Professional Documents
Culture Documents
Constitutional Law Outline
Constitutional Law Outline
I. Judicial Review
A. Origins of Constitution and Judicial Review:
1. Origins of the Constitution
a. The Framers: Some see the framers as intellectual giants, others as
compromisers, others as aristocratic conservatives who feared the power of
the people and sought to limit it where they could.
b. Articles of Confederation: Government lacked the power to tax, regulate
commerce, had neither a national judicial authority nor an executive branch.
Madison wrote in April 1787 of the problems of the Articles: multiplicity of
laws, states jealous actions
c. Constitutional Convention: only authorized to make changes to the Articles,
not scrap them entirely and draft a new constitution. Framers agreed to meet
in secret: no official notes from the Philadelphia convention.
d. Arguments over the New Constitution:
i. Federalists: Civic education not enough and would carry a tyranny
of its own. Direct democracy is especially susceptible to faction and
tyranny. Favored the presidency, Senate and less favorably, the
House. Wanted large election districts. No branch would be able to
speak authoritatively for "the people." Desire for interstate
commerce was a threat to the principles underlying the Revolution
ii. Anti-Federalists: Republican Theory relied on civic virtue: founded
upon dialogue and discussion among the citizenry. Hostile to a
dramatic expansion in the powers of the national government,
distrusted the idea of representatives elected by the people to serve
in the far-off national capital.
iii. Federalist Papers: Propaganda pieces written and published to sway
undecided citizens.
i. Federalist No. 10: Majorities were running rougshod over
treaties, property rights, creditors' rights. A well-constructed
national government will break and control faction by
controlling the effects of faction upon the government.
Causes of faction cannot be eliminated. In a republic, the
delegation of government is given to a small number of
citizens elected by the rest and government may be extended
over a far greater number of citizens.
ii. Federalist No. 51: Separate powers and prevent extreme
factions from taking power. Presidential candidates move
toward the middle and compromise to win.
2. Marbury v. Madison (1803):
a. Facts: Marbury was appointed by Adams and confirmed by the Senate to
serve as a Justice of the Peace in DC in the final days before Jefferson was
sworn in. Jefferson refused to deliver the commissions of the justices
appointed by Adams. Marbury sought a writ of mandamus to compel
Secretary of State Madison to deliver the commissions.
b. Holding: The Supreme Court is without power to direct the President to
deliver Marbury's commission
2
c. Rationale: Marbury had a legal right to the office and he was deprived of
that right by a technicality. The Supreme Court can order any official
around if they have broken the law, but the Court does not have jurisdiction
over the issue because Congress unconstitutionally gave original
jurisdiction to the Supreme Court.
"It is emphatically the province and duty of the judicial department to
say what the law is... a law repugnant to the constitution is void; and
that courts, as well as other departments, are bound by that
instrument."
d. Justifications for Judicial Review:
i. Written constitution: Constitution was written and ratified by the
people, a more extraordinary form than a mere statute.
ii. Notions of the judicial role
iii. Supremacy clause of the constitution
iv. Grant of jurisdiction
v. Judges' oath
vi. Framers and ratifiers commonly discussed that they believed
unconstitutional legislative acts were invalid, though others
suggested that courts could not violate the "will of the people" as
indicated by passed legislation (Federalist 78, written by Hamilton).
e. Notes about the opinion: No citations. Perhaps Marshall wanted to convince
the elite that he was correct or didn't want to be overturned, Constitution
doesn't mention judicial review so it had to be "made up," something bigger
than mere court cases.
B. Judicial Exclusivity and Interpretive Approaches to the Constitution
1. Cooper v. Allen (1958): Judicial branch's interpretation is the only
authoritative interpretation. Conflicts with a reasonable inference that members of
the Legislative and Executive branches must interpret the Constitution on their
own, in order to make and execute the laws that the court has not spoken to. States
must follow federal laws even if they disagree
2. McCulloch v. Maryland (1819):
a. Facts: Congress had created the 2nd BUS, which some states (like MD)
proceeded to levy taxes upon. MD brought suit against the bank for
refusing to pay the state's taxes. Marshall was a strong Federalist, a strong
nationalist.
b. Rationale: The Constitution derives its whole authority from the people
(their representatives) who proposed and ratified it. Every detail of
government need not be expressly or minutely described. A narrow
interpretation of "necessary and proper" as advocated by the State of
Maryland where "necessary" means "absolutely necessary/essential," is not
warranted. The Constitution has implied powers and must be allowed to
adapt. Statutes are temporary, designed to address a particular problem and
which can be changed or repealed if it is deemed relevant. Even without a
necessary and proper clause, Congress would still have the implied
power to create a national bank based upon the other enumerated
powers. State Legislatures cannot act over people whom they do not
represent.
3
c. Holding: Congress does not have the explicit power to create a bank, but
has other enumerated and implied powers to create a national bank; MDs
act was unconstitutional.
d. Critique: Problems with Marshall's view that if the ends are legitimate, then
the means used to achieve that are legitimate as well. What then constrains
judges from applying value judgments to current debates with a "living
constitution?"
C. Standing
1. Case or Controversy Requirements of Article III: Power of the courts is
substantial, and the court has had to develop mechanisms to temper that power by
limiting jurisdiction.
a. Article III Rationale: (1) Serve the end of judicial restraint: limit occasions
for intervention into legislative or executive processes; (2) Ensure that
constitutional issues will be resolved only in concrete issues rather than
hypothetical or abstract problems (3) Ensure that decisions are rendered at
the behest of those actually injured rather than bystanders
b. Standing Doctrine Requirements: in order to bring a federal action, the
plaintiffs must be asserting a live case or controversy.
i. Actual, personal (not general and widely shared), concrete injury:
must be suffering an ongoing, imminent, or threatened injury.
Lyons case: Must show that LA police officers always use a
chokehold or that the City authorized officers to do that.
ii. Causation: injury fairly traceable to defendant's conduct
iii. Redressability: injury can be remedied by court order
2. Allen v. Wright (1984)
a. Facts: Parents of black children brought a nationwide class action suit
because the IRS had not carried out its obligation to deny tax exempt status
to discriminatory schools, contending they were (1) Harmed by the mere
existence of Government aid to discriminatory private schools (stigmatized)
and (2) Those policies impede their ability to attend integrated public
schools.
b. Holding: Plaintiffs do not have standing to litigate their claim based on the
"stigmatizing injury" alleged. The second claimed injury is not fairly
traceable to the government (causation).
c. Rationale: It is speculative whether withdrawal of a tax exemption would
lead a school to change its policies, or whether desegregation is impeded by
the presence of segregated private schools. Price increase in tuition as a
result of removing the tax break will not necessarily "cause" diversity to
increase.
d. Dissent: Justice Brennan: elimination of tax-exempt status would lessen the
impact those schools have in defeating efforts to desegregate public schools.
Justice Stevens and Justice Blackmun: If tax-exemption encourages
charitable activities, then withdrawal of that treatment would discourage
them and promote desegregation. The Supreme Court has the power to say
"what the law is" and would not be infringing upon Executive branch's
administration. The higher the price, the fewer people will attend the
school.
3. Massachusetts v. EPA (2007)
4
c. Rationale: Justice Brennan: Other branches will not be able to work out this
issue. The doctrine is not also one of "political cases." If one of these
formulations is present, the case should be dismissed because of the
nonjusticiability of a political question:
i. Textually demonstrable commitment to another branch
ii. Lack of manageable standards
iii. Need for policy determination
iv. Impossibility of undertaking independent resolution without
expressing lack of respect due coordinate branches of government
v. Unusual need for unquestioning adherence to a political decision
already made
vi. Potential for embarrassment from multiple pronouncements by
various departments on one question
d. Dissent: Justice Frankfurter: The court must be detached from political
entanglements and abstain from putting itself into political disputes. There
is a class of controversies which the Courts have found they will not enter
intostructure and organization of political institutions in the states
3. Nixon v. United States (1993): Impeached and convicted former federal
judge Nixon sought judicial review of his removal, claiming that the Senate failed
to "try" him according to the process normally used by criminal courts. Rehnquist's
opinion stated that the word "try" in the Constitution has a considerably broad
meaning (lack of manageable standards), and the Senate has sole discretion on how
to use it (a textually demonstrable commitment to another branch). Cannot expose
political life of the country through review of impeachment proceedings (need for
finality: new judge had been appointed and confirmed). The Court did not find
that Nixon's treatment was constitutional or that his rights weren't violated
decided not to hear the case because it is a political question.
4. Bush v. Gore (2000)
a. Facts: FL Supremes ordered a manual recount of undervotes in all counties
that had not yet completed a recount (determine the intent of the voter) and
ordered that the results of prior but untimely manual recounts be included in
the vote totals. Each county used different standards for determining the
intent of the voter.
b. Holding: Reverses judgment of the FL Supreme Court ordering a recount to
proceed.
c. Rationale: Recount mechanisms do not satisfy the minimum requirement
for non-arbitrary treatment of voters necessary to secure the fundamental
right of the Due Process Clause. Minimal procedural safeguards specified
by the FL Supremes (connection to equal protection), and no evidence
that a recount can take place before the statutory selection of electors
required by December 12. Rehnquist, Scalia, Thomas, concurring: Election
of the President is unique: defer to the FL Legislature's decision on the
deadline. FL Supreme's remedy departed from the statutory framework in
place on November 7, and the remedy outlined would have been
inconsistent with the statutory requirement to meet the December 12
deadline.
d. Dissent:
i. Stevens, Ginsburg, Breyer: The Supreme Court has long deferred to
highest state courts on the interpretation of state laws. FL Supreme
6
Principles find support in the unbroken legislative process that has prevailed
b. What are respective powers and authority of President, Congress and courts
in prosecuting warfare?
argument. Under this theory, both Congress and the judiciary's role
to hold them.
make rules and regulations for the military, regulate captures, and
that they get some due process. Hamdi, Boumediene. War does not
conducting air strikes with NATO in Libya, after which the OLC released a memo
60-day WPA period expired on May 20, 2011, without Congressional approval
authorizing US involvement.
because Congress could not declare war against any state or states.
b. Issue: (1) Does the President have the power to detain a US citizen without
to his powers as (a) Commander in Chief powers and (b) Those from the
Joint Resolution of Congress Authorizing the Use of Force (2) Does the
the factual basis for their detention. Enemy combatants are "individuals
United States" there. Hamdi does not govern in Padilla case because he was
d. Rationale:
war is not a blank check for the President when it comes to the
years.
e. Dissent:
i. Scalia and Stevens: This opinion should only apply to a very narrow
only two circumstances under which Congress can suspend the writ
constitutional commands.
because it violates the UCMJ and the Geneva Convention for procedural reason,
Hamdi with the Detainee Treatment Act, which was struck down because it
unconstitutionally restricted the writ of habeas corpus and provided only limited
review potential.
18
6. Torture: Bush OLC found that the President could order interrogations of
in chief. President Bush signed onto the memo, but disavowed his support for it
after the memo became public. McCain amendment prohibited torture, but Bush
signing statement indicated that the act would be assessed in light of constitutional
powers.
showed that more blacks who murder whites are sentenced to death than
whites that murder whites or blacks that murder blacks: defendants charged
with killing whites were 4.3x more likely to receive a death sentence than
defendants charged with killing blacks.
b. Holding: Baldus study does not demonstrate a constitutionally significant
risk of racial bias affecting GA sentencing process.
c. Rationale: Powell says you must show that the jury that convicted
McCleskey purposely/intentionally discriminated. State had no practical
opportunity to rebut the Baldus study, and McCleskey committed an act that
can be legally punished with the death penalty. Not enough that the
legislature acted knowing this would be the result: must be evidence that
statute was enacted to further a racially discriminatory purpose.
Throws into question the principles (prosecutor/jury discretion) that
underlie the criminal justice system, and arguments such as this should be
presented to legislative bodies. Not going to assume that what is
unexplained is invidious: no way to prove that juries are applying the
sentences in a racist fashion. To what extent is getting rid of racial
discrimination more important than other values?
d. Dissent: Justices Brenan, Marshall, Blackmun, Stevens: Unrealistic to
ignore the influence of history in asserting the plausible implications of
McCleskey's evidence. Majority seems to indicate a fear of too much
justice.
4. U.S. v. Armstrong (1996): Defendant failed to make a threshold showing
that prosecution of other races for crack cocaine possession was discriminatory.
Must show different treatment of similarly situated persons of different races. No
indication that Congress intended to discriminate against black defendants.
F. Affirmative Action
1. Test
a. Level of Scrutiny: strict scrutiny, therefore, you need a:
b. Compelling Government Interest (in descending order):
i. Remedying proven intentional discrimination: For example, I sue
the city of Richmond and they find that intentional discrimination
occurred and order a remedy. Many cities don't want to remedy this
and demand suit.
ii. Prima Facie showing of discrimination (Richmond case): No need
for a court order or finding to the matter
iii. Diversity in higher education: still disputed (Powell in Bakke,
accepted by O'Connor in Grutter)
iv. Integration: Possible based on Parents Involved
c. Narrowly Tailored (how compelling the government interest is related to
how narrowly tailored the means might be: a nuanced view which is not
discussed)
i. Quotas are not narrowly tailored, except where the government is
remedying proven intentional discrimination
ii. Must have individualized treatment: can't use race as a dispositive
factor in a student's assignment to schools (Kennedy in Parents
Involved)
iii. Limited use of race in policy questions, but not individual
assignment
29
present cases because it only applied to higher education. The plans are
only directed to racial balance, which is illegitimate. Government must
treat citizens as individuals, not as components of a racial, religious, sexual,
or national class. Not narrowly tailored--only 307 students in Seattle
affected by racial tiebreaker in 2000-01 and only 3% of assignments in
Louisville. Equal Protection clause protects persons, not groups
b. Thomas, concurring: Neither Seattle nor Louisville had established or
reestablished a dual school system that separates students on the basis of
race. Neither plan serves a compelling state interest. Differing opinions on
whether racial mixing has any educational benefits. Seattle even operates a
K-8 "African-American Academy," which rebuts that argument. Not up to
local school boards to decide what interests qualify as compelling under the
14th Amendment. Segregations also called for local control.
c. Kennedy: There are some circumstances where race might be taken into
account. A "profoundly mistaken" view that the Constitution mandates
schools to accept the status quo of racial isolation. These schools could
have used other race-neutral means to achieve their stated ends.
Government is not permitted to classify every student on the basis of race
and to assign them accordingly. School districts should not be prevented
from bringing together students of different racial, ethnic, and economic
backgrounds.
4. Dissent:
a. Stevens, dissenting: Rigid adherence to tiers of scrutiny obscures Brown's
clear message. MA statute mandating racial integration was upheld in 1968.
b. Breyer, Stevens, Souter, Ginsburg: After falling during the 1970s, school
segregation reversed in the 1980s and 1990s. Seattle and Louisville both
began with highly segregated local schools. Swann allowed for broad
discretionary powers to school authorities. Countless federal and state
statutes use racial classification.
i. Legal Standard: Drafters of the 14th Amendment understood the
legal and practical difference between the use of race-conscious
criteria to keep the races apart and race-conscious criteria used to
bring the races together.
ii. Applying the Legal Standard: Three interests: (1) Historical and
remedial element, (2) Educational element, (3) Democratic element.
Democratically elected school boards should be able to decide how
best to include people of all races in one America.
iii. Narrow-Tailoring: These plans emphasized student choice, and are
less race-conscious than the plans approved in Grutter.
iv. Consequences: The problem is difficult to solve. Judges should not
be dictating solutions to these problems. Post-Civil War
amendments were designed to make citizens of slaves.
H. Gender Discrimination/Gender Equality: Many prominent women's rights advocates,
including Susan B. Anthony, opposed the 14th Amendment because it allowed
discrimination based on gender, and included gender terms for the first time in the
Constitution. Anthony and other women successfully voted in NY after convincing
election officials to let them do so, with the goal of being prosecuted for voting illegally,
which they were.
32
woman choose to violate the adultery law but not the contraception
law?
d. Dissent:
i. Justices Black and Stewart: No constitutional provision granting a
right to privacy. Government has the right to invade unless
prohibited by some specific constitutional provision. 9th
Amendment passed to assure people that the constitution limited
federal powers granted expressly or by necessary implication.
ii. Justices Stewart and Black: Court does not say which Amendment is
infringed by the CT statute.
2. Roe v. Wade (1973): Justifications: (1) Privacy (Griswold), (2) Bodily
Integrity, (3) Reproductive Freedom, (4) Equality. Trimester system: (1st) Women
and physicians make the decision; (2nd) States can make regulations for women's
health: who can do abortions, where they can be done; (3rd) States can prohibit
abortions except for preservation of life or health of the mother.
a. Facts: TX statute banned the procuring of abortion except by medical
advice for the purpose of saving the life of the mother. At common law,
women had greater leeway to terminate a pregnancy than in most States in
1973. Common law and Catholic theology were in step until the 1870s:
abortion was permitted until "quickening." As women pushed for greater
rights, men pushed back to restrict access to abortion and contraception to
prevent women's participation as full citizens in society. A more
philosophical argument is that women are being forced to "save" a child,
which requires women to undergo possible physical harm in order to do so.
b. Holding: Statute is unconstitutional. Legalizes abortion before the end of
the first trimester, but state may regulate the abortion procedure as it relates
to maternal health, states may regulate or even proscribe abortion after
viability.
c. Rationale:
i. Justice Blackmun: No explicit right to privacy, but could be found in
the 14th or 9th Amendment, is broad enough to encompass a
woman's decision whether or not to terminate her pregnancy. A
woman's right, however, is not absolute. No indication that the word
"person" has any pre-natal application. Viability usually placed at
24-28 weeks: end of the first trimester. Might raise an equal
protection argument: differences between women and men. Test is
whether the statute infringes on the due process clause because it
violates basic values implicit (collective history, tradition, and
values) in the concept of ordered liberty. Some women's rights
advocates would critique this decision under privacy grounds and
insist that it be made on equality grounds.
ii. Justice Stewart: Right of an individual includes a woman's right to
decide whether or not to terminate her pregnancy.
iii. Justice Douglas: 9th Amendment does not create enforceable rights,
but the traditional, time-honored individual rights include a freedom
to care for one's health and person and a freedom from bodily
restraint or compulsion.
d. Dissent:
41
ii. Justice Blackmun: Preserve all of Roe, not just the essential holding.
Compelled continuation of a pregnancy infringes upon a woman's
right to bodily integrity, and implicates constitutional guarantees of
gender equality. 24 hour waiting period is clearly unconstitutional.
State's interest must be secular. Informing the woman of the
gestational age is irrelevant to her decision.
d. Dissent:
i. Chief Justice Rehnquist, Justice White, Scalia, and Thomas: Uphold
the PA statute in its entirety. No fundamental right to an abortion.
No principle of stare decisis requires adherence to the reasoning in
Roe. When the Court overruled Plessy and Lochner, it enhanced its
stature by doing so. At least the Roe test was clear--this test is even
less clear.
ii. Justice Scalia, Chief Justice Rehnquist, Justices White and Thomas:
Right to an abortion is not protected by the Constitution. Roe
ushered in an era plagued by national abortion protests. Court has
no right to be deciding anything about abortion rights.
2. Maher v. Roe (1977): Justice Powell: Court upheld a state regulation
granting Medicaid benefits for childbirth but denying such benefits for
nontherapeutic abortions. An indigent woman desiring an abortion does not come
within the limited category of suspect classes. No unequivocal right to an abortion,
merely protection from unduly burdensome interference with her freedom to decide
whether to terminate her pregnancy (basically the undue burden test). This
regulation places no obstacles in the pregnant woman's path to an abortion. No
retreat from Roe. Dissent: Indigency makes access to an abortion or licensed
physicians not merely difficult, but impossible. State has advanced no compelling
interest to justify its interference in that choice. Imposes a moral viewpoint that no
State may constitutionally enforce. Justice Marshall: "Condemns some women to a
'bare existence in utter misery.'"
3. Harris v. McRae (1980): Dwindled to a 5-4 majority: draws a formalistic
distinction between a right to an abortion, which women don't have, and a right to
be free from being prevented from having an abortion. Upheld Hyde Amendment
prohibiting the use of federal Medicaid funds to perform abortions except where the
life of the mother would be endangered if the fetus were carried to term or in cases
of rape or incest. No constitutional entitlement to the financial resources to avail
herself of the full range of protected choices flowing from Roe. Provides indigent
women with at least some range of choice in deciding whether to obtain a
medically necessary abortion as she would have had if Congress had chosen to
subsidize no health care costs at all. Dissent (Brennan): Roe clearly held that state
interference is unreasonable if it attaches a greater importance to the interest in
potential life than to the interest in protecting the mother's health. Distinguishes a
religious freedom case where unemployment benefits were denied to a man who
had turned down a job in order to practice his religion on Saturday. Seems similar
to intermediate scrutiny/balancing test. What about a tax on abortions? The poll tax
was minor, yet it was struck down because it was a burden that infringed on a
fundamental interest/right.
4. City of Akron v. Akron Center for Reproductive Health (1983): Court
invalidated several provisions in a state statute requiring second trimester abortions
43
5. Sodomy Laws: The Lawrence Court recognized that Romer cast Bowers
into doubt but declined to rely on Romer in striking down the TX statute. Justice
O'Connor concluded that TX law failed to serve a legitimate state interest: morality
not a valid grounds for surviving rational basis scrutiny.
6. Don't Ask Don't Tell: Upheld because of the government's interest in
service members' morale and unit cohesion, under a rational standard.
7. Same-Sex Marriage: Cases brought challenging bans on gay marriage in
states to keep it away from the federal courts. CA Supremes held that
discrimination on the basis of sexual orientation triggers strict scrutiny, which it
also uses for classifications based on gender. NY Court of Appeals found in 2006
that limiting marriage to same sex couples was a rational decision for the
legislature to make, based on interests of the child. MA Supremes found that there
was not a rational relationship between the marriage statute and the goal of
protecting the optimal child rearing unit. What about states that provide the same
benefits under civil unions? DOMA amended full faith and credit act so that states
wouldn't be required to recognize same sex marriages recognized in other states.
Some note that homosexuals are not lacking in political power or are an
economically marginalized group because of their sexual orientation. Does it
matter why gay people are gay? Formally, prohibitions on gay marriage and
previously interracial marriage are the same, but there are distinctions between the
two.
8. Prop. 8 Case: Major gay rights groups opposed filing challenging Prop. 8
because they thought the Supreme Court would invalidate all gay marriage laws:
better to wait for a better time.
a. Cooper: Mr. Cooper's prime argument against gay marriage is that there is a
good faith debate about whether the traditional notion of marriage should be
changed to include same-sex couples, and whether the Supremes can stop
that debate and answer the question for all 50 states, by finding that no
rational person of good faith could disagree. Two issues: (1) Does this
violate equal protection (men cannot do what women can do: marry a man,
and vice versa, similar to miscegenation statutes, where whites cannot do
what blacks can do: marry blacks, and vice versa: creates classifications
based on race and sex) and (2) Does it violate due process? Justice
Sotomayor notes that it would be irrational to discriminate against
homosexuals in any other context aside from marriage. Three common
reasons for prohibiting gay marriage: morality, child-rearing, and
procreation. Probably doesnt focus on child-rearing because CA already
permits gay couples to adopt. Cooper talks about "responsible procreation"
to note that unmarried couples can and do procreate. Cooper says he
doesn't have to prove there isn't harm to children raised by gay couples, just
that it's rational to decide it is. Justice Kagan boxed him in on his
procreation argument, but Cooper goes back to responsible procreation and
the marital norm imposing fidelity and monogamy.
b. Olson: Classifies a group of Californians based on their status. CJ Roberts
say that marriage simply developed to include purposes that by nature
excluded homosexuals. Olson responds by noting that the state of CA made
the decision to exclude homosexuals from marriage, not the institution
itself. 9th Circuit found that once the state recognizes that marriage
includes homosexuals, it can't exclude them. But, CA only permitted gay
46
marriage for 140 days. Scalia asks when it became constitutional to permit
gay marriage, to which Olson asks when it became constitutional to prohibit
school segregation. Olson notes that homosexuality is a trait people are
born with, similar to race--argue for creation of a protected class. CA had
already granted all of the substantive rights of marriage, but would not call
it marriage: no basis for saying you can't get married. Olson says that in the
context of CA, it is irrational for CA to deny gay couples the right to marry.
Olson: laws prohibiting polygamy prohibit conduct, not based upon an
inborn status.
VI. Procedural Due Process
A. Procedural Due Process
1. Substantive v. Procedural Due Process
a. Substantive Due Process: State cannot arbitrarily take away fundamental
or substantive rights.
b. Procedural Due Process: State cannot take away life, liberty, or property
without due process, much more rooted in the actual language of the
constitution. Two issues: (1) When do you have an interest that comes
under the due process clause? and (2) What process is due where there is
such a liberty interest? When the government decides to make a substantive
change to entitlement programs/benefits, you might have a substantive due
process claim. Procedural argument is that a group of individuals or some
group of individuals is not being given the rights that Congress has given
them (goes to the individual claim).
2. Goldberg v. Kelly (1970): A welfare recipient's interest in continued
receipt of welfare benefits was a "statutory entitlement" that amounted to
"property" within the meaning of the due process clause. Before that, the due
process clause was inapplicable if government denied an individual some public
benefit: employment, welfare, or other advantageous opportunity.
3. Board of Regents of State Colleges v. Roth (1972): Roth was hired for a
one year term as assistant professor at WI State, but did not have tenure and was
informed he would not be rehired without a hearing. Court upheld the decision not
to grant him a hearing. While the meaning of liberty must be broad, the individual
claiming to be harmed must have a legitimate claim of entitlement to it. Employer
specifically provided that his employment would terminate on June 30, which
secured absolutely no interest in re-employment for the next year. Must be more
than an abstract need or desire for it.
4. Perry v. Sindermann (1972): Companion case to Roth: Sindermann was
a professor at Odessa Junior College whose contract was not renewed, claiming the
college had a de facto tenure program. Absence of such an explicit contractual
provision may not always foreclose the possibility that a teacher has a property
interest in re-employment.
5. Cleveland Board of Education v. Loudermill (1985): Loudermill was
hired as a security guard, lying on his job application that he had never been
convicted of a felony. After his employer discovered that, he was fired despite his
classification as a civil servant under OH state law. Supremes upheld the lower
court's decision to require a hearing because the statute granted Loudermill a
property right in continued employment. Justice Rehnquist dissented, noting that
the statutorily defined right is not a guarantee against removal without cause in the
abstract.
47
incorporated into the law? But, the state did do something: create a social services
department, sent social workers out to the home on several occasions.
3. Shelley v. Kraemer (US Supreme, 1948)
a. Facts: In 1911, 30/39 owners of property fronting Labadie Avenue in St.
Louis signed an agreement that their properties were restricted to
occupation (not ownership) by white owners for the next 50 years. In
1945, petitioners Shelley, who were African-American, purchased one of
the lots without knowledge of the restrictive agreement. Supremes took two
similar cases together.
b. Holding: MO Supremes oust the Shelleys and divest them of their title. MI
Supremes ousted but did not divest of title. Restrictive agreements standing
alone cannot violate 14th Amendment if between private citizens. But, the
State, through its judicial officers, has acted to enforce those covenants,
which does violate the 14th Amendment. Always possible to find some
state actor implicated. Result of this case is correct, but reasoning seems
problematic. What about when police remove a trespasser?
c. Rationale: 14th Amendment framers regarded equality in enjoyment of
property rights as essential. If the covenant were created by state or local
ordinance, it would clearly be unconstitutional. Actions of state courts and
judicial officers in their official capacities has long been included within the
meaning of "no state" in the 14th Amendment. Property ownership is a
basic civil right which had been denied by the state.
4. Rendell-Baker v. Kohn (1982): The mere fact of public funding does not
something a state institution. There are entities that look private, but might actually
be the state operating as something else.
5. Burton v. Wilmington Parking Authority (1961)
a. Facts: Burton was denied service in the Eagle Coffee Shop, which leases a
parking space from the city, because of his race. The restaurant had leased
the space for 20 years and spent some of its own money making the space
suitable to its purposes.
b. Holding: Exclusion of appellant under the circumstances shown to be
present here was discriminatory state action. When a state leases public
property in the manner and for the purpose shown to have been the case
here, the proscriptions of the 14th Amendment must be complied with by
the lessee as certainly as though they were binding covenants written into
the agreement itself.
c. Rationale: The state financed the parking garage, maintains it, affording
guests of participating businesses a place to park. All state activities can be
added together. Parking authority did not require or encourage its
participants to discriminate in serving customers. "The State has so far
insinuated itself into a position of interdependence with Eagle that it must
be recognized as a joint participant in the challenged activity..."
d. Dissent: If the statute is offensive to the 14th Amendment, then it should be
struck down without reference to state action/inaction.
6. Norwood v. Harrison (1973): MS program gave textbooks to public and
private schools without regard to the discriminatory practices at private schools,
which the court struck down.
7. Gilmore v. City of Montgomery (1983): Supremes affirmed the portion of
the appeals court decision prohibiting exclusive use of city facilities by segregated
49
private schools, emphasizing the city's affirmative duty to desegregate its public
schools. But, provision of generalized government services such as electricity,
water, zoos, parks, do not constitute state involvement in invidious discrimination
because those services are offered to all.
VII. First Amendment
A. General Doctrine, Content Neutrality, and the Clear and Present Danger Test
1. First Amendment: Without the right to speak freely, all other rights are
meaningless. For most of American history, the first amendment was very
important, but not enforced (i.e., Alien and Sedition Acts) or invoked until WWI.
2. Shaffer v. United States (9th Cir. 1919): Congress passed the Espionage
Act of 1917, which made it a crime to interfere with the military success of the U.S.
or promote the success of its enemies, or encourage insubordination, mutiny, etc.
Congress also passed the Sedition Act of 1918, which made it criminal to interfere
with the sale of war bonds or print any disloyal language to the U.S. Shaffer was
convicted of violating the EA after mailing a book criticizing the war. Court
affirmed his conviction: cannot be said that the reasonable and natural effect of the
publication (test) was not to obstruct the enlistment of the armed forces.
3. Masses Publishing Co. v. Patten (US DC SD NY 1917): Postmaster of
NY, acting on the direction of the Postmaster General, advised the plaintiff that its
pamphlet could not be distributed through the mail under the EA. Plaintiff applied
for an injunction to stop the postmaster from doing that. Postmaster's position not
supported by the language of the statute. Agitation is not the same as direct
incitement: key is whether you are counseling or advising someone to act, a
more subjective test than clear and present danger. Language in the pamphlet
cannot be thought to directly counsel or advise insubordination or mutiny in an
ordinary sense. Not clear that those opinions advise others to do the same.
Plaintiffs are entitled to the injunction. Focuses on the content of the speech rather
than on the intent of the speaker, distinguishes between the speaker who intends to
incite but who is clever enough to avoid use of such language. Judge Learned
Hand, a famous and prominent district judge and friend to Holmes.
4. Schenck v. United States (1919): Defendants were convicted of violating
the EA by circulating to men accepted for military service a draft to obstruct the
recruiting efforts and criticizing conscription. In ordinary times, the defendants'
conduct would be permissible under the Constitution. Question is "whether the
words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. Convictions affirmed.
5. Frohewerk v. United States (1919): Defendant was convicted under the
EA for conspiring to cause disloyalty, mutiny, and refusal of duty in the military
and naval forces and sentenced to a fine and ten years in prison. Court rejected his
contention that his conviction violated the first amendment. Founders never
intended to give immunity for every possible use of language.
6. Debs v. United States (1919): Eugene V. Debs was also convicted under
the EA for attempting to obstruct enlistment of soldiers. Supremes rejected his
claim that it violated the first amendment. Debs had specifically praised those who
had been convicted of aiding or inciting to avoid conscription.
7. Abrams v. United States (1919):
a. Facts: Defendants were a group of Russian immigrants who called for a
general strike and distributed pamphlets in response to the U.S. sending
50
marines to Russian ports after the Russian Revolution, convicted under the
EA and sentenced to prison terms ranging from 3-20 years.
b. Holding: Supremes affirmed convictions on two counts and rejected a first
amendment argument.
c. Dissent: Justice Holmes: the defendants did not intend to cripple or hinder
the U.S. in prosecution of the war because the U.S. was not at war with
Russia. "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 interference with the lawful
and pressing purposes of the law that an immediate check is required to
save the country." Holmes moved from a narrow first amendment
construction in Schenck to a more civil libertarian position in Abrams:
tremendous pressure from below to change. Proposes adjustment the clear
and present danger test to mean an immediate danger, an objective test.
Holmes' dissent (along with Justice Brandeis) was the first change in the
interpretation of the first amendment and the emersion of modern first
amendment law. Similar to his dissent in Lochner: choices of economic
policies are for Congress and legislatures. Holmes is skeptical of absolute
truths: truth comes from the marketplace of ideas.
8. Brandeis Concurrence and Road to Dennis: Justice Brandeis
emphasized that if the danger is not imminent, the remedy to be applied is more
speech, not less speech. Whitney was the sixth consecutive decision in which the
majority either ignored the clear and present danger test or found it inapplicable.
Post-WWII, fears over national security generated federal and state restrictions on
radical activity.
9. Dennis v. United States (1951)
a. Facts: Petitioners were indicted for violation of the conspiracy provisions of
the Smith Act, and convicted by a jury. They had organized a Communist
Party in the U.S., which teaches and advocates overthrow of the
government, and were conspiring to teach from communist works that
advocated overthrowing the government.
b. Holding: Convictions affirmed. In time of crisis, the court often accepts
what the government is doing.
c. Rationale: Preventing the overthrow of the government is a substantial
enough interest for the government to limit speech. The requisite danger
existed in the existence of the conspiracy. In accordance with Judge Hand,
"in each case courts must ask whether the gravity of the evil discounted by
its improbability, justifies such invasion of free speech as is necessary to
avoid the danger. Frankfurter and Jackson often concurred--see
Youngstown.
i. Justice Frankfurter: Not every type of speech occupies the same
position on the scale of values. A balancing between security
interest and free speech interest. But in sustaining these convictions,
we can hardly escape restriction on the interchange of ideas.
Problem with the clear and present danger test is that it requires us
to evaluate the immediacy of the speech, which is a decision for
Congress.
ii. Justice Jackson: Even an individual cannot claim that the
Constitution protects him in advocating or teaching overthrow of the
51
Sheriff dispersed the demonstrators, and the Court overturned Cox's conviction.
Fear of violence was based upon the group of white citizens across the street.
11. Gregory v. City of Chicago (1969): Protestors of Mayor Daley's house
were convicted for disorderly conduct, after which the court overturned their
convictions because he was not inciting to riot or violence, but the onlookers were
causing the problems.
12. Chaplinsky v. New Hampshire (1942): Appellant was a Jehovah's
Witness, who was convicted for violation of addressing offensive word to a
policeman on the street, after he denounced all religion and was beaten up by the
crowd. Court upheld the conviction was to preserve the public peace, and doesn't
infringe on the right to free speech or the 14th Amendment. Court described a two
tier analysis of protected and unprotected speech. Fighting words are unprotected
because they are intended to inflict harm rather than communicate ideas and thus
are not really speech at all. Exception to the basic rule.
13. Gooding v. Wilson (1972): Gooding used obscene language to a police
officer and was convicted, which the Supremes overturned because the statute was
overbroad and not limited to words that have a direct tendency to cause violence
(which are not protected), as the statute in Chaplinsky was.
14. Skokie Controversy: Nazi Leader Collin planned to hold a public assembly
with Swastikas and Nazi uniforms, in the overwhelmingly Jewish village, 5,000 of
whom were Nazi concentration camp survivors. Village sought an injunction to
stop the marchers from wearing uniforms or displaying Swastikas, which the trial
court granted, but which the appellate and IL Supreme courts refused to grant. U.S.
Supremes reversed the state court's denial of the stay. Cannot ban the Nazis,
Klan from assembling peacefully, so long as they're not inciting to riot. Skokie
later tried to enact three ordinances ($300,000 liability insurance, prohibiting
dissemination of material promoting and inciting hatred, and prohibiting the
wearing of any military-style uniform) in an attempt to stop the march, which the
Supremes invalidated. Courts have generally acknowledged that free speech
trumps the rights of minorities. But, would there be a constitutional claim against
police who failed to protect those exercising First Amendment rights?
15. Holder v. Humanitarian Law Project (2010): Plaintiffs wanted to provide
political and humanitarian support on using international law to resolve difficulties
to designated terrorist organizations, asserting that the statute violates the First
Amendment. Government (led by Solicitor General Elena Kagan) argued that it
wasn't speech, but material support. Court upheld the material support provision of
the statute, because Congress had decided that any support to such organizations is
harmful to national security and strains relationships with allies. Roberts notes that
the decision should not be construed to suggest that independent speech would pass
constitutional muster. Dissenters distinguished the type of actions engaged in by
plaintiffs.
16. Beauharnais v. Illinois (1952):
a. Facts: Plaintiff was convicted under an IL statute prohibiting the
distribution of leaflets which portray other racial or ethnic groups in a
negative light.
b. Holding: Supremes affirmed the conviction. Has never been reversed, but
no longer good law.
c. Rationale: IL legislature could have concluded that utterances of this type
were typical to the types of public disturbances experienced by that state.
54
Courts cannot deny the legislature the right to make that choice. Notes that
such a power may be abused to prohibit libel of a particular political party.
No need to consider clear and present danger because libelous utterances
are not within the area of constitutionally protected speech.
d. Dissent: Justices Black and Douglas: Libel doesn't apply to huge groups.
Leaflet was designed to enlist support for legislative efforts to enact such
views.
17. Schneider v. State (1939): Appellants distributed leaflets on a public street
in violation of an ordinance, which the Supremes struck down. Municipal
authorities have a duty to keep their community's streets open and available for
movement and expression of people and property, the primary purpose to which the
streets are dedicated. There are other ways to prevent littering than this statute.
18. Martin v. City of Struthers (1943): Appellant was a Jehovah's Witness,
who violated a municipal ordinance by ringing doorbells to solicit leaflets
advertising a religious meeting, which the Supremes struck down. Door to door
distributions of literature may be used by members of society interested in
disseminating ideas in accordance with free discussion. Discretion of whether to
admit such individuals lies with the discretion of the homeowner.
19. Kovacs v. Cooper (1949): Court upheld a city ordinance prohibiting any
person to use any sound truck or other instrument that emits loud and raucous
notices. A permissible exercise of legislative power. Justices Black, Douglas, and
Rutledge dissented, noting that some people may not have enough money to
disseminate their ideas through printing, radio, etc. Such ordinances can be drawn
in a more narrow fashion.
20. Metromedia v. San Diego (1981): A San Diego ordinance prohibited
virtually all billboards, which the Supremes struck down. City has not shown that
the billboards impair traffic safety or that an interest in aesthetics is sufficiently
substantial in the commercial and industrial areas of San Diego. Justice Stevens
dissented, noting that communities should have the right to decide such policies.
21. Commonwealth of MA v. Davis (1897): MA Supremes, under Justice
Holmes, affirmed Davis's conviction for preaching on Boston Common. The
legislature may and does exercise control over the use which the public may make
of such places. The U.S. Supremes, unanimously embraced Justice Holmes'
position.
22. Hague v. CIO (1939): A municipal ordinance forbid all public meetings on
the streets and other places without a permit, in which Justice Roberts noted that
the use of streets and public places has been a part of the privileges, immunities,
and liberties of citizens. A "First Amendment" easement.
23. United States v. Grace (1983): Court invalidated a federal statute
prohibiting any person to display flags, banners, or devices advertising a party or
organization in front of the Supreme Court building. Total ban was not narrowly
tailored.
24. Grayned v. Rockford (1972): Court affirmed convictions of high school
students for violating an ordinance prohibiting any person from making noise in
front of a school.
25. Frisby v. Shultz (1988): Court upheld and ordinance which prohibited
residential picketing in front of a specific residence, which was narrowly tailored.
Privacy of the home should not be trumped by free speech.
55
26. Clark v. CCNV (1983): NPS had prohibited protestors from sleeping on
the National Mall, and the Supremes upheld the regulation. Camping is action, but
it was done to convey a message.
27. Ward v. Rock against Racism (1989): Court upheld an NYC ordinance
(narrowly tailored) requiring use of city-provided sounds systems and technicians
for concerts in the Bandshell in Central Park, because of a desire to control noise
and avoid intrusion into other areas of the park.
28. Madsen v. Women's Health Center (1994): Court upheld a lower court's
36 foot buffer zone as a reasonable way to protect access to the clinic without
interference by protestors, but invalidated a ban on images observable to patients
within the clinic because the clinic could close its curtains. In Schenck v. Pro-
Choice Network of Western New York (1997), court invalidated floating buffer
zones, but again upheld fixed buffer zones. Supremes also upheld a CO statute
which made it unlawful to approach a person without that person's consent, to
distribute a leaflet, in Hill v. Colorado (2000).
29. Cox v. New Hampshire (1941): Court affirmed convictions under a state
statute prohibiting any parade or procession upon a public street without a permit
because of the need for safe regulation of the use of streets. Licensing board had
not been vested with any arbitrary power.
30. Murdock v. Pennsylvania (1943): Court held that a state may not impose a
flat license tax as a condition to the pursuit of activities whose enjoyment is
guaranteed by the First Amendment.
31. McIntyre v. Ohio Elections Commission (1995): Invalidated a statute
prohibiting the distribution of campaign literature that does not contain the name
and address of the person issuing the literature.
32. Adderly v. Florida (1966):
a. Facts: 200 FL A&M Students protested the arrest of several schoolmates at
the county jail, and were arrested after refusing to stop blocking the prison's
driveway.
b. Holding: Affirmed convictions
c. Rationale: Sheriff had power to direct that this large crowd of people get off
the grounds. No evidence that similarly large groups of the public had been
permitted to gather on the jail grounds for any purpose. Constitution does
not forbid states from controlling the use of its own property for its own
lawful nondiscriminatory purpose.
d. Dissent: Justices Douglas, CJ Warren, Brennan, and Fortas: County jails
are obvious centers for protest. This assembly was peaceful. There are
certain places that are off limits.
33. Greer v. Spock (1976): Court upheld a Fort Dix regulation prohibiting
campaigning, because the business was not to provide a public forum, but to train
soldiers. Justice Brenna and Marshall dissented, noting that whether the locale is a
public forum has never been an absolute prerequisite for first amendment activity.
34. Heffron v. International Society for Krishna Consciousness (1981):
Court upheld a MN state fair regulation limiting distribution of merchandise and
printed material to groups who rented a booth.
35. U.S. Postal Service v. Council of Greenburg Civic Association (1981):
Court upheld a federal statute prohibiting the deposit of unstamped mailable
material in a latter box approved by the USPS, as applied to appellee, which
routinely delivered its messages through such a method.
56
36. City Council of Los Angeles v. Taxpayers for Vincent (1984): Court
upheld ordinance prohibiting the posting of signs on public property as applied to
individuals who posed political campaign signs to public utility poles.
37. United States v. Kokinda (1990): Courts upheld respondents' conviction
for violating a federal regulation prohibiting any person from soliciting
contributions on postal premises.
38. International Society for Krishna Consciousness v. Lee (1992): NY/NJ
Port Authority prohibited solicitation of money and distribution of flyers and other
written material at the three NYC airports. CJ Rehnquish said the ban on
solicitation was acceptable because airport terminals are not principally for public
forum. Reasonable because sidewalks outside the terminals were permitted.
Justice Kennedy dissented, noting that the terminals were indeed public fora.
Justice Kennedy, Blackmun, Stevens, and Souter concluded the ban on distribution
of literature violated the first amendment in a plurality opinion, unreasonable
restriction. Kennedy argued that we have to look at the airport as the modern
version of the train station.
39. Police Department of Chicago v. Mosley (1972)
a. Facts: Mosley sought declaratory relief stating that his protests in front of a
school were permissible, even though a city ordinance prohibiting such
protests except for labor purposes
b. Holding: Ordinance is unconstitutional.
c. Rationale: Using a 14th Amendment analysis, it discriminates between
protesting based upon subject matter. Government cannot grant use of a
forum to people whose views it agrees with, but not to others. Selective
exclusions must be carefully scrutinized.
40. Carey v. Brown (1980): Supremes struck down a similar ordinance that
exempted labor related protests from violation of the ordinance.
41. Widmar v. Vincent (1981): Supremes invalidated a University of Missouri
Kansas City regulation prohibiting religious groups from using campus facilities
for meetings, because doing so does not violate the separation of church and state
so long as those groups can use the facilities alongside other groups.
42. Lehman v. City of Shaker Heights (1974)
a. Facts: Petitioner wanted to purchase a car card space on the public transit
system for his campaign, but was barred from doing so even though other
businesses could purchase such space
b. Holding: No first or fourteenth amendment violation. Bus is not a public
forum.
c. Rationale: City is engaged in commerce, and the system has the discretion
to develop and make reasonable choices concerning the material displayed
in its vehicles. Justice Douglas: A streetcar or bus is not a place for
discussion, not a forum.
d. Dissent: Justices Brennan, Stewart, Marshall, and Powell: The city
voluntarily established a forum when it installed physical facilities for
advertising. Certain commercial messages may be just as offensive as
political advertising.
43. United States v. O'Brien (1968)
a. Facts: O'Brien and three companions publicly burned their draft cards, in
violation of a federal statute, hoping to influence others in their anti-war
beliefs.
57
b. Procedural History: District Court rejected O'Brien's claim, but the Court of
Appeals reversed and found that the 1965 Amendment was unconstitutional.
c. Holding: 1965 Amendment is constitutional both as enacted and as applied.
The court says this is speech, albeit in a primitive form. Test for symbolic
speech is whether government regulation or law is (1) Unrelated to
suppression of free expression, (2) Important government interest, (3)
Narrowly tailored. Key trigger for stricter scrutiny: is the government
regulating based on what you're saying, or what you're doing?
d. Rationale: No more infringes upon free speech than a prohibition on
destroying driver's licenses. Not all conduct can be labeled speech
whenever the person is engaged in conduct to express an idea. Government
regulation is sufficiently justified: Congress can raise an army and ensure
that young men can easily demonstrate their compliance with the law,
simplify the system, and ensure that young men notify their local draft
boards of any changes in address. An appropriately narrow means of
protecting that interest. Legislative motive or purpose is not enough to
invalidate this statute, which passed the House 393 to 1.
44. Stromberg v. California: Court invalidated a statute prohibiting any person
from displaying a red flag as a symbol of opposition to organized government.
45. Tinker v. Des Moines School District (1969): Court overturned the
suspensions of three students who violated school policy by wearing black
armbands
46. Schacht v. United States (1970): Court reversed conviction of a man
charged with violating federal statute prohibiting the improper wearing of a
military uniform.
47. Wisconsin v. Mitchell: Court upheld a state statute enhancing maximum
penalty for defendants who intentionally selected the person against whom their
crime was committed. Such crimes are more likely to inflict distinct emotional
harms on the victims and community.
48. NAACP v. Alabama: Court invalidated an AL statute requiring disclosure
of NAACP membership lists because it exposed such people to discrimination and
violence.
49. Smith v. Goguen (1974): Court overturned conviction of a man charged
with mistreating a flag he had sewn on the seat of his trousers.
50. Spence v. Washington (1974): Court overturned conviction of a man
charged with placing a peace symbol over the American flag, in violation of a state
statute, which the court said infringed free expression.
51. Texas v. Johnson (1989): Johnson was arrested for burning a flag in
violation of a TX statute, which the court overturned because the conduct was
sufficiently imbued with elements of communication as to implicate the first
amendment. CJ Rehnquist and Justice O'Connor noted that his act conveyed
nothing that he couldn't have conveyed in several other ways. It is only a crime
because other people will get offended: clearly related to the suppression of
speech--Brandenburg.
52. United States v. Eichman (1990): Court invalidated the Flag Protection
Act of 1989, which made it a crime to knowingly mutilate or deface a flag.
Government's asserted interest is related to the suppression of free expression. The
terms used: "deface, physically defiles" unmistakable connote disrespectful
treatment.
58