found
that the right of new residents to be treated the same as those who had been
residents of the state longer is protected by the privileges or immunities clause
of the 14th Amend, so the law was unconstitutional.
i. States legitimate interest saving money. This provided no justification for
its decision to discriminate among equally eligible citizens.
b. Rights from this case:
i. Right to leave and enter another state
ii. Right to be treated as a welcome visitor rather than an unfriendly alien
when present in the second state temporarily.
iii. Newly arrived citizens right to the same privileges and immunities
enjoyed by other citizens of the state.
c. The right of newly arrived citizens to the same privileges and immunities
enjoyed by other citizens of the same state protected not only by the new
arrivals status as a state citizen, but also by her status as a citizen of the U.S.
7. This case doesnt help foreign citizens who come to the US b/c they are not citizens of
the US. Shapiro may help them (or alienage jurisdiction).
8. States cannot choose their citizens, but citizens have the right to choose to be citizens
of whatever state they want, regardless of economic status.
Access to the Ballot - Candidacy
1. The state must have a compelling interest in telling people they cant run for a
particular office. The compelling interest is that you could have an infinite number of
people on the ballot and thats not reasonable.
2. You cannot charge a crazy, substantial filing fee to qualify for the ballot (even 1% of the
salary of the job you seek).
3. In the absence of a reasonable alternative means of ballot access, a State cannot
require from an indigent candidate filing fees he cannot pay.
4. TX statute that said that judges and other office holders could not cut short their terms
to serve in the TX legislature, and SCOTUS said it did not create a significant barrier to
candidacy.
5. To fix this, you have to petition. It is a difficult process but doesnt have anything to do
with money.
a. This keeps out frivolous candidates because its not easy to do.

51

Procedural Due Process Liberty and Property Protections


1. 14th Amend., Sect. 1 nor shall any state deprive any person of life, liberty, or
property, without due process of law
2. 5th Amend. no person shall be deprived of life, liberty or property, without due
process of law
Due Process Clause provides that certain substantive rights life, liberty and property cannot
be deprived except pursuant to constitutionally adequate procedures.
3. Procedural Due Process
a. Tests the procedure the government used to reach the decision, whereas
substantive due process challenges the governments decision.
b. Refers to the procedures the government must fellow before it deprives a person
of life, liberty of property (unlike substantive due process, which refers to
whether there is a sufficient justification for the action.
c. Challenges Often Occur when:
i. Problem with notice
ii. Opportunity to be heard
iii. Impartial decision maker
4. Procedural v. Substantive
a. If Plaintiff is seeking to have a government action declared unconstitutional as
violating a constitutional right, substantive due process is involved.
b. If Plaintiff is seeking to have a government action declared unconstitutional
because of the lack of adequate safeguards, such as notice and a hearing,
procedural due process is the issue.
5. Analyzing Procedural Due Process
a. Has there been a deprivation?
b. Of life, liberty or property?
c. Without due process of law?
What constitutes a deprivation?
1. Due Process Deprivation
a. Does the availability of state remedies (i.e. tort remedies) prevent a finding that
the government deprived the plaintiff of due process?
b. Can government negligence create a deprivation?
c. Does the government deprive the plaintiff of due process by failing to protect the
plaintiff from privately inflicted harms?
Deprivation
1. Government negligence
a. Court has said no! Daniels and Davidson case (pg 998). If you are in state
custody and you cant leave voluntarily, you are entitled to a level of protection
while in the facility.
b. Daniels v. Williams (1986)
i. Prisoner sought to recover damages for injuries sustained when he fell
over a pillow on a prison stairway. The court held hat the Due process
clause is not implicated by a negligent act of an official causing
unintended loss of injury to life, liberty or property. The prisoner wasnt
denied a liberty interest.
ii. Court said that Parratt was overruled to the extent that it states that a
mere lack of due care by a state individual of life, liberty, or property. Case
had involved a hobby kit that prison guards lost, and the holding has been
limited to very specific circumstances.
iii. Mere government negligence is not enough to show deprivation.
1. Negligence does NOT equal due process
iv. Majority and Dissent both argued over what deprivation meant. Majority
said it was an intentional doing of wrong. Dissent said that it depends on
the effect of the victim and not the state of mind of the government actor.

52

2. Availability of state remedies


3. Government failure to protect
a. What if the person is NOT in government confinement but the gov knew and did
nothing about it.
b. Deshaney v. Winnebago County Department of Social Services (1989)
i. Guardians of 4 year old sued department for its failure to protect the child
from beatings his father inflited that ultimately resulted in irreversible
brain damage. Court held that there was no constitutional violation
because the child was not in custody of the government and because the
abuse occurred in the hands of a private party.
1. Stands for the proposition that if the injury is caused while a person
is no in state custody but by a private actor, there is no violation of
due process. Government generally has no duty to protect
individuals from privately inflicted harms.
c. Person has to be in state custody for the government to be liable for
depravation.
d. Town of Castle Rock v. Gonzales (2005)
i. After estranged father took his three daughters and murdered them,
mother sued town, alleging that she was deprived of a statutorily-based
property interest in police enforcement of her restraining order. Court held
that P didnt have a property interest. Even though police were required
by statute to respond, there was no 14th Amdt. right to their response & no
due process deprivation.
4. Exceptions: Govt has a Duty to Provide Protection from Privately-Inflicted
Harms
a. Where govt has limited the ability of a person to protect himself or herself (i.e.,
incarceration, institutionalization)
b. Where theres a special relationship b/t the govt and the injured individual (i.e.,
govt took affirmative steps to place individual in danger).
Which Due Process Property and Liberty Rights are Protected?
1. Government has to provide due process only if there has been a deprivation of life,
liberty or property.
5th and 14th Amendment propertya. Base on interest of the claimant.
b. legitimate claim of entitlement created by law or some other agreement or
understanding with the government.
1. Board of Regents of State Colleges v. Roth (1972):
a. P was hired by Wisconsin State University for a fixed term of one year but was
informed he would be re-hired for another year. He got notice, but wanted the
opportunity to be heard.
b. SCOTUS held that P did not have a constitutional right to a statement of reasons
and a hearing, so he had not shown that he was deprived of liberty or property.
c. Property interests are not created by the Constitution; States have a right to
define them.
d. P was afforded all rights in Contract (notice) and no right to the opportunity to be
heard or impartial decision maker was provided by the contract. He could not
have a reasonable expectation that he would be rehired.
2. In sum in decision whether there is a property interest in a government job, the
relevant inquiry is the expectations created by the law and customs surrounding the
position.
3. You can have a property right in continued employment.
a. When the legislation which gave the substantive right also set out the procedure
for enforcing the right, they cannot be separated.

53

Due Process Liberty these instances they are involved, or at least could be involved.
1. Freedom from government-imposed physical restraints (i.e. criminal prosecutions,
involuntary civil commitments).
a. Juvenile delinquency civil cases not criminal. Hearings are used in lieu of trial.
b. Foster Care System involuntary civil commitment since child cant leave foster
care when they want.
c. Commitment of a child into a mental hospital
2. Freedom from government-imposed restrains on exercise of fundamental rights (such
as textual constitutional rights, privacy)
a. Free speech, interstate travel, freedom of religion, right to privacy. Liberty
interest in not having the government impose some restraint.
3. Freedom from other government-imposed ] (i.e. personal reputation).
a. This is where the action is. Glucksburg v. Washington came out of this.
b. Paul v. Davis cut back on the availability of procedural/substantive due process
if your only claim is loss of reputation.
c. Court is likely to be stingy in finding such results actionable unless there is
something more than loss of reputation.
What Procedures are Required?
1. We are concerned here with adjudicative authority, where the agency is granted the
authority to adjudicate disputes between people.
a. The question is what kind of procedure is required through the agency.
2. Typical Procedural Due Process
a. Informal pre-decision review
b. Fuller post- decision trial type hearing
c. Judicial review
3. Opportunity to be heard must normally be granted before the deprivation occurs.
a. Except when the depravation occurs randomly by a state employee, where the
pre-deprivation procedures are not possible since they dont know when the
deprivations will occur.
4. Matthews v. Eldridge (1976) How much procedure is due?
a. Three part-balancing test for deciding what procedures are required when there
has been a deprivation
i. Private interest that the government action will affect.
ii. Risk of erroneous deprivation through the procedures used and the
probable value, if any, of additional or substitute procedural safeguards
1. Boils down to whether or not the issue is likely to turn on the law or
facts, or both.
iii. The governments interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
1. Not an insignificant question. Due process is expensive, but a price
we pay to have this legal system. If the agency/court could simply
make a decision, it would be a lot cheaper, but thats not
necessarily good.
b. Criticized for being flexible. Its really close to uncertainty. There is a lot of
discretion left to the decision maker (agency or court) about what is required.
More discretion from trial court/agency in giving due process, the appellate
courts are very deferential.
5. Practice Questions About the Value of the Hearing
a. Cant the agency simply listen, and then ignore the claimants arguments? (i.e.
zoning board, school board, etc).
i. Purposes of seeking a hearing create a record to challenge it later using
judicial review.

54

ii. There are a lot of agency hoops you have to jump through before you can
get to court in some cases. Its super expensive and discourages people to
go to court, but rather just take the hearing.
b. Why care whether the full hearing takes place after, rather than before, the
government decision becomes effective?
i. Constitutional standard for Due Process is that if the gov. is going to make
a decision that is adverse to you, you get minimal procedure before the
decision is made, and opportunity for a fuller hearing after the thing that
happened. (Except for one public benefits case).
1. Social Security office only gives disability hearings after the fact b/c
there are just so many cases (like 50k a year).
ii. If the hearing takes place after, rather than before, the action, the
government knows that the amount of hearings will decrease. The
employee wants them before, as its easier to get their way.
iii. After the thing already happens, you have to unring the bell.
c. Values of Hearings:
i. Willingness to accept decision after they get to blow off some steam.
ii. Minimize potential for unfairness
iii. Judicial review
iv. Set the record straight
6. Due Process is more of a floor than a ceiling. Its more about bare-bones requirements.
Mulane said you just have to have notice and the opportunity to be heard.
a. You can make a facial and an as-applied claim at one time to try and win with
whatever you got.
7. For private groups/individuals, you dont have the protection of this part of the
constitution but if you dont provide due process, a wrongful termination/other civil suit,
is harder to win. Its practical and helpful.
8. Lane v. Franks
a. Really a first amendment case but about how much freedom a government
employee has while they are employed by the government.
b. What rights does a person have while working for a public agency?
i. Question is whether they are speaking on behalf of an agency funding or
speaking as a citizen. Citizens are allowed to say what they want.
c. Sworn testimony by a public employee in a criminal proceeding is citizen speech
that is entitled to the First Amend. protections. He can talk about things learned
in the court of government employment without loosing those protections.
d. There was no conceivable justification for his termination deprivation because
he was compelled to testify about something that was not an ordinary part of his
job doings and therefore protected under the First amen.
State Action Doctrine (Public/Private Distinction)
1. Virtually all provisions to the constitution apply only against the government. (state
and federal)
a. Constitutions protections of individual liberties and its requirement for equal
protection apply to actions of the federal or state government or one of its
subdivisions, not against private people.
b. Applies to public universities (agencies of the state)
c. Applies to other local officials.
2. Where did the doctrine originate?
a. 1st Amend congress shall make no law
b. 14th Amend No state shall
c. 5th Amend
d. 15th Amend The right to vote shall not be denied or abridged by the US or by
any state.

55

e. One glaring exception is the 13th Amendment (and Commerce Clause) which
applies to both public and private citizens (b/c of slavery).
3. First amendment does not apply to the little league because its private, and not the
government.
a. Private companies that make a business decision have NOTHING to do with the
first amendment since it only applies to the state and federal government.
4. 42 USC 1983 Civil Action against one who deprives another of rights, privileges, or
immunities secured or protected by the Constitution.
a. From the President down to the public library is subjected to the state action
doctrine. Any public/ elected official that is governmental in nature.
b. What if people turn Traditions Plaza into the new speakers circle? What can the
university actually do?
c. Issues arise when a private entity or individual is doing something that is
normally a government function, or working so closely with the government that
there is now a gray area. You are a private individual who should be subject to
government restraints because of the way you are acting or the job you are
doing.
d. You can also get attorneys fees if you are the claimant and you win!
e. State-action is a conceptual disaster area marked by multiple vaguenesss
and ambiguities, and similar to a torch less search for a way out of a damp
echoing cave.
i. Court used to find more state actions than they do today. It all sort of
shifted in the 80s.
5. 18 USC 242 Criminal Action against one who deprives another of rights, privileges, or
immunities secured or protected by the constitution.
Exceptions: This is where ALL the gray area is.
Government Function
a. If a private person is preforming a function that is normally exclusively done by
the government than the private actor will be treated as a state-actor.
b. What the heck is a government function? Still being litigated.
c. There is state action in the exercise by a private entity of powers traditionally
exclusively reserved to the state (Jackson v. Metropolitan Edison Co.)
i. Two carefully confined categories election law cases, company town
cases are government functions.
ii. Neither of those categories had any relevance in the late 70s or today. No
one questions that major political parties are governmental in nature.
There are basically no company towns anymore.
1. White Primary Cases
a. Nixon v. Herndon (1927): Holding that a Texas statute excluding negroes from
participating in Democratic party elections was unconstitutional. They argued
that political parties are private entities, but SCOTUS said that conducting
elections (even primaries) is a government function and you have to follow
government rules.
b. Nixon v. Condon (1932): After Herndon, Texas revised its law to provide that the
partys State Executive Committee could prescribe qualifications for voting in
political primary elections. The law was again held unconstitutional.
c. Grovey v. Townsend (1935): TX again revised its statute, allowing the state party
convention to make its own rules for participation in the partys primary
elections, and the Court found that the party was a private entity and therefore
did not need to comply with the Constitution.
d. Smith v. Allwright (1944): Overruled Grovey, holding that running an election for
government office, even a primary election, is a public function and must be in

56

2.

3.

4.

5.

accord with the Constitution. Court found that the govt could not avoid the
Constitution by delegating its tasks to private entities.
e. Terry v. Adams (1953): Blacks were excluded from participating in preprimaries
held by the Jaybird Democratic Association, a TX political organization. The
Court, noting that candidates nominated by the Jaybirds were very successful,
found state action.
Company Towns and Streets
a. Marsh v. Alabama (1946) one of the few pre-70s government action that did
not involve race.
i. Has not been overruled but probably not good law anymore.
ii. Broadest statement court has ever made about the public function
exception.
iii. Held when a member of the Jehovahs Witnesses was prosecuted for
trespass when she distributed religious literature on the streets of a
company-owned town, the court held that maintaining towns was a public
function. Building roads, sewers, etc is a government function and private
people can do it, but they are performing a government function and
subject to state action.
1. Broadest interpretation of the state-action doctrine ever.
2. Today, building a subdivision is probably NOT a government
function (i.e. private, gated communities). Gov. isnt the only one
who builds roads, subdivisions, etc.
3. Privately-owned shopping centers are NOT state actors.
Parks as Government Functions
a. Evans v. Newton (1966)
i. Park in Macon, GA had been created by a testamentary trust in the will of
Senator Bacon, which required it only to be used by white people. The city
was designated as a trustee and operator of the park, and then turned it
over to private control so they didnt have to desegregate it.
ii. Held Parks are a government function. The city could not avoid
desegregation by turning control over to a private entity.
iii. In sum Marsh remains good law but it is not clear how far it extends, as
privately owned shopping centers are state actors. Its probably not
relevant/good anymore even though its still good law.
Shopping Mall Decisions
a. Logan Valley Plaza (1968) 1st Amendment guarantees striking labor picketers
access to private shopping mall (state action). It extended Marsh to require
that striking labor picketers be given access to a large privately-owned shopping
center.
b. Lloyd Corp v. Tanner (1972) 1st Amendment permits private shopping mall to
exclude anti-war protesters (no state action). Distinguished Logan Valley
where anti-Vietnam War protestors were held not to have a constitutional right of
access to distribute literature on the premises of a large privately-owned
shopping center.
c. Hudgens v. NLRB (1976) overruled Logan Valley (no state action). Court
concluded that Lloyd had overruled Logan Valley and that speakers had no
constitutional right of access to a large- privately owned shopping center.
i. Content-based discrimination is almost presumptively unconstitutional.
You cant let some peoples speech stand but not others (i.e. labor v. antiwar).
d. Today shopping malls are private property and there is no state action
(unless the state supreme court allows it).
City took Belongings to Private Company
a. Flagg Brothers, Inc v. Brooks (1978): 5-3 vote b/c only 8 justices.

57

i. No state action. When B and her family were evicted from their
apartment, the city marshal arranged to have her belongings stored by FB
at its warehouse. When she and FB could not agree on payment terms, FB
threatened to sell her property to recover payment. B sought damages
and injunctive relief under USC 1983.
ii. SCOTUS held there was no state action, as NY did not compel the sale of
goods & settlements between debtors and creditors are traditionally
exclusive public functions. This was private self-help.
iii. Tried as a public function case but could have been an entanglement case.
State Action Doctrine Summary
1. Pendulum has been swinging back and forth without any explicit rulings. Marsh is still
good law.
a. Parks are government responsibilities but there are tons of private parks.
b. Can you reconcile Shopping malls and Marsh b/c whats the difference between a
company town and a shopping mall.
i. Company towns are state actors and shopping malls are not.
2. State and local governments have begun privatizing a lot of functions that were
normally done by the government recently. (i.e. drivers licenses). You cant get out of
the government rules because you have private companies doing state jobs.
a. Court has reserved the question about privatization doctrine and that trend
(thanks Flagg).

58

Exception: Entanglement
1. Under this exception, the Constitution applies if the government affirmatively
authorizes, encourages or facilitates private conduct that violates the Constitution.
2. These cases go in all sorts of different directions and basically none of the Government
licensing cases have been overruled.
Government Licensing and Regulation
1. Burton v. Wilmington Parking Authority (1961) (state action)
a. Eagle coffee shop was located within a parking garage operated by a state
agency of the State of Delaware. They signed a 20- year lease for the coffee
shop. B was refused service because he was black.
i. Relevant facts state maintained the building with public funds,
restaurants customers used the public parking garage, state received
revenues from the restaurant and its customers, state could have
prohibited discrimination by a lease clause forbidding it.
b. SCOTUS held that the govt was so entangled with the restaurant that there was
a symbiotic relationship sufficient to create state action.
i. Test:
1. Private activity appears public (common location)
2. Government is profiting from the wrongful conduct.
2. Moose Lodge No. 107 v. Irvis (1972) (no state action)
a. Lodge did not allow blacks in their dining room and bar. P was refused service by
the lodge and claimed that because the PA liquor board had issued Lodge a
private license authorizing the sale of alcoholic beverages on its premises that
the refusal of service was state action.
b. SCOTUS held that the state grant of a liquor license to a private club was not
sufficient government entanglement for the Const. to apply.
3. Brentwood Academy v. Tennessee Secondary School Athletic Association (1972)(state action) 5-4.
a. Upscale private school in Tennessee. Their football coach starts to recruit middle
school kids, even though the state had rules against it. Brentwood was found to
have violated TSSAA rule prohibiting undue influence in recruiting athletes,
and the TSSAA imposed punitive measures.
b. SCOTUS held that the associations regulatory activity should be treated as a
state action owing to the pervasive entwinement of state school officials in
the structure of the association. They are subject to the 1st Amendment b/c they
are a state actor.
i. Sent back down and the lower court found that the coach had a 1 st
Amend. right to talk to middle school kids.
4. Note This reached SCOTUS in 2007 on the merits, and the issue was whether the
football team had a right to recruit elementary and middle school children.
a. Court avoided the 1st Amend. Issue and said that B had waived its rights by
joining the association.
b. Dissent says that because the majority had to dance around the issue meant
that the first decision should have been overruled, making it so that TSSAA was
NOT a state actor.
c. Future considerations for Entwinement:
i. Could affect many orgs that foster activities, enforce rules, sponsor
extracurricular competitions among high schools and other public orgs
that have public officials (firefighters, teachers, police), etc. How far will
this reach go? How far should it got?
5. Blum v. Yaretsky- (no state action)
a. Government had been paying for nursing home care but orders cost reduction
through downgrading care levels; physicians are sued for depriving property
benefits

59

b. Held that there was no compulsion by the state because physicians are
exercising independent, private judgment and arent being compelled to
downgrade.
6. San Francisco Arts and Athletics v. United States Olympic Committee (1987) (no
state action)
a. Amateur Sports Act of 1978 gives committee the right to prohibit commercial
and promotional use of the word Olympic, and the Court rejected an argument
that the committee violated the equal protection component of the 5 th Amend by
discriminatory enforcement of its exclusive right (in prohibiting group from using
gay Olympics). Majority reasoned that the committee was NOT a state actor
and did not perform functions that have been traditionally the exclusive
prerogative of the federal government.
b. The committee was federally chartered created and partially funded by
Congress.
i. Dissenters argued that there was a symbiotic relationship between the
committee and the federal gov.
c. Is the US Olympic Committee a state or private actor? Private. So is the
NCAA. But not the Tennessee high school athletic board. I know, its
confusing.
Government Financial Support
7. Rendell-Baker v. Kohn (1982) (no state action)
a. Court held there was no state action when a private school (that received 99% of
its money from the government) fired a teacher because of her speech. Even
though providing education was an important social function, it was not one that
had traditionally be the exclusive prerogative of the State.
b. Gov. funding by itself is not a basis for a state action.
Why was the Warren Court more expansive about finding state action in the early
days since it has been since 1970s?
1. Probably civil rights movement. Except for Marsh v. Alabama, every major state action
case before 1970 was a race discrimination case. By finding and applying state action
and applying the federal const. created subject matter juris. in federal courts and
opened federal courts up to judicial relief especially when the state courts were
basically not working.
a. Could you have brought a race case in Texas/Alabama? Hell no.
2. It provided for anti-discrimination relief when we couldnt trust state courts to take care
of it.
3. Even private actors can be held to anti-discrimination statues even though they are
private depending on the statute.

60

Freedom of Expression
Generally
a. First Amendment congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of people to peaceably assemble, and to
petition the government for a redress of grievances.
i. This is an absolute prohibition.
ii. Most, if not all, abridgements of freedom of speech get strict scrutiny.
iii. SCOTUS determines what speech is (includes expression, and even if you
arent saying a damn thing.)
b. Free expression covers much more than talking.
c. Although its written in absolute terms and the weighing process is heavily
balanced towards allowing speech over prohibition but its still a balancing
process.
i. Many crimes are based on speech (bribery, perjury, extortion, etc).
Preferred Position
1. (Has nothing to do with its position as first, because it was third. It has to do with
factors.)
2. Narrow presumption of constitutionality
a. (almost a presumption against the statute in speech cases)
b. Many courts say restrictions on speech are presumptively unconstitutional and
the state has to prove the compelling interest. Almost a presumption against
constitutionality.
3. Strict construction to avoid limits on expression
a. (some say we should just re-write a statute if its unconstitutional)
b. They will interpret a statute strictly and basically re-write it so it is constitutional.
Some courts that just strike it down. The problem is that the statute is not
exactly written by the legislature/city council but rather by the courts.
4. Relaxed rules of standing
a. (third-party standing; over breadth; may argue that it is unconstitutional as
applied to others). General rule against third party standing but its allowed here.
5. Near-absolute ban on content-based prior restraints
a. only allowed for something extremely serious, like troop movements)
b. Restraining a person before they speak.
6. Higher standards that procedural due process.
History
1. First Amendment was designed to protect against some of the inferences in England.
England was basically an absolute monarchy without a lot of freedom of expression,
which is the premise under first amend.
2. The framers really did NOT talk about the first amendment. Not a lot of evidence about
what the framers intended.
a. Common law of seditious libel would put you in jail in Britain (it was seditious
libel to say anything against the Crown).
b. Designed to protect against two forms of repression including prior restraint and
seditious libel.
c. There was also significant prior restraint in England, as well as domination of the
press through state monopoly and licensing.
d. Rarely, printed and spoken words were even seen as constructive treason.
3. Almost impossible to get content based prior restraint today (i.e. preventing a
newspaper from printing something, basically only troop movements are protected).
4. Seditious libel truth is NOT a defense.
a. Trial of John Peter Zenger in colonial times. He was a German who published a
weekly journal that criticized a royal (crown appointment) governor (Bill Cosby)
and the Government was not liked anyway. His lawyer was Andrew Hamilton

61

(good colony lawyer) and the jury acquitted Zenger. Hamilton argued that the
content was true even though the law didnt care.
b. Jury nullification the jury came in and made new law, or basically just
disregarded the current law or judges instructions. This is why lawyers are not
usually on juries because they dont want someone who can just make new jury
law. This case was the first major example of it.
c. T his case basically ended Seditious libel in the colonies.
d. U.S. is VERY protective of speech compared to other western countries.
i. Germany makes it a crime to deny the holocaust.
5. Alien and Sedition Act 1798
a. Made it a crime to write, utter or publish any false, scandalous, and malicious
writing against the government with intent to defame them or bring them into
contempt or disrepute, etc.
b. Act was only in force until 1800, and Jefferson pardoned all persons convicted
under the Act.
c. This is how we know that we are MUCH more protective of speech today because
a majority of both houses were const. delegations/ratification conventions and
they passed the sedition act. That would not happen today.
d. In New York Times v. Sullivan, SCOTUS noted that the Sedition Acts invalidity
had long been assumed in the U.S.
6. Espionage Act of 1917
a. It was a confrontation to free speech (it was a felony)
b. World War I was unpopular and this act made it a crime to make or convey false
statements with intent to interfere with military success, or to promote the
success of the nations enemies, or willfully obstruct military recruiting or
enlistment.
c. Newspapers were liable for writing about German military successes, handing
out leaflets opposing the draft/war was illegal.
7. Sedition Act of 1918
a. This put the federal gov in the job of speech regulation. We did not, at this time,
have a national tradition of what freedom of speech means/doesnt mean.
b. It was a crime to say things with the intent to obstruct sale of war bonds, or utter
any word supporting the cause of any nation at war with the US or opposing the
cause of the US.
Why do we even care about free speech?
1. Critical issues
a. What sorts of expression are encompassed within the First Amendments
protections?
b. What sorts of harms caused by free expression may the government sanction?
c. What sorts of government sanctions are permissible?
2. Usually people who are free speech defendants are people society finds reprehensible
or society doesnt like the ideas they have to say (communists, porn guy, nazi, antiwar, etc).
3. No one will die, or be harmed physically if we denied free speech, so why is it so
important to us?
a. Today its almost impossible to stifle speech because you can put just about
anything you want on the internet.
4. Reasons we care: (arguments in favor of robust speech)
a. Human dignity in a free society (personal autonomy)
i. Suppression of speech is an affront to the human personality because a
man burdened with an idea has a need to express it. - Archibald Cox
(1976)
ii. You can do more than talk. You can express yourself, dress yourself, wear
your hair how you want, put up an art exhibit, etc.

62

b. Self-governance is central to our political democracy


c. Social safety valve
i. In countries where associations are free, secret societies are unknown. In
America there are factions, but no conspiracies. Alexis de Tocqueville
(1835)
ii. Today its difficult to stifle someone from saying what they want to say or
writing what they want to write.
iii. If you let people blow off steam, you have a more civil society. We dont
have 15 year revolutions because you can blow off steam.
d. Marketplace of ideas (Holmes)
i. Interest in furthering political speech.
ii. The theory of the Constitution is that the best test of truth is the power of
the thought to get itself accepted in the competition of the market.
Justice Holmes.
e. Essential check on government abuse
i. If the government is trying to stop speech, you should worry about why
the government is trying to stop it.
ii. Censorship reflects a societys lack of confidence in itself. It is a hallmark
of an authoritarian regime. Dissent.
f. Fostering a tolerant society that practices self-restraint (i.e. protecting the
minority)
i. If we can be tolerant of speech that we really despite, maybe we can have
a society that is tolerant of other things too.
ii. Holmes we should be protective of speech we loathe as well as like.
5. Which actions constitute infringement?
a. Allowing civil liability for expression.
b. Preventing compensation for speech
c. Compelling expression
d. Conditioning a benefit on a person foregoing speech
e. Pressuring individuals not to speak

63

Prohibition of Incitement
6. Basic Questions
a. How should society balance its need for social order with its desire to protect
freedom of expression?
b. When, if at all, may expression that advocates criminal activity, or overthrow of
the government, be stopped to promote order and security before the activity
happens?
7. Espionage Act of 1917
a. Make or convey false statements with intent to interfere with military success.
b. Promote the success of the nations enemies
c. willfully obstruct military recruiting or enlistment.
Incitement Tests
1. Clear and present danger
a. Three requirements (a) likelihood of (b) imminent (c) significant harm
b. Schenck v. United States (1919): Court upheld a conviction of individuals whod
circulated a leaflet arguing that the draft violated the 13 th Amendment.
i. The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. The question in
every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger
ii. Danger probably wasnt real clear and present even though it was wartime
because its just leafleting.
iii. Caused Holmes a lot of problems because the political thinkers he knew
rejected his interpretation of speech.
c. Abrams v. United States (1919): Court affirmed the convictions of a group of
Russian immigrants who circulated leaflets objecting to America sending troops
to Eastern Europe after the Russian Revolution. Group of people in southern
Manhattan did some leafleting protesting sending troops to Russia after the
armistice has been declared.
i. Majority upheld the convictions
ii. Holmes STRONG dissent. I think that we should be eternally vigilant
against attempts to check the expression of opinions that we loathe and
believe to be fraught with death, unless they so imminently threaten
immediate..
2. Reasonableness Test
a. Laws upheld so long as the governments law and prosecution were reasonable.
b. Very deferential to state legislatures (looks like present day rational basis
scrutiny)
c. Applied through much of the 1930s and 1940s.
d. Gitlow v. New York (1925):
i. Court upheld conviction under the NY criminal anarchy statute after G
published the Left wing manifesto.
3. Risk Formula Test
a. Evil vs. Imminence (Judge Learned Hand)
b. Dennis v. United States (1951): Individuals were convicted and sentenced to long
prison terms for teaching four books writing by Stalin, Marx, Lenin.
c. Sliding scale test that said for government to act against incitement, the greater
the risk, the less imminent the risk had to be. Less risk means greater
imminence needed.
4. Brandenburg Test
a. Brandenburg v. Ohio (1969): D, a leader of the KKK, held a rally and made a
speech. D was convicted under the Ohio criminal syndicalism statute. In
considering whether the words D expressed could be prohibited, SCOTUS held
that the act could not be sustained, as it purported to punish mere advocacy and
forbid assembly with others merely to advocate the described type of action.

64

b. Test:
i. State may not proscribe advocacy, unless:
1. Advocacy (speech) directed to inciting or producing imminent,
unlawful action (subjective intent), and
2. Advocacy likely to incite or produce imminent unlawful action
(objective intent).
ii. This case doesnt reach the situation where someone teaches you or tells
you how to do something but doesnt ask you to do it; it covers something
more.
c. Very speech protective test (most protective of the tests). Mere advocacy is not
enough.
i. Depends on the intent of the speaker and the imminence of the
action.
d. SCOTUS struck down the Ohio Syndicalism statute.
5. Post- Brandenburg Incitement Decisions
a. Hess v. Indiana (1973): It was an anti-war demonstration where the speaker said
we will take the streets later. Speech was protected, as there was no evidence
that the words were likely to produce imminent disorder).
b. NAACP v. Claiborne Hardware (1982): If I catch any of you going in any of the
racist stores, were gonna break your damn neck. During the boycott.
i. Speech protected, as mere advocacy of the use of force is not enough.
c. We dont have a good grasp on the first amend. principles to criminal defendants
who incite or solicit others, or agree among themselves to commit specific
serious crimes in a non political context because it hasnt been explored.
6. Does the Brandenburg test make sense today?
a. Balance is freedom of expression between the need to prevent harm!
b. Does the government have to wait until the bomb actually goes off?
c. The risk formula test could be argued to make more sense today, but that is not
the law.
d. We probably havent heard the last word on Brandenburg. Although it does show
how far with speech we have come since World War I. We now have a tradition of
first amendment speech protection that did not exist in 1919.

65

Vagueness and Overbreadth


1. Void for Vagueness- Applies throughout the law (not just first amendment)
a. Statute must define the criminal offense with sufficient definiteness so that:
b. Ordinary people can understand what conduct is prohibited; AND
c. The statute does not encourage arbitrary and discriminatory
enforcement.
1. Most of these claims fail because its a last ditch effort.
2. The second prong is the more important one b/c the first prong
makes it hard for ordinary people to understand statutes anyway.
2. Overbreadth: A law regulating expression is unconstitutionally overbroad if it
regulates (restricts) not only unprotected expression, but also a significant amount of
protected expression
a. Person to whom law may be constitutionally applied can argue that it would be
unconstitutional as applied to others.
b. Perceived as strong medicine so courts can construe statutes narrowly to get
around it.
i. If that statute is properly applied to you, but the court things that there
would be a substantial amount of speech that would come under fire
under their finding, they will shoot the statute down on its face.
c. How overbroad does it have to be?
i. You can always think of some other hypothetical person who is not on trial
at that time and hasnt been found yet.
ii. Broadrick v. Oklahoma (1973)
1. Ps engaged in partisan political activities among their co-workers
and brought suit to enjoin enforcement of an OK statute proscribing
such activity by state civil servants. Although they conceded their
activity could be prohibited, they sought to have the statute
declared unconstitutional because it forbade other conduct (i.e.
bumper stickers, political buttons).
2. SCOTUS refused to invalidate the statue on its face and said any
over breadth should be cured through case-by-case analysis of the
fact situations which is sanctions.
3. Void-for-Vagueness and Overbreadth Policy Considerations
a. Avoid chilling free expression (not exercising speech rights to avoid arrest)
i. They will be deterred from speaking at all if they get the sense that if they
speak they will have problems.
b. Prevent selective enforcement
i. Authorities could go after some people but not others
ii. Need to differentiate between those who are in and those who are out
iii. Can be a problem with ANY criminal statute. The legislature can only pass
what they think is constitutional and hope for the best. It will be applied in
the future against future people, so you can never be sure that they wont
go after someone who they wouldnt go after.
iv. Problem in First Amend b/c of the kinds of people who get snared by the
first amend (b/c they are reprehensible, or their ideas are).
c. Incentive to draft constitutional legislation
i. There are times when a legislature (state/congress) will pass a statue that
a majority of the lawmakers could care if its constitutional because of
elections, etc.
ii. It makes legislatures be careful about things the first time.
d. Judicial modesty?
i. Courts can say go back and try again congress.
e. Decisions based on facts not briefed or argued?
i. Sometimes decisions are based on facts that are not before the court.
f. Unwarranted exceptions for standing?

66

i. Third party standing and the rights of absentees.


4. Relationship between Vagueness and Overbreadth
a. They are not the same thing although they are closely related and laws are often
challenged under both doctrines simultaneously.
b. Both involve facial challenges to laws.
c. Concepts are overlapping but not identical.
5. Why are First Amend. cases treated differently?
a. Some people think it shouldnt be. They argue you are making a decision on
facts that have not occurred or been briefed yet.
6. Coates v. Cincinnati (1971):
a. C was a student involved in a demonstration and was convicted of violating an
Ohio ordinance making it a criminal offense for three or more persons to
assemble on sidewalks and they conducted themselves in a manner annoying
to passerbys.
b. SCOTUS held that it was unconstitutionally overbroad and vague.
i. Court found that conduct that annoys some people might not annoy
others, so people couldnt conform conduct under statute, making law
unconstitutionally vague.
ii. Ordinance also makes certain things crimes which the Constitution said
cannot be a crime (although the dissent says needed more facts); made
law unconstitutionally broad.
7. Herndon v. Lowry (1937):
a. D went to AL as a paid organizer for the Communist Party during the depression
and enrolled at least five members and had some meetings (but had not
distributed literature or done anything else).
b. The Court found GAs statute unconstitutional and found that Ds conviction was
an unwarranted invasion of the right of freedom of speech.
8. Broadrick v. Oklahoma (1973):
a. Ps engaged in partisan political activities among their co-workers and brought
suit to enjoin enforcement of an OK statute proscribing such activity by state
civil servants. Although they conceded their activity could be prohibited, they
sought to have the statue declared unconstitutional because it forbade other
conduct (e.g., bumper stickers, political buttons).
b. The Court refused to invalidate the statute on its face and said any overbreadth
should be cured through case-by-case analysis of the fact situations which it
sanctions.
9. Virginia v. Hicks (2003)
a. City privatized streets within a housing development and enacted a policy
authorizing police to serve notice to any nonresident who cannot demonstrate a
legitimate business or social purpose for being on the premises. H was arrested
and convicted under the statute, and the Court held that the VA Sup. Ct. should
not have used the strong medicine of overbreadth to invalidate the entire
policy.
b. Policy could still be challenged on an as-applied basis, but H failed to
demonstrate that any First Amendment activity fell outside the legitimate
business or social purposes that permit entry.
10.U.S. v. Stevens (2010)
a. Statute was substantially overbroad because Congress enacted the statue to
prevent crush videos (ladies crushing animals to death with their feet) and
dogfighting videos. SCOTUS said the broad statute could include hunting videos
and includes things that were not supposed to be regulated under the statue.

67

Prior Restraint
1. Prior restraints are seen as the most serious and least tolerable infringement on First
Amend. rights.
2. What is it?
a. Administrative system requiring a license or permit before conducting a parade
or demonstration in a public forum such as a park or street.
i. Content based are NOT okay, other permits are.
b. Injunction that enjoins a person from engaging in specified future expression.
c. Other government acts, such as prohibiting publication of information in
newspaper.
3. Content-Based Restriction/Regulation of/on Expression
a. Distinguishes between expression because of what the speaker says, or wants to
say
b. Are presumptively invalid and are upheld only where the government proves that
the regulation is narrowly drawn to accomplish a compelling state interest (i.e.,
strict scrutiny).
c. These get strict scrutiny (and they almost always loose b/c they dont have a
compelling state interest).
d. They are virtually presumed to be unconstitutional. Upheld only where the
government proves that the regulation is narrowly tailored to accomplish a
compelling state interest
4. Content-Neutral Restriction/Regulation of/on Expression
a. Valid if: they are narrowly tailored to serve a significant government interests
and they leave open ample alternatives channels of communication. (close to
intermediate scrutiny)
b. Operates regardless of the content of the expression
i. Viewpoint-neutral Government does not regulate expression based on
the messages ideology (content) (e.g., does not permit pro-life
demonstrations in the public park but does pro-choice)
1. Government cannot take sides on a particular issue.
ii. Subject-matter neutral Government does not regulate expression
based on the expressions topic (subject) (e.g., does not ban all picketing
in a residential neighborhood except for labor picketing in connection with
a place of employment)
1. Shopping mall decisions are subject matter discrimination when
labor demonstrators are permitted, anti-war demonstrators are
banned and then Hudgens overruled Logan (labor) b/c they cases
didnt match up.
5. Near v. Minnesota (1931):
a. N was producing a paper, which included allegations that local government
officials were corrupt (among other thigns). Government went after his
newspaper and said he was publishing untrue stuff about public officials
(although some was true and some wasnt). They enjoined him based on what he
was publishing, so it was a content-based restriction.
b. SCOTUS held that judicial orders preventing speech constitute a prior restraint.
c. Court injunction is a classic prior restraint. (negative D may not do something;
positive somebody must do something).
i. Almost impossible to get a prior restraint injuction against a newspaper.
6. U.S. v. New York Times Co. (1971): Ellsberg released info regarding Pentagon Papers.
The case was at the Supreme Court within three weeks, and the Court held that what
was released was historical, not present information, so the govt. couldnt suppress it
(as it posed no real threat of danger).
a. Near was the basis for this case.
b. This case is a strong pronouncement against prior restraints, even in the name
of national security, unless there is proof of a compelling need for an injunction.

68

c. Decision ultimately rested on the failure of the govt to point to materials in the
historical study that needed to be kept secret in order to protect national
security.
7. Licensing as Prior Restraint
a. Where the government requires a license or permit for expression to occur,
government denial of the license or permit is a prior restraint.
b. Content-neutral prior restraints (license or permit systems) are
permissible only when:
i. The license or permit has an important reason and provides ample
alternatives
ii. The system establishes strict criteria for grant or denial, leaving almost no
discretion to the licensing authority.
iii. The system guarantees procedural safeguards, such as provisions for
prompt determination of license applications, opportunity for a full and fair
hearing before expression is restrained, and prompt judicial review of
license details.
c. Despite traditional prior restraint law, systems requiring official permission in
advance for parades and demonstrations have been upheld.
d. Cox v. New Hampshire (1941): Court sustained a licensing system for parades on
public streets which provided that the first person to apply got the permit. City
had important reasons for licensing: to receive notice & provide proper policing.
(DA: This was an easy case, as it was fair.)
e. Shuttlesworth v. Birmingham (1969): Court overturned the convictions of civil
rights protestors who violated a citys ordinance by having a demonstration w/o
the required permit. Parade ordinance was unconstitutional because it
authorized denial of a permit if the public welfare, peace, safety, health,
decency, good order, morals, or convenience require that it be refused. After a
black man didnt get a permit in AL, the Court struck this down, as it gave the
city too much deference.
Types of Unprotected Expression
1. Incitement to unlawful activity (Brandenburg) see above.
2. Obscenity Unprotected Speech b/c it has no redeeming social value (no First Amend.
protection)
a. Obscenity is not protected, although pornography is fully protected.
b. Very few prosecutors bring obscenity cases today as they are seen as a waste of
prosecutorial resources
c. When a lot of these cases were brought to the Court, they had to watch things
(the movies).
i. I shall not today attempt further to define the kinds of material I
understand to be (hard core pornography), and perhaps it could never
succeed in intelligibly doing so. But I know it when I see it Jacobellis v.
Ohio (1964) (Stewart, J concurring).
d. Known as the I know it when I see it test.
e. Miller v. California (1973)
i. D conducted a mass mailing campaign to advertise the sale of illustrated
books, called adult material. D was convicted of violating a CA statute,
and the Court held that the requirements of the statute adequately
protected Ds constitutional rights.
ii. Three-part test:
1. Would the average person, applying contemporary community
standards find that the work, taken as a whole, applies to the
prurient interest?
2. Does the work depict or describe, in a patently offensive way,
sexual conduct specifically defined by the applicable state law?

69

f.

3. Child
a.
b.

c.

d.

3. Does the work, taken as a whole, lack redeeming, artistic, literary,


political or scientific value? (Exception for Medical Texts, etc).
iii. Have been efforts to apply Miller to violent video games, but the court has
said no to that in the last few years since Miller had to do with sex and
NOT violence.
Jenkins v. Georgia (1974)
i. D was convicted in GA for the crime of distributing obscene material after
showing the film Carnal Knowledge in a movie theater. The Court held
that the film was not obscene under Millers Constitutional standards, so it
was not outside the protection of the First Amendment.
1. Even though the questions under Miller are questions of fact, the
jury doesnt have unbridled discretion in determining whats
patently offensive.
2. Here, the Court actually looked at the questions.
Pornography
This is a big and vicious industry.
New York v. Ferber (1982) Court created a new category of non-obscene
expression that is outside the protections of the First Amendment. They found
that non-obscene (not prescribed in Miller) photographs and films depicting
sexual activity by juveniles needed to be unprotected in order to protect that
physiological, emotional and mental health of the child
i. Photographs and films create a permanent record of the childrens
participation and the harm to the child is exacerbated by their circulation
ii. Doesnt say anything about the effect on the viewer, only protecting the
children.
iii. Such speech may be prohibited even if it does NOT meet the test for
OBSENITY.
Ashcroft v. Free Speech Coalition (2002) Court declared unconstitutional the
Child Pornography Prevention Act of 1996, which prohibited child pornography
whether its based on actual pictures of children or computer generated images.
(Decision made child pornography prosecutions more difficult.)
i. Virtual Child Pornography:
1. Manipulating, or morphing, an innocent picture of an actual child
to create a picture showing that child engaged in sexual activity
2. Transforming a picture of an actual adult into the image of a nonexistent child and producing the image to engage in sexual activity
3. Generating the realistic image of a non-existent child and having
the image engage in sexual activity
ii. Congressional Findings (some the Court didnt buy)
1. Pedophiles might use virtual images to encourage other children to
participate in sexual activity.
2. Pedophiles might whet their own sexual appetites with
pornographic images.
3. Existence of computer-generated images can complicate
prosecutions of pornographers who do use real children. (Although
the Court didnt buy this one, it became clear to people by Williams
that Congress got it right.)
U.S. v. Williams (2008) - Court rejected facial overbreadth and vagueness
challenges to the Protect Act of 2003 (which Congress enacted in the wake of
Free Speech Coalition) and held that offers to provide or requests to obtain child
pornography are categorically excluded from the First Amendment.
i. Congress could prevent the solicitation of material, even if it didnt exist
and there was no intent for it to be consummated.

70

ii. This statute didnt require the actual existence of child pornography but
instead banned the collateral speech that introduces such material into
the child-pornography distribution network.
e. Note: Child pornography only involves pictures, films, portrayals in books, etc. of
children engaged in sexual activity, NOT nude pictures, war pictures, etc.
4. Fighting words
a. Fighting words personally abusive epithets which, when addressed to the
ordinary citizen, are, as a matter of common knowledge, inherently likely to
provide violent reaction Virginia (citing Chaplinsky)
i. Goods too much protection to people who would stifle speech.
b. Chaplinsky v. New Hampshire (1942) D (a Jehovahs Witness) got into an
altercation on a public sidewalk with a city marshal and allegedly told the officer:
you are a God damned racketeer and a damned fascist. The Court sustained
Ds conviction and construed the statute to ban only such words, as ordinary
men may know, are likely to cause a fight, thus to prohibit the face-to-face words
plainly likely to cause a breach of the peace by the addressee.
i. No case since this has upheld such a conviction.
ii. Court has never overruled this case, but they dont like it.
c. Fighting Words Today
i. Must be directed at a specific person
ii. May not be content-based restriction.
iii. May not be vague or overbroad.
d. Snyder v. Phelps picketing military funeral. Soldiers father brought a lawsuit
against Westborough Baptist alleging IIED. They won in the lower courts.
i. Constitution (protecting speech) prevails over civil/common/statutory law.
Courts are VERY protective of speech even for groups that we generally
find reprehensible.
ii. Court was 8-1. They were not comfortable with what they were doing but
decided the case narrowly on the facts. Alito suggested the fighting words
doctrine and decide about carving out another exception to the first
amend. protection. They DID NOT do that.
iii. Because court doesnt apply fighting words doctrine in this, its a good
chance they wont use it again. It hasnt been overruled but its also not
used anymore.
5. True threats
a. Encompasses statements where the speaker means to communicate a serious
expression of intent to commit an act of unlawful violence to a particular
individual or group of individuals.
b. True threats must appear credible to a reasonable person.
c. Wisconsin v. Mitchell (1993)
i. An assault is not protected speech. Verbalization does not immunize the
conduct, meaning you can still be punished for assault because its
conduct not speech.
d. Policy Considerations
i. Right to be secure in ones person
ii. Prevention of serious violence
iii. No time for marketplace of ideas to work
e. Virginia v. Black (2003)
i. Involved two cases of cross burning. Court held that, while a State may
ban cross burning carried out with the intent to intimidate, the provision in
the VA Statute treating any cross burning as prima facie evidence of intent
to intimidate renders the statute unconstitutional.
ii. Assaults are NOT protected, but what about true threats?

71

f.

iii. Government cannot prohibit all cross burning. Cross burning with the
intent to threaten or intimidate (constitution a true threat) is NOT
protected.
iv. There must be proof in the individual case that the speech was a true
threat.
v. Thomas Dissent:
1. The act of cross burning and violence/intimidation are well
documented in American History. The statute prohibits only conduct
not expression. Just as one cannot burn down someones house to
make a political point and then seek refuge in the First Amend,
those who hate cannot terrorize and intimidate to make their point.
Still a very much alive doctrine.

72

Regulation of Commercial Speech


1. Definition: speech proposing a commercial transaction. Also, related solely to the economic
interests of the speaker and its audience.
a. Informational pamphlets discussing the desirability of prophylactics in general and the
manufactures products in particular were commercial speech even though they were
linked to a public debate.
b. Giving legal or medical consultation for a fee is not commercial speech because speech
for a profit is not necessarily speech that proposes a commercial transaction.
c. Charitable solicitation is also protected. An ordinance was struck down that not
required them to disclose the percentage of funds raised that would go towards to
charity before asking for money.
i. Making affirmatively false or misleading statements is NOT protected by the
First.
2. Three characteristics of commercial speech
a. Advertisement in some form;
b. Refers to a specific product; and
c. The speaker has an economic motivation.
3. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976):
Prescription drug consumers attacked a VA statute making it a crime for pharmacists to
publish, advertise, or promote any amount, price, fee, premium, discount, rebate or credit
terms for prescription drugs. The Court held that the flow of prescription drug price
information is protected by the 1st Amdt. Commercial speech is protected but can be
regulated!
a. Commercial Speech:
i. Does no more than propose a commercial transaction, and
ii. Advertisers interest is purely economic.
b. This is a marketplace of ideas issue, as Blackmun thinks consumers need information
to make decisions.
c. Rehnquist dissented and said that the Courts decision would open the way for active
promotion of prescription drugs, liquor, cigarettes, and other products. He turned out
to be more correct than the majority.
4. Attorneys and Advertising
a. In person solicitation is not allowed but other forms of free speech are protected! Inperson solicitation opens the door for overreaching and undue influence that
newspaper and direct mail does not provide.
i. 30 day waiting period for soliciting accident victims is okay.
5. Central Hudson Gas & Elec. Co. v. Public Service Commn (1980): Court declared
unconstitutional a ban on utility advertisements b/c the state could achieve its goal of
encouraging energy conservation through means less restrictive of speech.
a. Test for whether commercial speech can be protected by the First Amendment (still the
test today):
i. Is the advertising false or deceptive, or does it concern illegal activities?
ii. Is the governments restriction justified by a substantial government interest?
iii. Does the law directly and materially advance the substantial government
interest?
iv. Is the regulation of expression no more extensive than necessary to achieve the
substantial government interest (i.e., is it narrowly tailored to achieve that
interest)?
6. Greater New Orleans Broadcasting Association, Inc. v. U.S. (1999): But for the threat of
sanctions, Ps would broadcast promotional advertisements for gaming available at private,
for-profit casinos that are lawful and regulated in both LA and neighboring MS. The Court held
that the statute couldnt be applied to advertisements of private casino gambling that are
broadcast by radio or television stations located in LA, where such gambling is legal, as such
application violates the 1st Amdt.

73

a. The Court basically says there are a lot of holes in the statute, so it doesnt meet the
last two prongs of the Central Hudson test.

Restrictions on Time, Place, or Manner of Expression


1. Three types of forums:
a. Public forums
i. Public property that the government must make available for expression
(e.g., public streets, sidewalks, and parks)
ii. Public areas that the government has voluntarily dedicated to all expression
an unrestricted basis (e.g., a community bulletin board that posts all notices)
b. Designated (or limited) public forums
i. Public property that the government could close to expression entirely, but
that the government has voluntarily opened to expression
ii. E.g., meeting rooms in city hall, meeting rooms and classrooms in public
schools and state universities
c. Nonpublic forums
i. Public property that the government may close to all expression or where
the government may also restrict expression provided the restriction is
reasonable and content-neutral
ii. E.g., the operating rooms at a public hospital, military bases, post office
property
d. Whether something is a traditional public forum or a limited public forum is a
question of fact, but the Court has consistently refused to classify any public
property other than the parks and streets as traditional public forum.
2. Time, Place and Manner Restrictions On Expression Must:
a. Serve a compelling state interest if the restriction is content-based, or satisfy a
significant state interest if the restriction is content-neutral
b. Be narrowly tailored to achieve a significant government interest (although it need
not be the least restrictive alternative); AND
c. Leave open ample alternative channels of communication.
3. Time, Place and Manner Restrictions Significant Interests
a. Public order and safety
i. Keeping middle of streets clear
ii. Keeping daily activities running
b. Aesthetics
i. Billboards? S. Ct says can be banned if state wishes
c. Tranquility, privacy and repose
4. Schneider v. New Jersey, Town of Irvington (1939)
a. In looking at three cases involving convictions of persons distributing handbills, the
Court held that the cities could not forbid all distributions of handbills on public
streets and reversed the three convictions. Case recognized the right to use at
least some govt property under some circumstances for speech, even if it imposes
some cost on the city.
5. Public Forums
a. Frisby v. Schultz (1988): Ps wished to express their opposition to abortion by
picketing on a public street outside the Brookfield home of a doctor who performs
them. Although the picketing was peaceful, the town passed an ordinance
prohibiting all picketing in residential neighborhoods except for labor picketing. The
Court let the statute stand.

74

i. Court looked at the three-part test for time, place and manner restrictions:
1. Preserving the sanctity of the home is a compelling state interest
2. Statute was given a narrow interpretation by the Court, although it
might not have been narrowly tailored.
3. There are other alternative channels of communication, even if theyre
not perfect.
ii. The government basically wants to protect residential privacy.
6. Nonpublic Forums
a. Arkansas Educational Television Commission v. Forbes (1998): State-owned public
television broadcaster sponsored a candidate debate from which it excluded an
independent candidate with little popular support. The Court held that the
candidate debate was subject to constitutional constraints applicable to nonpublic
forums; however, the broadcasters decision to exclude the candidate was a
reasonable, viewpoint-neutral exercise of journalistic discretion.
i. If Court would have said this was a public forum, they would have had to let
in not only Forbes but also all other candidates.
ii. This also wasnt a limited public forum, as prior debates hadnt been open
season but had been limited to particular candidates.
iii. Even though its a non-public forum, it cant be content-based discrimination.
7. Viewpoint neutral
a. From 1966 to 1992, SCOTUS refused to classify any public property other than the
parks and streets as a traditional public forum.
b. Viewpoint neutral rules restricting access to non-traditional public forums were
nearly-consistently upheld under an approach that sustained those rules if
reasonable consistent with the governments interest in preserving the property for
non-speech uses.
i. CANNOT have an airport rule forbidding all first amend. activities in the
terminal.
c. Viewpoint netural restrictions that are okay:
i. Forbidding demonstrations and political speeches on a military based
ii. State fair limiting sale or distribution of written materials to fixed locations
iii. Teachers org other than elected bargaining rep can be forbidden to use
school mailboxes to communicate with teachers
iv. You can be forbidden from placing signs on public property
v. Legal defense and advocacy orgs can be excluded from participating in
federal employees charity drive
vi. Regulation of music volume at a public amphitheater
vii. Postal regulation forbids soliciting of charitable contributions on postal
property.
8. Columbia Library Example:
a. People can stand on the sidewalks and steps, as its a traditional public forum.
b. In looking at the area right by the door, the issue becomes whether the government
would want to leave it open (and whether its a designated public forum). If theyve
allowed people to do it in the past, theyve probably made it into a designated
public forum; however, if theyve had the police chase people away, its not.
c. Public reading rooms at libraries are typically considered non-public forums.

75

Regulation of Symbolic Speech


1. This is the intersection of speech and conduct.
2. Protections for symbolic aspect of speech are significant, but theyre not as significant as
protections of actual speech.
3. Symbolic Speech Basic Questions
a. When is conduct expressive?
b. When may the govt regulate expressive conduct?
4. Test: When Is Conduct Expressive? Spence v. Washington (1974) (individual taped peace
sign on American flag):
a. Did the person intend to convey a particularized message?
b. In the surrounding circumstances, would the message be understood by those who
viewed it?
5. United States v. OBrien (1968)
a. OBrien burned his selective service registration certificate on the steps of a
courthouse in the presence of a crowd, and he was convicted for violation of a
federal statute that made it a crime to knowingly destroy or mutilate the certificate.
The Court held that he could be constitutionally convicted for violating the statute.
i. Stands for the proposition that Congress and the states can regulate not only
the utterance of words but also symbolic activity that has expressive
connotations.
b. Statute was content-neutral, and the Court found it met the test.
c. The test here is intermediate scrutiny.
d. Court couldnt have touched his speech under a compelling state interest test,
although the conduct was successfully prosecuted.
6. Test: When May the Government Regulate Expressive Conduct?
a. Government regulation must further an important or substantial government
interest
b. Government interest must be unrelated to the suppression of free expression.
c. Restriction on expression must be no greater than necessary to further the
government interest.
7. City of Erie v. Paps A.M. (2000)
a. City of Erie enacted an ordinance banning public nudity, and Paps (operator of an
establishment featuring totally nude erotic dancing) challenged the ordinances
constitutionality. The Court held that the ordinance was a content-neutral
regulation that satisfied the three-part test of OBrien.
i. Court had some disagreement as to whether this was expressive activity.
(Dissenters thought this was pure conduct.)
ii. Court could defer to the City Councils documents involving the ordinance;
there would be less deference if these were decided under the compelling
state interest test.
iii. Govt could ban such conduct so as to prevent the undesirable secondary
effects of nude dancing (i.e., crime).
8. In these cases, legislators should be careful to proscribe the conduct related to the
speech, not the speech itself, or they wont be upheld.
9. Citizens United v. Federal Election Commission (2010)
a. Held: stare decisis does not compel the continued acceptance of Austin. (which
held that political speech may be banned based on the speakers corporate
identity).
b. Government MAY regulate corporate political speech through disclaimer and
disclosure requirements, but it may not suppress that speech altogether.
i. Protection under the first amend has been extended because political speech
does not loose its protection simply because its source is a corporation.
ii. People have the final say in our sovereign, and the legislators are the
spokesmen. It is vitally important that all channels of communications are
open to the people during every election, that no point of view be restrained

76

or barred, and that people have access to the views of every group in the
community.
c. There is NOT a compelling government interest in preventing for-profit and not-forprofit companies from spending money on campaigns because it could be seen as a
restriction on free association and on political speech.

77

The Government as a Speaker


1. The government CAN engage in content-based speech.
a. Government is elected to give content-based speech, and if you dont like it, you
vote them out of office.
b. Issues of religious doctrine are the only time the government must be contentneutral.
2. Pleasant Grove City v. Summum (2009): Summum, a religious group, wished to install their
own monument next to a Ten Commandments monument in a public park.
a. It is hard to imagine how a public park could be opened up for the installation of
permanent monuments by every person or group wishing to engage in that form of
expression.
3. Rust v. Sullivan (1991): Title X of the Public Health Service Act provided that the grant of
federal funds was conditioned on a Title X project not providing counseling concerning the
use of abortion as a method of family planning and being maintained physically and
financially separate from prohibited abortion activities.
a. Court held that the Govt. can selectively fund a program to encourage certain
activities it believes to be in the public interest, without funding an alternate
program.
b. If the clinic accepts the funds, they have to abide by the rules. They can counsel
about abortion outside the clinic.
4. National Endowment for the Arts v. Finley (1998): NEA distributes grant money to artists.
In response to two provocative works, Congress adopted an amendment allowing the
Chairperson to take into consideration general standards of decency and respect for the
diverse beliefs and values of the American public.
a. Court found the statute was facially valid and didnt interfere with First Amendment
rights.
b. The speakers have an ability to speak here, just outside the institution.
5. U.S. v. American Library Association, Inc. (2003): Libraries could not receive federal
assistance to provide Internet access under the Childrens Internet Protection Act unless
they installed software to block images that constitute obscenity or child pornography.
Court held that CIPA did not induce libraries to violate the Constitution, because public
libraries use of filtering software does not violate their patrons First Amendment rights.
a. Congress could make libraries block these things for children and yet respond to
adults who requested their computer to be unblocked, so it was still available to
adults.
b. This is about the only victory Congress has had in Internet cases involving the First
Amendment.

78

Freedom of Association
1. 1st Amdt. Freedom of Association: Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
a. Protected Groups:
i. Associations for the advancement of beliefs and ideals
ii. Group activities for lawful purpose of helping and advising one another in
asserting rights
2. NAACP v. Alabama (1958):
a. Court first enunciated First Amendment right to freedom of expression. Members
and officers were required to file names and addresses, and the NAACP claimed
they had a first amendment expressive right to not have to divulge their
membership to AG of AL.
b. Court said freedom of association is required to effectuate the rights that are part of
the amendment, so this is an implied right.
3. Limits on Association Activities
a. NAACP v. Claiborne Hardware Co. (1982): NAACP announced a boycott against
employers who discriminated against African American customers. The boycott led
to a state court action by merchants for damages and injunctive relief. The Court
held that the nonviolent elements of Ds activities were entitled to First Amendment
protection.
i. Stands for the proposition that a peaceful, nonviolent boycott is an activity
that is protected by the First Amendment.
ii. If boycotters had engaged in unlawful conduct, that could still be prosecuted.
4. Limits on Association Membership Policies
a. Almost every state has public accommodation laws, and the definition of public
accommodation is broad enough to include almost any organization that holds itself
out as serving the public generally. In most cases, the First Amendment defense
wont work in such cases.
b. Roberts v. United States Jaycees:
i. National Jaycees organization threatened to revoke the charters of MN
chapters whod begun to admit women as regular members. Chapters
alleged that the exclusion of women by the national organization violated a
MN Statute, and the Court held that applying the MN statute to the Jaycees
did not violate the Constitution.
1. Jaycee chapters lacked distinctive characteristics that might afford
constitutional protection to its decision, so there had not been a
violation of freedom of expressive association.
c. Board of Directors of Rotary International v. Rotary Club of Duarte (1987)
i. Court held that application of a State antidiscrimination law to require
admission of women to membership in local rotary clubs did not deny
freedom of intimate association or freedom of expressive association.
d. Boy Scouts of America v. Dale (1982)
i. Ds adult membership in the Boy Scouts was revoked when the Boy Scouts
learned that he is an avowed homosexual and gay rights activist. Boy Scouts
assert that homosexual conduct is inconsistent with the values it seeks to
instill. The Court held that NJ could not impose its public accommodation law,
as such a requirement violated the First Amendment.
1. Boy Scouts had a right of expressive association.
2. Dale didnt further the message they were trying to convey.
e. Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006)
i. Congress enacted the Solomon Amendment when law schools began
restricting the access of military recruiters to their students because of
disagreement with the govt. policy on homosexuals in the military. Provision

79

specified that if any part of an institution of higher education denies military


recruiters access equal to that provided other recruiters, the entire institution
would lose certain federal funds. The schools sued.
1. The Court held that the Amendment did not violate a law schools First
Amendment rights.
ii. Court reasoned that a military recruiters presence on campus wouldnt
convey the message that the law school agrees with everything the military
proscribes.
Two Types of Freedom of Association Where First Amendment Defense Works:
1. Intimate Association a small, exclusive groups First Amendment right to exclude
a. With small groups of people, its hard to hide the people you dont want in.
b. Didnt work with Boy Scouts, Jaycees, or Rotary Club.
2. Expressive Association groups First Amendment right to exclude so members can
associate to express their views on political, economic, cultural or social affairs.
a. Admitting person would be contrary to views we want to express
b. This is what Boy Scouts did
c. Little League Girl: In 2005, 9-year-old girl tried to enroll in summer baseball league
where all players were boys, and the program excluded her because they had a
separate softball league for girls. She raised a public accommodation claim, but the
sports program could say they had a First Amendment right to accept whomever
they wanted.

80

Congressional Powers
1. Scope of Congressional Authority
a. Federal govt is one of enumerated powers; unless the Constitution says it may do
something, it may not. Powers may be either explicit or implicit.
2. Basic Questions
a. Does the Constitution expressly or impliedly grant Congress authority to act?
b. If so, does the congressional act violate a specific provision of the
Constitution or the Bill of Rights?
3. The Bank of the United States
a. Alexander Hamilton favored creating the Bank of the United Sates and said that Article
I created the implied authority to do so (as did the Necessary and Proper clause).
b. Thomas Jefferson disagreed and said that since the power of Congress to make a bank
wasnt explicit in the Constitution, the federal govt should have to act through the
states.
i. The first national bank was established in 1791, and the second Bank of the
United States was chartered in 1816.
ii. Many states including MD, didnt want the bank within their borders and sought
to nix it
4. McCulloch v. Maryland (1819)
a. MD tax required that any bank not chartered by the state pay either an annual tax of
$15,000 or a tax of 2% on all of its notes, which needed to be on special stamped
paper. The bank refused to pay the MD tax & issued notes, which were not on stamped
paper, & MD sued the cashier of that branch of the Bank of the U.S. (McCulloch). MD
courts found for state, but the Sup. Ct. reversed.
b. Major Questions
i. Did the Constitution grant Congress authority to create the Bank? (YES)
ii. Was the state tax on the Bank constitutional? (NO)
c. Grounds for Decision
i. History
1. These battles have already been fought, and Congress hasnt struck down
the bank.
2. Second bank exists already, so its probably evidence that Congress had
such power.
ii. States rights
1. Constitution was created by people, not the states.
2. States couldnt take back power they didnt have (& MD couldnt tax
federal instrumentality).
iii. Implied powers
1. If the Constitution were limited to the powers listed, we couldnt have the
federal govt like we do today.
2. we must never forget that it is a constitution we are expounding.
iv. Necessary and Proper Clause
1. Marshall said clause meant Cong could do whatever was convenient to
exercise powers
2. Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consistent with the letter and spirit of
the constitution, are constitutional
3. Clause is in Art. I, 8 (expanding Congresss powers), not in Art. I, 9
(which limits them).
5. Summary
a. The federal govt draws its constitutional authority directly from the people, not from
the states.
b. Congress has both enumerated and implied powers.

81

c. The Necessary and Proper Clauxfse allows Congress a wide scope of authority to
implement its enumerated powers.
d. State legislation (including state taxation) that might interfere with the exercise of
these federal powers is invalid.

82

Religion, Establishment and Free Exercise


1. Generally
a. First Amendment: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof
b. Article VI, clause 3: but no religious Test shall ever be required as a Qualification
to any Office or public Trust under the United States.
i. Theres often tension between these two clauses, in that a decision under one
puts a strain on the other, and courts havent come up with a unitary test
under these clauses.
2. Constitutional Grounds Main Views Among Framers
a. Evangelical view Roger Williams believed that if government got involved in
religious affairs, it would weaken religion.
b. Jeffersonian View Thomas Jefferson took the opposite approach and thought that
there should be a wall of separation because religion would weaken government
affairs.
c. Madisonian View - James Madison saw religion as one among many types of factions
that existed & needed to be preserved.
1. Free Exercise
a. Values
i. Autonomy
ii. Pluralism
iii. Tolerance
iv. Theology (morality)
b. Free Exercise =
i. Freedom to believe
ii. Freedom to act on belief
c. Free Exercise is Invoked in Several Situations
i. Government may seek to prohibit conduct that people say their religion
requires (e.g., telling a woman to remove her veil to take a drivers license
picture)
ii. Government may seek to require conduct that a persons religion forbids
(e.g., Amish can be required to obtain SSNs & pay taxes)
iii. Government may seek to impose requirements that people say makes their
religious observance more burdensome or difficult (e.g., woman being
dismissed from her job for refusing to work Saturdays, which she said was the
Sabbath of her religion)
d. Historical Developments of Free Exercise Jurisprudence
i. No clear test before 1960s.
ii. Sherbert v. Verner (1963): Court held that strict scrutiny should be used in
evaluating laws burdening free exercise of religion (& declared
unconstitutional denial of unemployment benefits to woman discharged from
her job after refusal to work Sat. Sabbath)
iii. Employment Division v. Smith (1990): Court held Free Exercise Cl. cant be
used to challenge neutral laws of general applicability burdening religion
(They only have to meet the rational basis test.).
1. Criticism of Smith is that it provides not enough protection to free
exercise of religion
2. If the law is neutral, it does not get strict scrutiny
3. But is the law neutral, generally applicable? (Hialeah)
e. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993): Church practices
the Santeria religion, whose services include animal sacrifices. When the church
proposed to build a house of worship in Hialeah, the city enacted ordinances that
targeted the practice of animal sacrifice by the church but contained an exemption
for killing animals for slaughtering purposes. Court held that the ordinances

83

f.

violated the free exercise clause since they were neither neutral nor of general
applicability.
i. Statute wasnt content-neutral, so strict scrutiny applied.
ii. Slaughterhouses could do what they wanted, but religion could not.
iii. Clear object of the law was to prohibit a religious practice.
If Columbia enacted a statute forcing children to salute the flag in class, it wouldnt
hold up, as West Virginia State Board of Education v. Barnette (1943) stands for the
proposition that schoolchildren cant be compelled to salute the flag in violation of
their religious beliefs.

84

Establishment Clause
1. Establishment Clause Approaches
a. Strict separation
i. To the greatest extent possible, govt & religion should be separated
ii. Govt should be secular
b. Neutrality
i. Govt cant favor religion over secularism or one religion over others
c. Accommodation/Equality
i. Court should interpret the clause to recognize the importance of religion in
society & accommodate its presence in govt
ii. Govt violates the clause only if it literally establishes a church, coerces
religious participation, or favors one religion over others
iii. Court has moved toward accommodation/equality and has tended to uphold
aid to parochial schools when certain requirements are met (below)
d. It is firmly established that the govt violates the establishment clause if it
discriminates among religious groups; such discrimination will only be allowed if
strict scrutiny is met.
i. If there is NOT discrimination, the case is discussed under the Lemon test
(where a law is unconstitutional if it fails any prong of the test):
ii. Statute must have a secular or legislative purpose
iii. Principal or primary effect must be one that neither advances nor inhibits
religion
iv. Statute must not foster an excessive govt entanglement w/ religion
2. Religious Land Use and Institutionalized Persons Act (2000)
a. Requires that govt meet strict scrutiny when it significantly burdens religion in two
areas:
i. Land use decisions
ii. Institutionalized persons
3. Cutter v. Wilkinson (2005)
a. Ps complained that OH prison officials, in violation of RLUIPA, have failed to
accommodate their religious exercise. The Court held that RLUIPA did not, on its
face, exceed the limits of permissible government accommodation of religious
practices under the Establishment Clause.
4. Government Aid to Elementary and Secondary Education
a. Aid likely to be upheld if three criteria are met:
i. Aid available to all public and parochial students
ii. Aid provided directly to the students or their parents (not to the schools)
iii. Aid not actually used for religious instruction
b. Available to All Students Zelman v. Simmons-Harris (2002)
i. OH enacted a Pilot Scholarship Program, which provides assistance to parents
in certain school districts in the form of tuition aid for students to attend
public or private schools or tutorial assistance for students who remain
enrolled in public school. The Court held that the OH program, designed to
provide educational choices to families, was entirely neutral with respect to
religion and is a program of true private choice, so it didnt violate the
Establishment Clause.
1. Plurality was following the neutrality approach.
2. Dissenters approached strict separation.
c. Used for Religious Instruction Mitchell v. Helms (2000)
i. Federal school aid program (Chapter 2) distributes funds to state and local
government agencies, which in turn lend educational materials and
equipment to public and private schools. When the law was challenged in LA,
the Court held that Chapter 2 is not a law respecting an establishment of
religion.
ii. Court reasoned that law did not result in indoctrination, b/c:

85

1. It determines eligibility for aid neutrally


2. Allocates that aid based on the private choices of the parents of
schoolchildren
3. Does not provide aid that has impermissible content.
a. Plurality again seems to follow neutrality approach, while dissent
favors strict separation, and OConnor leans toward
accommodation.
Commerce Power
1. Art. I, 8: The Congress shall have the power[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes
2. Congress Commerce Power Today
a. Means of commerce
b. Instrumentalities of commerce
c. Conduct having a substantial effect on interstate commerce
3. Gibbons v. Ogden (1824)
a. State of NY granted a monopoly to two men (L & F) to operate steamboats in NYC
harbors, & they granted a license to O. G also wanted to operate a steamboat
operation and got a license from the fed. govt. Court found that the NY monopoly
was an impermissible restriction of interstate commerce.
b. Commerce includes all phases of business (contrary to states argument that
commerce is only the sale of goods)
i. Among the states means concerning more than one state.
c. Congress has complete authority to regulate all commerce among the states. When
acting under its commerce clause authority, Congress can regulate in the same way
as it could if no state govts existed.
4. From Gibbons to 1937
a. Narrower interpretation that struck down many congressional statutes
i. Commerce distinct from mining, manufacturing, production
ii. Defined among the states as requiring a substantial, direct effect on
interstate commerce
iii. Tenth Amendment reserved a zone of activities to the states
b. Hammer v. Dagenhart (The Child Labor Case) (1918): Father of two kids (who were
working many hours per day) brought suit claiming he had the right to put his
children to work. Court held that regulation of production was left to the states and
therefore a federal law that prohibited shipment in interstate commerce of goods
made by child labor was unconstitutional, even though it was limited to interstate
commerce, b/c it violated the 10th Amdt.
i. Keating Owens Act regulated child labor, and Court said Congress had no
right, as it involved manufacturing, not commerce.
5. Commerce Power Since 1937 after Roosevelts court-packing plan
a. Generally:
i. Cong. may exercise control over all phases of commerce.
ii. Congress may regulate means and instrumentalities of commerce.
iii. Congress may regulate any activity that, taken cumulatively, had an effect on
interstate commerce.
iv. The sole test is whether the regulation is w/in Congresss commerce power
The 10th Amdt. is no longer a limit on that power.
v. Congress was given considerable deference, & not one fed. law was declared
unconstitutional as exceeding the scope of Congresss commerce power.
b. NLRB v. Jones & Laughlin Steel Corp.(1937): Court explained that steel business was
part of the stream of commerce and how labor relations w/in it had a direct effect on
commerce, noting that the fact that the employeeswere engaged in production is
not determinative.

86

c. United States v. Darby (1941): Sustained application of the Fair Labor Standards Act
of 1938 & rejected both the view that production was left entirely to state regulation
& the view that the 10th Amdt. limits Congresss powers.
d. Wickard v. Filburn (1942): Under the Agricultural Adjustment Act, the secretary of
agriculture set a quota for wheat production and each farmer was given an
allotment. F grew wheat primarily for home consumption and was fined after
growing more bushels than he was allotted. The Court upheld the application of the
law, finding that Congress had the power to regulate purely intrastate activity that
had some effect on interstate commerce. The Court reasoned that if every farmer
did this, it would have impacted interstate commerce.
6. The Commerce Clause After Lopez in 1995
a. Three Categories that May be Regulated by Congress
i. Means of Commerce
ii. Instrumentalities of commerce
iii. Conduct having a substantial effect on interstate commerce
b. United States v. Lopez (1995)
i. Congress enacted the Gun-Free School Zones Act of 1990, which made it
illegal to possess a gun w/in 1000 feet of a school. Court ruled that the
relationship to interstate commerce was too tangential and uncertain to
uphold the law as a valid exercise of Congresss commerce power.
1. Congress hadnt even included a jurisdictional provision, b/c such laws
hadnt been questioned since 1937.
2. Court struck down the statute. Congress was trying to federalize the
criminal code.
c. U.S. v. Morrison (2000)
i. P was allegedly raped by two members of the varsity football team at VA
Tech, and she brought a claim under the civil damages provision of the
Violence Against Women Act, which sought to provide remedies for victims of
gender-motivated violence.
ii. Third prong case conduct having a substantial effect on interstate
commerce.
1. Congress was trying to regulate activity under the third prong of the
commerce clause (not means or instrumentalities), so the question was
whether the effect was substantial enough to warrant legislation.
iii. The Court basically said that although Congress provided support for the Act,
the connected activity was too attenuated, & the third prong normally
requires economic activity.
1. Court struck down this section b/c under the third section; you have to
show that there is some economic/financial component of the case.
There wasnt any here. Domestic violence in not economic/financial.
Also, the court said that at some point the connection between the Ds
conduct and interstate commerce is too attenuated.
iv. For the first two prongs, you DONT have to show economic factors.
d. National Federation of Independent Business v. Sebelius (2012) (Obamacare appeal)
i. Court 5-4 upheld most of the act.
ii. Court rejected the commerce clause argument b/c all commerce clause cases
involve somebody who is already producing/buying something (entered the
stream of commerce). They cited Whikard v. Fillburn. Commerce clause does
not authorize the gov. to tell people to buy something they havent bought
already.
iii. Necessary and Proper Clause doesnt apply. Congress is not allowed to
exercise any great substantive and independent powers beyond those
specifically enumerated.
iv. Could the penalty be upheld as a tax even though they call it a penalty.
e. Today, the court has not extended Lopez and Morrison. Congress has to be careful.

87

f. What Congress cant do under the Commerce power, they can usually do under the
Taxing and Spending Power.

88

Taxing and Spending Powers


1. Art. I, 8, cl. 1: The Congress shall have the Power to lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common Defense and general
Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform
throughout the United States.
a. Uniformity - not a problem today but was back in the day. 1885 SCOTUS struck
down federal income tax b/c it was not uniform. 1913 16 TH Amendment gave us
the power to law and collect taxes. One of the major ways we funded WWI. Doesnt
matter if its uniform or not anymore b/c of the 16 th Amendment.
1. Requires that an excise tax apply at the same rate in all portions of the US
where the subject of the tax is found.
2. Congress has more power under taxing power then under the commerce clause but they
dont have the same degree of control over individual behavior. Commerce means that the
fed can bring its full government weight to bare on those who dont comply including
commanding people to do as it directs, and imposing criminal sanctions for non
compliance.
a. Taxing power only allows the gov. to require a payment to the treasury, and if it is
paid, the Gov. has no power to compel or subject indiviudals subject to it.
The Taxing Power
1. Court historically drew distinctions between direct and indirect taxes, and between
revenue raising and regulatory taxes, but neither of those distinctions has any significance
today.
2. Sozinsky v. U.S. (1937):
a. P was convicted of violating 2 of the National Firearms Act, by dealing firearms
without payment of the tax required by the act. The Court held that the act was
within the national taxing power.
b. P argued that Congress was basically targeting organized crime, which was probably
true.
1. Court said that every tax is in some measure regulatory, but its not any
less a tax b/c of its regulatory effect.
3. United States v. Ptasynski (1983)
a. Crude Oil Windfall Profit Tax of 1980 imposed a fed. Tax on oil produced but
contained an exception for exempt Alaskan oil.
1. SCOTUS found it valid.
2. Uniformity Clause is satisfied as long as the subject of a tax is in nongeographic terms to identify the same classifications.
4. Sebelius (2012)
a. If a statute has two possible meanings, one of which violates the Const, courts
should adopt the meaning that does not do so (J. Story, 1830).
b. This is a penalty not a tax because a penalty is punishment for an unlawful act or
omission. Failing to buy health insurance is not illegal and therefore is not a
punishment.
c. What are the earmarks of a tax?
1. It was not punitive in nature and the assessment was not based on fault
(scienter) requirement.
2. People pay it to the IRS when they are paying.
3. Does not apply to low-income people who pay no taxes.
4. Payers amount is calculated similar to the way the tax assessment is
determined
5. Raises some revenue and may regulate behavior
6. Windfall profits tax not an income tax but Congress did not make it
uniform for companies that operated in different states b/c the producers of
oil in Alaska, they have to import it (meaning greater costs).

89

The Spending Power


1. Broad Power particularly today because the court is using the Commerce Clause more.
Much of what Congress can do on the fringes of Commerce they absolutely can do under
spending.
a. Congress has broad power to spend funds to advance the general welfare.
2. Grants to the States:
a. Congress may place conditions on grants to state govts, so long as the conditions
are expressly stated and have some relationship to the purpose of the spending
program.
b. South Dakota v. Dole (1987)
i. In 1982 Congress passed legislation urging people to adopt a legal drinking
age of 21 b/c of lots of traffic accidents. 1984 Highway bill passed that
everyone wants money for their roads, but they had to change the age.
Federal statute provided block highway funds but allowed the Secretary of
Transportation to withhold funding if states didnt raise the minimum drinking
age to 21. Court upheld the condition on the receipt of federal funds in the
highway funding statute.
ii. Court found that the condition imposed by Congress was directly related to
one of the main purposes behind federal highway money: creating safe
interstate travel.
iii. Congress does not have broad sweeping power, they have to follow these
regulations below.
c. Sebelius (ACA)
i. This is a gun to the head of the states requiring them to adopt expanded
medicare or get all of their existing Medicare funds taken away. Even though
the states agreed to modifications when they accepted the money under
Social Security Act, this is not a complete overhaul and not merely a degree
change.
1. The original program only covered four groups, now it is transformed to
meet the needs of the entire non-elderly population with income below
133% of poverty.
2. It is not a program to care for the neediest among us but rather an
element of a comprehensive national plan to provide universal health
insurance coverage.
ii. SCOTUS held this Medicaid requirement for states was unconstitutional. Fed
cant take away existing funds if states do not comply with new requirements.
3. Four-part Test Giving Congress Discretion in Providing Block Grants:
a. The exercise of the spending power must actually be in pursuit of the general
welfare.
i. General welfare Congress has broad discretion (unlimited) to determine
what this means. Not tied to any power. Congress can use it for basically
whatever they want.
b. Congress must establish the funding conditions unambiguously, so the states will
know what they are committing themselves to.
i. Congress has to state clearly what they want.
c. The condition of the funding must be related to the federal interest in particular
projects or programs.
d. The exercise of the spending power must not violate other specific constitutional
provisions.

90

Other Congressional Powers


The Property Power
1. Art. I, 8, cl. 17: The Congress shall have PowerTo exercise exclusive Legislation in all
cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession
of particular States, and the acceptance of Congress, become the Seat of the Government
of the United States, and to exercise like Authority over all places purchased by the
Consent of the Legislature of the State in which the Same shall be, for the Erection of
Forts, Magazines, Arsenals, dock-yards, and other needful Buildings
a. Gives Congress power to run D.C. Court system in DC are not Article III courts, they
are Article I courts that are created by legislation.
2. Art. IV, 3, cl. 2: The Property Clause The Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States
a. Gives govt the right to govern territories, etc. Authorizes Congress to administer
national parks, wildlife refugees, etc. Teddy Roosevelt loved this shit for national
parks.
3. Kleppe v. New Mexico (1976): Wild Free-Roaming Horses and Burros Act was enacted in
1971 to protect horses and burros on public lands of the U.S. NM Livestock Board
removed some burros from federal land and sold them at public auction. The Court held
that Congresss power over public lands includes the power to regulate and protect the
wildlife living there.
Fiscal Powers
1. Budget is not a constitutional issue. Thats a matter for the political process.
2. Art. I, 8, cls. 2, 5: The Congress shall have PowerTo borrow money on the credit of
the United States;To coin Money, regulate the Value thereof, and of foreign Coin, and fix
the Standard of Weights and Measures
3. Norman v. Baltimore & Ohio Railroad Co. (1935): Court upheld a federal law that abolished
the gold standard for currency as part of its power to regulate the Coin and its value.
Naturalization
1. Power of naturalization is vested exclusively in Congress to the exclusion of the states.
2. Art. I, 8, cl. 4: The Congress shall have PowerTo establish a uniform Rule of
Naturalization
a. Congress determines who comes in, who stays, and what the road to citizenship is
all about.
Admiralty Power
1. Art. III, 2, cl. 1: [T]he judicial power shall extendto all cases of admiralty and
maritime jurisdiction
a. Admiralty clause early became recognized as a basis for national legislation.
2. This used to apply only to bodies of water that could be used for interstate commerce, but
it applies to almost everything today (except for maybe lakes completely within one
state).
3. Commerce clause covers most of this today.
Regulation of Aliens
1. Kleindienst v. Mandel (1972): Court upheld the AGs refusal to waive a statutory provision
excluding aliens who advocate world communism & grant a visa to a person invited to
speak at an academic meeting in the U.S. Court noted that M personally had no
constitutional right of entry to this country and refused to reconsider the line of cases
holding that Congress had the power to exclude aliens altogether from the U.S.
The Copyright and Patent Powers

91

1. Art. I, 8: Congress has the power [t]o promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.
a. Eldred v. Ashcroft (2003): Court upheld the Copyright Term Extension Act (which
increased by 20 years the duration of copyright protection), finding that the CTEA
reflected judgment of a kind Congress typically makes.

92

State Sovereignty and Federal Regulation


1. Generally
a. Difference between federal and state governments
1. State and local governments posses the police power, which means that
they can take any action unless theres a constitutional prohibition
2. The federal government, on the other hand, can act only if there is
constitutional authority.
b. Basic question when evaluating the Constitutionality of a State Law: Does the
legislation violate the constitution?
2. The Tenth Amendment Federalism as a Limit of Congressional Authority
a. 10th Amendment: the powers not delegate to the US by the Const., nor prohibited
by it to the States, are reserved to the States respectively, or to the people.
1. Reminder to tell Congress not to go too far.
2. Question throughout history was whether this was an independent,
freestanding grant of personal state rights or simply a gentle reminder to
Congress that there are some things it simply cannot do.
3. Most cases through the late 1800s said it was just a reminder.
3. State Regulatory Immunity, 1936-1985
a. United States v. California (1936): Court sustained a penalty imposed on a stateowned railroad for violation of the Federal Safety Appliance Act. It was irrelevant
whether operation of the railroad was in a sovereign or private capacity, and the
state could no more deny the power if its exercise has been authorized by Congress
than could an individual.
b. Until 1976, constitutional attacks on application of federal regulatory statutes to
state activities were uniformly rejected:
1. Parden v. Terminal Ry. Of Alabama State Docks Dept. (1964): Court held
that a state owned railroad was subject to liability to an injured employee
under the Federal Employers' Liability Act.
2. Maryland v. Wirtz (1968): Sustained application of the wage and hour
provisions of the Fair Labor Standards Act to employees of public schools
and hospitals.
3. Fry v. United States (1975): Sustained application of the Economic
Stabilization Act to limit wage increases of public employees.
c. National League of Cities v. Usery (1976): Court overruled Maryland v. Wirtz,
holding that the Fair Labor Standards Act (extending its maximum hour and
minimum wage provisions to employees of the states and their political
subdivisions) could not constitutionally be applied to state employees performing
traditional government functions. Court concluded that "insofar as the challenged
amendments operate to directly displace the States' freedom to structure integral
operations in areas of traditional government functions, they are not within the
authority granted Congress by" the Commerce Clause.
d. Hodel v. Virginia Surface Mining and Reclamation Association, Inc. (1981): Court
upheld a federal law regulating strip mining, finding that it was constitutional b/c it
didnt regulate the states as states. The Court summarized three requirements
that National League of Cities challenges to federal legislation must meet in order to
succeed:
1. There must be a showing that the challenged statute regulates the states
as states
2. The federal regulation must address matters that are indisputably
attributes of state sovereignty
3. It must be apparent that the States' compliance with the federal law would
directly impair their ability to structure integral operations in areas of
traditional governmental functions
e. United Transportation Union v. Long Island Railroad Co. (1982): Court concluded
that a state-owned railroad was not immune from application of the labor provisions

93

of the Railway Labor Act, b/c operation of a railroad was not a "traditional" state
function.
f. Equal Employment Opportunity Commission v. Wyoming (1983): Court upheld an
amendment to the Age Discrimination in Employment Act extending the Act to state
employees, concluding that state compliance with the Act would be less costly than
& would not impair flexibility to the same degree as the provisions at issue in
National League of Cities.
g. Garcia v. San Antonio Metropolitan Transit Authority (1985): Court expressly
overruled National League of Cities.
4. 1990S and Beyond 10th Amend as a Limit on Congresss Power
a. New York v. U.S. (1992): The Low-Level Radioactive Waste Policy Amendments Ace
created a statutory duty for states to provide for the safe deposal of radioactive
wastes generated within their borders. The Act provided monetary incentives for
states to comply with the law and allowed states to impose a surcharge on radio
active waste received from other states. The law also provided that states would
take title to any wastes within their borders that were not properly disposed of by
a certain date and would then be liable for all damages incurred.
1. SCOTUS held that while Congress could constitutionally regulate the
disposal of radioactive wastes, the take title provision was
unconstitutional b/c it gave state governments the choice between either
accepting ownership of the waste or regulating according to Congresss
instructions.
2. Basically, Congress couldnt coerce the states the act (although states could
collect surcharges and gradually increase the cost of access to other
states.)
3. Stands for the proposition that when Congress acts under one of its
enumerated powers under the Constitution, they may encourage the states
with an incentive under the taxing and spending power (Dole) but may not
compel the states to participate in a federal program in which the states
have no control.
b. Why should a state object to the federal government telling them they have to do
something?
1. State has to pay for it, they will get blamed if it went wrong.
2. Who really knows if the disposal plan will actually work or cause more
problems? If Congress welcomes
c. Printz v. United States (1997)
1. Issue was whether or not the states can be compelled to execute federal
laws with relation to gun control registry system.
2. Held state governments cannot be compelled to implement federal
regulatory programs, whether the financial burden is picked up by the
government or not.
d. Reno v. Condon (2000):
1. Involved a challenge to the DPPA, a federal law prohibiting states from
disclosing personal information gained by departments of motor vehicles.
The Court upheld the law, reasoning that the DPPA regulated state activities
and did not control State regulation of private parties or require state
officials to assist in the enforcement of federal statutes. Congress was not
forcing states to do something, they were prohibiting them from doing
something.
2. This was a prohibition of conduct, not an affirmative mandate.
Unsuccessful challenge.
e. Theres an established distinction b/t affirmative obligations & negative prohibitions.

94

May congress regulate private conduct or only state action?


1. 13th Amendment
a. Many things apply only to State actions, but the 13 th Amendment applies to private
action as well as public.
b. Congress shall have the power to enforce this article by appropriate legislation.
c. Note: Congress has some authority to move under this clause.
d. Private and public cases. Also applies to wage slavery. Covers badge and incidents
of slavery too.
e. 13TH Amendments enforcement clause authorizes Congress to legislate against
private conduct that imposes slavery or the badges and incidents of slavery but
the Court decides what qualifies
1. Practically almost nothing qualifies. Not for social equality.
2. Joseph Bradley (majority) said that abolishing slavery does not mean that
freed slaves get special privileges.
th
f. 13 Amendment can regulate wage slavery. Court did a bad job of enforcing it but
at least they tried. This lasted until the Mid 1960s until Jones.
2. 14th Amdt.
a. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
b. (5) The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article.
c. Note: Congress may ONLY move against STATE action here.
d. Requires state action and therefore Congress can legislate only for state action, not
private action.
e. Congress can enforce the first sentence under Section 1 all persons born or
naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US
and of the state in which they reside
f. Still in tact today as far as holding. Congress cannot regulate private conduct, ONLY
state action.
3. 15th Amdt.
a. The right of citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or precious condition of
servitude.
b. The Congress shall have power to enforce this article by appropriate legislation.
c. Note: Congress has some authority under this amendment, but there are so many
loopholes that its not used much.
4. Civil Rights Act of 1875

95

a. [A]ll persons within the jurisdiction of the United States shall be entitled to the full
and equal enjoyment of the accommodations, advantages, facilities, and privileges
of inns, public conveyances of land or water, theaters, and other places of public
amusement
b. Congress invoked enforcement clauses of the 13 th and 14th Amdt. to pass this, and
the idea was that it protected against badges or incidents of slavery.
1. In Civil Rights Cases, the Court held that the Act was unconstitutional and
adopted a restrictive view as to the power of Congress to use these
provisions to regulate private behavior. Court also held that Congress
lacked authority to enact the law under the 14 th Amdt.
5. Jones v. Alfred H. Maher Company (1964): A private real estate developer refused to sell
housing or land to African-Americans. Court held that Congress could prohibit private
discrimination in selling and leasing property and had the authority to adopt the law in
question under the 13th Amendment. Rational means congress has tons of discretion to
determine what is slavery. As a practical matter, Congress usually doesnt legislate under
the 13th because they can under the Commerce power.
a. Congress can rationally determine what is a badge and incident of slavery.
6. U.S. v. Morrison (2000): Court found that the Civil Rights Cases, holding that the public
accommodation provisions applying to purely private conduct were beyond the scope of
the 14th Amdt. enforcement power, were still good law & held that a statute providing a
federal civil remedy for victims of gender-motivated violence could not be sustained under
the 14th Amdt.
7. May Congress interpret the Const (using the 14th), or even to overrule Supreme
Court decisions or is Congress limited to enacting legislation that comports
with prior Supreme Court decisions?
a. Nope. They cant.
b. If Congress legislates against State action, do they have to wait for the Supreme
Court to act or can they do it on their own?
c. City of Boerne v. Flores (1997)
1. Zoning dispute in Texas. Church people wanted to put an addition on the
church so they filed a zoning application. Permission was denied b/c the
church was a historical landmark. Key statute here is RFRA. Church sued b/c
denial of zoning violates their freedom of religion right under 1 st Amend.
2. 1993 Congress passes RFRA to overrule 1990 decision (Employment
Division v. Smith). Payote was on the federal drug list of banned drugs.
Native Americans used it in religious ceremonies and were prosecuted for it.
Held that if statute is of general applicability, it can be applied to religious
groups and the application is only struck down if gov. has a rational basis.
3. RFRA says they need a compelling interest if its a statue of general
applicability.
4. SCOTUS held that RFRA was unconstitutional b/c it exceeded the scope of
Congresses Article 5 power. Court determines what the law is, and Congress
cannot overrule a SCOTUS const. decision by statute.
5. Congress cannot overrule constitutional authority by statute.
1. RFRA impermissibly expanded the scope of rights and was not
proportionate or congruent as a preventative or remedial measure; it
prevented much that would not violate the Constitution.
2. Court held that Congress under 5 may not create new rights or
expand the scope of rights; rather, Congress is limited to laws that
prevent or remedy violations of rights recognized by the Court.
3. Congress was given the power to enforce, not the power to change
what the right is.
6. Const. law provides the floor of individual rights, but Congress can increase
the regulations above the floor.

96

8. May congress pass legislation that enforces a holding of the SCOUTS (called
enabling legislation)? YES.
a. Is Article 5 authority of Congress to apply 14th Amend as it sees fit or EVEN overrule
Supreme Court decisions?
b. Nevada Dept. of Human Resources v. Hibbs (2003): Hibbs sued the state of Nevada
for violations of the Family and Medical Leave Act (gender discrimination). The
Court held that the provision of the Act in question fit within the scope of Congresss
5 powers & could be used to sue state govts.
1. Whether or not the act can be upheld under 14 TH Amend, Commerce Clause
or Equal protection clause?
1. Hibbs argues 14th Amend applies b/c it involves gender discrimination
and equal protection. Caring for relatives used to just be a womens
job, but this act was supposed to produce gender equity.
2. State argues its commerce clause b/c it deals with labor management
relations.
2. Congress could abrogate states immunity for purposes of this Act, so the
state could be sued.
3. Had to show serious gender discrimination that involved creative
lawyering.
4. SCOTUS found that Congress clearly intended the law to prevent gender
discrimination in employment and distinguished Kimel b/c it had involved a
type of discrimination warranting rational basis review, whereas gender
discrimination triggers strict scrutiny.
5. Congress acted under the 14th Amdt., so the 11th Amdt. didnt apply (not the
Commerce Clause, which would have brought the 11 th Amdt. into play).
9. Congress CAN pass legislation that is congruent and proportional to existing supreme
court rulings.
a. Test is slippery and unpredictable.
b. Does this apply to the 15th Amendment and the 14th Amendment. We dont know.
Rome case in early 80s.
1. City of Rome annexed enough land to change the racial makeup of the city.
They then passed an ordinance saying all council people had to be elected
at large. You run the risk of disenfranchising minorities. Suit was brought
under 15th Amendment and voting. SCOTUS held you had to show disparate
impact. When Congress adopted the PURPOSE statute was it amending
the SCOTUS ruling or not?

97

Eleventh Amendment Sovereign Immunity


1. In 1794 Chisom v. Georgia that created a firestorm. Chisom (SC resident) files suit in
SCOTUS looking for damages from a state of Georgia debt.
a. Under Article III, he could sue b/c its a controversy between a state and a citizen of
another state. Georgia says it has common law sovereign immunity, regardless of
what Article III says. Georgia didnt even show up, so Chisom got a default
judgment.
b. Georgia was afraid of being sued by just about everyone left over from the
revolutionary war (floodgates argument).
2. Within 3 weeks of this decision, the 11th Amend was passed in congress and states ratified
three months later.
3. 11th Amdt.: The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens of Subjects of any Foreign State.
a. An expansive reading of the 11th Amdt. effectively immunizes the actions of state
govts from federal court review, even when a state violates the most fundamental
constitutional rights.
b. At the very least, it covers suits by private citizens against states for damages (as it
overruled Chisholm).
4. Art. III, 2: The judicial power shall extendto controversiesbetween a state and
citizens of another state
a. Courts still debate today as to whether states enjoy common law sovereign
immunity as they did before 11th Amdt.s ratification.
5. This provided a measure of sovereign immunity in the Federal courts, but they could be
sued in state courts if they gave consent.
6. Lots of questions today about how far the 11 th Amend. goes and what it really means.

98

Dormant Commerce Clause


1. The principle that states that local laws are unconstitutional if they place an undue
burden on interstate commerce.
a. Even if Congress has not acted (i.e., even if its commerce power lies dormant), state
and local laws can still be challenged as unduly impeding interstate commerce.
2. When can the states legislate, and what restraints are there, under the Commerce Clause
when Congress hasnt spoken?
a. If state does something against what Congress has already legislated, then its
preemption.
b. States need to regulate things that affect interstate commerce at some point.
3. Purposes
a. To authorize congressional action, and
b. In the face of congressional silence, to regulate state or local action that unduly
burdens commerce.
4. Constitution does NOT talk about the Commerce/Dormant Commerce clause and what the
states can do when Congress hasnt acted.
a. Has been a part of the law for about 200 years.
5. Justifications
a. History Framers intended to prevent state laws that interfered with interstate
commerce (i.e. state protectionism). Historical purpose to allow states to fill in the
blanks when Congress hasnt spoken.
b. Democracy Congress can overcome a commerce clause decision by the court by
commerce clause legislation; they just have to overrule the state (even if Court says
state acted properly).
c. Retaliation What would Kansas do in retaliation if Mo could enact protectionist
legislation?
d. Practicality Its no practical to expect Congress to legislate in every single area of
interstate commerce.
e. Overruling If courts strike down a state act under Dormant Commerce Clause,
Congress does not have to pass a const. amendment, just a simple ordinary
legislation approving what the state did. Its easier than if SCOTUS rules on a const.
issue, when they need a const. amendment to overrule it.
f. Efficiency National economy moves more smoothly when states/localities fill in the
gaps between Congressional legislation. Doesnt always make people happy.
6. Criticisms
a. Constitutional silence The drafters could have included a provision prohibiting
states from interfering with interstate commerce.
b. Separation of Powers The task of reviewing state laws should be done by
Congress, not the courts.
c. Stifling of state laboratories Justice Brandeis (in a dissent) said that one of the
benefits of the Federal system is that one state my legislate in a way that lets other
states take a look at what they do and see if it works! This argument is not taken all
that seriously because sometimes it just doesnt work.
7. Undue Burden Test balancing test (imprecise)
a. Is the action the state took unreasonable discrimination against out-of-staters or
similar treatment?
1. This is the more important prong if the court finds unreasonable
discrimination.
2. Presumption against generation that unreasonably discriminates against out
of staters. Its hard to pass this prong.
1. Law must achieve important government purpose to be
unreasonable.
b. Why did the state do it? What is the positive purpose for passing the local
legislation?
c. Question: Do the state laws benefits outweigh the laws burdens on commerce?

99

1. If the state law discriminates against out-of-staters, there is a strong


presumption that the law is unconstitutional.
1. Law must achieve important government purpose.
2. If the law is nondiscriminatory, courts engage in a balancing process.
1. Theres a presumption of upholding the law.
2. The law will be struck down only if the laws burdens on interstate
commerce outweigh its benefits.
Dormant Commerce Clause Issues (Analysis when a state is discriminating)
1. There is a strong presumption against discriminatory laws that burden interstate
commerce, and such a law will be upheld only if it is proved that the law is necessary to
achieve an important government purpose.
State Taxation
1. States can burden interstate commerce by taxing it, & the same basic principles apply to
state taxation of interstate commerce as to state regulation of commerce: Discriminatory
taxes are virtually never allowed, while nondiscriminatory taxes are much more likely to be
permitted.
a. Historically, the court applied the rule that a state may not directly tax interstate
commerce.
2. A state could impose a tax on the privilege of doing business and measure it by net
income, including net income from interstate commerce attributable to the state, if the
company did some local business but not if all of its activity within the state was interstate
commerce. Spector Motor Service v. O'Connor (1951).
a. States have a broad authority to pass taxes!
3. Complete Auto Transit v. Brady (1977):
a. Mississippi imposed a tax on the privilege of doing business in the state and the
issue was whether it was unconstitutional because it was applied to an activity that
was a part of interstate commerce. SCOTUS unanimously upheld the tax.
1. Court formulated the current test:
4. State Taxation of Interstate Commerce
a. Tax must apply to an activity with a substantial nexus (signifigant conncet) to the
taxing state.
b. Tax must be fairly apportioned to activities connected to the taxing state.
c. Tax must not discriminate against out-of-staters.
d. Tax must be fairly related to the services provided by the state.
5. New Energy Co. of Indiana v. Limbach (1988): Court declared unconstitutional an OH law
that provided a tax credit for ethanol motor fuel that was produced in state, but no credit
for ethanol produced out of state. The law clearly created an incentive to purchase from
in-staters and not out-of-staters & thus violated the commerce clause.
6. Requirement for a Substantial Nexus to the Taxing State
a. National Bellas Hess, Inc. v. Dept. of Rev. (1967): Stood for the proposition that a
vendor whose only contacts with the taxing State are by mail or common carrier
lacks the 'substantial nexus' required by the commerce clause.
b. Corporation v. North Dakota (1992): Court found that states requiring out-of-state
mail-order businesses with no in-state physical presence to collect and remit taxes
on purchases for intrastate use thereby "created an unconstitutional burden on
interstate commerce." There was not a substantial nexus.
7. Prohibition of Discriminatory Taxes
a. New Energy Co. of Indiana v. Limbach (1988): Court declared unconstitutional an OH
law that provided a tax credit for ethanol motor fuel that was produced in state, but
no credit for ethanol produced out of state. The law clearly created an incentive to

100

purchase from in-staters and not out-of-staters & thus violated the commerce
clause.
State quarantine and inspection
1. What is the authority of states to limit the transit of impure or defective products?
a. As long as its not done in a discriminatory way (not protecting local business) then
its okay.
b. As a practical matter, federal gov does most of this quarantining of goods and
services.
2. Mintz v. Baldwin (1933):
a. SCOTUS upheld NY regulation requiring cattle to be certified as being free from
disease, reasoning that it did not unnecessarily burden interstate transportation.
b. The purpose of Congress to supersede or exclude state action against the ravages
of the disease is not lightly to be inferred.
3. Baldwin v. G.A.F. Seelig, Inc. (1935):
a. NY passed a statute that made it unlawful to buy milk that was cheaper than those
prices required to be paid to farmers within the state. SCOTUS said no b/c there was
no public health issue which was too protectionist. It was a barrier to traffic between
one state and another just like if customs duties had been laid.
4. People!
a. Issues under Const. privacy, substantive due process, personal autonomy, right to
travel. Not too many cases because it doesnt happen that often.
b. Factors the few cases/courts have considered: actual or reasonable suspicion,
specific threat of infection, safe and habitable placement (home or outside),
procedural due process/hearing.
c. They try to negotiate for voluntary compliance. These cases turn on facts not on the
law, usually.
Requirement to use local business
1. Congress can act to authorize discrimination if they want to (since then its not dormant
anymore).
2. Pike v. Bruce Church (1970): Court invalidated an Arizona regulation that required
cantaloupes grown there to be packed in the state rather than in another state. Court
found that the States interest in having the companys cantaloupes identified as
originating in Arizona cannot constitutionally justify the requirement that company build
and operate an unneeded plant in the state. The burden was too high.
1. Court has viewed with high particular suspicious state statutes requiring
business operations to be performed in the home state that could more
efficiently be performed elsewhere.
3. C & A Carbone v. Town of Clarkstown (1994): Court declared unconstitutional a local
ordinance that required that all non-recyclable waste be taken to a local waste transfer
station, noting that the requirement ensures that the town-sponsored facility will be
profitable & diverted business away from other counties and states.
a. Ordinance was no less discriminatory b/c in-state & in-town processors were also
covered.
Limiting access to in-state resources
1. Pennsylvania v. West Virginia (1923): WV passed a statute requiring every pipeline
company transporting gas produced in WV to satisfy the needs of all WV customers willing
to pay for the gas and use it within the state. PA & OH (whod depended on WVs natural
gas), brought suit to enjoin WV from enforcing the statute, & the Court held it invalid.
a. This dealt with private enterprise, & Court said it wasnt okay to favor your own
state. No protectionism.
b. Court reasoned that a statute that prevents, obstructs, or burdens transmission that
is interstate commerce is prohibited.

101

c. Holmes dissented states can take care of themselves. Its not the law though.
Limiting access to state-owned resources
1. Reeves, Inc. v. Stake (1980): Court upheld a cement company owned by SD favoring instate purchasers over out-of-state purchasers. Court said that SD, as the seller of cement,
was clearly a market participant and thus was able to favor in-state purchasers over those
from out of the state.
d. Stands for the proposition that if a state is a market participant, local legislators
have the discretion (& maybe obligation) to favor the people who put them in office.
e. 5-4 decision. If the state owns the company, the taxpayers interests are important
and therefore its permissible discrimination.
2. May Missouri charge a differential tuition for in-state people?
a. Yep. Its discriminatory but permissible b/c the State owns the university and as a
market participant, there is no dormant commerce clause issue.
3. Market Participant Exception to Dormant Commerce Clause
a. The dormant commerce clause does not apply if the state is a participant in the
market (such as with a state-owned business), & not a mere regulator
b. Discrimination against out-of-staters is allowed, even though such discrimination
would be impermissible if done by a private actor.
Highway safety regulations
Exceptions to the Rule
1. Congressional Approval
a. The Constitution empowers Congress to regulate commerce among the states &
that therefore state laws burdening commerce are permissible, even when they
otherwise would violate the dormant commerce clause, if they have been approved
by Congress.
b. If Congress has acted, the commerce power no longer is dormant, & the issue is
whether the federal law is a constitutional exercise of the commerce power.
2. Market Participant
a. Market Participant Exception to Dormant Commerce Clause
i. The dormant commerce clause does not apply if the state is a participant in
the market (such as with a state-owned business), & not a mere regulator
ii. Discrimination against out-of-staters is allowed, even though such
discrimination would be impermissible if done by a private actor.
b. Reeves, Inc. v. Stake (1980)
i. Court upheld a cement company owned by SD favoring in-state purchasers
over out-of-state purchasers. Court said that SD, as the seller of cement, was
clearly a market participant and thus was able to favor in-state purchasers
over those from out of the state.
1. Stands for the proposition that if a state is a market participant, local
legislators have the discretion (& maybe obligation) to favor the people
who put them in office.

102

Preemption and the Supremacy Clause


1. Generally - Art. VI, cl. 2 (Supremacy Clause): This Constitution, and the laws of the
United States which shall be made in Pursuance thereof; and all the Treaties made, or
which shall be made, under the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
a. Significant part of the Const. to the framers. Federalists wanted a strong federal
government.
2. Supremacy Clause really stands for two propositions:
a. States may NOT interfere with federal legislation (McCulloch)
b. If state and federal legislations are inconsistent, the federal legislation prevails.
3. Why do we study preemption?
a. Recent explosion of cases; federalism; lack of popular understanding on the part of
the general public; unpredictability and uncertainty.
4. Common Preemption Scenarios
a. Congress has not acted, but a state has.
i. Dormant Commerce Clause problem.
b. Congress and a state have both acted.
c. Voter referenda and initiatives.
i. Most explosive way; found often in newspapers, etc.
ii. If the signatures are gotten and the voters approve, then it becomes a part of
the Constitution (Hollinsworth decided on Standing for Prop 8 challenge, but
could have been an example where SCOTUS could have struck down a voter
initiative referendum under equal protection.)
1. Romer v. Evans (1992) Amendment 2 was passed in Colorado.
SCOTUS held that state const. provision violated Equal protection 5-4.
People were mad that they passed an amendment and the federal gov
struck it down b/c people dont understand federalism.
5. Types of Preemption
a. Express preemption Where language in a federal law expressly preempts a state
or local law; theres explicit preemptive language
b. Implied preemption Where preemption is implied by a clear congressional intent to
preempt a state or local law, even though Congress did not expressly preempt
6. Types of Implied Preemption
a. Field preemption where the scheme of federal law and regulation is so pervasive
as to make reasonable the inference that Congress left no room for states to
supplement it.
b. Conflict preemption There is a conflict between federal and state law;
compliance with both federal and state regulations is a physical impossibility
c. Where state law impedes full achievement of a federal objective
Express Preemption
1. Based on Congressional intent and is impossible to write one that is litigation proof!
2. Morales v. Trans-World Airlines, Inc. (1992): The Airline Deregulation Act of 1978 provides
that [N]o Stateshall enact or enforce any law, rule, regulation, standard, or other
provision having the force and effect of law relating to rates, routes, or services of any air
carrier. The Court found that price advertising guidelines promulgated by the National
Association of Attorneys General could not be applied to airlines b/c they related to
rates.
3. ERISA of 1974 Supposed to protect pensions of works in private industry. (Employee
Retirement income Security Act). This act supersedes any and all state laws insofar as
they may now or hereafter relate to any employee benefit plan.
a. Should states have leeway as long as they are not discriminating against other
citizens, should they have some room to protect their own citizens or should their
be a less-than-ideal national rule? Who the hell knows.

103

Implied Preemption
1. There is a presumption against implied preemption (although the presumption can be
rebutted, especially if the area is one in which Congress has normally legislated).
a. Could happen on accident if Congress didnt really think about what they are writing
and if they didnt expressly talk about preemption.
2. Field Preemption
a. Found where theres a clear congressional intent that federal law should exclusively
occupy a field.
a. Hines v. Davidowitz (1941): PA law required aliens to register with the state, carry a
state-issued registration card, and pay a small registration fee. Court deemed this
law preempted by emphasizing that alien registration is in a field which affects
international relations, the one aspect of our government thathas been most
generally conceded imperatively to demand broad national authority.
i. State law did not interfere with the federal law, but merely complemented it.
ii. Court found field preemption even in the absence of express preemptive
language.
b. Crosby v. National Foreign Trade Council (2000): Court invalidated a MA law
severely limiting the power of state agencies to buy goods or services from
companies doing business with Burma. Court rejected the States argument that
Congresss continuing failure to enact express preemption implies approval.
c. Rice v. Santa Fe Elevator Corporation (1947): The issue was whether states could
regulate grain elevators licensed by the federal govt. Court concluded that such
regulation was preempted even though Congress did not expressly preclude state
regulation, finding that the purpose of the federal law was eliminating dual state
and federal regulation of grain warehouses.
i. Court found preemption based on Congresss desire to make preemption
exclusive in the field.
2. Conflict Preemption
a. If federal law and state law are mutually exclusive, so that a person could not
simultaneously comply with both, the state law is deemed preempted.
b. When states set stricter standards in an area than does federal law, it is necessary
to decide whether the federal govt meant its law to be exclusive or only intended to
set a minimum standard that states may exceed.
c. Geier v. American Honda Motor Co., Inc. (2000): G sued, alleging that the absence
of airbags in her car was a design defect that was responsible for her injuries. The
Federal Motor Vehicle Safety Standard Act gave manufacturers a choice among
passive restraint systems (including air bags & lap & shoulder belts). Gs car had
lap & shoulder belts, so D argued its car complied with federal law.
i. Majority held that Gs common law tort action was preempted.
ii. Court determined the Acts savings clause did not reflect an intent to save
state-law tort actions that conflict with federal regulations.
iii. This case provides a basis for defendants to claim preemption to tort liability
when products are made in compliance with a federal safety standard.
d. U.S. v. Locke (2000): Some portions of WA state oil spill regulations were found to
be preempted by the Federal Ports and Waterways Safety Act (such as rules
regulating vessel operation, design, & manning), although the savings clause of the
Oil Pollution Control Act allowed states to impose additional liabilities and
requirements with regard to the discharge of oil.
i. Court found states requirements in conflict with provision providing that the
Coast Guard prescribe regulations on reporting & concluded that Congress
intended that the Coast Guard regulations be the sole source of a vessels
reporting obligations.

104

3. Where state law impedes full achievement of a federal objective.

105

Treaty Power
1. Presidents normally negotiate treaties. They have to be presented to the Senate and then
ratified to become law. These also apply to the Supremacy clause.
a. Treaties have the effect of a statute (sub-constitutional) if they become law.
b. Always consider the Supremacy Clause problems that might arise with ratification.
2. It has to be ratified, not just signed by the President to become law.
a. They sometimes have smoking guns of private litigation.
3. 1989 UN Convention creates the Rights of the Child. (political, social and economic rights
of children).
a. Open for signature in 1989 and 75 countries signed on the first day. By 1990, 25
nations have ratified it. Today, every country in the world has signed the treaty
except three (Somalia, South Sudan, USA).
b. Senate has not and probably will not ever ratify this treaty. One of the risks is the
Supremacy Clause. At the state level there are a lot of risks with regards to adoption
cases and a preference for parental care and for capitol punishment for people
under 18 (even though SCOTUS said its not an option as of 5 years ago).
4. Can the Senate un- ratify a treaty?
a. Probably yes, but hasnt really been litigated.
b. As for the President, (Carter v. Goldwater) which dealt with the Panama Canal treaty.
Case was dismissed b/c of standing, not on the merits.
Congress and the Supremacy Clause
1. How can the Congress overrule SCOTUS?
a. Supremacy Clause is a part of the Constitution so when the court decides
preemption cases, its rendering a constitutional decision.
b. They can amend the constitution.

106