Fall 2010 Con Law Outline DiPippa

Wednesday, September 08, 2010

8:39 PM

I. JUDICIAL POWER
A. INTRO TO CON LAW
B. The US Constitution creates institutions to implement basic ideas of constitutionalism. Constitutionalism doesn’t mean you have
to have a textual constitution (UK doesn’t). But it means that the government has widely understood principles and rules while
respecting and protecting a range of important individual rights.
C. Textual Constitutions are important because:
1. They provide a roadmap on how to get a government up and running
2. They bind people together after you get the government up and running.
D. Every law must be traced back to the Constitution to be legitimate.
E. The Constitution is the Supreme Law of the Land (Marbury v. Madison)
1. JUDICIAL REVIEW: ESTABLISHMENT, EXCLUSIVITY, AND REVIEW OF STATE COURT JUDGMENTS
2. The judicial branch is granted its powers under Article III of the Constitution. Article III sets up a federal judicial system with
one Supreme Court and any lower courts that Congress may ordain and establish. The federal judiciary is independent from
the other branches because justices are given life tenure “during good behavior” and their salaries cannot be decreased during
their time in office.
3. The federal judiciary can hear all cases:
a. Arising under the Constitution, treaties or laws of the US
b. All cases in which the US is a party
c. Controversies between two or more states
d. Controversies between a state and citizens of another state
e. Controversies between citizens of different states
f. Controversies between a state or its citizens against foreign states, citizens or subjects
g. Controversies between citizens of the same state claiming lands under grants of different states
h. All cases affecting Ambassadors, public ministers, etc.
i. All cases of admiralty and maritime jurisdiction
4. Original v. Appellate Jurisidiction:
a. HOWEVER, the Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers, and
consuls, and cases in which a state is a party. The Supreme Court has appellate jurisdiction in all other cases.
i. Original Jurisidiction: The types of cases that can be heard through original jurisidiction are clearly stated, with
particularity, in the Constitution. The Constitution also does not say that Congress can amend this (the case in
Marbury). Therefore, it appears that the original jurisidiction of the Supreme Court must be expanded/diminished
by constitutional amendment only.
ii. Appellate Jurisidiction: Constitution leaves it open, assumes that all other (than those mentioned above) can only be
heard through appellate jurisidiction. Congress can LIMIT appellate jurisidiction, but cannot ELMINATE it.
Example: Congress changes the amount in controversy in order to have federal subject matter jurisidiction (a
limitation on the jurisidiction, not an elimination)
5. Foundation of Judicial Review: Judicial Review of Federal Actions
a. Marbury v. Madison (1803):
i. A case in which ∏ sued Madison (federal official) because he was not commissioned as a judge by the new president
after having been appointed (but not commissioned) by the old president. ∏ challenged his denial of the commission
under a law passed by Congress.
ii. The court held that ∏ was entitled to the commission. They also held that ∏ had a correct interpretation of the law
and he was entitled to a remedy. However, the court held that this law (passed by Congress) was unconstitutional
because it expanded the original jurisidiction of the Court in that the executive branch was subject to constitutional
constraints that could be enforced by the judiciary. The court held that the constitution has set a boundary of what the
Supreme Court has jurisdiction over and is described in detail, therefore anything not specifically mentioned, the
court only has appellate review. Therefore the court could not grant ∏ his remedy, and Congress cannot change the
Constitution by passing a mere law.
iii. Marbury v. Madison was important because it established that the court DOES NOT have judicial review over:
1) The political powers of Congress
2) Questions that are purely political questions (could argue school desegration).
3) Executive branch acts that are political in nature
4) Subject matter in which the constitution places it solely within the discretion of the president. However if the
constitution imposes a duty on the executive, the judiciary can enforce it.
iv. Marbury v. Madision established that the court DOES have judicial power to review the constitutionality of
executive and legislative branch decisions (only of the federal govt) so long as they are not political in nature.

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 executive and legislative branch decisions (only of the federal govt) so long as they are not political in nature.
v. President’s Political Powers: The president has some powers for which he is only politically accountable, not legally
accountable
1) President has political accountability to the people of the US : if he screws up he wont be re-elected. An example
is appointment of officials. Marbury establishes that the president can’t be sued for appointment choices and
since it is his power granted by the Constitution, the court does not have judicial review over it.
2) President can do anything within his political powers that he wants, so long as it doesn’t violate someone’s rights.
(the president is not above the law). In Marbury, the court held that not giving Marbury the commission
violated Marbury’s rights so they could review it, if it had jurisdiction. The court did not have original jurisdiction
over the matter (should have went through lower court first)
3) Policy: if the courts had the power to review political decisions of the president, then it would give the courts
more power than the president. The president would conform his actions and powers (given soley to him by the
Constitution) to the liking and probability of approval by the Supreme Court.
vi. Lastly, Marbury established that the Constitution is the Supreme law of the land. THE GOVERNMENT HAS NO
INHERENT POWERS, IT ALL MUST COME FROM LAWS (WHICH DERIVE FROM THE CONSTITUTION). All
laws must conform to the Constitution’s standards. Therefore, if there is a conflict between a state law and the
constitution, the constitution will always win.
1) Individual rights: The government doesn’t have the power in the Constitution over in individual in the specific
areas in which they have been granted specific rights (freedom, religion, etc.)
2) In EVERY case, the court must decide what law authorizes the government to act in that situation.
3) The Supreme Court “protects” democracy by acting as a check on it and seeing that the democratic powers do not
invade constitutional standards.
6. Expansion of Judicial Review over the States:
a. The Supreme Court has authority to review state supreme court decisions. The Supreme Court is also the final say-so on
federal issues, but state courts have omnipotence on state issues.
b. Martin v. Hunter’s Lease:
i. a case involving an ownership dispute. ∆ claimed the land from a VA land grant (VA got it from the British). The case
was decided by the state court then appealed to the US Supreme Court. The US Supreme Court reversed the state
decision and sent the case back to the state court to enter judgment contrary to their original decision. The state court
refused to do.
ii. The Supreme Court held that it received its power from the Constitution. The Constitution applies to not only
individuals, but to states. More importantly, the Constitution has a system of checks and balances to prevent abuse.
State courts judges are bound to the Constitution and Congress has the authority to remove any case from the state
court to the federal court for appellate review. Finally, SC should have appellate review because it allows for an
uniform interpretation of the Constitution. Without it, each state would have their own separate interpretation and
there would be chaos.
iii. Martin v. Hunter’s Lease is important because it set up the way the country is run. Martin established that when
deciding cases, all courts must look to the Constitution as the enforceable law. When there is a conflict between the
Constituion and the state law, the Constitution wins. t solidified the checks and balance system with the judicial
system, and also solidified the Supreme Court as omnipotent over all the lower state courts (at least on federal issues).
c. Cooper v. Aaron:
i. Arkansas refused to desegregate the schools as mandated in Brown. They argued that desegregation would prevent a
public disturbance and that the Governor and legislature are not bound by a SC court decision, namely Brown. The SC
held that it is the law of the SC (judicial dept) to say what the law of the land is. A. VI also makes the laws and
Constitution (namely Amend. 14 which supports Brown) the law of the land. Therefore it trumps any state law not in
compliance with it, and is the governing body of all state courts and state officials.
ii. Cooper v. Aaron is important because it establishes that the court is a special guardian of the Constitution and that
all government officials must look to the court‘s interpretation of the Constitution rather than their own.
7. Expansion of Judicial Review over Congress
a. McCollough v. The State of Maryland:
i. a case in which ∆ placed a tax on the bank of the US (ran by ∏) and the bank refused to pay. The Supreme Court held
that the tax was unconstitutional because the power to tax is delegated to Congress by the constitution, and the power
to tax the US bank really equals the power to destroy which would essentially place state governments on a higher
power level than the federal government.
b. McCollough is important because it starts the discussion on the ―necessary and proper‖ clause. McCollough holds that a
national back is a necessary and proper means for carrying out Congress‘s constitutional duties of regulating commerce,
taxing & spending, etc. Additionally, the court held that the bank did not have to be the only means to carry out
Congress‘s powers in order to be valid.
8. IMPLIED POWER AND THE NECESSARY & PROPER CLAUSE
9. Necessary and Proper clause: Article I §8 (18) gives Congress the right to gives Congress the right ―to make all laws which
shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested bythe
Constitution‖. It gives Congress the authority to use any necessary and proper means to perform its duties (those powers given

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 Constitution”. It gives Congress the authority to use any necessary and proper means to perform its duties (those powers given
to Congress under Article I).
10. Congress’s powers are enumerated or limited by the constitution. Powers can also be implied. In order to invoke the necessary
and proper clause, the end has to be constitutional and the means has to be plainly adapted to achieve that end. The means
cannot violate another part of the Constitution.
11. The necessary and proper clause is not a limitation on Congress’s powers because it is an enumerated power in Article I. Thus,
if you have a choice between an interpretation that would interfere with Congress pursuing its goals and an interpretation that
allows Congress to pursue a convenient means of achieving its goals, then we should choose the one that does not restrain
Congress (McCollough)
12. To determine if the action is necessary and proper, you have to use the rational test:
i. Purpose: It must be to used fulfill a constitutional goal (must be somewhere in the constitution)
ii. Means: must be plainly adapted and rationally connected to a constitutional end.
iii. End: Must be found in the constitution and must not be limited in the constitution.
13. Examples of Unconstitutional Means w/ Legitimate Ends
i. Chartering a national bank (constitutional) where only whites can deposit money (violates 14th Amendment)
ii. Passing a federal law (constitutional) that all state capitals must be located in the dead center of each state so that is
convenient to people in the states (violates the 10th Amendment b/c it infringes upon rights left up to the states)
F. SOURCES OF CONSTITUTIONAL INTEPRETATION:
1. Constitutional Interpretation is important because:
a. There are countless problems that arise that the Constitution does not expressly consider. The Constitution is an outline
or blue print of the government and it does not address the many questions courts may face.
b. Even where there are constitutional provisions, much of the Constitution is written in open-textured language using
phases that are broad (i.e. necessary and proper)
c. To determine what, if any, justification can be given to the government that permits it to interfere with an individual right
or discriminate.
2. The methods by which the Court will look to interpret the constitution are:
a. Originalism is the view that judges should confine themselves to enforcing what is stated or clearly implicit in the written
constitution.
i. Must be expressly stated or was clearly intended by the framers. (looks at history)
ii. If the Constitution is silent, then it is for the legislature, unconstrained by the courts, to decide the law.
iii. The constitution should evolve solely by amendment.
b. Nonoriginalism is the view that the courts can interpret the Constitution to protect rights that are not clearly expressed or
intended (clearly going beyond the four corners of the document).
i. Believes that the constitution can evolve either through amendment and/or by court interpretation.
ii. Believes that the constitution’s meaning is not limited to what the framer’s intended but that the meaning and
application of the Constitution should evolve.
iii. This view says what doesn’t control interpretation but leaves open what should be looked at when deciding the
meaning of the Constitution.
c. Alternative views within these two broad concepts:
i. Orginalism:
1) Strict originalism believes that the Court must follow the literal text and the specific intent of its drafters.
(i.e.School desegregation is unconstitutional)
2) Moderate originalism is more concerned with the framer’s general purposes than with their intentions in a very
precise sense. (i.e. school desegregation is constitutional because it follows the general aim of equal protection
although not considered initially by the framers).
ii. Non originalism:
1) Tradition: looks to tradition to see what the court should follow. Abstract tradition says traditions should only be
considered at the most specific level of abstractation. Others believe the courts should follow traditions more
generally.
2) Contemporary Values believes that the court may decide cases based on contemporary values, but only when it is
dealing with issues concerning the processes of government.
3) Natural Law meaning that the court should identify and follow the deeply embedded moral consensus that exists
in society.
3. Dred Scott v. Sanford:
a. case involving a slave(∏) who petitioned the courts for his freedom due to the fact that he was a citizen under the
Constitution and entitled to freedom. Also because he lived in a free state which granted him freedom under the
Compromise law.
b. The court used several methods of interpretation. The court held that the court should not decide the justice/injustice of a
law, but to determine its constitutionality by interpreting the constitution according to its true intent and meaning when
adopted. The court stuck to an originalism view (although it did use other methods of interpretation incorrectly) to hold

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 adopted. The court stuck to an originalism view (although it did use other methods of interpretation incorrectly) to hold
that Congress did not have the authority to make the Compromise (granting freedom to slaves b/c they are property).
Dred’s lawyers argued for a more non-originalsim view that stated that the times have changed to include slaves, women,
and children as citizens. As a result, ∏ was not a citizen and the court did not have subject matter jurisdiction.
i. Scott was clearly a case where the courts were attempting to decide a political issue (of which it does not have the
authority to do so)
4. LIMITATIONS ON JUDICIAL REVIEW
a. Direct Political Controls over the Supreme Court
i. Congressional Power: The Constitution maybe amended by Congress in an attempt to reverse constitutional
interpretations/decisions by the court.
ii. Presidental Power: has the ability to appoint justices. Although justices serve a life tenure, when one dies, the
president can appoint a new justice that can overrule past decisions.
iii. Court justices can be impeached, convicted and removed according to the proper conditions outlined in the
Constitution.
5. Congressional Power to Control Federal Court Jurisdiction
i. Congress has the ability to limit, not eliminate federal court jurisidiction.
ii. Article III gives Congress considerable discretion to control the federal jurisidiction and gives Congress the power to
ordain and establish lower courts.
iii. Congress has the ability to restrict and even eliminate the lower courts.
6. Exparte McCardle:
a. A case which occurred during Reconstruction. Congress had given, through an act, the Supreme Court appellate
jurisdiction arising out of a Reconstruction Act. ∏ sued stating that Congress did not have the authority to give appellate
jurisdiction to the Court. The Court disagreed. The court held that the court‘s jurisdiction is not given by Congress, but by
the Constitution, however it is subject to congressional regulations. Additionally, when an act of the legislature is repealed,
it must be considered, except as transactions past and closed, as if it never existed. Since Congress had repealed the
statute, the court had no jurisdiction and refused to make a decision on ∏‘s case.
7. External limits on Congressional Power to Curtail Supreme Court‘s Appellate Jurisdiction
a. General constitutional limits on government action:
i. Due process
ii. Equal Protection
b. Limits have no specific connection to Article III and the judicial power, but are granted to each citizen of the US.
8. Internal Limits on Congressional Power to Curtail Supreme Court‘s Appellate Jurisdiction
a. Separation of Powers- violated when one branch performs the duty of another. No other branch can destroy the
role/function of the Supreme Court.
9. Are inferior courts mandatory or discretionary?
a. The constitution says that Congress‘s power to establish inferior courts are discretionary. However, some argue that the
lower courts are mandatory since the Supreme Court only has original jurisdiction over a limited amount of cases. Others
argue that it is not mandatory because in the absence of inferior courts, state courts would hear those matters now heard
by inferior courts.
10. U.S. v. Klein:
a. A case involving post Civil War in which Congress reversed itself and said all people with amnesty could not bring cases to
retrieve their property (previously it said they could). The Supreme Court held that the statute revoking jurisdiction was
unconstitutional because Congress did not have the power to revoke pending cases before the court (this would be a
violation of the separation of powers and for other obvious policy reasons). The court added that the statute would be
constitutional under the exceptions clause if it were a denial of ―the right to appeal in a particular class of cases‖.
i. Hypo: Congress passed a law to divide the US Supreme Court into two panels. One panel would hear criminal cases,
the other would hear all other cases. Is this federal law be Constitutional? The answer is no. Article III is vested in the
Supreme Court. There is only one Supreme Court, Congress does not have the power to divide the Supreme Court into
panels.
11. JUSTICABILITY: STANDING
a. WHENEVER YOU HAVE A QUESTION WITH A ∏ IN FEDERAL COURT, YOU FIRST MUST ESTABLISH THAT YOU
HAVE STANDING.
b. Standing is basically whether the ∏ can bring a case before the federal court to hear the case. Article III says that judicial
power shall extend to all cases in controversies. The Supreme Court is the only federal court required by the Constitution.
It‘s jurisdiction is limited to cases in controversy.
c. A case in controversy means that there has to be an actual and definite dispute between parties who have adverse legal
issues. No advisory opinions are issued by the Supreme Court. STATE COURTS MAY GIVE ADVISORY OPINIONS. Also
not declaratory relief (a judge‘s determination of the parties‘ rights under a contract or a statute often requested in a
lawsuit over a contract. The theory is that an early resolution of legal rights will resolve some or all of the other issues in
the matter.
d. A case in controversy also must have:

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d. A case in controversy also must have:
i. Ripeness: a case cannot be premature. ∏ must show injury in fact that must arise from the governmental conduct
being complained of (pretty easy to establish, usually its economic).
1) Sierra Club v. Morton,
a) the court said that the injury doesn’t have to economic, it can be aesthetic or environmental.
2) If the injury hasn‘t occurred yet (pre-enforcement challenge), the ∏ must show that there is real possibility that
the law will be enforced.
ii. Must not have Mootness: a case must not be brought too late. A case is moot if ∏ no longer exists or has gotten relief.
Settlement makes a case moot. There are two exceptions:
1) ∆ cannot prevent a lawsuit by making it moot.
a) Example: If ∏ was ineligible for something and filed suit, ∆ can‘t turn around and make them eligible to
prevent the lawsuit in an effort to make the case moot. The lawsuit is ―frozen‖ in time for when ∏ was denied
whatever right/property he brought the suit about.
2) A ∏‘s case cannot be moot if it is susceptible to repetition (can happen over and over again)
a) In Roe, the ∏s had standing even though they were not pregnant at the time the case was brought (not
personally injured), this is because the women were susceptible to being pregnant again and would have the
same injury and could bring the same case. Policy argument (pro) is that if the ∏ did not have standing, the
women would have to re-file the case every they got pregnant.
e. ∏s do not have standing for purely political questions (Dred Scott) b/c
i. The constitution gives resolution to another branch
ii. Courts cannot give appropriate relief
iii. Courts are not equipped to make the decision
1) Example: If the political question involves foreign affairs, it should be left to a branch who has expertise in that
area.
f. Qualifications for standing: (as defined in Article III of the Constitution)
i. ∏ must show injury in fact (pretty easy to establish, usually its economic). The injury must be distinct and palpable
(not abstract, conjectural or hypothetical)
ii. But in Sierra Club v. Morton, the court said that the injury doesn‘t have to economic, it can be aesthetic or
environmental.
iii. Injury must be due to ∆‘s behavior
iv. ∏ must show redressability or causation. Meaning that the relief sought will eliminate the harm alleged. This is
harder to satisfy.
1) Warf v. Sheldon: ∏ were low income minorities suing a city claiming that a racially motivated zoning ordinance
precluded them from affordable housing. The court held that the ∏s had no standing because even if the zoning
ordinance was overturned the housing would still be unaffordable. Therefore the relief sought would not
eliminate the harm.
v. Allen v. Wright:
1) case involving black parents who sued he IRS for granting tax exempt status to discriminatory private school
which interfered with the desegregation of their public schools. The court held that the ∏s did not have standing.
Standing requires that the ∏ allege a personal injury arguably traceable to the ∆‘s alleged unlawful conduct and
likely to be redressed by the requested relief. The injury the ∏ complained of was too abstract, in essence a black
person in Hawaii could claim injury based on the grant of tax exemption to a discriminatory school in Maine.
Additionally, the link between the injury suffered by the ∏‘s and ∆ is shaky, and it is speculative whether the
removal of the tax exemption will aid in desegregation of the public schools. ∏ basically did not have ANY of the
requirements for standing. Dissent argues that since this case is about racial desegregation and that viewed in a
historical context, the ∏ do have standing.
g. Classification of parties who can have standing:
i. ∏s who have a sufficient stake in the controversy and meet all the requirements above. This ensures that each lawsuit
is brought by someone with a real and legally cognizable injury rather than by an officious bystander.
ii. 3rd parties: 3rd party standing is handled by the Prudential requirements doctrine. For 3rd parties to have standing,
they must show:
1) the ∏‘s injury be arguably within the zone of interests protected or regulated by the statutory or constitutional
provision at issue AND
2) the injury must not be too generalized, but must be particular and NOT shared by all or almost of all citizens.
3) 3rd party standing is not found in Article III therefore it is subject to Congressional override.
iii. Lujan v. Defenders of Wildlife: ∆ (original ∏) sought to have the Endangered Species Act interpreted to cover
government activities in foreign countries. This is a case of third party standing and also political question. The court
held that the political process, rather then the courts, should provide the remedy where an executive officer‘s failure
to execute the law creates a generalized public grievance. Therefore, ∆‘s injury is not within the zone of interests
protected by the statutory provision at issue and ∆ does not have standing.
iv. Standing is needed to:

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 iv. Standing is needed to:
1) prohibit ∏ from raising another person‘s rights;
2) bars courts from adjudicating general grievances more appropriately addressed in the representative branches;
3) requires that a complaint fall within the zone of interests protected by the law.
1. CONGRESSIONAL POWER
A. General Info (also federal v. states)
1. Congress may act only if there is an implied or express power in the Constitution. States may act unless the Constitution
prohibits the action.
2. Article I creates the legislative body and the 10th Amendment states that the powers not delegated to the federal government
nor prohibited by the Constitution are reserved for the states.
3. Congressional Powers question analysis:
a. Does congress have the authority under the Constitution to legislate?
b. Does the law violate another constitutional provision or doctrine (i.e. separation of powers/interfering with individual
liberties)?
4. State power question analysis:
a. Is the action of the state prohibited
5. 3 Limits on Congressional Power:
a. Internal Limits: Does the Constitution grant the federal government the power to regulate? Is it in the enumerated
powers (or is it a means to an enumerated end?)?
b. External Limits: Are there other portions of the Constitution that prohibit this particular exercise of power (even if there
are no internal limits)?
c. Political Limits: The exercise of power doesn‘t make sense form the standpoint of political representation.
6. FEDERALISM‘S PAST: THE EVOLUTION OF THE COMMERCE CLAUSE
7. Article I § 8(3): The Congress shall have Power…to regulate Commerce with foreign nations, and among the several States and
with the Indian Tribes.
8. Commerce clause is important because it:
a. Regulates commerce among the states
b. Places a significant limitation on the exercise of state power.
9. Three Important Questions in Interstate Commerce: (Gobbins)
a. What does ―Commerce‖ mean?
i. Commerce is the commercial intercourse between nations and parts of nations, in all its branches, and is regulated by
prescribing rules for carrying on that intercourse.
ii. An expansive view of commerce includes all phases of business.
b. What does ―regulate‖ mean?
i. 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 governments existed. The sole check on
Congress is the political process, not judicially enforced limits to protect the states.
1) RULE: The Court sets three internal limits on Congress‘ power to regulate commerce. (1) The activity must be
commerce. (2) The commerce must be among the states. (3) Congress must be regulating the commerce or
setting the rules for it (not prohibiting the commerce).
c. What does ―among the states‖ mean?
i. Among the states includes a state‘s internal concerns that affect other states (ie. NY state licensing of ferry boats to
NY)
ii. However, completely internal, or intrastate activities ARE NOT covered by the Commerce Power.
10. Gibbons v. Ogden:
a. case involving a ferry boat operator, given an exclusive license by the state of NY to run a ferry from NYC to NJ, filed suit
when a competing boat began to operate a similar service in the same state. The court held that the central issue to this
case is commerce and Congress has been given the exclusive power to regulate commerce. Therefore the state of NY did
not have the right to override that power by giving the license to run the ferry between NYC and NJ.
11. Hammer v. Dagenhart:
a. case involving a father whose children‘s working hours were limited by a federal child labor act sought an injunction
against the enforcement of the act and any restriction by the government on his children‘s hours. The law was passed to
create a level playing field (some states had restrictions on child labor, others did not). The court held that Congress‘
power to commerce power does not include the power to forbid certain commerce from moving interstate (Congress
banned products who were produced in states who didn‘t obey the child labor laws).
b. The court held that commercial activities that occur wholly within the boundaries of an individual state and do not affect
other states cannot be regulated by Congress under its commerce power. The dissent argues that this falls clearly within
Congress‘s commerce power because it involves the carriage of certain goods (those produced by child labor) in interstate
and foreign commerce.

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 and foreign commerce.
12. Three Categories of Activity that Congress may regulate under its Commerce Power (Wickard)
a. The use of channels of interstate commerce
i. Channels are things which commerce travels
a) Example: waterways, airways, virtual pathways of commerce (internet), stockyards.
b. The instrumentalities of interstate commerce or persons or things in interstate commerce, even though the threat may
come only from intrastate activities.
i. Instrumentalities are things on which commerce moves.
a) Example: boats, planes, trains, people, virtual things (Internet)
c. Activities having a substantial relation to interstate commerce
i. Activities having a substantial relation are activities that are regulated that don’t directly affect interstate commerce,
but substantially indirectly affect it. There are two types of activities that have an indirect substantial relation:
a) Economic Activity: Intrastate economic activity that Congress seeks to regulate as a means to some commerce
clause end.
i) Example: Establishing working conditions, minimum wages, maximum hours, etc.
ii) These activities are subject to a rational basis test: if there is a connection that SOME rational person could
see, then there is a rational basis. If it is rational to find a basis for the regulation, then Congress’s action is
constitutional. (This is broad, so Congress basically has unlimited power over substantially related
activities).
b) Non Economic Activity:
i) Example: Criminal statutes, child support statutes, etc.
ii) Substantial effects test: Congress must prove that the non-economic activity being regulated has a substantial
economic effect on interstate commerce. (Must have nearly virtual proof of some substantial effect on IC for
the law to pass constitutional examination. This is very hard to pass).
13. The means chosen by Congress must be reasonably adapted to the legitimate end.
a. Wickard v. Filburn:
i. ∏ is a farm who contested a Department of Agriculture wheat production quota as unconstitutional contending that it
goes beyond the reach of the Commerce Clause. The court held that although an activity is local and may not be
regarded as commerce yet, it may be regulated by Congress under the Commerce clause if it exerts a substantial
economic effect on interstate commerce, regardless of whether the effect is direct or indirect.
ii. The Court‘s holding is based upon a cumulative effects/aggregation test – though the individual effect of a state may
be trivial by itself, it is not enough where, taken together with the effects on others similarly situated, it is far from
trivial.
14. NLRB v. Jones & Laughlin Steel Motel:
a. ∆ is a large steel employer who refused to follow an order from ∏ (gov‘t labor agency) to cease firing and discriminating
against employees who participated in union activities. ∆ filed suit to challenge the statute. The Court departs from the
direct effects test and upholds the constitutionality of an act that safeguards employee bargaining power, self-
organization, etc.
b. The Court holds that Congress can regulate an activity as long as it has a close and substantial relationship to interstate
commerce (even if the activity itself is intrastate).The court held that even intrastate labor practices may affect commerce,
thereby giving Congress the authority to regulate labor practices under the commerce clause. Congressional power to
protect interstate commerce is not limited to transactions which are an essential part of the flow of interstate commerce,
and may be used to reach activities that are deemed to merely burden or obstruct interstate commerce. Dissent argued
that any effect on interstate commerce would be too remote.
15. United States v. Darby:
a. Fair Labor Standards Act set up comprehensive legislative scheme for preventing products produced in violation of wage
& hrs requirements from being introduced into interstate commerce (similar to Hammer facts). ∆ was indicted for
manufacturing lumber in violation of the act. ∆ shipped the manufactured lumber in interstate commerce. The court
overruled Hammer and said that Congress may regulate (through the Fair Labor Standards Act) because the good were
shipped in interstate commerce (doesn‘t matter how they got there).
b. The case established the rational basis test, that so long as you can find some rational connection, Congress can regulate
intrastate activities if the activity somehow effects interstate commerce.
c. This case also established that the 10th Amendment does not necessarily limit Congress‘s commerce power but the 10TH
AMENDMENT IS ―BUT A TRUISM‖ THAT DECLARES RELATIONSHIP Between NAT‘L & STATE GOVT. It does not
deprive fed. govt. of its power to resort to any means appropriate and plainly adapted to the end (held to rational test) of
exercising its granted power of regulating commerce. It is a truism that Congress must have constitutional authority to
act.
d. HYPO: You want to fly a small commuter plan form one place to another. You are never going to cross state lines. Does
Congress have the authority to ground you?
i. Under Gibbons, NO. This is intrastate, instead of interstate. IT was to be ―among the states.‖
ii. Later cases somewhat changed this. Is this ―among the states‖ assuming it is commerce and congress is regulating? If
the plane crashed into a nuclear plant, or flew into another state and crashed, this would effect interstate commerce.

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 the plane crashed into a nuclear plant, or flew into another state and crashed, this would effect interstate commerce.
16. Congress can protect interstate commerce if the thing they are regulating is intrastate commerce.
a. HYPO: FAA institutes enhanced security procedures for flights including those that don’t cross state lines.
i. The effect on interstate commerce from the intrastate activities is great.
ii. Airplanes, boats, trains, cars, etc. carry goods. They are kind of like carriers of commerce.
17. If Congress wants to regulate interstate commerce, it can do so by regulating things that aren’t even
commerce.
a. HYPO: Suppose FEA refuses planes to fly unless they have safety devices. This requires unionization of all aviation
facilities.
b. Can Congress do this under the commerce clause?
i. Darby: Congress can pass laws that are necessary and proper to put into effect their economic policy.
If their policy is to make planes safer, then Congress can unionanize so that there is standardization.
c. HYPO: Suppose FEA requires registration of all pilots at all schools and each pilot has to call the FEA when they decide to
fly. A self-taught pilot wants to fly hand glider off of his property. Does the hand glider fall w/in the Wickered wheat
case?
B. FEDERALISM’S PAST AND FUTURE
1. There are three areas where the courts have considered the meaning of “commerce among the states” and held an expansive
view of Congress’s power by examining laws under a rational basis test:
2. Civil Rights Laws
a. Heart of Atlanta Motel:
i. Civil Rights Act of 1964 enacted under commerce power, prohibited private employment discrimination based on
race, gender, or religion and forbids racial discrimination by places of public accommodation, such as hotels and
restaurants.
ii. ∏ advertised nationally, had nationwide guests and was located near an interstate. ∏ discriminated against black
patrons. The court upheld the CRA 1964 as constitutional because there is a rational basis for Congress‘s
determination that discrimination burdens interstate commerce (it limits black people‘s travel b/c they are unsure of
where they may stay when they travel)
b. Katzenburg v. McClung:
i. similar facts as Heart of Atlanta hotel, however this involves discrimination at a BBQ joint. The Court takes a highly
deferential position regarding review of Congressional legislation by implementing a rational basis review – the
Court‘s ―investigation is at an end‖ when it finds that legislators ―have a rational basis for finding a regulatory
scheme.‖ (i.e. if there is a single rational human being that can see a connection, then it is o.k. The single rational
human being doesn‘t have to be in Congress)
3. Non-economic and Commerce Clause
a. U.S. v. Lopez:
i. case involving a federal statute that prohibits a firearm within a certain distance from a school. The Court holds the
Gun-Free School Zones Act to be UNCONSTITUTIONAL (1st time since Jones & Laughlin to strike down an act under
CC). Opinion points out that Congressional findings made no attempt to show that guns in school zones have an
effect on commerce. (no direct or indirect relationship). Rehnquist (Majority):
ii. There has to be a distinction b/t economic and non-economic activity. Guns in school zones do not have a substantial
effect on commerce (just affecting commerce is not enough). To hold otherwise would be piling ―inference upon
inference.‖
iii. The court reiterated the three categories in which Congress can regulate commerce (f i-iii). Activities falling into one
of these categories are governed by a Rational Basis Standard. Activities NOT falling w/in one of these categories is
subject to a higher standard, but the Court does not say what this is – just suggests that it would consider whether
Congress included some sort of jurisdictional nexus (i.e. ―no guns that have passed in IC allowed in school zones‖);
whether legislative findings showing substantial effects; and whether the activity was criminalized (since matters of
crim law are normally state matters). The court is saying that the statute regulates possession and not sale.
b. Lopez Dissents:
i. Breyer: There is a rational basis for this act because of its cumulative effect on commerce – guns affect learning,
which affects ability to get jobs, which affects commerce. Requiring Congress to deliberate would violate separation of
powers by giving Congress judicial power.
ii. Souter: Rational basis is the test, and a rational person could‘ve made the connection.
iii. Thomas: If the activity is not economic, it‘s not part of the grant, irrespective of ―substantial effects.‖ If you can infer
that almost anything is economic, why would the Constitution have enumerated powers (internal limits argument)?
iv. Kennedy: There are limits to the commerce clause, and this is one b/c no economic connection/nexus. States regulate
local activities, and this is a local activity. The federal regulation would upset the fed/state balance. Kennedy talks
about the 4 devices for maintaining balance: Separation of powers, Checks & balances, Judicial review, Federalism.
The structural device of federalism keeps Congress from regulating this activity – the means are wrong (external
limits argument).
c. Effects of Lopez: The majority stated that there has to be a distinction b/t ECONOMIC AND NONECONOMIC
THINGS. (Case stated that even Wickard (wheat case), which is perhaps the most far reaching example of commerce
Clause authority over intrastate activity, involved economic activity in a way that possession of a gun in a school zone does

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 Clause authority over intrastate activity, involved economic activity in a way that possession of a gun in a school zone does
not).
d. HYPO: Could Congress prescribe the curriculum for schools?
i. *Following the dissent, for example, there is a great need for scientists, therefore Congress wants to proscribe more
science classes.
ii. **It is pretty clear after Lopez that this won't work. Regulating curriculum is not an economic activity.
Teaching is not an economic activity even if it leads to economic activity.

a. HYPO: Could Congress regulate curriculum in a vocational/technical school? Suppose Gov says all technical high
schools and colleges must have the same curriculum? If Congress gives out money, it can do all sorts of things that it
couldn't normally do. If Congress didn't give money, then it couldn't do anything.
i. -Would Lopez allow Congress to do this? No. Lopez doesn't let Congress regulate noneconomic activities.
ii. -Is there any way out of this? What if Congress said it would regulate the curriculum for vocation/technical school
that consumes articles (goods and services) that have passed through interstate commerce? NO. Everything basically
is moved through interstate commerce. The teaching is still NOT economic.
b. HYPO: Congress passes a law that it shall be a federal crime to disrupt the problem of a reproductive health facility?
They do charge fees and they do move goods that have gone through interstate commerce. If they shut down, it will have
an impact on economic process. You CANNOT use the words "direct" and "indirect" or "remote" anymore.
c. PROBLEM: If we are regulating the health clinic, there are economics everywhere. If we are regulating the protest, where
is the economics? It is very difficult to keep your eye on what is being regulated!
d. U.S. v. Morrison:
i. The Court struck down the Violence Against Women Act, reiterating that only economic activities are subject to a
rational basis test. Here, the Court found that the Act regulated non-economic crimes, and held that Congress simply
cannot regulate these under the commerce clause. Morrison rejects the notion that Congress can supply that facts as a
rational basis in legislative findings – it is up to the Court to decide.
ii. Effects of Morrison:
1) Wickard aggregation principle may no longer work w/ regard to non-economic activities (Wickard & New
Deal may only apply when activity is economic).
2) Reinvigorates federalism as a method of interpretation using external/internal limits – principles of federalism
(national v. local)
3) In doing an analysis of a statute look at
a) Internal limits: Is this an economic activity w/in the meaning of the statute?
b) Next, look at whether it falls w/in one of the 3 categories.
c) Then look at external limits: Is this an activity that the state should be regulating
1. Raich:
a. CA passed a law that permits weed for medical purposes, the Federal Controlled Substance Act prohibits production,
distribution, or possession of controlled substances, including weed. Federal law enforcement officials enforced by the
federal statute, seized and destroyed the medical weed belonging to the ∏. They brought suit in federal court alleging that
Congress had no constitutional authority to regulate intrastate, non commercial cultivation and possession of weed for
personal medicinal purpose.
b. The court first looked at the totality of the statute (prohibiting all controlled substances) and held that if Congress had the
power to regulate the whole category, then the court would not cut out specific instances. The court held that under the by
passing the federal statute, Congress exercised a necessary and proper means to regulate interstate movement of drugs.
This goal is impaired if a residents of a state are allowed to grow it at home where it has the potential (no matter how
small) of entering the market.
c. Dissent: The state should be able to protect its citizen‘s health and the state should be able to regulate it on a state level by
decrimalizing it on a state level and let the federal government enforce it on federal charges.
2. FEDERALISM LIMITATIONS: The 10th Amendment
1. STATE REGULATION OF COMMERCE: The “Dormant Commerce Clause”
A. Dormant Commerce Clause:
1. State and local laws are unconstitutional if they place an undue burden on IC.
2. **DCC is NOT in the Constitution—it has been inferred from Constitution‘s grant of IC power to Congress
3. TWO FUNCTIONS OF INTERSTATE COMMERCE CLAUSE:
a. Authorizes congressional power
b. Limits state and local regulation (Dormant Commerce Clause)
4. WAYS TO CHALLENGE LAWS DISCRIMINATING AGAINST OUT-OF-STATERS:
a. Commerce Clause
b. Privileges and Immunities Clause (Art. VI, § 2)
c. Equal Protection Clause
5. --QUICK TEST IN DORMANT COMMERCE CLAUSE ANALYSIS:

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 5. --QUICK TEST IN DORMANT COMMERCE CLAUSE ANALYSIS:
a. Law Discriminating b/t in-staters and out-of-staters: likely to be unconstitutional
i. UNLESS there is an important local govt. purpose for the law
b. Law NOT Discriminating b/t in-staters and out-of-staers: likely to be upheld
i. Presumption is in favor of upholding law; Law only invalidated if its burdens on IC outweigh its benefits.
1) HISTORICAL BACKGROUND
6. Congress has exclusive IC power and NO IC power is left to the states.
a. Gibbons v. Ogden:
1) addresses question of states’ IC power obliquely. It says that if Congress is given a power, then Congress is has that
power EXCLUSIVELY. Marshall would have struck every DCC cases today on this theory. But, this was only dictum
in the case that was not necessary to the outcome, so it is not the rule
7. States retain SOME power to pass laws that affect IC under their Police Power to regulate health & welfare.
**States never gave up their power to regulate health & safety when they gave up their IC power
a. --FOCUS: Purpose behind state’s exercise of power
8. Wilson v. Blackbird Creek Marsh:
a. Court upheld state law that dammed a navigable creek even though dam was an IC obstacle. State argued dam was
necessary b/c of property values, mosquitoes, flooding. US SC agreed that state wasn’t regulating IC but was only
providing for the public welfare.
9. **Police Power: States can only regulate if there are really important local reasons for regulation.
B. MODERN DORMANT COMMERCE CLAUSE LAW
1. FIRST Q: Has Congress preempted or authorized the law?
a. YES: ●Preempted: If Congress has acted, then federal law preempts state or local law, and the state/local law is
unconstitutional.
i. **Supremacy Clause: Federal law is supreme when contrary to a state law
ii. ●Authorized: Congress can approve state/local action that would otherwise violate IC.
b. NO: If Congress has NOT acted, then move to second inquiry.
2. SECOND Q: If Congress HAS NOT acted, does the state or local law excessively burden IC?
3. Facially Discriminatory Laws: ―RIGOROUS SCRUTINY‖ TEST FOR ―EXCESSIVELY BURDEN‖
a. To prove that its law does NOT excessively burden IC, a state must prove:
b. 1. That it enacted the law for an important local purpose
c. Important purpose: public health & safety; NOT just b/c state is trying to protect its own resources, AND
d. Law was the Least Restrictive Means for achieving that important local purpose.
i. Least Restrictive Means: State must show its means used were the ONLY means that would have worked.
4. Non-Discriminatory Laws: ―BALANCING TEST‖ FOR ―EXCESSIVE BURDEN‖:
5. 1. Economic Protectionism is virtually per se unconstitutional (worst kind of IC ―sin‖)
a. **States can‘t regulate to protect their own goods against competition from out-of-state goods
b. ●TEST FOR ―EXCESSIVE BURDEN‖: RIGOROUS SCRUTINY
i. ●For a law to be fairly viewed as directed toward legitimate local concerns w/ only incidental effects on IC, there must
be a reason, other than the origin of the goods, to treat the articles of commerce from outside the state differently
from those from inside the state.
c. Ex: Cases of Obvious Economic Protectionism
i. Philadelphia v. NJ (1978):
1) Garbage case; NJ prohibited importation of most garbage from outside NJ. Law is economic protection b/c it
overtly blocks the flow of IC at NJ borders. Even if NJ is trying to decrease wastes imported into NJ (important
local purpose), this may NOT be accomplished by discriminating against articles of commerce coming from
outside NJ unless there is some reason, apart from their origin, to treat them differently.
2) There is no reason for treating out-of-state garbage differently from in-state garbage, so law blocking out-of-state
garbage violates IC clause.
3) Purpose of Law: Decreasing wastes. This is OK. Means used to achieve that purpose is problematic.
4) What could NJ do? Ban inherently dangerous products from out-of-state that are inherently dangerous in a way
that in-state products are not. Garbage is equally dangerous, whether in-state or out-of-state, so this wouldn‘t
work there.
5) Dean Milk Co. v. City of Madison, WI (1951):
a) City passed ordinance making it unlawful to sell milk as pasteurized unless it had been processed and bottled
at approved pasteurization plant w/in 5 mile radius of city square. Dean: IL co. distributing milk in IL & WI
w/ plants more than 5 miles from square; so city denied its license to sell milk in city. US SC: This violated
IC b/c law discriminating against IC for economic protectionism. Other reasonable & adequate alternatives
were available for it to achieve its objectives.

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 d. Ex: Seemingly neutral law passed for economic protectionism reasons:
i. C & A Carbone, Inc. v. Town of Clarkstown, NY (1994):
1) City passed ordinance requiring all solid waste to be processed at designated transfer station before leaving city.
Purpose of the ordinance: to collect processing fees to pay for cost of facility. Carbone violated ordinance by
shipping waste to other states for processing. US SC: law discriminated against IC b/c it denies out-of-state
firms access to the local market. (Law violates IC even though it applies equally to local, in-state, and out-of-state
processors)
6. 2. Discrimination against IC by a law that is on its face or in its effect discriminates against IC
a. TEST FOR “EXCESSIVE BURDEN”: RIGOROUS SCRUTINY
i. Facial Discrimination: Ex: Baitfish cases
b. Ex: Law Struck b/c no least restrictive means
i. Hughes v. OK (1979):
1) can’t export certain baitfish seined or procured in OK waters. Statute unconstitutionally discriminates against IC
b/c there are other nondiscriminatory alternatives which would fulfill OK’s purpose in having enough minnows
for its state.
c. Ex: Law Upheld as least restrictive means: **This is VERY rare—only case where facially discriminatory law affecting IC
is upheld
i. ME v. Taylor:
1) can’t import certain baitfish into ME b/c it would harm the environment by exposing native species to parasites &
non-native species. US SC: The ONLY way to prevent this is by banning all nonnative species, US SC said law is
OK
d. ●Discriminatory Effect/Practical Effect Discrimination: Statutes are neutral on their faces, but they discrimination
against IC in their application by making IC more expensive or more difficult for out-of-staters.
i. *Same outcome as facial discrimination cases by using same test of rigorous scrutiny.
e. -Ex: Imposing standards designed to affect only out-of-staters
i. Hunt v. WA State Apple Advertising Commission (1977):
1) NC law said apples can‘t have any grade other than USDA grade or no grade at all. WA apples had higher
standards & grades than USDA. NC law effectively kept WA apples out of NC b/c WA apples sold to NC would
have to be re-labeled and re-packaged w/o grades.
2) NC state apples didn‘t have to be re-labeled. Law made WA apples more expensive than NC apples. US SC said
law impermissibly affected IC b/c law was not the least restrictive means of promoting NC‘s interests in
protecting its citizens from confusion & deception in apple market.
ii. Ex: Using Taxing & Spending power in a way that affects IC violates IC clause
iii. West Lynn Creamery, Inc. v. Healy (1994):
1) MA taxed all milk sold by dealers to MA retailers and distributed entire assessment to MA dairy farmers. US SC:
tax alone and subsidy alone are OK, but Tax + Subsidy drives down cost of MA milk and makes it more
competitive.
2) Putting Tax & Subsidy together is economic protectionism situation where out-of-state producers are subsidizing
in-state producers. **This might also be under Economic Protectionism, too.
f. Ex: Case that passed the strictest scrutiny test: (arguments that case was wrongly decided)
i. Exxon Corporation v. Governor of MD (1978):
1) MD statute prohibited oil producers from owning a retail gas station. There are no oil producers in MD, so the
only persons burdened by law are out-of-state oil producers. US SC upholds this saying it is NOT practical effect
discrimination b/c commerce affected is NOT the interstate petroleum market but the in-state retail market.
2) Effect on in-state market: Statute makes oil products in MD higher than in neighboring states. MD citizens alone
are bearing the burden of the law. If they don‘t like it, they can change the law themselves. Out-of-state
companies can still sell the same volume of gas, but they just have to sell it to in-state retailers.
7. 3. Non-discriminatory law: treats in-staters and out-of-staters alike
a. -TEST FOR ―EXCESSIVE BURDEN‖: BALANCING TEST: If Burden on IC is clearly excessive in comparison to Benefits
to state, the statute violates IC.
i. ●Non-discriminatory statute applied evenhandedly to effectuate legitimate public interest w/ only incidental effects
on IC will be upheld UNLESS the burden imposed on IC is clearly excessive in relation to the putative local benefits.
ii. ●Extent of burden that will be tolerated depends on the nature of the local interest involved and on whether that
interest could be promoted as well by a statute w/ a lesser impact on IC activities.
1) The more important the local interest, the greater the burden can be
2) Conversely, the greater the burden, the more important the local interest must be to justify it
iii. ●State doesn‘t have to show the law it chose was the ONLY way to accomplish its goal, but just that it was a better way
of accomplishing the goal
b. TWO KINDS OF BURDENS:
i. 1. Quantitative: raises costs of doing business or decreases volume

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 i. 1. Quantitative: raises costs of doing business or decreases volume
ii. 2. Qualitative: doesn’t necessarily reduce volume, but the burden sounds bad
1) -Ex: Although states are limited by IC clause in legislating in areas of legitimate local concern, court will use a
balancing test to determine if the burden on IC is clearly excessive in relation to putative local benefits.
iii. -CASE WHERE BURDEN IS NOT CLEARLY EXCESSIVE IN RELATION TO LOCAL BENEFITS:
1) MN v. Clover Leaf Creamery Co. (1981):
a) MN banned retail sale of milk in plastic containers but allowed sale in other containers such as cartons.
Purpose stated by legislature involved env’l & trash issues. DC: found the actual basis for act was to promote
econ. interests of pulpwood industry at expense of plastic industry and declared act unconstitutional.
b) US SC used balancing test and found burden is not excessive b/c most dairies package their products in more
than one type of container, so they are not inconvenienced in packaging differently for MN and b/c there is
no reason to suspect gainers from statute are MN firms. [Even though law benefits pulpwood industry at
expense of plastics industry. MN has huge pulpwood industry and small plastics industry.]
iv. CASE WHERE BURDEN IS EXCESSIVE IN RELATION TO LOCAL BENEFITS:
1) Pike v. Bruce Church, Inc. (1970):
a) AZ law required all cantaloupes grown & sold in AZ be packed in regular compact arrangement in closed,
standard containers approved by AZ state supervisor. Supervisor issued order prohibiting company from
transporting uncrated cantaloupes from its AZ plant to its CA plant. US SC: Burden on IC is greater than
benefits to state, so law violates IC clause.
i) Burden: Company would have to build a packing plant in AZ. **BIG burden
ii) Benefit: packing cantaloupes in a certain way to guarantee safety in transport
v. HYPOS:
1) AR passes law prohibiting sale of rice except that grown in AR
a) This is unconstitutional economic protectionism
2) AR passes law taxing rice imported and re-distributes to AR farmers
a) This is unconstitutional economic protectionism (like West Lynn Creamery)
3) AR passes law establishing safety standards for all rice sold in AR. Growers from other states argue that
standards only apply in AR and in no other state. AR rice growers have always complied w/ these standards. The
only persons who have to change their behavior are out-of-state producers.
a) --This is practical effect discrimination (like Hunt—apples case)
b) So, rigorous scrutiny test is applied:
c) 1. Legitimate state Goal: Ensures to residents that the rice was produced safely
d) 2. BUT: there are other ways to achieve the same goal, so AR loses on this part of the argument
4) AR passes law requiring that every bag of rice have its state of origin stamped on the bag.
a) Practical effect discrimination? NO. It does not make product prohibitively expensive; does not make AR
rice look better than other states‘ rice b/c all are labeled. Thus, it is not practical effect discrimination.
b) Passes Balancing test? YES.
c) Burden: can‘t cost too much to label rice that way; it is relevant that they already do it anyway
5) AR requires all rice sold to be placed in standardized boxes.
a) Balancing test: it likely does NOT pass test if it requires growers to do something they don‘t normally do
(like Bruce Church cantaloupe case.)
b) It might pass if it is something they do anyway (like Clover Leaf Creamery case
C. EXCEPTIONS TO DORMANT COMMERCE CLAUSE REQUIREMENTS
1. Where Congress approves the state law
a. **This applies even if the state law would clearly be unconstitutional under IC clause b/c Congress has plenary power over
IC.
i. --LIMITATION: Congressional approval of state legislation that violates Equal Protection or the Privileges &
Immunities Clause can still be challenged.
2. Market Participation Exception: where state is a participant in an economic market, it may favor its own citizens in
dealing w/ govt.-owned business and in receiving benefits from govt. programs.
a. **State may choose to whom it sells or buys its products just like regular market participants
b. Reeves, Inc. v. Stake (1980):
i. SD built cement plant to aid SD‘s cement shortages. It did well and eventually sold to persons outside SD, including
Reeves. Faced w/ plant difficulties that slowed production and increasing construction demand, SD reaffirmed its
policy of supplying SD‘s needs and decided to supply all of its SD customers first, then contract commitments, w/
remaining volume given on first-come, first-served basis.
ii. Reeves did not have K and sued saying SD plant was impermissible economic protectionism. US SC: SD is acting as a
market participant and can choose with whom it wants to do business, like an ordinary business.
3. LIMITS ON MP EXCEPTION:

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3. LIMITS ON MP EXCEPTION:
a. A state which impose conditions on the Post-sale use of a product it sells is acting as a REGULATOR and not as a Market
Particpant.
i. **Acting as a regulator is NOT allowed under MP exception to DCC, so it violates IC
ii. South-Central Timber Devo., Inc. v. Comm’r, Department of Natural Resources of AK (1984):
1) AK department of Natural Resources published notice of sale that it would sell raw timber to any company that
would use the timber for mfr w/in the state of AK. S-C Timber had no AK processing plant and sold almost
exclusively to Japan. US SC: AK is impermissibly restricting the post-purchase use of the it is selling. Thus, it is
impermissibly acting as a regulator and not as a market participant.
b. “Market” is defined NARROWLY when the MP exception is used to justify a law
i. Whatever specific business that state is doing is its “market”.
ii. -State wants to define the market broadly so it can regulate on down the line. Other market participants want it
defined narrowly so state can’t regulate on down the line.
1) Ex: if state is in concrete market, then it is considered in concrete market and not in any before or after market
involving concrete
2) Ex: if state is producing timber, it is in timber production market, not in any market refining it.
iii. POLICY: A Private actor who tried to regulate refining market would be violating antitrust laws.
c. Privileges and Immunities Clause Exception
i. Art IV, § 2: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several
States
1) P&I EXCEPTION PROHIBITS DISCRIMINATION BY STATES AGAINST CITIZENS OF OTHER STATES.
2) States may NOT discriminate against out-of-staters regarding
a) Fundamental Rights
b) Important Economic Activities Ex: Right to have job & earn living.
ii. Ex: P&I successfully used to strike down laws restricting economic activities
1) Toomer v. Witsell (1948):
a) US SC declared unconstitutional a SC law requiring nonresidents to pay a license fee of $2,500 for each
commercial shrimp boat, but residents only had to pay a fee of $25.
2) United Building & Const. Trades Council v. Mayor and Council of Camden (1984):
a) US SC declared unconstitutional a city’s ordinance requiring that at least 40% of employees on city projects
had to be city residents.
3) SC of NH v. Piper (1985):
a) US SC declared unconstitutional a NH law that required residence in NH to be admitted to NH bar b/c this
impermissibly affected a person’s right to work
iii. Ex: P&I challenge NOT allowed to strike law b/c law did not discriminate against economic rights or constitutional
rights.
1) Baldwin v. Fish & Game Commission of MT (1978):
a) MT law charged out-of-staters much more for elk hunting license than it charged in-staters. US SC rejected a
P&I challenge saying elk hunting was not a constitutional right or an important economic activity.
4. DIFFERENCES B/T P&I CLAUSE AND DORMANT COMMERCE CLAUSE:
P&I Clause Dormant Commerce Clause
1. Can be used only if there is 1. Can be used to challenge state & local laws burdening IC, regardless of
discrimination against whether they discriminate against out-of-staters or not.
out-of-staters
2. Corporations & Aliens can NOT sue 2. Corporations & Aliens CAN sue under Dormant Commerce Clause
under P&I clause b/c they are NOT
a.
“citizens”
3. Congressional Approval cannot justify a 3. Congress can Approve a law that would otherwise violate the DCC
violation of P&I clause.
4. Market Participant exception does NOT 4. Market Participant exception allows states to favor their own citizens in
apply receiving benefits from govt. programs and in dealing w/ govt. owned
businesses.

5. DORMANT COMMERCE CLAUSE and PRIVILEGES & IMMUNITIES CLAUSE: Which applies?
a. ●Dormant Commerce Clause: has Market Participant Exception that applies when state is a participant but not a
regulator. Exception allows a state to discriminate.
i. Ex: AK owns timber. It can decide that it will only sell to AK residents. This is OK under market participant doctrine
b. ●Privileges & Immunities Clause: ALWAYS applies, whether state is a regulator or participant

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 b. ●Privileges & Immunities Clause: ALWAYS applies, whether state is a regulator or participant
i. Ex: In AK timber situation, state would have to show some substantial reason for why it didn’t want to sell to out-of-
state residents
1) Potential reasons: conserve resources, make sure economic benefits from state timber ownership goes to AK
citizens who can re-sell it to out-of-staters if they want to do so, etc.
II. THE DISTRIBUTION OF NATIONAL POWERS: Separation of Powers
A. INHERENT POWERS OF PRESIDENT
1. Presidential Power comes from Art. II. BUT: Art. II begins differently than Art. I:
a. Art. II § 1: ―The executive power shall be vested in a president of the United States.‖
b. Art. I § 1: All legislative power ―herein granted‖ is given to Congress. Language limits Congress‘s power to that ―herein
granted.‖ Art. II doesn‘t have this ―herein granted‖ type of limitation
2. Constitutional debates: whether President had inherent powers or whether his powers were limited by Art. II
a. Madison: President‘s powers are limited by Constitution. Differences in Art. I & II wording is due to question of whether
there would be one president or a committee. Written constitution would have no meaning if President had inherent
powers, too.
b. Hamilton: President has inherent powers to do executive functions. This is b/c he can act more quickly & efficiently on
nation‘s behalf than can Congress
i. Ex: Constitution is silent on national self-defense. BUT: President has power to defend us immediately when
attacked, then can ask Congress to declare war
ii. Ex: LA Purchase: Jefferson bought it even though nothing in constitution said president could acquire property
c. Hamilton‘s view won out: President has some inherent powers b/c of nature of presidency
3. Youngstown Sheet & Tube Co. v. Sawyer (1952):
a. Steel companies were about to go on strike. On night before they were to begin striking, Pres. Trumann ordered Secretary
of Commerce (Sawyer) to seize the mills and continue operating them so as not to interfere w/ the Korean war effort.
b. Next morning, President sent a message to Congress reporting his action, but Congress did nothing. Congress had already
decided issue in Taft-Hartley Act where Congress rejected an amendment that would have authorized govt. seizures in
cases of emergency. T-H act provided for mediation, conciliation, investigation by boards of inquiry, public reports,
cooling off period.
Black Douglas Jackson Frankfurter Vinson
(majority) (concurrence) (concurrence) (concurrence) (dissent)
Inherent NO: Pres. must YES: Unless they YES: As long as action YES: As long as action is YES: inherent power is
Pres. have Const. or interfere w/ is NOT prohibited by NOT prohibited by Const. broad and is only limited
Power? statutory function of Const. or statute or statute. It helps if action by the Const.
authority to act another branch (see more below) is long-standing power
(see more below)
Rule Pres. can‘t Pres. can‘t 3 zones of power: This If there is a history of the Inherent powers can be
legislate. interfere w/ other is under middle power being exercised, executed in temporary
branch‘s powers section: constitution & Pres. can do it so long as manner if done to execute
statute are silent Cong. doesn‘t disallow it. Cong.‘s laws
Once Cong. rules, though,
Pres. can‘t do it anymore
Can Pres. NO: No NO: Pres. can‘t NO: Pres. is acting w/ NO: No history of this AND YES: b/c Pres. is acting
Seize Mills? statutory or seize b/c he has lowest level of power b/c Cong. said Pres. w/in his emergency
const. power no taxing power to here b/c he is acting couldn‘t do it in Taft- powers and b/c it is
allow him to do raise $ to against Cong.‘s will Hartley Act. temporary; is acting w/in
it compensate for power to conduct war
taking land. effort and to regulate
prices
BUT: If Cong. says to
stop, Pres. must stop
Can Pres. NO: This is not NO: This would MAYBE: Depends on MAYBE: Depends on YES: Unless Cong. says
Refuse To an exec. power; interfere w/ the facts of case. This whether Pres. has been Pres. can‘t do it. Once
Spend $ refusing to Cong.‘s spending is in the mid-level of allowed to refuse to spend Cong. says to stop, it has
Cong. Has spend would be power Pres‘s power b/c he is in the past; # times it has to do so.
Allocated? legislating. acting only w/in his been allowed, etc.
own powers

i --THREE ZONES OF PRESIDENTIAL POWER: (Jackson‘s Concurrence: very popular analysis)

a) MAXIMUM POWER: When Pres is acts according to express/implied Congressional authorization b/c his power
includes all of his own power + all of Congress‘s powers delegated to him
A **Congress & President agree here

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 A **Congress & President agree here
B President’s power = Power he possesses in his own right + Powers Congress may delegate
1 Ex: Congress has declared war and President is acting as Commander in Chief.
2 This is greatest power b/c it is combining Pres.’s C. in C. Power + Congress’s war powers
i MEDIUM LEVEL OF POWER: When Pres. acts in absence of either a congressional grant or denial of authority, he can only rely
on his own independent powers, but there is a “zone of twilight” in which P&C have concurrent authority, or in which its
distribution of power is uncertain.
A **Congress hasn‘t said either way here
B ―Zone of Twilight‖: Congress hasn‘t yet legislated on the issue & Const. is silent, but something has to be done. Whether Pres.
can do something depends on the circumstances. .
C President’s power = Power he possesses in his own right + “Zone of twilight”
1 Ex: Washington issuing Neutrality proclamation; Jefferson buys LA purchase
i LOWEST LEVEL OF POWER: When Pres. acts against the expressed or implied will of Congress, he can only rely on his own
powers minus any constitutional powers of Congress over the matter
A **Congress & President disagree
B President’s power = Power he possesses in his own right – Congress‘ Const. Powers over matter
C Only way for Pres. to win here is if his powers are enough to do it despite Congress‘s statute
1 Ex: If, as Commander in Chief, Congress said that it wanted President to fight war, but it couldn‘t invade. This would be where
Congress couldn‘t interfere w/ President‘s powers

i --LONG-STANDING PRACTICE MAY INDICATE THAT PRESIDENT‘S ACTIONS ARE OK

A BUT: As soon as Congress has ruled on something, it gets the final say, regardless of whether President has traditionally
exercised this power or not. (Frankfurter‘s concurrence)

1. --TEST FOR SEPARATION OF POWERS PROBLEMS:

1. (Found in Breyer‘s Dissent, but it is a good way to approach S of P issues.)
2. 1. Has Congress given President the WRONG kind of power? .
3. 2. Has Congress encroached on President‘s constitutional power?
4. 3. Did Congress give President too much power?
5. **Answering ―YES‖ to any of these questions makes the bill unconstitutional.

1. D. ADMINISTRATIVE AGENCIES
2. --Chadha & Clinton RULES COMBINED:
3. 1. When Congress is legislating, it must follow Art. I procedures strictly, including Bicameralism & Presentment.
4. 2. When an Administrative Agency is acting under the scope of its power delegated to it by Congress, Bicameralism and
Presentment are NOT required
5.
A. 1. Administrative Agencies do NOT violate Separation of Powers
1. --Administrative agencies: legislate, adjudicate, and execute. Framers did NOT have this in mind.
A. BUT: Congress & Courts have recognized the necessity of these agencies, even though they don‘t respect notions of Separation of
Powers.
1. --Congress creates agency and determines what it can do. It can have all three traditional govt. functions:
A. ●Adjudication: Agency determines whether situation (particular facts of individual claimants) fits general guidelines from
Congress
B. ●Legislation: Agency is authorized to make rules & regulations to implement the program
C. ●Execution: Agency executes its rules & regulations
1. --Congress has tried to come up with ways to limit the powers of these agencies and to retain some control of the agencies, but
most of these efforts have been struck down.
III. 3. Non-Delegation Doctrine as a Limit on Administrative Agencies’ Powers
1. Non-Delegation Doctrine: Congress cannot delegate its legislative power to administrative agencies
A. BUT: This is not taken literally today (last used 65 years ago w/ Schechter Poultry case)
B. TODAY: Congress cannot delegate its legislative powers to an administrative agency UNLESS it provides an intelligible principle
by which the agency can operate.
1. **Most people today consider this doctrine dead. [Scalia & Rehnquist: still think it is alive, though]
IV. 4. Legislative Veto as a Limit on Administrative Agencies’ Powers
1. INS v. Chadha (1983): INS made deportation decisions. Immigrants could apply to suspend his deportation to the Attorney
General, but one house of Congress could pass a bill to ―veto‖ this decision of the Attorney General.
2. --TWO WAYS LEGISLATIVE VETO VIOLATES CONSTITUTION

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 2. --TWO WAYS LEGISLATIVE VETO VIOLATES CONSTITUTION
3. 1. Bicameralism Violation: only one house must pass “legislative veto” bill
4. 2. Presentment Clause Violation: the “legislative veto” decision was not given to President to veto.
A. 5. Restriction on President’s Appointment Power w/ Administrative Agencies
1. ●PRIMARY OFFICERS: Pres.‘s has Appointment Power w/ Senate Confirmation for Ambassadors, Supreme Court Judges,
Department heads, and all other Officers of the United States established by Law;
2. ●INFERIOR OFFICERS: Pres.‘s has Appointment Power Alone w/o Senate Confirmation for inferior officers to lower courts or
department heads (Art. II, § 2)
V. --FACTORS THAT MAY INDICATE SOMEONE IS AN INFERIOR OFFICER: (from Morrison v. Olson)
1. 1. Whether officer can be removed by someone above him in the chain of command
A. Morrison: IC removable by AG
1. 2. Whether the officer has prescribed, limited functions or broad functions
A. Morrison: IC restricted to investigation and prosecution
1. 3. Whether the office is limited in jurisdiction
A. Morrison: IC Jx limited by 1. Limited to certain federal officials suspected of certain serious federal crimes
i. 2. Limited to scope of jx granted by Special Division pursuant to request by AG
1. 4. Whether the office has a limited tenure
A. Morrison: IC has no time limit on tenure, but tenure is limited to the single task.
B. Contrast w/ US Attorney: has broader authority, unlimited tenure, investigates ALL claims
VI. --CONGRESS MAY DESIGNATE THAT JUDICIARY MAY APPOINT INFERIOR OFFICERS
1. Morrison v. Olson (1988): Ethics in Govt. Act allows for appointment of IC to investigate & prosecute high-ranking govt. officials
for violations of fed. criminal laws. AG determines whether there should be an investigation. If AG says there are no grounds for
investigation, Special Division (panel of fed. ct. judges) can‘t appoint IC. If AG says there ARE grounds for investigation, SD
appoints IC. AG can only remove IC for good cause, phys./mental incapacity, or condition substantially impairing performance of
duties. After removing IC, AG must submit report to SD and Judiciary Committees specifying facts & grounds for removal. US SC:
EGA does not violate appointments clause of constitution, limitations of Art. III, or impermissibly interfere w/ president‘s
authority in Art. II in violation of Separation of Powers.
VII. 6. Restriction on President’s Removal Power w/ Administrative Agencies
1. --Constitution is silent as to removal: NO text talks about who can fire executive officials.
2. --TWO CATEGORIES OF REMOVAL POWERS
3. 1. President may remove at will: Attorney General, other department heads & purely executive officials
4. Myers v. US (1926): Pres. fired postmaster (an exec. official) who refused to resign. US SC wrote broadly about removal power,
saying ―the power to remove . . . is an incident of the power to appoint.‖ Pres. has exclusive removal power of executive officials
5. 2. Congress may limit removal powers in some situations if:
A. 1. Removal doesn‘t interfere w/ President‘s power to faithfully execute the laws
B. -Ex: If independence from Pres. is desirable in that office, Congress may limit Pres.‘s removal powers
1. Humphrey’s Executor v. US (1935): Pres. fired Fed. Trade Comm‘r when FTC refused to resign. US SC held that quasi-legislative
or quasi-judicial positions are different b/c some independence of executive control is desired in the execution of their duties.
Thus, Congress can require that removal be only ―for cause.‖
A. -Ex: Congress‘s limit on removal applies even if statute doesn‘t expressly limit Pres.‘s removal power
B. Weiner v. US (1958): Pres. fired member of War Claims Commission who refused to resign. Statute didn‘t say whether or not
Pres. could remove WCC. US SC analogized to Humphrey’s Exec: Cong. had power to limit removal. Cong. ‗s only intended limit
was time limit on WCC‘s existence. WCC independence from Pres. is desirable.
C. 2. There is a line of removal that is traceable back to the president
D. Morrison v. Olson: AG has removal power over IC, but Pres. does NOT. US SC said this is OK b/c it doesn‘t interfere w/ Pres.‘s
duties. If Pres. wants IC removed, but AG won‘t fire IC, Pres. can fire the AG as an indirect way of removing IC. **This is what
Nixon did.
1. --CONGRESS CAN‘T PROHIBIT PRES.‘S REMOVAL POWER, BUT IT MAY LIMIT THE REMOVAL POWER TO INSTANCES
WHERE GOOD CAUSE IS SHOWN.

1. --CONGRESS MAY NOT VEST THE REMOVAL POWER OF OFFICIALS W/ EXEC. POWERS
2. Bowsher v. Synar (1986): Act prescribed max. allowable budget deficit for 5 yrs. If spending exceeded deficit ceiling, Comptroller
Gen. (head of General Accounting office—congressional agency) could impose budget cuts. US SC said this was an impermissible
delegation of exec. power (budget cuts are an exec. function). CG was removable only by Congress. Court said it was
unconstitutional for a person w/ executive power to be totally insulated from Pres.‘s removal power.
3. E. PRESIDENTIAL IMMUNITY
4. --PRESIDENTS ARE ENTITLED TO ABSOLUTE IMMUNITY FROM SUITS FOR DAMAGES BASED ON THEIR OFFICIAL ACTS
A. Nixon v. Fitzgerald (1982): P (Fitzgerald) sought damages from former Pres. Nixon based on Nixon‘s actions while in office. P lost
his job to ―downsizing‖ after he testified unfavorably about the military. US SC said Nixon was entitled to absolute immunity from

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 his job to “downsizing” after he testified unfavorably about the military. US SC said Nixon was entitled to absolute immunity from
suits for damages based on his official acts
1. --REASONS FOR RULE:
2. Constitutional Reasons for Immunity:
3. 1. President has duties as chief executive to make sensitive decisions based on information that should be kept secret; thus, suits
against President shouldn’t be allowed b/c secrets would be divulged
4. Policy Reasons for Immunity:
5. 2. Private suits would raise unique risks to the effective functioning of govt. President would be an easily identifiable target for
civil damages suits.
A. ●Why treat President differently than other government officials: There is only one president at a time and he has a lot to do. He
has a ―unique‖ job that court is talking about.
1. 3. Don‘t want President to be restrained from acting in ways he should as president b/c of fear of suits

1. --PRESIDENT IS NOT ABOVE THE LAW (Marbury v. Madison)

1. --REMEDIES FOR PRESIDENTIAL MISCONDUCT THAT DETER HIM FROM MISCONDUCT:

2. Formal Remedies: 1. Impeachment
i. 2. Injunctive actions against president
3. Informal Remedies: 3. Constant scrutiny by press
i. 4. Vigilant oversight by Congress
ii. 5. Desire to earn reelection
iii. 6. Need to maintain prestige as element of Presidential influence
iv. 7. President‘s traditional concern for his historical stature.

1. --PRESIDENT CAN BE SUED DURING PRESIDENCY FOR UNOFFICIAL CONDUCT

2. Clinton v. Jones (1997): P seeks to recover damages from D for actions that occurred before his term began. US SC: Presidential
immunity does NOT extend to immunity to suits concerning President‘s unofficial conduct. Case remanded to district court.
3. ●Problems w/ Official/Unofficial Distinction:
4. 1. Unanswered question of whether President may be impeached for acts arising from unofficial conduct
5. HYPO: Clinton sued for something that happened prior to office and lies under oath during deposition.
A. Argument that it is an Unofficial Act: act arises from unofficial conduct, lie arises out of unofficial conduct
B. Argument that it is an Official Act: lie occurs during presidency
1. If lying in deposition was an official act, President cannot be sued for it b/c Nixon v. Fitzgerald says President is immune from acts
arising out of official conduct. Impeachment is the only remedy for official misconduct. So, prosecutors had to argue that lie arose
from unofficial act. UNANSWERED QUESTION: Can acts arising from unofficial conduct constitute an impeachable offense?
2. 2. President being jailed invades the exercise of his constitutional powers. Official/Unofficial line falls apart here b/c it doesn‘t
matter if jailing arises from official or unofficial conduct, President‘s powers are still invaded if he is jailed.

1. --SUIT AGAINST PRESIDENT WILL NOT BE POSTPONED UNTIL AFTER PRESIDENCY

A. Exception: National Security Reasons for postponing case
1. Clinton v. Jones: US SC rejects arguments that (1) No precedent allows suit; (2) Policy argument that suit will hamper President‘s
performance of pres. duties; (3) Separation of Powers argument that judiciary would be interfering w/ powers of Executive if
Judiciary allowed the action to proceed.

1. --SEPARATION OF POWERS: Judge‘s Power to Force President to Come to Depositions

2. Three issues:
3. 1. Mere Scheduling Problems: Judge could eventually force President to appear for depositions if President keeps putting them off
b/c of something in his ordinary presidential duties. Ordinary litigant couldn‘t put off depositions forever, either.
A. -No Separation of Powers problem here b/c it is just a scheduling issue and no branch is getting too much power. Court is just
exercising its ordinary powers here.
1. 2. President Declares State of Emergency b/c he is busy exercising powers as Commander in Chief: President is in a unique
position here b/c he is Commander in Chief and the only person who has access to ALL machinery of defense department.
A. -Separation of Powers Problem: Intrusion on time invades a power that only the Pres. can exercise.
1. 3. President Cancels Deposition b/c of ―National Security Reasons‖ that he can‘t disclose:
A. **This is the real Separation of Powers issue

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 A. **This is the real Separation of Powers issue
1. President may have to explain part of his basis for national security, but District Judge has to accept president’s explanation b/c
Judge isn’t in a position to make a decision on national security reasons. President has essentially unreviewable power in national
security realm
A. -Separation of Powers Problem: President is in a unique position here, so court wouldn’t make President come for depositions

1. --SEPARATION OF POWERS HYPOS: Congress’s Power to Pass Laws Concerning Suits against President
2. HYPO: Congress passes law saying President is immune from suits during his tenure in office.
3. Congress may have this power under Necessary & Proper clause.
4. HYPO: Congress passes law saying President can get continuances, but he must give reasons for them.
5. Congress does NOT have this power b/c this would be conditioning how the President uses his powers. Art. II powers create the
reasons for why President should get continuances. This law would be directing how President can use his Art. II powers

1. --UNANSWERED QUESTION: Whether President may be sued for criminal conduct

A. [Nixon: named as an unindicted co-conspirator]
1. Fitzgerald: Under this reasoning that suit would hamper president’s abilities, President can even commit CRIMES if they are w/in
his official conduct.
2. --LIKELY, SEPARATION OF POWERS PRECLUDES INDICTMENT OF PRESIDENT WHILE IN OFFICE. (see jail hypo above)
3. Thus, for President to be tried for criminal acts President must first be impeached & removed from office. Once he is removed
from office, you can pursue criminal penalties.
A. Why? B/c of interference w/ presidential duties.
B. 1. If President was jailed during his presidency, this would seriously interfere w/ his presidential duties in violation of separation
of powers
C. 2. Pardon Problems would arise: President’s pardon power only extends to federal crimes, so he might could pardon himself
there.
D. [If it was a state prosecution, he couldn’t pardon himself b/c his pardon power doesn’t extend to state crimes.]
1. **Even K. Starr concluded that Separation of powers precludes indictment while in office
2. **BUT: Even argument falls apart w/ misdemeanors that don’t come w/ possibility of imprisonment.
VIII. F. IMPEACHMENT
1. --STANDARDS & PROCEDURE: Set out in Constitution:
2. ●Procedure:
3. 1. Impeachment: House has sole power to impeach (Art. I, § 2)
4. 2. Conviction: Senate has sole power to try impeachments. No person is convicted w/o 2/3 vote (Art. I, § 3)
5. ●Standards: High crimes & misdemeanors

1. --3 serious impeachment attempts:

2. 1. Andrew Johnson: for firing Secretary of War in violation of Tenure in Office Act, which deemed the firing a ―high
misdemeanor‖. Impeached, not convicted (conviction vote lost by one vote.)
A. US SC: said Tenure in Office Act violated separation of powers
1. 2. Richard Nixon: House committee voted 3 articles of impeachment, but Nixon resigned before articles could be heard before
entire House
2. 3. Clinton: Impeached, not convicted

1.--TWO MAJOR ISSUES:

2.1. What are “high Crimes and Misdemeanors”?
A.●Does ―High‖ modify ―crimes‖ & ―misdemeanors‖ or just ―crimes‖?
B.●Framers: Phrase ―HC & M‖ was substituted for ―maladministration.‖
C.This indicates that ―HC &M‖ was meant to be a higher standard than ―maladministration.‖
1. ―Maladministration‖: would let Congress decide what was an impeachable offense, which framers rejected
D. ●Do all felonies make president unfit for office?
1. Perjury: felony. Did Clinton Commit a HC & M?
2. STRANGE THING ABOUT IMPEACHMENT PROCEEDINGS: Clinton not impeached for lying in deposition. Clinton
impeached for lying under oath in GJ testimony.
3. -Lying in front of GJ: Much harder to prove than lying in depositions b/c in GJ, Clinton was explaining his deposition answers
by explaining his definitions of deposition terms. For this to be perjury at GJ, must show that this was not his understanding
at deposition—this would be really hard to do. Perjury in deposition would have been easier to prove.
E. ●NATIONAL INTEREST ARGUMENT:

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E. ●NATIONAL INTEREST ARGUMENT:
F. -Treason & Bribery: forfeiting nat‘l interest b/c Pres. is on the other side or b/c Pres. can be bought off
G. -HC&M: Argument that this should involve something against the national interest, too
1. Clinton Impeachment: Perjury in this case is only against Jones, not against the nation.
2. For crime of Perjury, it matters what was the perjured subject as to whether it is a HC or M. If it was some danger to the state,
then maybe this would be enough
H. ●SEPARATION OF POWERS ARGUMENT: Framers didn‘t want Congress to invade executive‘s power. If impeachment provision
was easy to use such that Congress could use it whenever they didn‘t like what President did b/c of political reasons, this would
violate Separation of Powers in that Congress would be above the President.
1. **This is why framers rejected ―maladministration‖ b/c it would subject President to Congress‘s control

1. 2. What procedures must be followed during an impeachment and removal proceeding?

2. --US SC HAS HELD THAT CHALLENGES TO IMPEACHMENT AND REMOVAL PROCESS ARE NON-JUDICIABLE POLITICAL
QUESTIONS. This is the quintessential PQ b/c impeachment & removal are textually given powers in Constitution to Congress.
So, Congress has to determine what are ―HC & M‖

1. G. SEPARATION OF POWERS AND FOREIGN POLICY

2. --FOREIGN POLICY ISSUES POLITICAL QUESTIONS B/C FOREIGN POLICY POWERS ARE TEXTUALLY GIVEN
CONSTITUTIONAL POWERS TO PRESIDENT & CONGRESS
A. *US SC has held that Courts have almost NO authority here. Cases involving foreign policy are only there b/c they involve courts
themselves (military tribunals, habeas petitions)

1. --PRESIDENT‘S POWER TO DEFEND THE COUNTRY FROM ATTACKS: Derives from

A. 1. War Powers Resolution
B. 2. Power as Commander-in-Chief (Art. II power)
C. 3. Execution of Laws Power
1. HYPO: If Canada invades ND and is in control of ND, US Pres. is not faithfully executing the law in ND. Pres. could call
troops so he can faithfully execute the law.
D. 4. Inherent power to defend the country (impliedly found in the Constitution.)
E. Historical Argument for Inherent Power: Change from ―declare‖ to ―make‖ war for power of Congress. This means ―declaring‖ and
―making‖ war are two different things. President has power to ―make‖ war as C in C. Even though ―leaving to the Executive the
power to repel sudden attacks‖ was left out of the Constitution, this likely means framers thought this power was implicit in the
power to make war as C in C.

1. --CASE LAW SHOWING PRESIDENT HAS POWER TO DEFEND COUNTRY FROM ATTACK:
2. Prize Cases (1863): Defensive War: When war presents itself, President has a duty to respond with whatever forces are necessary
to meet the threat. (cases dealt w/ seizure of vessels going to South. Acts of Congress allowed Pres. to call up local militias to
defend the nation.) President‘s defensive response is limited by what President thinks is necessary. Fullest measure of Pres.
power: Pres.‘s power as C in C + Congress‘s declaration of war
3.
A. 1. Foreign Policy v. Domestic Affairs
1. --DOMESTIC AFFAIRS: Federal govt. may exercise no powers except those enumerated in the constitution and such implied
powers necessary to carry into effect the enumerated powers.
A. WHY? B/c Federal govt. powers over domestic affairs involve only those carved from states‘ power, leaving those not included in
the enumeration still w/ the states
1. --FOREIGN AFFAIRS: Federal govt. has more leeway—it is not limited by enumerated powers in Constitution
A. WHY? States severally never possessed international powers, so federal govt. has greater powers here. It got those powers from
the King of England—power are inherent from being a nation
1. Pres: got power King had to command the military as Commander in Chief
i. Framers didn‘t limit this power when US is committed to war. But, they did limit it for peacetime by not allowing
Pres. to have a standing army
2. Congress: got power King had to declare war

1. --SEPARATION OF POWERS IS LESS STRICTLY OBSERVED W/ FOREIGN AFFAIRS THAN W/ DOMESTIC AFFAIRS.
2. Thus, Congress could pass a statute authorizing Pres. to declare war against Canada when certain conditions are met, even though
this is shifting part of war-making powers to Pres.

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3. ●Support for this:
4. 1. More shifting of powers is allowed w/ foreign issues: Delegation of powers are permissible
A. US v. Curtiss-Wright Export Co. (1936): Pres. can negotiate and can decide to suspend arms sales even if Congress didn‘t
specifically say he could do it b/c this is w/in negotiation powers. Cong. passed resolution authorizing Pres. to stop sales of arms to
countries involved in Chaco border dispute. Roosevelt issued order prohibiting arms sales to warring nations in Chaco border
dispute. D indicted for selling arms to Bolivia.
B. US SC: Congress may delegate its lawmaking power in situations involving foreign affairs.
1. 2. President responding defensively does not require a delegation of power from Congress.

1. --DOMESTIC AFFAIRS: Can‘t violate Separation of Powers, even if both P & C agree to do so
A. Ex: Line Item Veto act: domestic issue-president can‘t legislate and shifting of powers is not allowed.
B. 2. War Powers Resolution
C. --WAR POWERS RESOLUTION: key provisions
D. ●PURPOSE: So P & C will work together in introducing US forces into int‘l conflicts and in determining whether to continue forces
in such conflicts.
E. ●Congress‘s powers: To make laws N&P to execute its powers
F. ●President‘s powers: To introduce US forces into conflicts only where imminent involvement is needed b/c of
1. (1) A Declaration of War
2. (2) Specific Statutory Authorization
3. (3) National Emergency created by Attack on US
G. ●CONSULTATION: Pres. is to consult w/ Congress if possible before introducing forces into conflicts and to continue consulting
regularly w/ Congress throughout conflict until forces are removed
H. ●REPORTING REQUIREMENT: Where there is no declaration of war, but US forces are in a conflict, Pres. shall submit report
w/in 48 hours to Speaker of the House and to Senate President pro tempore setting forth
1. (1) The circumstances necessitating the introduction of forces,
2. (2) The constitutional and legislative authority under which the introduction took place, and
3. (3) The estimated scope & duration of the hostilities.
I. -Pres. is to report periodically on hostilities.
J. ●TERMINATION OF USE OF US FORCES: W/in 60 days after report is submitted or required to be submitted, Pres. shall
terminate any use of US forces in that conflict UNLESS Congress
1. (1) Has declared war or specifically authorized for such use of US forces
2. (2) Has extended by law the 60 day period
3. (3) Is physically unable to meet b/c of an armed attack on the US.
K. -60 day period may be extended for not more than 30 days if Pres. determines & certifies to Congress in writing that unavoidable
military necessity requires continued use of such armed forces in the conflict.

1. --NO PRESIDENT has accepted WPR as constitutional or has ever followed it.
A. Argument that it is unconstitutional:
B. 1. Limits President‘s power as C in C.
C. 2. Joint Resolution by Congress after 90 days to end the conflict: violates presentment clause b/c JR is NOT given to President to
veto
D. 3. Congress passes JR to ―veto‖ President‘s initial action.
1. This is like Legislative Veto: Chadha says this is unconstitutional.
1. [Congress passed WPR over presidential veto, but veto was overridden.]

1. --US SC won‘t step in b/c

2. 1. Standing Problems
A. ●Who would have standing?
B. Congress member maybe—but, standing for individual member of Congress is tough b/c US SC has held that individual member of
Congress can‘t raise Congress‘s injury b/c it is not an injury in fact as an individual member.
C. Individual: person expected to go to war?
1. 2. Political question: involves powers between P & C.
A. ●Textually demonstrable commitment of war powers to P&C, NOT US SC.
B. ●Other factors: US SC doesn‘t want to second-guess Pres. b/c US SC doesn‘t know what Pres. knows.

1. --IMPEACHMENT IS ONLY REMEDY FOR PRESIDENT WHO ROUTINELY IGNORES SEPARATION OF POWERS B/C
COURTS WON‘T STEP IN HERE.

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 COURTS WON’T STEP IN HERE.
A. Nixon: judiciary committee considering impeachment discussed including Nixon’s authorization for invasion of Laos/Cambodia
during Vietnam War as article of impeachment but decided not to b/c it would be re-fighting the Vietnam War.

B. 3. Congress’s Spending Power as a check on President’s use of his Foreign Defense Power: Congress must spend
money to support President’s defensive actions. If Congress doesn’t spend, Pres. eventually can’t use his powers anymore to
defend b/c he has no money.
C. **This may be Congress’s only check on Pres.’s foreign powers that is firmly rooted in the Constitution
1. ●Two Sides of Spending Power
2. 1. Congress not spending $ to check Pres‘s action.
3. 2. Congress spending $ is ratifying the action.
A. Vietnam: Congress said that it didn‘t ratify President‘s actions in Vietnam, but Congress kept spending for it. So, Pres. argued that
b/c Congress is spending, it was implicitly approving the action.
1. --CONGRESS‘S USE OF ITS SPENDING POWER TO RESTRICT EXECUTIVE: Boland Amendment:
2. 1980‘s: Congress passed Boland amendment as part of appropriation bills to limit President‘s ability to provide funds for Contras
in Nicaragua. Members of Pres‘s cabinet intentionally violated the Boland Amendment by raising funds from 3rd parties by selling
arms to Iran to fund the Contras.
3. BUT: (Difference b/t this and WPR): No separation of powers problem b/c Congress is just placing limits on how it spends
money, which is a power that Congress has under Constitution.

1.
A. 4. Treaties and Executive Agreements
1. Treaty: agreement b/t US and foreign govt. that is negotiated by Pres. and is effective when ratified by Senate
A. -Process is delineated in Constitution
1. Executive Agreement: agreement b/t US & foreign govt. that is effective when signed by Pres. and head of other govt. No Senate
ratification is required.
A. -No Constitutional provision mentions this, but it is well established that they are constitutional
B. -US SC has NEVER limited executive agreements as usurping Senate‘s treaty-approval function
C. -Executive Agreements prevail over state law
1. US v. Pink: SC upheld executive agreement as binding like a treaty. (Litvinov Agreement)
2. US v. Belmont: Fed. govt. has complete power over international affairs and cannot be curtailed w/ or interfered w/ by states.

1. --SETTLING CLAIMS ARISING FROM FOREIGN CONFLICTS ARE A PART OF PRES.‘S TREATY/EXEC. AGREEMENT POWER
2. Dames & Moore v. Regan, Sec. of the Treas. (1981): 1979 American Embassy in Iran seized; diplomats held hostage for > yr. Pres.
Carter declared nat‘l emergency pursuant to Int‘l Emergency Economic Powers Act & blocked removal transfer of all property of
Iranian govt. in US. When hostages released, US & Iran entered agreement that all litigation b/t US & Iran would go through
binding arbitration. Iran-US Claims Tribunal established to arbitrate claims not settled w/in 6 months. P filed suit to prevent
enforcement saying Agreement was beyond Pres.‘s statutory & constitutional powers. US SC: Claim settling by Pres. has long been
a practice of federal govt., either by treaty or by executive agreement w/o advice & consent of Senate. Where settlement of claims
is a necessary incident to the resolution of a major foreign policy dispute and Cong. has acquiesced in settlement, Pres. has power
to settle claims.
3.
A. 5. Kosovo Action as illustrative of Pres.’s unconstitutional exercise of its war powers
1. --Kosovo Action: taken by Clinton according to NATO treaty—mutual defense treaty said anyone who singed it said that attack on
one of the signing countries was considered an attack on themselves.
2. Problem w/ Kosovo:
3. Problems relating to war not being authorized by NATO Treaty:
4. 1. Kosovo not a signatory to NATO
5. 2. Yugoslavia not a signatory to NATO
6. 3. Yugoslavia not being attacked by another country
7. 4. Nothing in treaty required NATO to participate in offensive military action.
A. Yugoslavia was the first Offensive action by NATO.
1. Problems relating to war violating US Constitution:
2. 5. NATO treaty short-circuits war declaration clause: If country is attacked, US has to respond.
A. NATO, as a treaty, was only ratified by Senate. This cuts House out of its war declaration power
1. 6. Congress never authorized Kosovo action. It never ratified it, only spent money to support troops in the field, but expressly
rejected that the money was being spent in support of the Pres.‘s action.

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 rejected that the money was being spent in support of the Pres.’s action.
2. 7. Kosovo was an improper unilateral exercise of Pres’s authority b/c
A. (1) No declaration of US national emergency, and
B. (2) No defensive action—US acting offensively against Yugoslavia
C. *DiPippa thinks this is THE MOST unconstitutional exercise of war powers. (Vietnam was a close second)

1. --NATO countries invoked mutual defense clause after 9/11. US would have to respond to any attacks by Al Quaida network on any
other countries.
A. BUT: same problems as above w/ Kosovo action.

1.
A. 6. Military Tribunals
1. APPLICATION TO 9/11 ATTACKS: Almost immediately after 9/11, Pres. declared national emergency. Congress authorized use of
military force by Joint Resolution to use all force N&P to defend from attacks.
2. -WPR: Congress was careful not to give away too much here, though: It expressly stated that nothing in the JR superceded any
WPR requirements. Pres. also hinted at WPR in declaration of national emergency b/c WPR authorizes military action when there
is a statutory emergency and when there has been an attack on US. BUT: Pres, like Congress, doesn‘t want to give too much away:
he doesn‘t say he is bound by WPR.
3. -11/17: Military Tribunal Order issued creating military tribunals. **This is NOT an executive order. The official title is a Military
Order: Pres. is consciously invoking his military powers as C in C and is careful NOT to use executive order.
4. -Constitutionality of MT Order:
5. NOT specifically authorized by Congress; Applies to domestic situations, not foreign situation; Entire country may/may not be a
theater of war. (Milligan—if area is not a theater of war, MTs aren‘t authorized); Denies person the right to trial. Due Process
clause: talks about ―persons‖ not ―citizens‖.
6. Immigration power suspends some of the normal due process concerns. Pres. tries to avoid this by saying it applies to ―non-
citizens‖.

1. --MILITARY TRIBUNALS OK WHERE

2. 1. Hearing offenses committed by parties while in military service.
A. Military people surrender their rights to be tried in civil courts while in service; Other citizens charged w/ crimes have NOT given
up their rights to trial by jury, so their cases are to be heard in civil courts
1. 2. Trying foreign spies caught on US soil & Prisoners of War
A. Ex Parte Quirin (US SC 1942): (habeas petition) Pres. appointed military commission to try Ds (German spies during WWII) for
offenses against the law of war and the Articles of War. US SC: MTs are OK here b/c they are authorized by Congress and are
pursuant to President‘s war powers.
B. **This may support Bush‘s action creating MTs b/c people are here illegally in country and are committing terrorist acts.
C. BUT: Facts in Quirin are different from Afghanistan issue:
Quirin: Afghanistan:
●Formal Congressional declaration of war ●No formal declaration of war—only Joint Resolution authorizing use of force
but not war. Declaration of war was specifically rejected.
[Rep. Barr who proposed declaration of war that was rejected now opposes
MTs b/c he says Pres. doesn‘t have power to do MTs w/o declaration of war.
But, only two Congressmen (Barr-Republican, and Barry Sanders-Socialist)
D. agree w/ this.]
●Congress created articles of war that gave Pres. ●No articles of war or other law authorizing MTs
some authority to create military tribunals [Pres. acting according to C in C power + Joint Resolution w/o formal
[This is like Jackson‘s first category in declaration of war. This may not be enough to authorize MTs]
Youngstown: Valid use of Pres‘s power + Valid
Congressional authorization is where Pres.‘s power
is at its highest]

1. --MILITARY TRIBUNALS ARE NOT AUTHORIZED IN US WHERE US COURTS ARE STILL FUNCTIONING PROPERLY or IN
THE ABSENCE OF A THREATENED INVASION
2. Ex Parte Milligan (1866): D arrested by Union and tried before military commission in IN. D found guilty and sentenced to death.
This is habeas petition challenging legality of military commission. US SC: Military commission had no authority to hear the case
b/c it wasn‘t created by Congress to hear cases involving ordinary citizens when civil courts are open and can still properly
administer justice. Indiana NOT under war, so martial law there & military courts were improper.

1. --PRESIDENT‘S FOREIGN POWERS ARE BROAD DURING TIMES OF NATIONAL EMERGENCY AND PRES.‘S ACTIONS CAN

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1. --PRESIDENT’S FOREIGN POWERS ARE BROAD DURING TIMES OF NATIONAL EMERGENCY AND PRES.’S ACTIONS CAN
APPROACH INFRINGEMENTS ON PERSONS LIBERTIES
2. Ex: President can order that persons be detained in times of nat’l emergency pursuant to his military power.
3. Hiribayashi v. US: Curfew for Japanese-Americans OK
4. Korematsu: Japanese-American detention camps OK
5. --BUT, ONCE IMMEDIATE NEED FOR EXERCISE OF PRESIDENT’S MILITARY POWERS HAS PASSED, INDIVIDUAL
RIGHTS TRUMP MILITARY POWERS.
A. **President’s C in C power can’t exceed needs of situation
1. Ex: Once loyalty is proven, President can’t enforce curfew on loyal persons w/o infringing on their constitutional rights.
2. Endo: OK to detain disloyal people through military power, but it is NOT ok to detain a loyal person. This violates their
constitutional rights.
3. Ex: Circumstances may necessitated MT’s in some areas but not others
4. Milligan: Congress may give pres. broad authority to create MTs, but when circumstances go beyond purposes of act, it is not OK.
A. IN: Courts still functioning—no reason for military law here.

1. --MT ORDER FOR 9/11 ATTACKS: Pres.‘s order is VERY broad—much broader than JR.
A. *DiPippa thinks it exceeds C in C power and is NOT authorized by JR.
1. ●Joint Resolution: limited authorization president‘s action to only seeking those responsible for 9/11 attacks and preventing any
future attacks by those people
2. ●Pres‘s order: could authorize MT for further attack by people not involved in 9/11 attacks. Pres. said that it applies to anyone
who is planning/committing future attack

1. --JUSTIFICATIONS FOR MTs:

2. 1. Other presidents have done it, so he can, too.
3. 2. Pres. could probably get Cong. to pass law authorizing MTs.
4. 3. Necessary for Pres to do this b/c it would be hard to prosecute OBL in federal courts.
A. Famous lawyers making spectacle of it, getting people off on technicalities, etc.
B. BUT: This isn‘t a very good reason b/c it would mean ALL courts are flawed.

1. RIGHTS: EQUAL PROTECTION

2.
1. Equal Protection Clause: Not original listed in the Constitution, which is not surprising because at the time, blacks were
enslaved and women didn‘t have any rights.
2. The fourteenth Amendment was added after the Civil War to combat discrimination against black people.
3. The fourteenth Amendment says that ―no state shall deny any person within its jurisdiction the equal protection of the laws.
4. The Supreme Court did not find any cases of the states violating this provision until the mid 1950‘s (Brown).
5. THERE IS NO PROVISION IN THE CONSTITUTION THAT SAYS THAT THE FEDERAL GOVERNMENT CANNOT DENY
EQUAL PROTECTION OF THE LAWS. **The fifth Amendment extends it to the state (5th Amendment deals with due process,
but interpreted to apply to equal protection*
6. The constitution does not grant rights. There are certain rights that are inherent. For further clarification on inherent rights
you have to refer to the Amendments.
i. In Bolling v. Sharpe, a companion to the Brown case, the court held that the equal protection applies to the federal
government as an implicit requirement under the due process clause of the 5th Amendment. (Bolling v. Sharpe
concerned segregation of a D.C. school system).
1) In order to invoke the implicit requirement of equal protection under the due process cause, the Π must show
that the discrimination must be so unjustifiable as to be violative of due process (SEEMS LIKE A HIGH
STANDARD).
7. Therefore if it is a question about state‘s violation of equal protection, it would be under the 14th Amendment. If it is a question
about the federal government‘s violation of equal protection, it would be under the 5th Amendment.
8. Equal Protection Analysis:
9. The central issue: Is the government’s (state or federal) classification or distinction between certain groups,
is justified by a sufficient reason (not race/gender or some other classification)? Basically whether the
government is justified in drawing the line.
1) The question also looks into the reason why the line was drawn as well as the line itself, meaning
where was the line drawn, has the line gone too far.
I) Hypo; All people under 21 who run a stop sign get a ticket. All people who are over 21
who run a stop sign does not get a ticket. If the goal of having stop signs is for safety,
then people under 21 are discriminated against, because everyone who runs the stop
sign are violating public safety regardless of age.

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 sign are violating public safety regardless of age.
2) The classifications are:
a) Facially discriminatory: That on its face the law is discriminatory.
I) Children under 16 might claim they have been discriminated against by the age requirement for
obtaining a driver’s license.
b) Facially neutral: That on its face the law is neutral but it can have discriminatory effects.
I) People denied government benefits might argue that they are discriminated against by eligibility
guidelines.
II) Case where the police test in DC wasn’t facially discriminatory but less minorities
made the force. The case found the test wasn’t discriminatory but it’s a good example.
10. What constitutes sufficient reason or justification depends on the type of discrimination.
i. Strict Scrutiny: “suspect classes”: race, national origin, ethnicity (sometimes illegal aliens), The SC is very concerned
with race discrimination. Therefore, they’ve stated that they can only use race classification only if it proves necessary
to achieve a compelling government purpose. The government must also show that it cannot achieve the goal by using
a less discriminatory means. The government has a burden to show that they have the compelling interest and its
narrowly tailored. The government almost always loses (In Grutter they won)
ii. Intermediate Scrutiny: some lesser test, but boundaries are still unclear. Usually involves gender discrimination and
children born illegitimately.
iii. Rational Basis: A Δ must show that the law or the classification was not rationally related to a legitimate government
purpose.
1) NY City Transit Authority v. Beazer; upheld the constitutionality of a city transit authority's
refusal to hire methadone users. The rule was applied to persons using methadone, a drug used to treat
heroin addiction. Two former NYCTA employees who had been fired while receiving methadone treatment and
two applicants who were denied employment because of their use and past use of methadone sued the TA in
federal district court. At issue, is whether the government could exclude a class of people because they used
narcotics. The court found that the transit authority had a rational basis for its classification of narcotics users
and the extension of this rule to cover methadone users. In the dissent, Justice White, joined by Justice Marshall,
argued that the classification of persons successfully participating in a methadone program as dispositively
different from the generally population was without justification. They believed that this classification violated
the equal protection clause as irrational and invidious.
I) Question, if a rule disproportionately effects a minority group, will the case be looked at under the
strict scrutiny or rational basis? It didn’t in this case. But it can if the Π could prove it.
II) Hypo: What if in the above case 100% of the methodone users were of a minority group, would that
be enough? Yes because that number is extreme.
2) Dept of Agriculture v. Moreno
3) Cleburne v. Cleburne
4) Romer: Case ABOUT gay people. Intermediate says that you can use the political process to get the law
changes, that’s why it’s a lesser standard. However with gay people, they have to get the constitution change, so
its not an intermedidate standard. So is the court going as far as to say that black people and gays are
constitutional equivalent. No, they don’t say it, but one can make that assumption. The government may
disapprove of your actions based on moral reasons and may be able to prevent you for doing the actions if they
have social consequences.. However the government can’t prohibit something just because of a moral dislike for
what you are doing. There has to be an independent justification outside of moral dislike in order for it to work
under equal protection (also in Lawrence v. TX and pornography under first Amendement).
11. Three Central components of the equal protection issue:
i. Classification: Two basic ways of establishing a classification
1) Classification on the face of the law, meaning where the law in its very terms draws a distrinction among people
based ona particular characteristic.
a) Example: a law that prohibits black people from serving on juries.
2) Classification due to a discriminatory impact and a discriminatory purpose, meaning that on its face, the law is
neutral, but due there is a discriminatory impact to the law of discriminatory effects from its administration.
a) Example: A requirement that a police office be at least 5’10 and 150 pounds on its face seems neutral, but can
be considered discrimatory if found that 40% of men fufill these requirements, while only 2% of women do.
ii. 3. Supreme Court has said that it is insufficient that the law has a dispparent impact on race or gender unless the
motive behind the law was discriminatory.
iii. Level of Scrutiny: SC has set levels based on the type of discrimination
1) “Suspect classes”: Race or national origin, including aliens, discrimination will be met with the strict scrutiny
level. See above for description. It is important to not that the government, not the Π has the burden of proof.
2) Gender discrimination and non-marital children is held to the immediate scrutiny level. Under Immediate
scrutiny level, a law is upheld if it is substantially related to an important government purpose. The purpose need
not be compelling, but must be important. The discriminatory means need not be necessary, but must have a
substantial relationship to the end being sought. It is important to note that the government, not the Π, has the

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 substantial relationship to the end being sought. It is important to note that the government, not the Π, has the
burden of proof.
3) Rational basis: the minimum level of scrutiny. All laws not subject to strict or intermediate are evaluated under
the rational basis. The government’s objective need not be compelling or important, just legitimate. The means
only have to be rational. It is important to note that the challenger, usually the Π, has the burden of proof. Very
rarely has a case been decided that a law was unconstitutional under this level of scrutiny.
4) To determine which level of scruitiny is used in a matter, the court looks at:
a) Immutable characteristics: race, gender, national origin, the marital status of one’s parents have been given
higher scrutiny levels. This is based on the notion that it is unfair to penalize a person based on
characteristics that are out of their control.
b) The ability of the group to protect itself through the political process. Also looks at the mistrust of the group
of the government. : Examples are women, who so few hold office, and aliens who do not have the right to
vote
c) Likelihood that the classification reflects prejudice instead of a permissible govt. purpose.
d) History of discrimination: the court looks at the likelihood that the classification reflects prejudice as
opposed to a permissible government purpose.
I) The level of scrutiny shows that race is never accepted as a reason, but gender may as it is held to a
lesser level of scrutiny.
e) The problem with the level of scrutiny:
I) Justice Thurgood Marshall and John Paul Stevens thought there should be a sliding scale rather
than rigid levels. They believe that the court should consider the constitutional and social
importance of the interests adversely affected and the ill will basis on which the classification was
drawn. Many believe in fact that there is a spectrum although only 3 tiers are mentioned.
f) USING THESE CRITERIAS, YOU CAN SEE IF GAY MARRIAGE WOULD FALL UNDER ONE OF THESE!
3.
i. Government meeting the level of scruitiny
1) Court looks at both the ends and the means.
a) For strict scrutiny, the end must be deemed compelling
b) Intermediate: the end must be important
c) Rational: the end must be legitimate
2) To determine the relationship of the mean to the end, the court looks at the underinclusive and/or overinclusive
of a law.
a) Underinclusive: means that a law does not apply to individuals who are similar to those whom the law does
apply to.
I) Example: a law that prohibits people under 16 to get driver’s license can be underinclusive because
some younger drivers are as mature and effective drivers as older people.
II) Women v. Men about drinking low alcohol beer. (craig v. borren)
b) Overinclusive: means that the law applies to those who need not be included in order for the government to
achieve its prupose, basically that the law necessarily applies to a group of people
I) Example: the government’s decision to evacuate Japanese Americans. Although the goals was to
prevent espionage, the law was over inclusive because it didn’t evaluate the threat of each individual
and it harmed a large group of people unnecessarily. (Korematsu case)
3) c. Both Underinclusive and Overinclusive at the same time: This can be possible. Same example with Japanese
and the same argument for overinclusive. However it can be underinclusive because it only targeted Japanese
Americans and did not target espionage in other racial groups.
4. D. IMPLIED FUNDAMENTAL RIGHTS AND THE EQUAL PROTECTION CLAUSE

1. There are three basic models of an equal protection analysis:

1. (1) Focuses on classification based on race or other “suspect” criteria. The Court tests such classifications by varying forms of
“strict” scrutiny.
2. (2) Focuses on classifications in the economic and social realm that do not involve “suspect” criteria. The Court tests such
classifications by a highly deferential form of “rational basis” review. (Similar to the standard that the Court currently employs
in considering substantive due process challenges to economic regulation).
3. (3) Focuses on classifications where the degree of scrutiny varies not only with the “suspectness” of the criterion on which the
classification is based but also with the “importance” or “fundamentality” of the interest that is distributed or affected
“unequally?”

2. 1. THE RIGHT TO HAVE CHILDREN (Fundamental Right)

1. 1927: The Court upheld a Virginia statute authorizing the sterilization of inmates of state institutions who were found to be
afflicted with a hereditary form of insanity. Buck v. Bell.

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 afflicted with a hereditary form of insanity. Buck v. Bell.
2. 1942: The right to have children is a fundamental right that will justify a heightened level of scrutiny.
3. Skinner v. Oklahoma (p. 736) Oklahoma's Habitual Criminal Sterilization Act defined "habitual criminal" as a person
who has been convicted 3 or more times for crimes "amounting to felonies involving moral turpitude." Such persons shall be
rendered sexually sterile.
4. HOLDING: The Court concludes that this is a constitutional violation. Why? When we think of equal protection we are
thinking about 2 groups that aren't treated the same. Here, we have that aspect. There is a distinction made b/t larceny
(stealing from stranger) and embezzlement (stealing from employer). Larceny is considered a felony and embezzlement is not
considered under this act.
5. There is something else going on in this case: We are dealing with legislation which involves one of the basic civil rights of
man: The ability to marry and procreate.
6. DISSENT: Wanted to bring in a due process analysis. In a sense you are being denied a liberty without due process of law.
Petitioner was given a hearing to ascertain whether sterilization would be detrimental to his health. However, he was not
given to the opportunity to discover whether his criminal tendencies are of an inheritable type.
a. This law doesn't seem to be able to pass the rational basis test either. There doesn't seem to be a link b/t three acts
and being a habitual offender. Sterilization is a very harsh thing to use.

1. 2. THE RIGHT TO VOTE (Fundamental Right)

2.
A. (a) Denial of the “Right to Vote”
1. The original Constitution left it entirely to the states to determine the qualifications of voters for both national and state
elections
a. 14th amendment: did not directly prohibit discrimination in voting.
b. 19th amendment: provided that the right of citizens to vote “shall not be denied or abridged on account of sex.
c. 24th amendment: the right of any citizen to vote in any election for president, vice-president, or members of Congress
shall not be denied or abridged by reason of failure to pay any poll tax or other tax.
2. The right to vote is a fundamental matter in a free and democratic society. Reynold v. Simms (1964)
3. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Harper
4. Are there times when it is o.k. to deny a person the right to vote? YES, Lassiter: inability to read and write has some relation to
standards designed to promote intelligent use of the ballot. Voter qualifications have no relation to wealth or to paying or not
paying a tax.

1. POLL TAX INVALIDATED

2. Harper v. Virginia State Board of Elections (1966) (p. 741)
3. Court invalidates a Virginia law requiring the payment of a poll tax not to exceed $1.50 as a precondition for voting.
4. -RULE: A state violates the E.P. Clause whenever it makes the affluence of the voter or payment of any fee an electoral standard.
5. -Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process.
6. BLACK DISSENT: Majority is making up this stuff by what it thinks equality is and not anything in the Constitution. Number of
state policies including (1) state's desire to collect its revenue and (2) its belief that voters who pay a poll tax will be interested in
furthering the State's welfare when they vote.
7. HARLAN DISSENT: People with property have a deeper stake in community affairs, and are consequently more responsible, more
educated, more knowledgeable, more worthy of confidence, than those without means, and the community and Nation would be
better managed if the franchise were restricted to such citizens.

1. COURT USING STRICT SCRUTINY

2. Kramer v. Union Free School District (1969) (p. 744)
3. New York statute that required you to own (or lease) taxable real property within the district or be parents of children enrolled in
the local public schools in order to vote in the school district election.
4. -Appellant, a bachelor who neither owns nor leases taxable real property claims that this denies him equal protection of the laws.
5. -Court holds that this is not narrowly tailored (strict scrutiny).
6. -Why are we using strict scrutiny? VOTING IS FUNDAMENTAL RIGHT
7. -What is the school district's interest? (compelling interest) Property taxpayers (property taxes go to school) and parents of the
children enrolled in the district's schools are those primarily interested in school affairs.
8. -Why is this interest not narrowly tailored enough? The requirements are not sufficiently tailored to limiting the franchise to those
"primarily interested" in school affairs to justify the denial of the franchise to appellant and members of his class.
9. STEWART'S DISSENT: We just need rational basis here. We do not need strict scrutiny regarding the right to vote. Under a
rational basis, this would be allowed. Constitution doesn't give anyone the right to vote.
10.
1. The Court is more lenient with limited purpose government units (Things that aren’t actually acting like the government (i.e.

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 1. The Court is more lenient with limited purpose government units (Things that aren’t actually acting like the government (i.e.
distributors of water)
a. Salyer Land Co. V. Tulare Lake Basin Water Storage District (1973): Court upheld state statute permitting only
landowners to vote in water storage district elections and allocating votes in proportion to the assessed valuation of the
land.
11. Durational Residency Requirements: Can you require someone to live someone a year to get the right to vote? A year is too
long. 30 days is o.k., but a year is too long. Because durational residence requirements curtail the "fundamental interest" in
voting, they are unconstitutional "unless the State can demonstrate that they are necessary to promote a compelling governmental
interest."
12. Can you deny felons the right to vote? Yes. You can deny the vote to convicted felons, even if they had completed their sentences
and paroles.
13. What about requiring you to declare your political party before a primary? You can have people declare it for a short time, but not
for a long time. You can set up a 30 day time limit. Registering well before time of election (i.e. 23 months) was considered way
too long.
14.
A. (b) Dilution of the Right to Vote
1. Dilution: the limitation of the effectiveness of a particular group’s vote by legislative reapportionment or political
gerrymandering (This type of dilution violates the Equal Protection Clause)
2. One person, one vote: One person’s vote has to count just as much as the other’s. Reynolds
a. Rights guaranteed under the equal protection clause are INDIVIDUAL RIGHTS. Everyone has an individual right for
their vote to count just as much as someone else’s vote. Reynolds
3. At Large System: You get to vote for as many as will be elected. This is o.k. as long as there is not purposeful
discrimination. The right to equal protection in the electoral process does not protect any “political group,” however defined,
from electoral defeat. Mobile.
a. At Large System cases are differentiated from other voter cases in that no one is being denied the right to vote.
b. At Large Systems are differentiated from dilution cases because everyone’s vote counts the same as everyone else’s.
4. Political Gerrymandering: Re-districting plans are o.k. as long as there is not intentional discrimination. One election is
not enough to show discrimination. You have to have multiple elections. Davis.

1. REYNOLDS v. SIMS (1964) (p. 748)

2. -Court held that in six states the system of apportionment of one or both houses of the legislature was unconstitutional.
3. -It had been 60 years since Alabama had reapportioned its seats. There is a population shift where one district now has 10,000
people and the other district has 30,000 people. They all were getting one representative.
4. -This is unconstitutional because "One person, one vote." One person's vote has to count just as much as the other's. The
Equal Protection clause guarantees the opportunity for equal participation by all voters in the election of state legislators.
5. Standard of Review: strict scrutiny. (Since the right of suffrage is a fundamental matter in a free and democratic society and is
preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and
meticulously scrutinized).
6. HARLAN DISSENT: History of 14th amendment concludes that the state can do whatever they want and the Feds should stay out
of it.
7. STEWART: There could be reasons to misapportion things. The state should be able to do this as long as the plan reasonable
achieves effective and balanced representation of all substantial interests, without sacrificing the principle of effective majority
rule.

1. CITY OF MOBILE v. BOLDEN (1980) (p. 756)

2. -At large system did not violate the equal protection clause.
3. -Commissioners are elected not by the residents of 3 distinct districts but by the residents of the city at large. The black population
was 30% and no black had ever been elected as a commissioner.
4. -At large system: You get to vote for as many as will be elected. Anyone can run. (the 70% white majority always has the
opportunity to out vote the minority).
5. -Argument challenging at large system: Blacks are not getting their interest represented.
6. -Why does the court disagree? There must be purposeful discrimination. A plan has to be set up as a device to purposefully
discriminate. (This is extremely hard to do)
7. -This right to equal participation in the electoral process does not protect any "political group," however defined, from electoral
defeat.
8. DISSENT: There are enough facts here to find intent to discriminate.

1. DAVIS v. DANDEMER (1986) (p. 764)

2. State apportionment plan, providing for state senate and house districts of substantially equal population. This is about political
gerrymandering. Secret committee comes up with a districting plan to come up with a state legislature of republicans.

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 gerrymandering. Secret committee comes up with a districting plan to come up with a state legislature of republicans.
3. -Does this violate the constitution? NO
4. Democrats would have to prove both intentional discrimination against an identifiable political group and an actual discriminatory
effect on that group.
5. One election is not enough to show these effects. You are going to need repeated elections.
6. A candidate who wins doesn't only represent the people who elected him, but also has the duty to represent the people who didn't
vote for him. We don't have to have proportional representation.

1. 3. THE RIGHT TO TRAVEL (Fundamental Right)

1. The right to travel is a fundamental liberty. Any classification which serves to penalize the exercise of that right, UNLESS
shown to be necessary to promote a compelling governmental interest, is UNCONSTITUTIONAL. Shapiro.
2. If the Governmental interest is to keep people from traveling, then it will never be permissible.
3. You cannot single out a specific group.
4. Durational Requirements: Some are o.k., and others are not.
2. Limiting welfare benefits during your first year in the state is UNCONSTITUTIONAL. Saenz.
3. Voting Rights: One year residency requirement is too long, but 30 days is o.k.
4. Emergency Care: One year residence requirement for emergency room to give you non-emergency care at the county’s expense is
UNCONSTITUTIONAL.
5. Divorce Action: One-year residence requirement for brining a divorce action against a nonresident is o.k.
6. BENEFITS: Court is much more sympathetic when there is a "modified" residence requirement: You can have restrictions that
require you to be a residence of the state before benefits kick in:
a. Court upheld the dismissal of an employee of the fire department who was terminated b/c he moved to NJ in violation of a
requirement that city employees be residents of Philadelphia. (We need this type of person to be able to get to the
emergency fast)
b. Court upheld a bona fide residence requirement for attending a state's public schools. Furthers substantial state interest
in assuring that services provided for its residents are only enjoyed by residents.

1. SHAPIRO v. THOMPSON (1969) (p. 781)

2. -Residency duration classification: Denied welfare assistance to residents who have not resided within their jxs for at least one
year. HELD UNCONSTITUTIONAL
3. -It was questioned whether or not this violated the equal protection clause? It does
4. -Why? The right to travel is a fundamental liberty. Any classification which serves to penalize the exercise of that right, unless
shown to be necessary to promote a compelling governmental interest, is unconstitutional.
5. -Nowhere in the constitution does it mention the right to travel.
6. Standard of Review? The Court uses strict scrutiny.
7. -All of the reasons trying to keep people out of D.C. are not going to work:
8. We don't want people to just come in and reap the benefits of the state
9. We do not want poor people to come into our state distinguishing b/t old residents and new residents (won't work b/c you are
singling out a single group) (this undermines whether you have a compelling governmental interest)
10. State argues that requiring (1) facilitates the planning of the welfare budget (Response: Record is utterly devoid of evidence that
supports this). (2) Provides an objective test of residency (Response: Welfare authorities investigate the applicant and in the
course of inquiry necessarily learn the facts upon which to determine whether the applicant is a resident. Therefore, they are
already doing something) (3) Minimizes the opportunity for recipients fraudulently to receive payments from more than one jx
(Response: There is less drastic means are available for doing this. Finding out where they come from and check with that state)
(4) Encourages early entry of new residents into the labor force (Response: there is no way to distinguish people being there one
year and five years. There is no rational basis to distinguish people that just moved in from people that have lived there).

1. SAENZ v. ROE (1999) (p. 786) Residency requirement violate PI clause:

2. -Supreme Court didn't talk about residency requirement as the right to travel, but as privileges and immunities clause. Limited
welfare benefits for the first year in the state.
3. -this distinction b/t shorter and longer time residents violated the p.i. clause.
4. -You can't treat out of state residents differently than in state residents.

1. RIGHTS: DUE PROCESS

2.
1. DUE PROCESS IN GENERAL
2. The 5th (applies to the government) and 14th Amendment (applies to the state)
3. The US nor the states shall deprive any person of “life, liberty or property without due process of the law.

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 3. The US nor the states shall deprive any person of “life, liberty or property without due process of the law.
4. Elements of a Due Process Violation
i. State/government action (cannot be private action)
1) Action involves an affirmative act. It cannot be an omission or a failure to act.
ii. Deprivation
1) Government has no affirmative obligation to citizens through Due Process clause. It only must refrain from
affirmatively violating a person’s right.
iii. Of a person’s
iv. Life, liberty, property (protected interests)
v. Without due process
5. Due Process does not give citizens the right to public benefits such as: government aid, employment, etc. Those are not
affirmative rights. However once they are received, you may have a statutory right to the continuance of those benefits.
6. The test will be that the end shall be accomplished by methods consistent with due process. And the guaranty of due process
demands only that the law shall not be unreasonable, arbitrary or capricious, and that he means selected shall have a real and
substantial relation to the object sought to be obtained.
7. PROECEDURAL DUE PROCESS
8. They are the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues concern what kind of notice and what form of hearing the government must provide when it
takes a particular action.
9. A typical example of procedural due process are hearings. Hearings are important because they aid in
i. Obtaining more accurate facts
ii. Recognize the dignity of those whose interest are at stake by allowing them to participate in the decision.
10. Liberty and Property Interest
i. Liberty is being free from restraint and being able to enjoy the privileges of life. This concept encompasses free from
religious constraint, freedom to enter contracts, etc.
ii. T o have a property interest, a person must clearly have more than an abstract need or desire for it. He must have
more than an unilateral expectation. He must instead have a legitimate claim of entitlement to it. Additionally,
property interests are not created and their dimensions defined by the Constitution but by independent sources such
as state law, which often gives a person entitlement to a certain thing (such as benefits, etc)
iii. Goldberg v. Kelly: case involving ∏‘s entitlement to welfare. The court held that liberty and property interests were
defined by common law. If the government took someone‘s property or invaded his bodily integrity, the due process
clause would require some kind of hearing. But the clause is inapplicable if the government denied an individual a
public benefit such as employment, welfare, or some other advantageous opportunity. The court held that a welfare
recipient‘s interest in continued receipt of welfare benefits was a ―statutory entitlement‖ that amounted to property
interests within the meaning of the DP clause.
iv. Board of Regents of State colleges v. Roth: case involving a profession who was denied tenure at a college and
was fired without explanation. The court held that the professor did not have a property interest in his job. This case
defined property and liberty. The court held that the professor‘s contract clearly stated the end date. It never said it
would be renewed absent sufficient cause. The professor did not have a legitimate claim to the job, therefore his
termination did not violate the due process clause.
v. Perry v. Sinderman: companion case to Roth. Involves a professor who sued after being fired. However this
professor‘s contract specifically said it would be renewed so long as the professor had a satisfactory teaching record
and cooperative attitude. The court held that this policy by the school and the fact that the teacher relied on it and
worked there for several years illustrates that the professor had an interest (property) and a legitimate claim of
entitlement to the job.
vi. Cleveland Board of Education v. Loudermill: case involving termination of a school security guard for lying
about a felony conviction on his job application. He was not given an opportunity to respond to the charge of lying, he
was just terminated. The state argued that they had a right to terminate him immediately due to a state law. The court
held that although the state legislature elected not to confer a property interest in public employment, it may not
constitutionally authorize the deprivation of such an interest, once conference, without appropriate procedural
safeguards.
vii. Statutory Entitlements and Natural Liberty:
1) State created property rights: Goss v. Lopez: case brought by six grades who had been suspended. The court
held that the state created a property interest because the state law said that the students could only be
suspended due to misconduct. Therefore the law created a legitimate claim to the entitlement of public education.
Since the state choose to extend the right to an education to the ∏‘s class, the state could not withdraw the right
due to misconduct without fundamentally fair procedures to determine whether misconduct had occurred.
2) Liberty: things that would not be considered rights at first can become rights when combined together. Paul v.
Davis: a case about a man who after being arrested for shoplifting, his face on a flier was sent to 800 area
businesses saying he was an active shoplifter. The charges against him were dropped and he brought suit
claiming that the act of sending out the flier had deprived him of his constitutional interest in reputation. The
court held that alone, reputation is not a constitutionally protected liberty interest, however combined with some

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 court held that alone, reputation is not a constitutionally protected liberty interest, however combined with some
other injury (such as failure to rehire, or deprivation of a right to purchase something from one of those stores)
an injury to reputation would trigger the due process clause.
a) Vitek v. Jones: case involving the transfer of a prisoner to a state mental hospital for treatment. The court
held that the due process clause was triggered b/c: 1. the state statute only allowed for transfer once an
approved doctor declared that the person was mentally sick and 2. that the prisoner retained a residuum of
liberty that would infringed upon by transfer to a mental hospital.
b) Greenholtz v. Inmates: the court held that without a statutory entitlement, there is no constitutionally
protected interest in a denial of parole.
c) Sandin v. Conner: the court held that there was NO due process violation when a prisoner was not
permitted to present witnesses during a disciplinary hearing in which hew as sentenced to disciplinary
segregation for misconduct. The court used all sorts of reason for its holding but necessarily it felt the court
should avoid involvement in the ordinary incidents of prison life.
11. What Process is Due
i. Traditionally a hearing is required before a property interest can be denied. The fundamental requirement of due
process is the right to be heard at a meaningful time and in a meaningful manner.
ii. The court held that written statements (as asked in Matthews) are an inadequate substitution for oral presentation
because they doe not provide an effective means for the recipient to communication his case to the decision maker.
iii. Additionally, the degree of potential deprivation that may be created by a particular decision is a factor to be
considered in assessing the validity of any administrative decision-making process. (in Goldberg the fact that the
welfare recipients need that money to live and to eat required that the state take extra precautions before it terminates
benefits, even temporarily).
iv. State can argue that it does not have the financial resources to pay to have a hearing for each individual up for denial
of benefits. The court held that financial cost alone is not a controlling weight in determining whether due process
requires a particular procedural safeguard prior to some administrative decision.
v. Matthews v. Eldridge: a case involving a man who was terminated his disability benefits. After being informed so, he
took up the state’s option of writing a letter challenging the finding. The letter was received but the benefits were still
denied. The court holds that a minimum, the ∏ was entitled to a hearing and that since he was not afforded one, he
was denied due process.
vi. Only in Goldberg v. Kelly has the court held that due process requires an evidentiary hearing prior to a temporary
deprivation of an interest.
12. SUBSTANTIVE RIGHTS: THE PRIVILEGES & IMMUNITIES CLAUSE
13. Essential question: whether and in what sense does the Constitution create ―implied‖ rights above all under the 14th
Amendment.
14. The privileges and immunities clause
i. The Slaughterhouse cases: cases brought by local butcher was challenged the constitutionality of a city ordinance that
only allowed a certain company to butcher meat in the city. The court held that the privilege and immunity clause
only applied to federal laws, not state laws and that its sole function was to protect the rights secured to individuals in
their relationship to the federal government in their capacity as federal citizens. The narrow list of rights secured by
the privileges and immunity clause includes:
1) to petition Congress
2) to peaceably assemble
3) to sue the Writ of Habeas Corpus
4) to sue the navigable waters of the US
5) the right to interstate travel
6) to claim the rights secured by the 13th and 15th Amendments
7) the right to vote in federal elections
15. ECONOMIC SUBSTANTIVE DUE PROCESS
16. Generally occurs when the courts use the due process clauses to invalidate federal and state social and economical laws as
arbitrary and unreasonable interferences with the freedom to contract as protected by the due process clauses that guarantee
liberty and property.
17. Freedom to contract has been declared an individual liberty under the 14th Amendment.
18. Lochner v. New York: a case brought on by bakery employees who said that a state law that set maximum hours of
employment was unconstitutional because it interfered with the right to contract between employer and employee. The court
held that it was unconstitutional because it was an arbitrary interference with private labor relationship and that the law
placed an excessive burden on liberty of contract. The state argued unsuccessfully that the right to mandate work hours is a
police power that serves a general public interest and the law was reasonable to promote employees‘ health. The dissent
argued that the court should have considered the reasonableness of the legislature in deciding this state law, rather than
economic theories of the court.
19. Muller v. Oregon: although it invalidated work maximum requirements in Lochner, the court allowed this state‘s
requirement that women could not work more than 10 hours a day in a laundry. The court said it was due to women‘s physical
structure placed her at a disadvantage and she didn‘t possess enough political strength to challenge the legislature into

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 structure placed her at a disadvantage and she didn’t possess enough political strength to challenge the legislature into
changing the law.
20. Nebbia v. New York: (early case) a suit brought by grocery store owners involving a state law that set the min and max
amount that milk can be sold at retail, because it no longer became profitable for farmers to create milk and families were
struggling and there was the potential that farmers would get out of the business of producing milk. The court held that
although the right to contract is generally a private concern, the test is whether the circumstances vindicate the challenged
regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory. The court upheld
the law b/c it met this standard.
21. West Coast Hotel Co v. Parrish: the court upheld a state law establishing a minimum wage for women. In doing so, the
court rejected the notion that there is a freedom of contract but does say that this law was upheld because it preserves the
public interest of looking out for the health of women and protecting them from unscrupulous employers.
22. United States v. Carolene Products:
23. Williamson v. Lee Optical of OK:
24. Ferguson v. Skrupa:
25. PRIVACY: BEARING CHILDREN
26. It is a basic civil right to marry and have children. The state cannot infringe upon it. It is not within their police power. The
court ruled this way in Skinner partially for fear that a potential genocide if the government could dictate who had children
(i.e. Hitler)
27. There is no explicit right to privacy in the Constitution.
28. Skinner v. Oklahoma: an OK law said that if you were convicted of three or more crimes you were unfit to have kids and
the state will sterilize you. The court held that the law violated the EP clause and DP clause. The court held that marriage and
procreation are fundamental the very existence and survival of a people and that it is a basic civil right of a man. It violates the
EP clause b/c its makes a classification (criminals) and the courts felt that the law dealt them an unequal hand. It also violated
the DP clause because the criminals had not way to stop the proceedings to have them sterilized.
29. Griswold v. Connecticut: a Connecticut law prevented the use of contraceptives to prevent pregnancy. The court said the
law would be different it had prevented the sale or manufacture it. The court held that this law infringed upon a fundamental
right to marriage and to procreate (should you choose). The court also went into the impracticability of this law. Surely the
police would not be allowed into the bedroom of married couples and look for signs of contraceptives. In a concurrent
decision, the justices believed that the right of marital privacy is actually found in the 9th Amendment. Important to note that
the court felt that this right to privacy extended to marital relationship. However a follow up case did extend this right of
privacy to unmarried people as well.
30. PRIVACY: ABORTION:
31. The court held that the right of privacy has its source in the 14th Amendment’s guarantee of personal liberty. This right of
privacy includes a woman’s decision to an intimate and personal decision without the inference of the state.
32. In Roe, the court has held any regulation to infringe upon this right to privacy to a strict scrutiny standard of review. However
in Casey, the court rejects the notion of the strict scrutiny review.
33. In Casey, the court adopts a “undue burdens” test : an undue burden exists and therefore a provision of law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion. The law must be designed to
inform the woman’s choice, not hinder it.
34. Planned Parenthood of Southeastern Pennsylvania v. Casey: the Court reaffirmed the holding in Roe v. Wade. In
Casey, the court recognized the right of a woman to choose to have an abortion before viability without undue interference
from the State. The court also confirmed the state’s power to restrict abortion after fetal viability, so long as it provides an
exception for the mother’s life or health. Finally, the court recognized the principle that the state has legitimate interests from
the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. The
reaffirmation of Roe was said to be based upon the strong liberty interests involved, concerns over institutional integrity if Roe
were overruled and the rule of stare decisis.
35. Stenberg v. Carhart:
3. E. MODERN SUBSTANTIVE DUE PROCESS: PRIVACY, PERSONHOOD, & FAMILY

1. 1. THE RIGHT OF PRIVACY: Strict Scrutiny

2. Zones of Privacy:
3. 1st amendment: right of association
4. 3rd amendment: prohibition against the quartering of soldiers w/o the consent of the owners.
5. 4th amendment: right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.
6. 5th amendment: right against self-incrimination
7. 9th amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.
8. The Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.
9. Accordingly, the challenged law may be justified only by a compelling state interest and must be narrowly drawn to express only
the legitimate state interests at stake.

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 the legitimate state interests at stake.
10. There is a zone of privacy involving marriage: I.E. It is unconstitutional to prohibit people from using contraceptives. Griswold.
11. This was also extended to nonmarried people. Eisenstadt (p. 821)
12. Regulation on access to contraceptives? Carey v. Population: Court invalidated a New York law prohibiting any person other than
a licensed pharmacist to distribute contraceptives.

13. GRISWOLD V. CONNECTICUT: (1965) (P. 811)

14. -A Connecticut statute prohibits any person to use “any drug, medicinal article, or instrument for the purpose of preventing
conception." People were found guilty as accessories.
15. -This is an unconstitutional statute. WHY?
16. There are various guarantees that create zones of privacy: 1st amendment; 3d amendment; 4th amendment; 5th amendment (the
right not to self-incriminate); 9th amendment. (These suggest that there is a right to privacy out there)
17. -Acknowledgement of rights not explicitly in the constitution, but is attached.
18. -The Court basis it decision on the privacy of marriage.
19. -The state didn't have a right to regulate contraceptives for married people.
20. HARLAND CONCURRENCE: (p. 814) Constitution and concept of due process can lend themselves to judicial interpretations that
make them "in tune with the times." (ACTIVISM) Tradition is a living thing.
21. DISSENTS: This is a Lochner type analysis, where the court is sitting around doing what it wants and not following the
Constitution. There is no right to privacy.

1. 2. ABORTION
2.
A. (a) Roe v. Wade (1973)
1. Statute that states that it is a crime to have an abortion unless it is putting the mother's life in danger is UNCONSTITUTIONAL.
2. Consequences that occur in denying a women the right to abortion:
1. Specific and direct harm medically diagnosable even in early pregnancy may be involved.
2. Maternity, or additional offspring, may force upon the woman a distressful life and future.
3. Mental and physical health may be taxed by child care. Distress associated with the unwanted child.
4. Bringing a child into a family already unable, psychologically and otherwise, to care for it.
5. In some cases, the additional difficulties and continuing stigma of unwed motherhood may be involved.
A. When will State have a sufficient interest to intervene?
1. Court declines to go into the question on when life begins.
2. Viability: gets the state to the trimester theory. The interest of the state and mother are separate and distinct, but these
become more substantial as the pregnancy goes along.
3. State can regulate after first trimester because of mother's health.
4. Compelling point: viability. State regulation is o.k. except those procedures that are needed for woman's health.
B. HEALTH OF MOTHER v. HEALTH OF POTENTIAL LIFE
1. Potential life: This does not become a compelling interest until "viability." (potentially able to live outside of the mother's
womb even if artificial aid is needed (24-28 weeks)).
C. (i) First Trimester
1. Can States regulate? NO. States do not have a compelling interest. The decision must be left to the medical judgment of the
attending physician.
2. States have an interest in the mother's health, but at this point this interest is low because it would be more dangerous to the
mother's health to let the pregnancy go full-term than to have an abortion in the first trimester.
D. (ii) Second Trimester
1. Can States regulate? If it wants, it can REGULATE abortion procedures, but those regulations have to be reasonably related
to maternal health.
2. At this time the interest in the mother’s health and baby’s health are equal. It is equally dangerous to have an abortion v.
carrying it out at this time.
3. States CANNOT PROHIBIT abortions at this time across the board, but if there is a procedure that kills 30% of women, the
state can prohibit it.
E. (iii) Third Trimester
1. Can State regulate? The State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even
prohibit abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life of health of the
mother.
1. **All of the above is based on ROE v. WADE (1973)
2.

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 1. If you want something to be a constitutional issue, it has to be based on an individual right. (Once it becomes a right to privacy
issue, it is the mother's right to privacy, not the father).
2. Any sort of interest the father has is trumped by the woman's bodily integrity.
3. When it comes to pregnancy, somebody's interest has to win.
3.
A. (b) Maher v. Roe (1977)
1. Court upheld a state regulation granting Medicaid benefits for childbirth but denying such benefits for nontherapeutic (non-
medically necessary) abortions.
2. This doesn't impinge on the fundamental right to choose to terminate pregnancy b/c you can still get an abortion, but the state
doesn’t have to pay for it.
3. There is no discrimination based on a suspect class.
4. REQUIREMENT: The right to an abortion encompasses that a woman not be faced with unduly burdensome interference
with her freedom to decide whether to terminate her pregnancy.
5. DISSENT: This makes abortion impossible for poor women.
1.
A. (c) Harris v. Mcrae (1980)
1. Court upheld the "Hyde Amendment" which prohibited 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.”
2. While women have a right to an abortion, the woman’s right does NOT include the right for a woman to have it paid for. There
is a difference in stopping the state from regulating and affirmatively making the state do it for you.
3. Standard of Review: Rational Basis: They use rational basis because there's no fundamental right infringed and no suspect
class.
1.
A. (d) City of Akron v. Akron Center for Reproductive Health: (1983)
1. State ordinance had a lot of regulations regarding abortions:
a. written consent and info requirement (The info went beyond what was needed for consent. Much of it was used to talk the
mother out of the abortion)
b. Second trimester abortions to be performed in hospital (court stated that this was unduly burdensome: cost & abortions
can be done just as effectively in a clinic).
c. 24 hour waiting period. (This increases the cost. Deters abortion).
d. Physician must provide info (some was related to maternal health, but there were other medical professionals who could
explain such things. This is just adding cost to make it more difficult to have an abortion)
2. Court INVALIDATED: (1) Spousal consent (2) Parental consent (3) parental notification requirements (4) Carey: distribution
of contraceptives of people under 16.
1.
A. (e) Webster v. Reproductive Health Services (1989) (Revealed that Roe v. Wade may be overturned).
1. Court upheld a ban on state employees performing abortions and abortions in public facilities.
2. Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same
choices as if the State had chosen not to operate any hospitals at all.
3. Court upheld a preamble in the law that said that life begins at conception. This really doesn't have any
effect on the statute.
4. The Pro Choice Movement gathered in strength in response to Webster.
5. AFTER WEBSTER:
a. Court is indefinite in the abortion area;
b. Hodgson v. Minnesota: court invalidated statute that required a minor to wait 48 hours until after both parents
consented. Held that this was not reasonably related to legitimate state interests.
c. Ohio v. Akron: Court upholds with certain exception the statute that stated that the minor wait 24 hours until one parent
consented.
1.
A. (f) Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) State of Abortion today
1. Challenged 5 aspects of Penn abortion control act:
a. women give informed consent (upheld)
b. Women receive certain info at least 24 hours before operation (upheld)
c. That minors receive parental consent w/ a judicial bypass mechanism (upheld)
d. Married women have signed statement that she informed husband (not upheld)
e. Certain reporting requirements (upheld)
2. ISSUE: Should court overrule Roe? NO. There is no justification for changing the decision, therefore, under the principles of
stare decises, the decision should stay.

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 stare decises, the decision should stay.
3. UNDUE BURDEN ANALYSIS FORMED instead of Strict Scrutiny: A woman has to be able to obtain an abortion without
any undue burden caused by the state.
a. Undue Burden = state putting up a substantial obstacle. Applies throughout the ENTIRE pregnancy.
i. The spousal provision is an undue burden.
ii. If women in domestic violence relationships had to get consent, then this would be an undue burden.
iii. The impact of birth and carrying a child is more on the mother’s liberty than the father’s.
iv. Additional costs aren’t going to get you to the undue burden level like we saw in the past.
4. Life and Health of the Mother Standard is kept in place.
a. The State has to have a “Health of the Mother” Exception.
b. If there is no substantial obstacle, there has to be an exception for the life and health of the mother.
1.
A. (g) Partial Birth Abortions: Steinberg v. Carhart (2000)
1. Nebraska law prohibited partial birth abortion. This was held unconstitutional.
a. Why? There are two different procedures and it is unclear whether they are both considered partial birth abortion.
b. Doctors are unsure whether both procedures are considered partial birth abortions, therefore, they may choose not to do
second trimester abortions to be on the safe side. This is an UNDUE BURDEN.
c. In addition, the law is unconstitutional b/c there is no exception for the preservation of the health of the mother.
2. For a statute to be constitutional, it would have to be specific regarding which procedure it was prohibiting and to have the
exception for the preservation of the health of the mother.

1. 3. FAMILY AND OTHER “PRIVACY” INTERESTS

2.
A. (a) Familial Relationships

1. (i) Number of people living together:

2. Moore v. City of East Cleveland: INTERMEDIATE SCRUTINY: ordinance that limited the number of people that
lived together to few categories of related individuals. It was very limited. (Man could not live with his nephew)
3. This kind of case requires heightened scrutiny and must examine carefully the importance of the governmental interests
advanced and the extent to which they are served by the challenged regulation.
a. In Belle Terre: The ordinance affected only unrelated individuals and therefore rational basis was applied.
4. (ii) Prohibiting Marriage until Child Support is Paid:
5. Zablocki (1978): Statute prohibited parents from marrying until parent paid his or her child support.
6. Fundamental Right to Marry & Procreate are violated.
7. When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it
is supported by sufficiently important state interests and is closely tailored to effectuate only those interest (THIS IS
CLOSER TO STRICT SCRUTINY)
8. State's interest: get people to pay child support (Response: There are other ways to get child support, throw them in jail,
garnish salaries, etc.) Stopping them from getting married is not the way to go about it.
1.
A. (b) Freedom of Association
1. Roberts v. USJC: JC was open only to men. Violated freedom of association. JCs didn't have a right to limit themselves to
men in this context. Some groups can limit who they let in, but you have to be a selective type of group. (i.e. Family,
organization, relatively small, highly selective, secluded from others). JC allowed anyone else who paid in. The more selective
and prestigious you are the more likely you can keep people out. (p. 895)
1.
A. (c) Sexual Relations
1. Bowers v. Hardwick: Adult male charged under sodomy statute in his own bedroom.
a. Is there a fundamental right to engage in homosexual sodomy? NO
2. Rights are fundamental if they are implicit in the concept of ordered liberty such that neither liberty nor justice would exist if
they were sacrificed OR they are characterized as those liberties that are deeply rooted in this Nation's history and tradition.
a. Homosexual sodomy doesn't fit either of these. (It couldn't be based on history of social views because it was held illegal in
24 states).
b. What about the privacy of one's home? Court wasn't moved by this. There are a lot of things done in the privacy of ones
home that are illegal (i.e. Drugs, incest, etc). This doesn't make something a privacy interest.
3. DISSENT: Powell: thinks this is cruel and unusual punishment if you get the maximum under this statute (20 years).

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1. 4. THE RIGHT TO DIE

A. (a) Refusing Medical Treatment

1. A person DOES have the right to refuse medical treatment. Cruzan (1990)
2. If the patient is incompetent, the only way that someone else could use this right to refuse medical treatment was if the
incompetent person, by CLEAR & CONVINCING evidence, would want their life to be terminated. Cruzan (1990)
1. Clear & convincing evidence = i.e. living will
1. In a sense, you do have a right to die. It is linked to your right to refuse medical treatment.
2.
A. (b) Assistant Suicide
1. The State can keep terminally ill adults from hastening their death. Washington v. Glucksberg (1997)
2. This is fine for a court to do because we have always had laws against suicide. This, therefore, is consistent with our history
and social values. Washington
3. Most people who are terminally ill, if they have pain or depression treated, will change their mind about suicide.
4. You do, however, have a right to palliative care (the right to not die in pain. You have a right to pain medication). There is a
concern, however, that there will be a problem with palliative care b/c it is easy to overdose on morphine.

1. FIRST AMENDMENT: SPEECH

2.
1. First Amendment: Congress shall make NO law….abridging the freedom of speech, of the press, or the right of the people to
peacefully assemble, and to petition the Government for a redress of grievances.
2. Why protect Speech?
i. Speech is crucial to self government
1) Political speech is vital to democracy (protecting political speech is essentially the core of the first amendment).
2) Self governance can only exist where people can freely express matters.
ii. Speech is essential to the discovery of truth
1) Commonly called the market place of ideas. However it is not a free market place b/c the more resources (money)
and pull you have, you can speak louder than others with less.
2) Suppressing speech robs us of the chance to discover (for ourselves) what is right and what is wrong.
iii. Speech is an essential part of personhood and autonomy
1) To engage voluntarily in speech is the highest form of self expression or self definition.
2) Example: when a war protestor shouts “end the war” they know no one is listening to her command, but it is a
way for her to publicily define herself as opposed to the war.
iv. Speech is intergral in developing tolerance.
1) Tolerance is a crucial value of our society. In essence, protecting distasteful or politically incorrect speech is an
act of tolerance itself.
2) It shapes people’s intellectual character.
3. The first amendment is not absolute
i. You are not allowed to speak about anything at anytime. The government can choose, at certain times, to limit your
speech:
1) Time, Place, and Manner Rules: Example: court rules against no talking, etc. In this instance, the government is
not regulating the content of the speech. It is CONTENT-NEUTRAL. However it can be unreasonable at times.
2) Context: Context matters a lot. Example: if you are in school, you would expect your speech to deal with the
discussion of the class and not flowers. However, when speech takes place on public property, the government
has less authority to regulate speech.
3) Unprotected Speech: The court has felt that the government is justified in not protecting this type of speech b/c it
has very little value or moral values/societal interest significantly outweigh the benefits of allowing the speech.
4. Distinction between content based and content neutral speech
i. Content based regulations are those that apply to speech based on its ideology or the topic of the speech.
1) Essential question is why did the government adopt the law because of a disagreement with the law’s message?
2) subject to strict scrutiny
3) held to a higher scruitinty because it goes to the core of the first amendment of why we have it.
4) Exception is that the government can restrict speech that is really bad (see unprotected speech section)
ii. Content neutral regulations are those that apply to all types of speech regardless of ideology or subject matter.
1) subject to intermediate scrituinty
2) held to a lower stander because of less of a risk of the government affecting speech.
3) these regulations must satisfy time, manner, place rules. The government may regulate speech in a public forum

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 3) these regulations must satisfy time, manner, place rules. The government may regulate speech in a public forum
in a manner that minimizes disruption of a public place without infringing on freedom of speech if the aw passes
intermediate scrutiny and the law is content neutral.
iii. However, a facially content based regulation will be deemed as content neutral if it is motivated by a permissible
content neutral justification. The justification must truly be unrelated to the desire to suppress speech and it must be
unique to the speech suppressed as compared to the speech allowed (see porn section for case examples).
5. CONTENT BASED REGULATION:
1) Unprotected Speech (defined by Chaquniksy):
i. Not all speech is protected by the law.
ii. Examples of unprotected speech are:
1) dangerous speech
2) obscenity/pornography
3) hate speech
4) profane
5) libelous
6) “fighting words”
6. Content- based regulation
i. Determine that it is content based
ii. Look at with strict scrutiny analysis (to determine constitutionality of the law)
iii. Then judge societal interests to see if it should be protected or not
7. CONTENT BASED REGULATION: DANGEROUS SPEECH:
8. Generally, government regulations on content based speech are unconstitutional. At its core, the court believes that the first
amendment protects content based speech.
9. Essential issue: Can the government constitutionally restrict expression b/c it might persuade, incite, or otherwise “cause”
readers or listeners to engage in unlawful conduct? When and at what point can speech which is aimed to criminal activity or
to over throw the government be stopped to protect society and order.
10. Strict Scrutiny Test is used (compelling government interest and means are narrowly tailored)
11. Brandenburg v. Ohio (Brandenburg is a KKK leader). Only that speech which is directed to producing and is likely to incite
imminent lawlessness may be restricted by Government Action. The court held that ∏‘s actions at the rally actions were more
so teaching than incite. And that the mere abstract teaching of the moral propriety or even moral necessity for a resort to force
and violence is not the same as preparing a group for violent action and steeling it to such action. Intent is not a part of the
standard, it is likelihood that the immediate law violation would occur. This case seems to suggest that the speaker has
protection so long as he does not use express words of incitement.
12. BRANDENBURG TEST. Brandenburg test requires 3 things:
i. (1) express advocacy of law violation
ii. (2) the advocacy must call for IMMEDIATE law violation and
iii. (3) the immediate law violation must be LIKELY to occur.
13. EXAMPLES OF CASES USING BRADENBURG TEST:
i. Hess v. Indiana (1973): Court reversed the conviction for disorderly conduct of an individual who shouted, ―We‘ll
take the fucking street later,‖ during an antiwar demonstration. Court explained that ―at best, the statement could be
taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at
some indefinite future time.‖
ii. NAACP v. Claiborne Hardware Co. (1982): During the course of a boycott, NAACP official stated in a public
speech to several hundred people that ―if we catch any of you going in any of them racist stores, we‘re gonna break
your damn neck.‖ The Court held that in the passionate atmosphere in which the speeches were delivered, they might
have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence
whether or not improper discipline was specifically intended. The Court has made clear, however, that MERE
ADVOCACY of the use of force or violence does NOT remove speech from the protection of the First Amendment.
iii. Hercerg v. Hustler: a 14 yr old boy was found hanging in his closet with a copy of Hustler at his feet opened to an
article entitled ―Orgasms of Death. The court invalidated a civil jury verdict Brandenberg was not satisfied.
14. THREATENING SPEECH
15. Threats of violence are generally held as outside the first Amendment because of the need to protect individuals from the fear
of violence, from the disruption that fear engenders, and from the possibility that the violence will occur.
16. The law of Terrorist Threatening: A person commits the offense of terroristic threatening in the second degree, if with the
purpose of terrorizing another person, he threatens to cause physical injury or property damage to another person.
i. The conduct prohibited by this section is the communication of a trheat with the purpose of terrozing another.
ii. It is not necessary that the recipient of the threat actually be terrorized. The witness‘s state of mind is simply not an
element of the offense of terroristic threatening b/c it is not necessary that the recipient of the threat actually be
terrorized.
17. Bridges v. California: case involving injunction by court not to speak out about a case involving labor unions. The court

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17. Bridges v. California: case involving injunction by court not to speak out about a case involving labor unions. The court
held that a state may curtail expression which is aimed at criticizing the judicial process but only if the state is seeking to avert
some serious substantive evil. According to the clear and present test (not used anymore due to Brand, the substantive evil
must be extremely serious and the degree of imminence extremely high before utterances can be punished. Judgement was
made while the cases were pending and public interest was high. The court upheld this injunction stating that the evils of this
case was disrespect to the judiciary and possibility of disorderly and unfair administration of justice.
18. Watts v. U.S.: case involving a young man at an anti war demonstration who said that if he was drafted he would shoot the
president. He was convicted under a federal statute that prohibited the willful making of a threat against the life of the
president. The court held that the statute was consitutitonal on its face but did not apply in this situation because ∏‘s
statements did not constitute a threat within the meaning of the statute. It was more political hyperbole. It was just a cruel and
offensive way of stating a political opposition to the president.
19. Planned Parenthood v. American Coalition of Life Activists: ∆ operated a website that had photos under a wanted
sign for doctors who preformed abortions. The court held that the website constituted an unprotected threat because ∆
threatened, but not advocated violence. The court looked at the posters and stated although they did not contain any language
that can literally be a threat, the image portrayed that if you practice abortions you will be shot or killed. The court likened it to
the burning crosses, you don‘t have literally threaten someone with a burning cross, but both the sender and the receiver get
the message. They also held that a reasonable person would foresee that the statement would be interpreted by the doctors as a
serious expression of intent to harm or assault. The court held that it was not necessary for the ∆ to carry out the threat, that
the only intent requirement for a true threat is that the ∆ intentionally or knowingly communicate the threat with the intent to
intimidate.
20. FIGHTING WORDS
21. Fighting words are speech that is directed toward another and is likely to provoke a violent response. ―Those which by their
very utterance inflict injury or tend to incite an immediate breach of the peace (Chaplinsky definition)
22. The court will strike down fighting words convictions if:
i. The words must be directed toward a specific person
ii. The words must have been likely to provoke a violent response in a reasonable person
1) Direct and personal insults and invitations to fight seem to the only fight words that might allow a conviction.
2) Speech is protected even if uttered in anger, filled with profanities, and likely to anger the audience if it is void of
fighting words. Must contain fighting words to be unprotected. (see requirements above)
23. Usually these cases are brought in response to a ∆‘s appeal that the statute or law that they were convicted of was
unconstitutional b/c it violated their first amendment right to free speech. The state would then argue that the regulation is
constitutional because it concerns fighting words.
24. Fighting words are unprotected by the first Amendment b/c the words have only a slight social value and the social benefits of
not protecting it significantly outweigh the benefits of protecting it.
25. There are two types of fighting words:
i. Fighting Words: where the word are an insult likely to inflict immediate emotional harm.
ii. Hostile Audience Reaction: where the words are likely to cause a violent response against the speaker.
1) At issue is whether the appropriate response is to punish the speaker or punish the person resorting to violence.
26. Chaplinsky v. New Hampshire: case involving a Jehovah‘s witness convicted under the law against annoying person on
the street w/ intent to annoy. The court upheld the convicted establishing that fighting words are not protected by the first
amendment. It also sets out the list of unprotected speech. Important that court still used the strict scrutiny test (compelling
interest is social order and morality, narrowly tailored: face to face words likely to cause a breach of peace) to establish that it
is content based, but second part of analysis balances the societal value of the speech to determine whether it is protected or
unprotected.
27. Street v. New York: flag burning conviction was reversed b/c the man say ―we don‘t need no damn flag‖ and then burning it
did not constitute fighting words.
28. Texas v. Johnson: Flag burning is a form of speech protected by First Amendment b/c it is not directed at a particular
person as a personal insult.
29. Cohen v. California: case involving a jacket that said ―fuck the draft‖. The court reversed his conviction because the words
were not directed at a specific person nor as a direct personal insult.
30. SPEECH THAT PROVOTES A HOSTILE AUDIENCE REACTION
31. Cases where the speaker can be punished b/c of the audience‘s reaction.
32. Essential question: under what circumstances, if any, can the government restrict speech because the ideas expressed might
provoke a hostile audience response? To what extent does the first Amendment protect the speaker whose expression provokes
a breach of peace?
33. Answer: speech is protected unless it rises to the level of a serious substantive evil which is more than public inconvenience,
annoyance or unrest.
34. Early cases used the clear and present danger test for dealing with this type of speech, however later cases focused on the
crowd‘s responsibility to maintain control.
35. Termininello v. Chicago: case involving a rally inside that had a large dissenting crowd outside. The crowd outside got
mad and stormed inside. ∏ was convicted of starting a riot. The court held that the conviction was unconstitutional and ∏‘s
speech was protected because the function of free speech under our government is to invite dispute. It serves it high purpose

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 speech was protected because the function of free speech under our government is to invite dispute. It serves it high purpose
when it induces unrest, dissatisfaction, or stirs people to anger. The court again says that speech is protected unless it rises to
the level of a serious substantive evil which is more than public inconvenience, annoyance or unrest.
36. Cantwell v. Connecticut: case involving a Jehovah’s witness who played a record denouncing the Roman Catholic church.
Record contained some derogatory language. The court recognized a states right to punish speech which incites a hostile
audience to breach the peace. However in this case, they said there must be a clear and present danger of riot, disorderly
conduct, interference to traffic, public safety, etc. They felt that that didn‘t occur in this case b/c ∏ never threatened anyone or
public safety.
37. Feiner v. New York: case in which ∏ was on a street corner giving a speech against the president, the government, etc.
Officers showed up and attempted to control the angry crowd. They asked ∏ to stop three times and he wouldn‘t. The cops
arrested ∏ and he was convicted. The court held that the conviction was constitutional because ∏‘s speech interfered with
public safety and that the police were only trying to prevent a breach of the peace not suppress ∏‘s speech. Dissent disagreed
arguing that if that was the police‘s motive, they should have taken action against the crowd, not ∏.
i. Feiner has not been overturned but subsequent cases with similar facts have had the opposite outcomes (reversed
convictions)
ii. Edwards v. SC: and Greogory v. City of Chicago: Civil rights cases in which protestors were arrested for
refusing to disburse when a hostile crowd began reacting to them. The court emphasized a duty on police to control
the CROWD rather than suppress the speaker speech (Feiner‘s dissent)
38. DISCLOSURE OF CONFIDENTIAL INFORMATION
39. Occurs when the government attempts to restrict the publication of factual information it would prefer to keep secret
(examples: pentagon papers, commission studies, etc.)
40. The court has consistently held that a state will not restrict the publication of truthful confidential information absent a state
interest of the highest order, but has failed to determine what the highest order is.
41. Landmark Communications v. Virginia: case in which the state convicted a newspaper of publishing confidential
committee information regarding the investigation of a judge. Although there were legitimate state interests, the court
asserted that the question was whether those interests were compelling enough to encroach upon the newspapers first
amendment rights. The court stated that the state‘s interest were not compelling enough and that there were other available
means (such as stopping departmental leaks) to achieve the state‘s interest without encroaching upon first amendment rights.
42. Nebraska Press Association v. Stuart: in anticipation of highly publicized murder trial, the judge ordered a gag order on
the press. The court found that the gag order was unconstitutional because it failed to fufill the three part test it outlined.
i. Did the state/court properly access the risk, is it as grave as they say?
ii. Are there any alternative measures that could be used without infringing upon ∏‘s rights?
iii. Will the action taken by the state actually achieve its goal?
43. New York Times v. U.S, U.S. v. Washington Post: famous Pentagon papers case. The newspapers received some
confidential Vietnam war stuff from a former CIA spy. They printed it and the US received an injunction to prevent further
printing as it would jeopardize the life of military people, hinder foreign relations, and other issues of national security. The
court held that the government cannot halt the publication of current news of vital importance to the people of the country.
That the press was designed for the governed (the people) and not the governors (the government). The court rejects the US
arguments that publication would affect national security by saying that security is a broad word and that the guarding of
military and diplomatic secrets at the expense of informed representative government provides no real security to the US.
Important to note that the court (and the parties involved) believe that there are circumstances in which this type of order
would be constitutional, just not this case, but doesn‘t say what type of case would qualify. There were a gang of concurrent
and dissents: Concurrent: that the US case was built on a house of cards (may effect national security, might kill troops), the
court needs some certainty if it is going to take away first amendment rights. Also, that the all the risks explained by the US
were delegated to the executive branch and the only checks and balance on the executive branch for these powers is the power
of the ballot. The people, in order to be an effective ballot, must be kept informed of our the executive branch is using, or
misuse their powers. Dissents: This is a case between the free press and a complex government. Only a person who thinks the
first amendment is absolute would vote to reverse the injunction. Also, the separation of powers clearly places some powers in
the executive branch and the judicial branch should not interfere with it by saying that information on how the executive
branch uses it power be disseminated. The court should only have examined the issue to determine whether it falls within the
executive powers, if it does, the court should have refrained from ruling on it. Finally, that each provision of the Constitution
(executive powers and first amendment, specifically) are important and one provision doesn‘t have more importance than the
other.
i. Hypos: what if the papers were obtained illegally? Or the information was obtained through an illegal wiretap? The
ruling would have been the same, even if the newspaper knew that the documents were stolen if the information
obtained was a matter of public concern and the disseminator of the information did not participate in the illegal
acquisition of it.
ii. The state may keep information from the press by prohibiting government employees from disclosing confidential
information.
44. Snepp v. United States: case involving a former CIA spy who published classified information after he left his position
although upon employment he signed a non disclosure agreement. The court held that the spy breached his fiduciary
obligations to the CIA (contract law matter). Additionally, the court held that the government had a compelling interest in
protecting both the secrecy of the information and the appearance of confidentiality essential to the operation of the foreign
intelligence program and that the non disclosure agreement is a reasonable means of achieving that compelling interest.

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 intelligence program and that the non disclosure agreement is a reasonable means of achieving that compelling interest.
45. U.S. v. the Progressive, Inc.: case in which a newspaper company wants to publish information regarding the hydrogen
bomb that was deemed classified by a federal statute. The court held that the injunction by the court was constitutional. This is
different from NY Times because (1) this information was current whereas in NY it was historical data, (2) the US presented a
solid case as to exactness of how the publication was threaten national security, and (3) there was a statute in this case that
specifically forbad the release of this information.
46. Haig v. Agee: case involving the Governments revocation of ∆‘s passport because he engaged in activities overseas that
threatened national security (exposing CIA agents, no death, but violence did occur). The court held that ∆‘s disclosures have
the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. This is clearly NOT
protected by the constitution.
47. OBSENTITY AND PORNOGRAPHY
48. The big question is what is considered obscene?
49. Three Prong Test to determine if something is obscene (Miller v. CA). Obscenity is that which, taken as a whole:
i. Appeals to the prurient interest in sex;
1) the essential question is whether an average person applying contemporary community standard would find the
work taken as a whole appeals to the prurient interest
a) Community standards: it is the standards of the community in which the jury is located. There is no one
central community standard across the country.
b) Prurient interest: a shameful or morbid interest in (1) nudity, (2) sex or (3) excretion and (4) going ―over the
top‖. (although shameful or morbid is subjective, it must be something well beyond the typical curiosity)
ii. Portrays sexual conduct in a patently offensive way; AND
1) the essential question is whether the work depicts or describes in a patently offensive manner sexual conduct
specifically designed by the applicable state law.
a) No hard core definition for patently offensive, but the Miller case gives some examples
(representations/depictions of ultimate sexual acts, masturbation, excretory functions, lewd exhibitions of
genitals).
b) State laws do not have to outline everything that would be considered patently offensive, but must quote the
Miller test in the law.
iii. Has no serious literary, artisitic, political or scientific value
1) The essential question is whether the work taken as a whole lacks serious literary, artistic, political, scientific
value
a) In this case, a national standard does apply. It is what a reasonable person in this country, not that specific
community
50. Miller v. CA: case involving ∏ who had a mass mailing campaign to advertise the sale of sexual illustrated books, called
―adult‖ material. The brochures that were mailed contained pictures and drawings explicitly depicting men and women in
groups of two or more engaging in a variety of sexual activities, often with clearly exposed genitals. The court created the above
test to apply in these situations and held that the state law that banned them was constitutional.
51. Before Miller, the test was that it had to be utterly without redeeming societal value.
52. Nudity alone is not obscene.
53. Simulated sex alone is not obscene.
54. Obscenity laws can only penalize the sale and distribution of obscenity but not mere possession
55. The government may prohibit the sale of non obscene porn to minors, even if it is freely available to adults.
56. Paris adult theatre I v. Slaton: case brought by two ―adult‖ movie theatres and their owners alleging that a GA law was
unconstitutional. The theatres had a conventional, inoffensive entrance w/o any pictures, had signs that did say it was mature
films inside, but also a sign said that you must be 21 yrs old to enter and if viewing the nude body offends you, please do not
enter. The court held that the state regulation was not immune from constitutional immunity b/c it affect consenting adults
only. The state argued that adult theatres ruined the aesthetics of the neighborhood was attached to crime and other
undesirables. The court held that a legislature could enact a law based on these conclusions to protect the social interest in
order and morality. The states have the power to make a morally neutral judgment that public exhibition of obscene material,
or commerce in such a material as adult films, has a tendency to injure the community as a whole, to endanger the public
safety, or to jeopardize the States ―right to maintain a decent society‖
57. Why is obscene speech regulated?
i. The state may suppress obscenity because it may cause violent antisocial conduct.
ii. Obscenity corrupts character, impairs mental health, and has a deleterious effect on the individual from which the
community should protect him.
iii. Suppression of obscenity prevents the erosion of moral standards. It erodes moral standards by indirect degradation
of values.
iv. The courts have held that states may restrict obscenity to protect individuals against the ―shock effect‖ of unwanted
exposure to such expression b/c a ―communication of this nature, imposed upon a person contrary to his wishes, has
all the characteristics of a physical assault‖
58. Why is pornography harmful?

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 58. Why is pornography harmful?
i. Harmful to children: Therefore the solution is to regulate the means. We must ban child pornography even if it
doesn’t meet the Miller standard
ii. Harmful to adults who have access to pornography: There has been some suggestion that exposure to graphic violent
porn actually has some correlation with violent anti-social conduct, and that it is addictive. The problem with this
argument is that there are other things that are addictive.
iii. Porn therefore has a graded scale of protection:
1) Not protected: snuff films, child porn, coerced performances
2) Limited Protection: violent porn, express incitement, porn of minors (not necessarily children)
3) Complete protection: sexually explicit but non-violent porn.
3.
1. Violence as Obscenity
i. American Amusement Machine Assn. v. Kendrick: A state statute that specifically mentions the miller test but applies
it to violence (specifically violent video games). The court held that violence and obscenity are disticint categories. The
main concern about obscenity is that it is obscene. The main concern about violence is that it might foster aggressive
conduct, attitudes, and behavior, which might lead to violence. To restrict speech on this basis, a state would have to
present a compelling basis for believing that such harms were actually caused by the expression.
1) Video games as speech. No. The court has held that where there is no intent to or likelihood of passing
information or communicating a message, even the principle that entertainment is protected speech does not
apply.
2. Child Pornography:
i. Child porn IS NOT protected speech. It doesn’t fit in the category of obscenity though. Has separate test (Feber test)
1) For compelling state interest arguments, see Ferber test.
2) The activity depicted is illegal.
3) There is very little first admendment or scientific, artistic value
4) The harm will always outweigh any good.
ii. New York v. Ferber: case in which ∆ was a store proprietor who sold films that were devoted to young boys
masturbating. The court held that the depiction of children in pornographic films is not protected speech. Child
pornography is in essence child abuse. And the movies are a permanent record of that child abuse. In order to prevent
child pornography, the state must be able to shut down the distribution network, stores like the ∆. Additionally, if
these stores are allowed to disseminate child porn, it creates an economic incentive to stay in that business.
Additionally, the viewer of child pornographer is likely to go out and commit child abuse. T
iii. Ferber Test:
1) The test is to balance the harm of the speech against any benefit.
2) Need not appeal to the prurient interest of the average person
3) Need not be patently offensive (statute must still define the conduct specifically).
4) Need not be considered as a whole
5) Need not be considered as a whole
6) Private possession is also illegal (Osborne)
iv. Ashcroft v. The Free Speech Coalition: dealt with the issue of whether virtual child pornography is
unconstitutional. The court said yes. Although there are no actual children involved, the heart of a ban against child
pornography is to protect the child. Court used the reasoning of Feber in holding that people who view these movies
may go out and abuse children, that it will make it more difficult to prosecute actual child pornography, and that the
images themselves are so offensive that they should not be tolerated. However the court said that prospect of crime,
by itself, doesn‘t suppress protected speech. The court required that the sate must show that the harm is immediate in
order to regulate this industry.
v. Posssesion of Obsentity v. Possession of Child Porn
1) Possession of Obscenity: The state cannot criminlize the possession of obscene materials by adults. They can
however criminlize the distribution and sale (Stanley v. Georgia)
2) Possession of child pornography: The state can criminalize the possession of child prornography (Osborne)
3. HATE SPEECH
4. Hate speech is allowed so long as the regulation does not target the conduct based on its expressive content. Essentially, hate
speech is protected even if it discriminatory.
5. The government can address hate speech by prohibiting all fighting words. Fighting words are unprotected not because of
their content, but because of the mode or means of the communication and that the social interests outweigh any benefit from
the speech.
6. R.A.V. v. City of St. Paul: Petitioner burned a cross on a black family‘s lawn. Petitioner was charged under an ordinance
which prohibits the display of a burning cross, a swastika, or other symbol that one knows or has reason to know ―arouses
anger, alarm or resentment in others‖ on the basis of race, color, creed, religion, or gender. The Court held that the ordinance
was facially unconstitutional in that it prohibited speech solely on the basis of the subjects the speech addresses.. (There is a

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 was facially unconstitutional in that it prohibited speech solely on the basis of the subjects the speech addresses.. (There is a
possibility, but it is unlikely that the speech would’ve been unprotected if the Chaplinsky factors were applied).
7. Wisconsin v. Mitchell: Mitchell, who is black, urged a group of blacks to assault a young white boy who happened to be
walking by. Because the jury found that Mitchell had intentionally selected his victim b/c of the boy’s race, the maximum
sentence was increased. The Court focused more on the ramifications of committing a violent crime and the social unrest that
it might cause. It is o.k. to have an extra penalty against crimes motivated by race, sex of victim. In this context, we recognize
that the motive here, the bias motive, is so harmful that it deserves more penalties. We are not picking out your message, it
doesn't matter what you say. What matters is your motive in choosing your victim.. RAV was against "what you said."
8. Virginia v. Black: case involving ∆ who burned a cross in front of a black person‘s home. They were charged under a VA
statute that prohibited cross burning with intent to intimidate and conspiracy to commit a felony a VA statute in which cross
burning was prohibited because it that: (1) Virginia's ban on cross burning with intent to intimidate did not violate First
Amendment; (2) as interpreted by jury instruction given at defendant's trial, provision of Virginia cross burning statute, which
stated that burning of a cross in public view "shall be prima facie evidence of an intent to intimidate," was facially
unconstitutional under the First Amendment; and (3) construction of prima facie provision of Virginia statute by jury
instruction was ruling on question of state law that was as binding on Supreme Court as though precise words had been
written into statute. The court felt that this was clearly a hate message because burning a cross in the United States is
inextricably intertwined with the history of the Ku Klux Klan.
9. INDECENT SPEECH & THE ELECTRONIC MEDIA
10. Essential Question: in what circumstances if any, may the government restrict the public use of profane or sexually oriented,
but non-obscene expression because of its highly offensive character?
i. Protected if the aim of the law is not prevent the invasion of a person‘s privacy and prevent incitements to fight
ii. Unprotected if the aim is to change someone‘s mind.
11. This speech is content based, therefore it must satisfy STRICT SCRUTINY.
12. Profanity in Public: When in public, you take the risk of seeing/hearing things that may offend you. Therefore profanity in
public is not automatically unprotected.
13. Profanity in Private: In private, you can do the same as in public, refuse to listen/hear the profanity by leaving. Profanity in
private is unprotected when the invasion of privacy is in an essential intolerable manner. The courts firmly believe that a
person‘s privacy in their own home is one of the most protected things. Therefore the courts usually balance the interest of
privacy in the home against the interest of the speech (Chaplinksy factors?)
14. Cohen v. California: Public Profanity: ∏ wears a jacket that says ―fuck the draft‖ and then walks into a court house. The
supreme court says his speech is protected. Although Chaplinsky says lewd and profane speech are unprotected, the court held
that ∏‘s speech was not obsence. In order to be obsence, the speech has to have something sexual or exotic about it. This
speech is also not fighting words because it is not likely to provoke a violent reaction in the ordinary citizen. In order to be
fighting words, it must be addressed to a specific person. ∏‘s jacket wasn‘t addressed to anyone in particular.
i. Hypo: What if ∏ had walked into the draft induction center and people who had been drafted read his jacket, would
they be considered fighting words? Yes. He is directing his speech at those group of people and those people may be
reasonably enticed to respond violently. CONTEXT MATTERS.
15. Erznoznik v. Jacksonville: ∆ ordinance that declared it a public nuisance for any drive in movie theatre to exhibit any
motion picture that contains nudity if such movie screen is visible from any public street or place. The court held that ∆ could
not band the showing of nudity in a drive in movie screens, because the law as not narrowly tailored. A state or municipality
may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective
of content. But when the government undertakes selectively to shield the public from some kinds of speech on the ground that
they are more offensive than others, the First Amendment strict limits limits powers.
16. FCC v. Pacifica Foundation: indecent speech over the radio: At issue was whether the FCC had any power to regulate a
radio broadcast that was indecent but not obscene. The court held that yes it could. The court held that patently offensive,
indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of their home
where the individual‘s right to be left alone plainly outweigh the First Amendment rights of an intruder. Because the broadcast
audience is constantly tuning in and out, prior warnings cannot completely protect the listener or the view from unexpected
program content. Additionally, broadcasting is uniquely and easily accessible to children.
17. Sable Communications , Inc. v. FCC: Dial-a-porn. Court held unconstitutional a federal statute prohibiting the interstate
transmission of ―indecent‖ commercial telephone messages. The court held that telephone communications are different from
the radio because the telephone requires the caller to take ―affirmative steps‖ to receive the message (pick up the phone and
call that exact number for that exact purpose). The means was also not narrowly tailored. Although a compelling state interest
(protecting children from dialing for porn), the interest could be better served by various technical means other than a total
ban of the transmission of such charges.
i. Hypo: Would it make a difference if the statue said ISP‘s may not allow children to have access to harmful numbers?
1) This would not be ok. There is a potential that you will deny access to children AND adults as well.
ii. What if the law required that ISP‘s impose technical means that would prevent children from having access? This
would probably be ok and right in line with the Sable holding.
18. Reno v. American Civil Liberties Union: Court invalidated 2 sections of an Act that was designed to protect minors from
―indecent‖ and ―patently offensive‖ communications on the internet through (1) prohibited any person from making any
communication over the Internet which is indecent knowing the receiver is under 18, (2) prohibited any person from
knowingly sending information that will be available to someone under 18 and depicts or describes a offensive sexual activity.
The court held that the risk of encountering indecent material on the internet by accident is remote b/c of a series of

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 The court held that the risk of encountering indecent material on the internet by accident is remote b/c of a series of
affirmative steps required to access specific information (like the telephone). This would also suppress a large amount of
speech that adults have a constitutional right to receive and to address one another. Additionally, sexual expression which is
indecent, but not obscene, is protected by the first Amendment. The government may not reduce the adult population to what
is only fit for children.
i. What if the means were not 100% effective?
1) Reno seems to say that unless you can find a technological method that is just as effective as the government's
goal, then you can't use this method (this is the problem with internet filters, etc.) All of these things would limit
much more things, and restrict access to adults.
2) In theory, there is a technical world out there that could allow children no access and adults access, but this world
doesn't exist yet.
ii. What will happen in the future is all of these technologies converge in your living room. It will all be in one appliance.
The court has different approaches to each medium. PROBLEM!!! What is the first amendment rule? Court will have
to develop a better way of thinking through this
19. Ashcroft v. American Civil Liberties Union: Internet content providers and civil liberties groups sued United States
Attorney General, alleging that Child Online Protection Act (COPA) violated First Amendment. The court held that the law was
unconstitutional because it burdened some adult access to protected speech. The act required that adults enter credit card
information to confirm their age. The court held that there were less evasive plausible alternatives ( such as filters) that
prevented minors from accessing the commercial porn. Basically it wasn’t narrowly tailored. Dissent felt that the alternatives
were in fact narrowly tailored.
20. COMMERCIAL SPEECH
21. Old law was that it unprotected speech. Now it is protected speech. The court has held that speech does not lose its first
amendment protection just because money is spent to project it or because it relates to an economic interest.
22. Commercial speech is held to intermediate standard.
23. CONTENT NEUTRAL: TIME,PLACE,MANNER
24. Content-neutral restrictions limit expression w/o regard to its content.
25. Time, place, and manner restrictions deal with restriction speech based on the time, place, or manner it is expressed, not the
actual speech itself (content based)
26. It is held to an Intermediate Scrutiny. Meaning that the government may enforce reasonable time, place and manner
restrictions in public forums only if the restrictions are:
i. Content neutral (cannot be viewpoint related)
ii. Important government interest
iii. Narrowly tailored means
iv. Ample alternatives for the speaker to communicate his message
v. Balancing test: does the state’s interest outweigh that of the individual/public?
27. Communicative impact: a law may be content neutral on its face but may in turn be applied based on its on communicative
impact
i. Example: a law declaring it unlawful for any person to disturb the peace by making any public speech that may cause
a hostile audience response. Although the law is neutral on its face, the court has analyzed them as content based (and
held to a strict scrutiny basis) because it is the content of the message that triggers the restriction.
28. Secondary Effects: A law may be content-based on its face but may be defined in terms that are unrelated to communicative
impact.
i. Renton: the GA case about the location of adult movie theatres. The law was content neutral not because it was
defended not in terms of the communicative impact of the restricted expression, but in terms of the secondary effects
of the theatre on the surrounding community.
29. Impermisslbe motive: A law may be content-neutral on its face but may have been enacted with the purpose of suppressing a
particular message.
i. Example: a law prohibiting any person to destroy a draft card encacted for the purpose of punishing individuals who
publicly burn their draft cards in protest of a national policy.
30. Content differential effects: Some laws are content neutral on their face but have content-differential effects.
31. LITTERING: Schneider v. State: case involving an ordinance that prohibited people from littering. ∏ was passing out
leaflets and some people threw them away on the street. The court held that the purpose of the ordinance at issue was to
prevent littering. The court held that a city‘s interest in keeping the ―streets clean and of good appearance‖ was insufficient to
justify a municipal ordinance prohibiting the distribution of leaflets on public property.
32. KNOCKING ON DOORS: Martin v. City of Struthers: ∏ was a Jehovah‘s witness who went to the homes of strangers
and knocked on their doors to give them leaflets to attend an upcoming religious event. She was convicting of violating an
ordaniance prohibiting this activity. The court held that the ordinance was invalid. The court said that the ordinance was too
vague in that it criminalized illegal and perfectly legal (∏‘s) activities.
33. LOUD NOISES: Kovacs v. Cooper: The court upheld a city ordinance prohibiting any person to use any sound truck or
other instrument that emits ―loud noise‖ on a public street. The city said that such noise would be a distraction to traffic. The
court held that the need for reasonable protection in the homes was justifiable.

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 court held that the need for reasonable protection in the homes was justifiable.
34. BILLBOARDS: Metromedia, Inc. v. San Diego: A city banned all outdoor advertising display sings. The court
invalidated the ordiance. The court held that the effect of the ordiance was to eliminate the billboard as an effective medium of
communication. The city failed to come forward with evidence to prove that billboards caused traffic problems and impaired
traffic safety.
35. SIGNS IN THE YARD: City of Ladue v. Gilleo: ∆ put a 8x11 piece of paper in her window that said ―no war‖ . The court
held that a city could not constitutionally prohibit homeowners from displaying signs on their property. ∏ said the purpose of
the ordinance was to minimize visual clutter. The Court held that even regulations of time, place, or manner must leave open
ample alternative channels of communication. The fact that the sign is on your home personalizes the message in a way that
couldn‘t occur in another medium.
36. PUBLICATION OF MEMBERSHIP LISTS: NAACP v. Alabama: case involving an Alabama law that required all
membership organizations incorporated in the state to provide the names and addresses of their Alabama members. The court
held that this case (which occurred during the civil rights amendment) was not applicable in this case. The state never
communicated an interest in having the law (I guess to make sure the members were from Alabama), but that interest did not
outweigh the interest of these individuals to keep their identity protected. ∏ showed through evidence that once the
membership lists are published, the members are targeted and have been physically hurt.
37. INTERCEPTED PHONE CALLS: Bartnicki v. Vopper: case involving a radio station who played an illegally obtained
intercepted call between union officials and a negotiator. There was an ordinance against wire tapping. The court held that as a
general rule, that if a radio station plays information that although obtained illegally have some public value, then the
government cannot suppress it. The court held that normally crime is punishable by some other means, rather than repressing
speech. Additionally, the state‘s interest in not providing incentives to steal conversations and maintaining the sanctity of
private conversations was not enough to outweigh the public‘s interest in hearing the phone call.
38. PUBLIC FORUM
39. Traditional Public Forum
i. If the regulation is content based, then it is held to a strict scrutiny
ii. If the regulation is content neutral, it is held to the time, place, manner test
iii. THERE CAN BE ON COMPLETE BAN ON SPEECH IN PUBLIC
iv. Something about access and regulation?
v. Streets, sidewalks, parks and designated areas outside are considered public areas. Even if area doesn‘t appear to
public, there are some properties that have been used for so long that the public has an easement on the property.
vi. The government can regulate speech on public areas, but the area in which it can regulated is very limited (eample:
you can have rallies you just can‘t block traffic)
vii. PUBLIC ACCESS OF PARKS: Commonwealth v. Davis: (old case): Davis, a preacher, whose congregation apparently
consisted of the crowds on the Boston Common, was convicted under ordinance that forbade, among other things,
―any public address‖ on any publicly owned property ―except in accordance with a permit from the mayor.‖ The Court
affirmed the conviction holding that the legislature may and does exercise control over the use which the public may
make of such places and for the Legislature absolutely or conditionally to forbid public speaking in a highway or
public park is no more an infringement of the rights of a member of the public than for the owner of a private house to
forbid it in his house. The Federal Constitution does not have the effect of creating a particular and personal right in
the citizen to use public property in defiance of the constitution and the laws of the state.
viii. PUBLIC ADDRESS OF PARKS: Hague v. Cio: The Court revisited the issue in Davis, which was the constitutionality
of an ordinance forbidding all public meetings in the streets and other public places w/o a permit.. The court held that
the privilege of a citizen of the United States to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and good order, but it must not,
in the guise of regulation, be abridged or denied.
ix. DISTRIBUTION OF LEAFLETS ON THE STREET: Schneider v. State: The court held that a city‘s interest in keeping
― the streets clean and of good appearance‖ was insufficient to justify a municipal ordinance prohibiting the
distrubtion of leaflets on public property.
x. PUBLIC SIDEWALKS: Signs Near the Courthouse: United States v. Grace: A federal statute prohibiting
any person to display on the public sidewalks surrounding the S.Ct. building ―any flag, banner, or device designed to
bring into public notice any party, organization, or movement.‖. The court held that the regulation was
unconstitutional holding that public sidewalks forming the perimeter of the Supreme Court grounds are public
forums and the government‘s ability to restrict expression in such places ―is very limited.‖
xi. PUBLIC SIDEWALK & CAUSING NOISE NEAR A SCHOOL: Grayned v. Rockford: About 200
demonstrators marched on a public sidewalk about 100 feet from a public high school to protest the school‘s racial
policies. Appellant was convicted of violating ordinance prohibiting any ―person, while on public or private grounds
adjacent to any building in which a school or any class thereof is in session, to make any noise or diversion which
disturbs or tends to disturb the peace or good order of such school. The Court affirmed this conviction. Although the
speech took place on a public sidewalk, such activity may be prohibited if it ―materially disrupts class work or involves
substantial disorder or invasion of the rights of others.
xii. PICKETING NEAR A HOME: Frisby v. Scultz: Group picketed in protest on 6 occasions w/in one month on
the public street outside the residence of a doctor who performed abortions. The picketing was orderly and peaceful.
The town enacted an ordinance that prohibited residential picketing that focuses on and takes place in front of a

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 The town enacted an ordinance that prohibited residential picketing that focuses on and takes place in front of a
particular residence. The Court upheld the ordinance. Although a public street does not lose its status as a traditional
public forum because it runs through a residential neighborhood, the ordinance was held constitutional b/c it left
“open ample alternative channels of communication” and was “narrowly tailored to serve a significant government
interest.” The privacy of the home is of the highest order in a free and civilized society.
xiii. SLEEPING IN A PARK: Clark v. Community for Creative Non-Violence (1983): National Park Service
permitted CCNV to erect symbolic tent cities, consisting of b/t 20 and 40 tents. The purpose was to conduct a round-
the-clock demonstration designed to dramatize the plight of the homeless. Pursuant to a NPS regulation prohibiting
“camping” in these parks, however, the Park Service prohibited CCNV demonstrations from sleeping overnight in the
tents. The Court assumed that overnight sleeping in connection with the demonstration is expressive conduct
protected by the First Amendment, BUT upheld the regulation as a “reasonable time, place, and manner restriction.”
xiv. NOISE IN A PARK: Ward v. Rock (1989): Court upheld state regulation requiring the use of city-provided
sound systems and technicians for concerts in the Central Park. The purpose was the city’s desire to control noise
levels to avoid undue intrusion into other areas of the park and adjacent residential areas. The Court held that the
government has a substantial interest and that the regulation clearly leaves “open ample alternative channels of
communication.”
xv. DEMONSTRATING NEAR ABORTION CLINIC: Schenck v. ProChoice Network of Western New York: a case
involving an abortion clinic where protestors were very aggressive to doctors and women from entering. An ordiance
was passed that created a fixed buffer zone where they could not protest. The court upheld the fixed buffer zone b/c of
the state interest in protecting the doctors/women. However the court invalidated the floating buffer zone b/c it
provided no alternate means of communication of the protestors messages.
xvi. Hill v. Colorado: (2000) bans protest activity. Maj. says that this tends not to be content related b/c if what we are
trying to do is prevent neutral interest (traffic, safety, and health), then even if it is in a certain area and is only against
one thing, it is still content neutral.
xvii. What about a complete bubble around the facility?
xviii. Where you draw the circle is the key. How big is the zone? If you make it so big that the message will not reach the
people intended, then it is not an ample alterative.
xix.
40. Designated Public Forum
41. GOVERNMENT PROPERTIES AND SPEECH
42. Private property owners have no obligation to allow their property to be used for speech purposes
43. 3 categories of Government Property:
i. (1) People have obtained somewhat of an easement over government property. (because we have used it
for so long)—Quintessential Public Forum—Open Forum or First Amendment Easement
1) TIME PLACE AND MANNER
ii. (2) The government can declare certain property open for expressive purposes (Limited public forum)—
Designated or Limited Public Forum
1) If content based—SS, if Neutral—T, P, and M
iii. (3) Everything Else—non public forum
44. Factors to determine what type of forum:
i. (1) what is the purpose of the property; (2) restrictions must be reasonable in light of the purpose of
the forum and view point neutral; (3) is government acting as proprietor or a legislature (―where the
government is acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power
to regulate or to license, its action will not be subjected to the heightened review to which its actions as a lawmaker
may be subject‖); (4) is there is captive audience
45. Perry Educators’ Assoc v. Perry Local Educators’ Association—(this issue was whether it was permissible for a
school to give the teachers‘ collective bargaining representative exclusive use of an interschool mail system in the district. A
rival union wished to use the mail system and pointed to the fact that it was available to community groups, teachers, and the
administration.)
i. The court upheld the exclusion of the rival union and in doing so identified types of government
property—see above
1) The constitutionality of a regulation of speech depends on the place and the nature of the
government’s action. A critical question is what determines the category for a particular
government property
46. Police Dept of Chicago v. Mosley—(a Chicago ordinance prohibited picketing or demonstrationswithin 150 feet of a
school building while the school was in session, except for peaceful picketing in connection with a labor dispute. Earl Mosley
frequently picketed the school, usually by himself, to protest what he perceived as race discrimination in the school.)
i. The court used EP for analyzing the ordinance. The court said that because Chicago treats some
picketing differently than others, we analyze ordinance in terms of EP clause of the 14th. The court
concluded that the law was unconstitutional because it was an impermissible subject matter
jurisdiction on speech.
1) Since content based, no valid TP&M restriction.

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 1) Since content based, no valid TP&M restriction.
47. PUBLIC FORUM
48. Hague v. CIO—government cannot regulate even public property if it has been used for speech expression for a long time
(time out of mind) and is thus a traditional public forum (a free speech easement)
49. Schneider v State—city struck down ordinance prohibiting passing out of leaflets on the street.
i. The court held it unconstitutional because the interest did not outweigh the interest of free speech;
there were less restrictive means of going about it (trashcans, fines, etc); and there were no available
alternatives that would give the same effect as passing out leaflets.
50. TIME PLACE AND MANNER
51. When facially neutral laws burden speech, then time, place, and manner rules must be met
52. Laws are content neutral if the government is not regulating based on viewpoint or subject matter
53. Time, place, and manner restrictions permit the government to neutrally regulate the time, place, and
manner in which speech occurs so as to minimize disruption of a public place—potentially applies much
more broadly than content-based restrictions
54. Content neutral regulations require a substantial government interest (as opposed to a compelling interest),
but the means have to be narrowly tailored
55. Speech on Public Property—must be content neutral unless justified under SS analysis. Viewpoint
restrictions are almost never allowed
i. Reasonable time, place, and manner restrictions are OK as long as they are justified without
reference to the content, they serve a substantial government interest, have narrowly tailored means,
and still leave open ample alternative channels for communication of information.
56. Hill v. Colorado—(involved a Colorado statute that made it illegal to knowingly get with in 8 feet of someone for the purpose
of passing a leaflet or handbill to, displaying a sign or engage in oral protest, education, or counseling with the person)
i. The court says this law was not content related because a car sales man would be affected the same
way as someone protesting abortion. However, the Colorado government only had abortion protestors in mind
when adopting laws
1) However, in the context of the First Amendment, the government’s motivation does not matter,
on the effect of the law matters
57. Ward v. Rock Against Racism—can‘t be more burdensome then necessary—Government has an interest in controlling
peace in park, but on the other hand court still allowed amplification
i. Narrowly Tailoring means that the burden cannot fall more heavily on speech then on non speech
58. LIMITED PUBLIC FORUMS
59. A limited public forum is a place that the government could close to speech, but that the government
voluntarily and affirmatively opens to speech.
60. Widmar v. Vincent—(the court declared unconstitutional a state university‘s policy of preventing student groups from
using school facilities for religious worship or religious discussion. The university allowed registered groups to use its
facilities, but forbid their use for purposes of religious worship or religious teaching. The court said that University
discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious
worship and discussion.)
i. These are forms of speech and association protected by the First Amendment
ii. Once the government opens the forum even if just limited then the analysis is the same as for
traditional public forums
61. Lehman v. City of Shaker Heights—(a city sold advertising space on its buses, but refused to accept advertising on behalf
of a candidate for public office. The court upheld this limit as constitutional. The court stressed that the government was
engaged in a commercial venture as that the restriction was justified because there could be lurking doubts about favoritism,
and sticky administrative problems might arise in parceling out limited space to eager politicians)
i. This case involves a designated public forum; the government did not have to allow advertising on
buses, but voluntary opened the space to speech. Having done so, content based discrimination is
not allowed—they found that other interests outweighed the first amendment rights
1) YET, the court upheld a content-based restriction that permitted commercial speech while
prohibiting political expression. IRONY
a) This seems inconsistent with the usual assumption that political speech is at the very core of constitutionality
safeguarded expression, while commercial speech is less protected and more subject to government
regulation.
62. NON PUBLIC FORUM
63. Adderley v. Florida—(students wanted to peacefully protest the arrest of other students at the county jail. Students were
asked to leave and then arrested for trespassing. Students argued that they had a First Amendment right to peacefully protest
at the jail. The warden responded by saying that he wasn‘t asking them to leave because he disagreed with their message,
rather he asked them to leave for security)
i. State no less than a private property owner has power to preserve the property under its control
for use, to which it is lawfully dedicated

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 for use, to which it is lawfully dedicated
ii. We don’t have a first amendment right to force the government to give us the most effective means to
speech
1) If the government opens up property and give people the right to be there, then they can’t
interfere with that right—we can exclude people for being loud at a library because that is not the purpose of
the property.
64. Greer v. Spock—(Fort Dix is a military camp with the sole purpose of training military personnel. Civilians are allowed to
freely drive through base. Some civilians are allowed to come onto the base and talk with men on occasion. Two political
candidates want to come onto base to speak. Base tells them no. Candidates argue that Base is a public forum)
i. Court says this is a nonpublic form and restriction Court said it was reasonable for the government to
control the military base by inviting speakers to come in, but doesn’t open it up to everyone—Looking
at history is helpful
65. US v. Kokinda—(speech on postal service sidewalks can be restricted. The court held that the postal sidewalks are not
traditional public forums because the ―postal sidewalk at issue does not have the characteristics of public sidewalks
traditionally open to expressive activity.‖ The postal service has not expressly dedicated its sidewalks to any expressive
activity)
i. Although individuals or groups have been admitted to leaflet, speak, and picket on postal premises, the practice of
allowing some speech activities on postal property (does) not add up to the dedication of postal
property to speech activities. Most likely to be construed narrowly, otherwise you would swallow up the rule
holding that sidewalks are traditional public forums
66. International Society for Krishna v Lee—government said an airport terminal was a non public forum for at least some
purposes—because no tradition of being a public forum
i. Purpose of the forum is to move people in and out—this is like Pico and the library case
ii. Dissent—prohibition on distribution of literature is UNCONSTITUTIONAL
67. Arkansas Education Television Commission v. Forbes—(here there is a public television station that decides to have a
candidate debate. AETN allowed all major party candidates, but did not allow Forbes because he wasn‘t a serious candidate.
Forbes argued that the station had created an open forum. He looses because the television‘s denial of Forbes is viewpoint
neutral)
i. AETN offered many viewpoint neutral justifications for excluding Forbes
ii. 1st Amendment does not compel broadcasters to allow all 3rd parties access to their programming
A.
1. FREEDOM OF ASSOCIATION
2. Includes stuff like (1) laws prohibiting and punishing membership; (2) laws requiring disclosure of
membership; (3) compelled association Laws prohibiting discrimination; (4)
3. The Supreme Court has expressly held that freedom of association is a fundamental right protected by the
first amendment.
4. Basically, what good is the right to speak if you can‘t form groups to speak with or to
5. The right to and not to speak and the right to and not to association is subject to strict scrutiny analysis
6. When government compels people to disclose their associations, the government has to show a compelling
interest and narrowly tailored means; the government can never compel individuals to engage in symbolic
speech affirming anything with which they do not agree
7. Under NAACP v. Alabama, the Court held that the compelled disclosure of affiliation with a group engaged in advocacy can
have a chilling effect on a prospective member‘s willingness to join the group as will as on the group‘s ability to convey its
message.
i. The forced disclosure violates the right of association unless the state can demonstrate that the
disclosure is necessary to advance a compelling state interest.
ii. Here the court concluded that there was no compelling interest justifying the enforced disclosure
8. In Board of Regents v. Southworth, the Court rejected a challenge to the university‘s practice of distributing revenues
from student activity fees to various student organizations that engaged in various expressive activities—students were
complaining that there fees were going to support views that they did not agree with—including religious and political
i. The court found that the student’s right NOT to speak was not violated by virtue that student activity
fees they paid were going to organizations whose ideologies they did not agree with.
1) The court held that as long as the fund generated from mandatory student fees were distributed
among the various groups on a view point neutral basis
9. Roberts v. Jaycees—(this is the leading case; the Jaycees, a national organization or young men between 18 and 35,
challenged the Minnesota Human Rights Act that prohibited private discrimination based on characteristics such as race and
sex. The Jaycees claimed that freedom of association protected their right to exclude women and to be a place where men
associated with each other)
i. The court reaffirmed that freedom of association is a fundamental right and agreed that “there can
be no clearer example of an intrusion into the internal structure or affairs of an association than a
regulation that forces the group to accept members it does not desire.”

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 regulation that forces the group to accept members it does not desire.”
1) The court did say that the freedom of association is not absolute and that “infringements on that
right may be justified by regulations adopted to serve compelling state interests, unrelated to
the suppression of ideas, that cannot be achieved through means significantly less restrictive of
associational freedoms.”
2) The court has indicated that freedom of association would protect a right to discriminate only if it
is intimate association or where the discrimination is integral to express activity.
10. Hurley v. Irish American Gay, Lesbian Group of Boston—(veterans refused to allow the homosexual group to
participate in its parade. They sued based on the state‘s public accommodation law that prohibited discrimination by business
establishments based on sexual orientation. The Massachusetts Supreme Court held that the law was unconstitutional, and
the Supreme Court reversed)
i. The court said that organizing a parade is inherently expressive activity and that it violate the first
amendment to force the organizers to include messages that they find inimical. Compelling the
veterans to include the gays violates the fundamental role under the first amendment, that a speaker
has the autonomy to choose the content of his own message.
11. Boy Scouts v. Dale—the court found that the exclusion of gay men from the Boy scouts survived strict
scrutiny because the admission of homosexuals would interfere with the expressive function of the groups. Organization was
found on being morally straight, and allowing homosexuals would confuse this message
12. GENERAL RULES THAT APPLY TO ALL 1ST AMENDMENT PROBLEMS:
13. Overbreadth; vagueness; rule against prior restraints

1. FIRST AMENDMENT: RELIGION

2. FIRST AMENDMENT: RELIGION
3. THE FREE EXERCISE CLAUSE
A. Congress shall make no law . . . prohibiting the free exercise of religion
B. More focused on individual rights—Negative right: right to keep government out of your business.
C. Anytime government interferes with religious, this could be free exercise violation
D. Government can’t interfere, but is not required to facilitate
E. Laws of general applicability that incidentally burden religious practice are OK, and only have to pass Rational
Basis
F. Emplyment Division v. Smith—(holding prohibition against using peyote to apply to members of Native Americans religions
that use it)
1. TEST under the free exercise clause
2. Is this a law of general applicability? If not, SS applies. Law is NOT a law of general applicability if it singles
out religious groups. Law is also not a law of general applicability if it is not neutral (consider intent to decide if
neutral)
G. Allowing exceptions to laws purporting to be laws of general applicability raises suspicion that they actually are not—SEE Lukumi
Babalu Aye v. City of Hialeah—(addressing a city ordinance aimed at eliminating ritual sacrifices of animals)
H. If the law is not generally applicable (and therefore subject to SS), can characterize as symbolic speech.

1. THE ESTABLISHMENT CLAUSE

A. Congress shall make no law respecting the establishment of religion
B. Focuses on what government does to involve itself with religion
C. Government cannot align itself with religion
D. If a law is not discriminatory, the court must apply the 3 part test articulated in Lemon v. Kurtzman: (1) the
statute must have a secular legislative purpose; (2) its principal or primary effect must be one that neither
advances nor inhibits religion (note that this does not require intent only effect); and (3) the statute must not foster
excessive entanglement with religion (look at degree to which government monitors or oversees)
1. 3 analytical categories:
A. (1) School and Public Prayer:
B. In addition to applying Lemon, apply the COERCION standard to cases involving school and public prayer. Under this
standard, ANY prayer at a school or school-sponsored function is de facto coercive b/c students who do not
share the beliefs of the speaker are made to feel unwelcome.
1. In Lee v. Weisman, the Court declared unconstitutional clergy-delivered prayers at public school graduation exercises.
2. Even though the prayer itself was non-sectarian in nature and attendance at the ceremony voluntary, this
still did not pass constitutional muster b/c (1) the importance of graduation made attendance at the
ceremony practically involuntary, and (2) being there, students feel compelled to participate so as not to be
singled out as different.
a. Even if students, by district policy, vote to allow prayer at football games, this violates the Constitution b/c viewpoint
discrimination. Some indication that the Court treats adults as though they’re not as prone to coercion.

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 discrimination. Some indication that the Court treats adults as though they’re not as prone to coercion.
b. Also, free exercise may actually mandate that the government provide access to religious services when dealing w/ captive
populations (prisoners, military personnel).
C. (2) Religious Displays on Public Property: Non-Endorsement
D. ENDORSEMENT STANDARD: Test is whether or not a reasonable observer who knows the background of the
community, history of the display, would understand it to be a government endorsement.
E. In Lynch v. Donnelly, the Court strongly considered the fact that the crèche in question was not standing alone, but was
imbedded in a display of secular symbols; the display as a whole recognized the element of religion in the holiday, but didn’t
necessarily endorse that aspect. Fondly referred to as the “Santa Claus and Reindeer Rule,” because the presence and proximity of
secular symbols increases the likelihood that no endorsement will be found.
F. (3) Neutral Aid to Religion: Non-Discrimination
G. NEUTRALITY STANDARD applies
H. Deals w/ direct and indirect benefits
I. Reimbursing parents for the costs of transportation of schoolchildren to both public and private schools is OK b/c transportation is
neutral, and benefits children regardless of the school they attend (Everson v. Board of Education).
J. Income tax credits for parents of both public and private school children are constitutional under Mueller v. Allen.
1. Even though the families that got the most money out of this deal had kids in private schools, still OK b/c the Court is reluctant
to make a rule based on statistics/percentages.
2. Part of what makes this analysis work is that the Court worries only about the fact that the $ is channeled
through the parents (and not the schools; where it goes after parents get it is not the Constitution’s concern).
K. Subsidization of tuition payments is NOT ok under Committee for Public Education v. Nyquist.
L. In Mitchell v. Helms, the Court upheld a statute that provided funds for state education agencies to lend computers, software, and
library books to non-public schools.
1. As long as initial purpose is neutral, it’s not the Constitution’s concern if materials are diverted for religious
purposes.
M. In Agostini v. Felton, the Court upheld a federal law allowing local educational agencies to provide remedial education, guidance,
and job counseling to eligible private school pupils; we don’t assume that a public school employee will suddenly lose the ability to
teach w/o interjecting religious material.
1. Charitable Faith-Based Initiatives: Not OK for $ to go to pervasively sectarian groups or fund religious activities at secular
settings; these initiatives are focused on the deliver

1. The Zelman (voucher case) all about neutrality. Even if it was a limited program, you can imagine a much larger case

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