 Constitutional Law Outline

 Introduction
 Purpose of Constitutions, generally o Constitutions deal with the allocation of power a nation wants to put forward (as opposed to a “separation” of powers). What kind of power will the State have? How can it exercise this power? In this sense, it forms the basis for the structuring of the state. o Constitutions also deal with the rights/individual liberties of citizens within each State. What rights do the citizens retain? What liberties are citizens denied?  The US Constitution, Historically: o The US Constitution is the oldest constitution in the world; Second oldest is France’s. o It was drafted by Common Law lawyers and thus reflects the Common Law, not the Civil Law, or Natural Law. This makes the US Constitution unique o The Framers had, when they wrote the Constitution, several things at their disposal  The common law  Samuel Johnson’s Dictionary  John Locke’s Treatise on Government  Habeas Corpus law of Massachusetts  Charters and Privileges (1701)  Grievances of the Stamp Act  Northwest Ordinance  The US Constitution, Structurally: o Our Constitution has 6267 words, 27 amendments (17 after 1791). The citizens were guaranteed 3 rights (habeas corpus, the right to contract, and privileges and immunities). Other rights were given in the Bill of Rights. o Through Amendments 13(1), 14(5), and 15(2), the rights in the Bill of Rights have been “selectively incorporated” and applied to the states. o The Constitution limits the powers of the Executive, Legislature, and Judiciary. It also limits the powers of the States (which were separate sovereigns). o In Article III, the Rule of Law is established o In Article IV, the States are rendered subservient to the Federal Government (“Supremacy Clause”) o In Article V, the amending process is laid out o Treaties fall under Article VI as the Supreme Law of the Land

 The US Constitution, Interpreting: o We have an evolving constitution.  Deference is given to precedent in interpreting the Constitution.  Social Movements influence Constitutional Interpretation  Legislative intent influences Constitutional Interpretation o There are seven ways to look at the Constitution: o Textual. You have to look at the document itself and ask what the words mean. This is the natural starting point- what do the words mean to you? To the framers? Does the constitution speak clearly in terms of what the words say? o Original Intent. (Scalia-Thomas is very fond of this). What was the original intent of the framers? Under the common law, we don't care what the legislators thought, we stay within what the document says. Original intent is only used when someone is attacking the court's position. It is irrelevant. In Hamilton's paper #90, he identifies this as irrelevant. Original intent is basically used to constrain Article III of the constitution; it has nothing to do with the original intent of these guys. The original intent of those who signed, the original intent of those states signing. o Ongoing history and events. The constitution is fluid. The question is whether the court focuses on these issues. The constitution has only been amended 17 times. So, we can't be like the European Countries where you amend easily. We amend the constitution through judicial review- it is ongoing through history, facts, etc. Think: Brown v Board. Cooper v. Aaron amended it to give it the force it should have had. o Doctrinal. Stare decisis. 1966. The Supreme Court decided Miranda. It is now a part of the constitution. 1940's: when officers enter illegally to a dwelling it violates the 4th. The exclusionary rule (1961) keeps evidence out of court that was seized in violation of the 4th. The Supreme Ct made it a constitutional mandate. o Structural. There is a separation of powers component, but not a separation of powers doctrine. Article I spills into Article II. We say there is a doctrine of "Rule of Law." Each branch is mandated to obey the rule of law. The separation of powers doctrine means the court will review matters that interject Article I and II. It is the job of the court to review. o Value Laden. We assume that there are certain values; the framers had certain values. The 8th amendment, "no cruel and unusual punishment," but we have it. 9th- "natural rights" has only been interpreted twice- this would make the court take a religious view, according to the court. 186570: value laden amendments, equal protection, right to vote regardless of color. These are provisions dealing with human beings (as opposed to being democratic). o Pragmatic. The 4th amendment is the guilty as hell rule. Judges make the law. Judges draft the constitution. Anti-federalists argues after the constitution that a Bill of Rights was needed. A lot of the language is clearly unclear. Due process, for example, cannot be defined. What is the

most important substantive due process case: Roe v Wade. It goes to the heart of the legislation (it is not procedural). What is necessary and proper? Who knows. But, the Supreme Ct has to define it to implement Article I[8]. They do it in McCullough v. Maryland. Executive powers. What are they?  The Nature and Scope of Judicial Power o Origins, Early Challenges, Continuing Controversy  Marbury v. Madison (1803) • Facts: The Judiciary Act of 1789 mandated that the Supreme Court have original jurisdiction to issue writs of mandamus. When four individuals, appointed to posts by outgoing president John Adams, were not given their appointments by Thomas Jefferson, they brought suit in the Supreme Court to compel a writ of mandamus. • Holding/Reasoning: The Supreme Court held that it did not have original jurisdiction over the issuance of writs of mandamus, because it was not enumerated to the Court in the Constitution. Because this grant of power was at odds with the constitution, it was declared unconstitutional. • The Constitution as the Supreme Law of the Land is paramount, and any law conflicting with (repugnant to) it is void. • It is the province of the court to interpret law and determine whether it violates the constitution.  Cooper v. Aaron (1958) (holding that the Supreme Court interprets the meaning of the 14th amendment (Brown v. Board), and all state legislators, executives, and judicial officers are bound to follow it, not withstanding whether they were parties to the litigation)  Martin v. Hunter’s Lessee (1816) • Facts: A Virginia statute gave land, confiscated from British Loyalists, to soldiers who fought in the Revolutionary War. Later, the Treaty of Paris (1783) reversed confiscation laws. The case arose out of a disputed piece of land. It was decided in Virginia court, under Virginia law, not taking into account the Treaty of Paris. • The Court held that where there was a federal question involved (Constitutional Issue), it could review the decisions of a state court. This is known as the “Doctrine of Interposition) o The purpose of this is to promote uniformity in the interpretation of the Constitution.

The court also held that where a treaty conflicted with a state law, a treaty, as the Supreme Law of the Land, was controlling.  Cohens v. Virginia (1821) (affirmed Martin and extending its ruling to give the Supreme Court the right to review state criminal cases when federal questions arose)  What issues will the Supreme Court not hear? • SEE NOTES, 1/13 o Political Questions  Baker v. Carr (1962) (holding that one of six factors must be present to make an issue nonjusticable by way of it being a political question: • The issue is textually committed to a coordinate branch of government • There is a lack of judicially discoverable and manageable standards for resolving the issue • The issue is impossible to decide without making an initial policy determination • The issue is impossible to decide without showing disrespect for a coordinate branch of government • There is a need to unquestioningly adhere to political decisions already made (i.e. National Security) • The issue may potentially embarrass various departments or branches of government if the court decides it  Nixon v. United States (1993) • Facts: Walter Nixon, a federal judge, was impeached by the House of Representatives, and tried by the Senate, and convicted on two counts. A committee of 12 senators was delegated to be the finders of fact (taking depositions, reading documents, etc.), who compile a report for the rest of the Senate, who then votes on impeachment. • Issue: Whether this violated the provision of the constitution giving the Senate “sole” power to “try” impeachments • The Court held that this was a nonjusticable political question because it was textually committed to a coordinate branch of government. The Senate, the Court held, was free to devise its own rules of procedure for trying an impeachment; and, because there were no “judicially manageable standards” for the court to rely upon in determining whether procedure was adequate. Vieth v. Jubelirer (2004) (the court held that in determining  whether Republican gerrymandering of Pennsylvania to their advantage was unconstitutional, there was no judicially manageable standard to use, as is race-based equal protection

authorizing the Habeas Corpus cases to be expedited to the Federal Circuit Courts and the Supreme Court. but rather is a guise for Congress to decide cases that fall under the power of the judiciary to adjudicate. Klein (1872) (holding unconstitutional a Congressional statute dismissing federal court jurisdiction in cases wherein pardoned Southerners sued the federal government to regain land they had forfeited to federal soldiers during the Civil War. Congress limited the ability of the Supreme Court to hear Habeas Corpus cases. After the Supreme Court heard arguments. Maryland (1819) o Facts: Maryland imposed a tax on a national bank situated in Baltimore. some of its appellate jurisdiction. 28 USC 2254-55. This is done because Congress.claims. Congress repealed the portion of the act under which McCardle brought his Habeas claim (out of fear the entire Reconstruction Act would be held unconstitutional). The could holds that where channels exist to have your writ heard. Turpin (1996) (Anti-terrorism legislation eliminated Habeas Corpus appeals beyond the first appeal. In doing this. Note that the court still had jurisdiction of Habeas Corpus claims.)  United States v. but before they handed down a decision. and consequently. in this case. • The court held constitutional the act of Congress stripping the court of some of its power to hear expedited Habeas Corpus cases. and can thus remove. on the basis that a stripping of jurisdiction such as this is not neutral. the US Supreme Court denies it a writ of certiorari. the legislation is constitutional. as per the Constitution.  Felker v. the gerrymandering was not held to violate the Constitution. The cashier of the bank did . can ‘confer’ appellate jurisdiction on the court. and restored the limits imposed on Habeas Corpus by the Judiciary Act of 1789 and the Constitution. to a degree.) o Congressional Regulation of Judicial Power  Ex Parte McCardle (1869) • Facts: McCardle was jailed by the military government imposed as part of the Reconstruction Acts. but now only ones that came up through the courts.)  National Legislative Power o Sources of National Legislative Power  Necessary and Proper Clause • McCullough v. He brought a petition of Habeas Corpus under an 1867 Congressional statute. After Felker’s petition for a writ of Habeas Corpus is denied by the District and Circuit courts.

as it is rationally relates to its enumerated powers (collect taxes.  Specified Powers • Kansas v. Tompkins (1938) (in diversity cases. whose boats were licensed under a federal statute. but from the people. Section 8). the powers of the government come not from the states. Ogden got an injunction to stop Gibbons from doing this. began operating his boats there. o The court summarily rejected the notion that Congress could only pass laws that were indispensable to secure its goals. appropriate. etc. . o The Court held that. the power of the federal government to implement a bank is not subordinate to the states.)  ‘Necessary and Proper’ was construed to mean that Congress could pass laws that were legitimate. Johnson (1924) (holding constitutional a substantive federal law pertaining to the rights of injured seaman. o The Court also held that Congress has an “implied power” to create a bank under the “necessary and proper” clause (Article 1. Colorado (1907) (holding that where an act of legislation is not “necessary and proper” to carrying out one of the enumerated powers of Congress. by express portions of the Constitution which delegated jurisdiction over maritime claims to the federal courts) • Erie RR v. and plainly adapted to the end the government sought. Gibbons. o The issue in this case is whether Congress had the power to incorporate a bank. Ogden (1824) o Facts: The NY legislature gave Ogden an exclusive right to operate steamboats between NY and NJ. because Congress was impliedly delegated the power to make substantive maritime and admiralty laws.  This is a rational relationship test.not pay and Maryland brought suit against him to collect the taxes. federal courts cannot disregard the state common law to apply federal common law) o National Commerce Power  Basic Concepts • Gibbons v. regulate commerce. the legislation cannot be exercised) • Panama RR v. within the scope of the constitution. in violation of Ogden’s monopoly. and as such. borrow money.

on the grounds that it was having an adverse effect on TX-LA shipments. o The court held that the monopoly conflicted with the federal statute licensing Gibbons. East & West Texas Ry. v. Later.  The commerce clause was held to extend Congressional power to all commerce that includes more than one state • This includes matters and activities occurring within a single state. • Paul v. even if confined within a single state.) Foundations for Extending the Reach of Congressional Power • Shreveport Case (Houston. o The court held that the statute was within the power of the Commerce Clause. o The standard for determining this is whether it activities being regulated have a “close and substantial relation” to interstate traffic such that control is essential or appropriate to the security of that traffic. by holding that issuing insurance policies is not a commercial transaction. so long as the activity has a commercial connection with another state. Pearson (1888) (upholding state ban on alcohol manufacture.” and was thus not restricted to the mere buying/selling of goods. on the grounds that the manufacture and production of liquor solely for sales out-of-state was not commerce subject only to congressional regulation) • The Daniel Ball (1871) (construing “among the several states” to mean that all commercial activity. US) (1914) o Facts: The Interstate Commerce Commission set rates on shipping from Texas cities to Shreveport. o The court held that intrastate commerce could be regulated if it had an impact upon interstate commerce. . may be subject to federal regulation under the commerce clause if it “touches upon” interstate commerce. LA. Virginia (1869) (upholding state regulation of insurance. Commerce was held to mean “commercial  intercourse. and that insurance policies are not articles of commerce) • Kidd v. Congress sought to regulate the shipping rates on railroad traffic exclusively within Texas.

Jones & Laughlin Steel Group (1937) (holding constitutional an NLRB Act prohibiting management from interfering with the workers right to organize. and that the tenth amendment does not act as a limitation over interstate commerce. overruling Hammer o Facts: Congress passed laws fining businesses engaged in production of goods for interstate commerce if they did not comply with federal labor standards o The court held that the motive of Congress in enacting regulations under the commerce clause is irrelevant. • Carter v. whether the relationship of the aims of legislation to interstate commerce is direct. Expansion of Commerce Power after 1936 (The Modern Trend) • NLRB v. o The court held that this was outside the scope of Congress’ power. be it before or after the stream of commerce was entered) • United States v. Dagenhart (1918) o Facts: Congress sought to regulate child labor in North Carolina on the basis that chairs produced by the children were destined to become part of interstate commerce. on the basis that it did not have a direct effect on interstate commerce. Wallace (1922) (holding that regulation of intrastate commercial activity is permissible where Congress reasonably believes it will have a direct and undue burden on interstate commerce. Darby (1941). Child labor. and is in-itself part of the “current of commerce”) Regulation of National Economic Problems (through 1936) • Hammer v. which regulated wages of coal workers. on the ground that it has “substantial effect” on interstate commerce. it may impose reasonable conditions on intrastate use of interstate carriers.  Wisconsin RR Comm’n v. • .here. regardless of where it fell in the stream of commerce. Issue becomes. was not directly related to interstate commerce. while evil. Carter Coal (1936) (holding unconstitutional the Bituminous Coal Conservation Act. o The direct-indirect test is established. railroads) • Stafford v. The chairs were the articles of interstate commerce and are not part of the evil the Congress sought to regulate. Chicago B & QRR (1922) (holding that if Congress deems it desirable or necessary.

if taken together with that of other similarly situated. institutions (elementary. Wirtz (1968) (holding that the Fair Labor Standards Act can constitutionally be extended to all employees “engaged in commerce or in the production of goods to commerce. To challenge a commerce clause act you must show (violation of procedural due process as per Shreveport): o It is an unreasonable act of Congress o Congress has violated specific provisions of the Constitution. it is constitutional. Cooley Test: States have a residual power to regulate • intrastate commerce if it is a matter of state concern and does not interfere with other states (mudflaps on semi trucks) • Dormanct Commerce Clause: Government can argue you are hurting interstate commerce. even if there is an absence of legislation on the issue. nursing homes. Filburn (1942) (holding that Congress may regulate acts which taken alone would not have a substantial impact on interstate commerce. States. and all educationa. US (1971) (upholding a ban on extortionate credit transactions on the grounds that it has a substantial effect on interstate commerce. States cannot interfere with the common market. and to include hospitals. secondary.   o Congress may impose direct prohibitions or conditions on interstate commerce if they are reasonably adapted to the attainment of a permitted end. • Maryland v. and the regulation is reasonably related to protecting that commerce. would have a cumulative effect on interstate commerce. . • Congress has plenary powers over interstate commerce. higher education) • Perez v. More on interstate commerce & Congress v. If it has a relationship to interstate commerce.  The regulations on wages were a reasonable means of prohibiting interstate shipments Power to Exclude from Interstate commerce • United States v. Sullivan (1948) (holding that Congress may regulate the branding of articles that have completed an interstate shipment) Power over Local Activities affecting commerce • Wickard v.” to all employees of any ‘enterprise’ so engaged.

o The Court held that racial discrimination in hotels discouraged members of the black community from traveling. gender. • United States v. etc. even though the threat is from only intrastate activities o Those activities having a substantial relation to interstate commerce. v. (i. Virginia Surface Mining and Reclamation Ass’n (1981) (holding that Congress must have a rational basis for believing that an activity has a substantial effect on interstate commerce) New Limitations at the end of the 20th Century • United States v. Inc.  Protection of Other Interests Through Commerce Clause • Heart of Atlanta Motel. Morrison (2000) o Facts: A woman was raped at Virginia Polytechnic Institute. deciding there could be. Katzenbach v. not merely incidental. or persons of things in interstate commerce. Congress can regulate o The use of channels of interstate commerce o The instrumentalities of interstate commerce. that is.e. Lopez (1995) (holding that a “Gun-free Schools Act” to be outside the scope on the commerce clause. McClung (1964) (holding that Ollie’s Bar• B-Q could not discriminate based on race because some of the food it purchased from a supplier had previously traveled in interstate commerce. those activities that substantially affect interstate commerce) o The court went on to hold that the test to be applied to commerce clause legislation is a strict rationality test to essentially non-commercial activity. and brought a civil action against her attacker in federal court under the Violence Against Women Act (VAWA) . The effect must be substantial. Title II of the Civil Rights Act bans discrimination based on race. and therefore the prohibition on racial discrimination in hotels would have a substantial and harmful effect on interstate commerce. in places of public accomodation. US (1964) o Facts: The Heart of Atlanta was a motel that refused to rent rooms to blacks. The court looks at whether there could be a ‘cumulative effect’ on interstate commerce if other similarly situated restaurants discriminated. and whether Congress had a rational basis for enacting the legislation) • Hodel v.

because gender-motivated crimes are not economic activity. • Wyoming v. Condon (2000) (holding that driver license information. relying on a non-textual (gasp) principle of state sovereignty. but not commandeer. • Solid Waste Agency of North Cook County v.) o Applying Commerce Clause to state Governments. and that Congress can regulate whether that information can be used/disclosed. • The Congress could have got around this by using the ‘purse strings. United States (2000) (holding that a federal arson statute covering buildings used in any activity affecting interstate commerce.” or when state law conflicts with a federal statute and it is impossible to comply with both. US (1997) • Facts: As part of the Brady Bill.such as laws banning the importation of goods from other states.’ You can coerce. isolated.o The court held VAWA to be unconstitutional because there was no link to interstate commerce. o State Power to Regulate  Introduction • Crosby v.  Reno v. maintained by state Departments of Motor Vehicles. Printz. • The court held that this incursion into state sovereignty violated the commerce clause. is a thing in interstate commerce. or “economic protectionist” . • Jones v. a sheriff refused to comply. Oklahoma (1992) (holding that state regulations that purposely or facially discriminate against interstate commerce. To allow aggregate effects to be used here is too attenuated and would destroy the distinction between state and federal governments by making everything fall under the police power of the commerce clause. stating it would take him too much time. National Foreign Trade Council (2000) (holding state law is preempted by federal legislation when Congress intends a “law to occupy the field. intrastate waters” used as a habitat for migratory birds.  Printz v. did not apply to an owner-occupied residence not used for commercial purposes). local law enforcement was required to conduct background checks on gun purchasers until a national computer system was phased in. US Army (2001) (holding that the Clean Water Act did cover nonnavigable. stating that the Brady Bill commandeered the use of state employees.

New Jersey (1978) o Facts: New Jersey enacted a statute prohibiting outof-state waste to be brought into the state because it would endanger the health of its citizens.) Regulation to protect the Environment • Philadelphia v. and its effects on interstate commerce are only incidental. articles recognized to be subject of interstate commerce (via Cooley & the need for uniformity rationale) • Plumley v. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits) State Regulation when Congress’ Power is Dormant • Gibbons v. because its purpose was to affect health and safety. Missouri (1876) (holding that a state statute requiring only out-of-state merchants to purchase licenses discriminates against interstate commerce and is a matter of national importance subject to regulation by Congress only) • Leisy v. and that the dam did not discriminate between intrastate and interstate traffic. required uniform national treatment) • Welton v. Bruce Church (1970) (holding that when a state statute affects a legitimate local public interest. and did not resolve . Ogden (1824) (holding that a state can regulate commerce if it does not conflict with an act of Congress) • Willson v. Massachusetts (1894) (holding that laws manifesting a state’s police power to protect its residents from deceptive sales practices do not violate the commerce clause. who had previously used parts of NJ for garbage. sued. because of their nature. Harden (1890) (holding that in the absence of congressional permission. o The court held that the New Jersey measure was basically protectionist. directly or indirectly. but could not regulate in areas of interstate commerce which. Black-Bird Creek March Co. (1829) (holding that Delaware’s authorizing of construction of a dam did not infringe on the dormant commerce clause powers of Congress.) • Cooley v.) • Pike v. states may not exclude.are invalid unless supported by extraordinary justification not related to economic protectionism. Board of Wardens (1851) (holding that states have the power to regulate matters of interstate commerce that were of such a local nature so as to require different treatment from state to state. Philadelphia.matters of local concern.  laws.as opposed to commerce.

(1981) (holding that a statute prohibiting out-of-state non-recyclable milk containers. This is a . because less discriminatory measures were not attempted. as an executive agency. and that future possibilities of less discriminatory means was of no affect. and the EPA. The court ruled that the law governed evenhandedly. Clover Lead Creamery Co. the question is whether the incidental burden imposed on interstate commerce is clearly in excessive relation to the putative local benefits. and have the opportunity to process the garbage. v. but the EPA cannot do whatever it wants in creating laws. Sawyer (1952) o Facts: President Truman.) With respect to environmental laws. because Maine had a legitimate and substantial local purpose in prohibiting the importation of live bait fish because there was uncertainty as to the effect it would have on Maine’s unique population of native fish. Hughes v. can enforce them via regulatory means.) Minnesota v. in response to threatened strikes at steel mills. because it discriminated between in-state and out-of-state garbage.• • • • • legitimate local concerns. issued an executive order placing all of the nation’s steel mills under the control of the Secretary of Commerce. Maine must make reasonable efforts to avoid restricting the free flow of commerce across its borders. Congress can create environmental laws and standards. Taylor (1986) (holding that a Maine law prohibiting the importation into Maine of live baitfish which competed with its own baitfish industry did not interfere with the commerce clause. despite the state’s interest in conservation and protection of animals. but allowing in-state pulp containers. etc.) C&A Carbone v. and because Less discriminatory means of protecting against these threats were currently unavailable. but it is not required to develop new and unproven means of protection at its own cost. Oklahoma (1979) (holding that a law barring the exportation of minnows caught in-state violates the commerce clause.  Powers of the President o Presidential Action affecting Congressional Powers • Youngstown Sheet & Tube Co. Maine v. Clarkstown (1994) (holding that a local government can not require its garbage be locally processed because it deprived non-local firms to bid. and because it does not discriminated between inter and intrastate commerce.

o The court held that this is unconstitutional because the Constitution expressly gives veto power to the President over bills passed by Congress. it gives rise to an implied authorization of that power.) o Congressional Action Affection Presidential Powers  Legislative & Line Item Vetoes • Immigration & Naturalization Services v. . not make them. of which INS was one. Chadha (1983) o Facts: Under Article I. it is seen as the Court saying the president may merely carry out laws. Congress disagreed with an action taken by INS. and because these decisions were not made with the consent of both houses of Congress. acquiescence can give rise to implied powers. who has veto power over the bills. his powers are at the greatest. and the distribution of authority is uncertain. The President may typically act until Congress speaks.request the Congress had previously denied the President. his powers are at their lowest. the Congress created Federal Administrative Agencies. depending on their conjunction or disjunction with those of Congress. which will then be submitted to the President. where he and Congress may have concurrent authority. • Dames & Moore v. o Justice Jackson’s concurring opinion held that the President’s powers fall in one of three categories. Although.  Where the President acts pursuant to implied or express authorizations from Congress. o While this case has no definite holding or rule.  Where the President acts in contradiction to implied or express authorizations from congress. it vetoed it (either house can veto a decision with a resolution). o Congress can only veto a decision by passing a bill in both houses.  Where the President acts in the absence of a congressional grant or denial of authority. and the President had no veto power over that decision. Regan (1981) (holding that where the congress acquiesces to same or similar exercises of executive power over a long period of time.

Snyar (1986) (holding that Congress may not remove an executive officer for cause. • Morrison v. (1936) • Facts: Congress delegated the power to the President to proclaim an arms embargo between Bolivia and Paraguay if he found it would contribute to reestablishing peace between the two countries. so long as it did not impede his ability to perform his Presidential duties. mental incapacity. and there are ample reasons to delegate this power to the President (sole power to negotiate treaties. • The War Powers Resolution has 3 major components: o President acts as commander in chief of armed force • . etc. gets better intelligence. New York (1998) (holding that the President cannot have a line-item veto over spending issues. Case dismissed because Congressman lacked standing to bring the suit. whereby he can veto parts an entire bill. o Foreign Affairs & War Powers  US v. o The court held that Congress may place limitations on the power of the President. for crimes if there were reasonable grounds to do so. the right to move an executive officer would have to be more narrow (physical disability. Vice President. o That the AG could remove a special prosecutor left to the executive branch. ample authority to decide whether the special prosecutor was performing his duties. unless it follows the presentments clause of the Constitution. • The delegation of powers to the president can be more broad with respect to international affairs than domestic. where the cause is broad. The special prosecutor could only be removed by the Attorney General. rather. need to act free of statutory restrictions). Curtiss-Wright Export Co.  Campbell v. prior to signing it into law.Clinton v. • The court held that the President has broad powers in respect to foreign affairs under the Constitution. Olsen (1988) o Facts: A statute made for the appointment of a special prosecutor to investigate President. after which it would be submitted again to the Congress) Appointment & Removal of Officers  • Bowsher v. Clinton (2000) • Facts: Clinton sends troops to Yugoslavia without invoking the War Powers Act. or through impeachment. other conditions that impair performance of duties).

 Nixon v. and that as such. o Executive Privilege & Immunity  US v. Fitzgerald for ‘whistle blowing. and that this privilege indeed existed under Article II. • The Court reasoned that the separation of powers bestowed upon It the ability to evaluate claims of executive privilege. A special prosecutor issues an indictment of Nixon for obstruction of justice. from acts that are completely unrelated to the carrying out of his job.  Nixon v. but held that it did not apply in this case. Fitzgerald (1982) (holding that Presidential assistants have broad qualified immunity. requiring an Administrator to take “possession and control” of Nixon’s private papers. and Nixon invokes executive privilege to avoid handing over the Watergate Tapes.from civil . not even temporary immunity. and archiving those of historical interest. • The court rejected Nixon’s claim that the privilege was absolute. Jones (1997) (holding that the President has no executive immunity. the Preisdent must submit a report to the Speaker of the House and President Pro Tempore of the Senate. and troops must be withdrawn within 60 days unless Congress has declared war or enacted an authorization. the need for confidentiality in communications could be outweighed by the need to develop all of the facts in a criminal trial. Administrator of General Services (1977) (holding that former President Nixon’s claim of executive privilege in his papers was outweighed by the need for the Presidential recordings and Materials Act. instead holding that it is a qualified privilege.o President can implement policy overseas one of 3 ways  can recommend to congress that congress declare war  can act based on statutory authority  can act based on a national emergency (executive order) o With 48 hours of sending military people to a place with hostilities.’ because the President has absolute immunity from damages predicated on his official acts)  Clinton v. • The Court upheld the doctrine of executive privilege. Nixon (1974) • Employees of President Nixon’s reelection committee broke into DNC Headquarters at the Watergate hotel. returning those personal to him.)  Harlow v.not absolute immunity. Fitzgerald (1982) (holding that President Nixon could not be held civilly liable for the firing of Mr.

Sanford (1857) (holding that the taking of a slave violated an individual’s 5th amendment protection of property) Search for a Constitutional Basis  . and ‘general principles’ common to our free institutions. Bull (1798) (holding that. a US citizen.)  Rasul v. although the ex post facto clause does not apply to civil law. wherein he may rebut the government’s factual assertions before a neutral decisionmaker. This includes the Right to Counsel. liberty.liability. stemming from their performance of their job. bills of attainder. • Fletcher v. Padilla (2004) (holding that Padilla. Bush (2004) (holding that US courts have jurisdiction under the same habeas corpus statute in Hamdi to consider challenges to the legality of the detentions of detainees at Guantanamo Bay. thus leaving open the question of whether the ‘enemy combatant’ label could be applied to an American Citizen. unless the official has violated a clearly established right)  Cheney v. etc. ( o Impeachment of the President  About o War on Terrorism  Hamdi v. Did not decide what substantive rights they could assert.  Rumsfeld v. brought his suit in the wrong federal district court. Rumsfeld (2004) (holding that absent a suspension of the writ of habeas corpus. and the Right to an impartial hearing. the court will not hesitate to strike down laws that infringe upon the fundamental rights of citizens). apprehended in the United States)  Due Process & Economic Interests o Origins of Substantive Due Process  Early expressions • Calder v. and some of the traditional rules of evidence suspended. the prohibition against impairing contracts. • Dred Scott v. albeit with a lower burden of proof on the government. This gov’t could accomplish this in a military tribunal. such as hearsay. the right to receive notice of the basis for his classification. US Dist Ct. resting there authority on the ex post facto clause. The due process one is afforded is determined by balancing the need for the government to carry out its role in war with the interest of the detainee in life. US citizen held as an ‘enemy combatant’ at Guantanamo Bay have the right to due process. Peck (1810) (the court held that an act of a State Legislature that purported to rescind a sale of public land.

Holding. The court held that where the exercise of the eminent domain power is rationally related to a conceivable public purpose.Barron v. (i) the privileges and immunities clause forbids state infringement on the rights of US citizenship. Midkiff (1984) (upheld the use of eminent domain.” • Keystone Bituminous Coal v. not of state citizenship. Parker (1954) (holding that the government could acquire private property in a blighted area for redevelopment. Co. in respect to the 14th amendment.to benefit the community through aesthetics) • Hawaii Housing Auth. it is constitutional)  When is ‘regulation’ tantamount to a taking? • Pennsylvania Coal Co. because it was being done for a public purpose. and (ii) due process and equal protection were meant to apply only to Negroes o Prohibition on takings without just compensation  The purpose of takings (5th as incorporated through 14th) • Berman v. New York City (1978) o Facts: New York City refused a permit to Penn Central to construct a building on top of Penn Station because it was a historical sight and the city did not want it to have a harmful effect on the view of the terminal from Central Park South. the court held it did not amount to a taking because Keystone had not lost a substantial portion of the property’s economically viable value. even if the buildings were to be used by private individuals. v. that the regulation is equivalent to an appropriation or destruction. in order to contribute to the general welfare by the destruction of an oligarchy. v. it is a taking that cannot be carried out without just compensation. • Penn Central Transp. DeBenedictis (1987) (In a situation similar to Pennsylvania Coal. Baltimore (1833) (holding that the Bill of Rights applied only to the federal government. used to force landlords to sell large land holdings to their tenants at fair market value. It is a taking when it “goes too far.)  14th Amendment • Slaughterhouse Cases (1873) (overruling Dred Scott. o Issue: Whether the restriction upon Penn Central. v. was a “taking” of Penn Central’s property for public use within the meaning of the Fifth • . Mahon (1922) (holding that where a regulation so utterly impairs the ability to use the land. not being able to erect a building on top of Penn Station. a classic example of a state’s police powers.

Nolan v. it was not a taking.• • • Amendment. o The court held that because the ban on Lucas constructing a structure upon his property was total and permanent. Lucas v.) Dolan v. Also. o Issue: Was this total and permanent ban of Lucas building any structure on his property a taking for the purposes of the Fifth Amendment? o The court held that a regulation can be a taking when either (i) Regulations compel the property owner to suffer a physical ‘invasion’ of his property. or (ii) Regulations deny all economically beneficial and productive use of land. in order to protect the coast from continued erosion. or general welfare” could be promoted by prohibiting particular contemplated uses of land. o Holding: The court ruled that it was not a taking. (i) there must be an ‘essential nexus’ between the legitimate state interest and the permit exacted by the city. and (ii) there must be a ‘rough proportionality’ between the trade-off demanded by the city and the burden to the public from Dolan’s proposed development. that in order for a taking to not violate the Fifth Amendment. safety. and because the City would allow Penn Central to build elsewhere. Tigard (1994) (holding. o In determining whether something is a taking. the regulation was a taking for the purposes of the Fifth Amendment. the Fifth Amendment is violated when land-use regulation does not advance legitimate state interest or when it denies an owner economically viable use of his land. but rather was part of a comprehensive scheme to preserve historical landmarks. The court held that because the restriction on Penn Station was not discriminatory. South Carolina. barred him from building a permanent habitable structure on the property. California Coastal Comm’n (1987) (holding that land-use regulation does not effect a taking when it “substantially advances” a legitimate state interest. the court looks at whether a state tribunal reasonably concluded that “the health. morals. made applicable to the states through the 14th amendment. when the City of Tigard offered to give Dolan a permit in exchange for an easement of 10 feet on her property to prevent flooding. South Carolina Coastal Council (1992) o Facts: Lucas bought two parcels of land on the ocean. .

• Tahoe-Sierra Preservation Council. it is subject to strict scrutiny. and (v) the legislation was ‘temporary in operation’ and ‘limited the exigency which called it forth’  US Trust Co. Apfel (1998) (holding it was a taking of property when the government attempted to force Eastern to pay health benefits for Apfel. could not have been achieved by any less drastic means? In doing this. which Eastern. Blaisdell (1934) (holding that when a law interferes with the performance of a contract. having ceased its coal mining operations in 1965. it does not (necessarily) entitle one to just compensation)  What constitutes Property? • Eastern Airlines v. Tahoe Regional Planning Agency (2002) (holding that when land-use regulations deprive one of the economically viable use of his land temporarily. in 1992 Congress passed the Coal Industry Retiree Health Benefit Act. and (iii) The character of the government action is just? (the purpose is to make sure lawyers act properly and that the poor get legal services). (ii) the regulation does not interfere with regulation-backed expectations (there was none here). (ii) the law was not designed to favor a special group. Spannus (1978) • . after. v.’ (iii) the relief was appropriate to the emergency.Palazzolo v. Legal Foundation of Washington (1998) (holding that Washington’s use of interest gained from the accounts of lawyer’s clients. v. not agree to make any contributions to. was not a deprivation of property because (i) There was no economic impact upon the lawyers (they got all of the money put in accounts back). deference to the legislature is not given because its self-interest is at stake. an employee from 194460. v. v. New Jersey (1977) (holding that a law that impairs private contracts may be constitutional if it is reasonable and necessary to serve an important public purpose. he may sue. because to do otherwise would put an “expiration date” on the takings clause. o The Contracts Clause  Home Building & Loan Assn. Rhode Island (2001) (holding that. And. with knowledge of the restriction. (iv) the conditions imposed were reasonable. • Brown v. if a subsequent purchaser of the property takes. but rather was ‘for the protection of a basic interest of society. Inc.)  Allied Structural Steel Co. Five factors are evaluated: (i) whether there is an emergency need to ‘protect the vital interests of the community’. in instances where the regulation is so great to effect a taking. did not negotiate about.

and was outweighed by the interest in society in determining intoxication and protecting against this hazard of the road.  Duncan v.)  Breithaupt v.was violative of due process because it “shocked the conscience. and violated their ‘reasonable’ expectations about what it was getting into when it started the pension plan. and because the law was tailored to a small class of employers. general in nature.”) • Note that some states can constitutionally require a lessthan-unanimous jury verdict  Rochin v. California (1952) (holding that pumping one’s stomach in order to obtain evidence. and applicable to everyone. Louisiana (1968) (holding that one is entitled to a trial by jury in any case where one’s liberty is at stake.” It offended civilized standards of conduct and the community’s sense of fair play and decency. Connecticut (1937) (holding that the provisions of the Bill of Rights that were ‘fundamental to the concept of ordered liberty’ would be selectively incorporated into the 14th amendment and thereby applied to the states)  Due Process can be defined as the process that is due you. because there was no emergency. The Court incorporates those provisions in the Bill of Rights which are ‘fundamental in the context of the judicial processes maintained by the American States. Also. the court held that this imposed on Allied a retroactive obligation.• • • Court used the Five Factors from Home Building & Loan to invalidate a Minnesota law.) . which required certain Minnesota employers to pay a full pension to employees who had worked for them for over ten years and whose pensions had not yet vested. The court held that factors (i) and (ii) had not been met. Abram (1957) (holding that removing an unconscious person’s blood to determine whether he was DUI was not violative of due process because it was so ‘slight an intrusion’ into his body. • It ensures the reliability of the guilt determination process  Due process protected against government excesses and formulates the relevant questions. liberty. if they closed down a plant in the state.here. morphine capsules.  Due Process & Individual Rights o Nature and Scope of 14th Amendment’s Applicability to the States  Palko v. or property without a proceeding. This happened to Allied. • You cannot deprive one of life.

Kelly (1970) (holding that due process requires that welfare recipients be afforded an evidentiary hearing prior to the termination of benefits. or property. Wood (1976) (holding that a police officer. unrelated to the legitimate object of arrest.) • Arnett v. Davis (1976) (holding that.’ because the privilege of self-incrimination did not extend beyond testimonial of communicative actions-of which this was not one-. a convicted shoplifter. o Procedural due process in non-criminal cases  Deprivation of Liberty and Property Interests • Goldberg v. the court devises the exclusionary rule.)  Sacramento v. over his objections. Ohio. and the test was chosen and performed reasonably. and because they are a statutory right to persons qualified to receive them. exigent circumstances. liberty. Wainwright. Colorado. was adequate to satisfy due process) • Bishop v. in which he could challenge his termination. • In Gideon v.Schmerber v. the court incorporates the 4th into the 14th. will satisfy the element of arbitrary conduct)  The Fourth Amendment: • In Wolf v. and because the protection against unreasonable search and seizure was satisfied because there was probably cause. In Mapp v. the court will weigh the interest of the person in avoiding loss is outweighed by the governmental interest in summary adjudication. one must have a legitimate claim to it. and that counsel must be provided for them if they cannot afford it. were sent to every store in the city. the court holds that everybody has a right to counsel in criminal cases. his claim that he would not be able to gain  . when 800 total pictures of Davis. because their termination involves state action. holding that all evidence seized in violation of the 4th is subjected to suppression at trial. Kennedy (1974) (holding that giving Kennedy an administrative hearing. and not merely an expectation of due process. In determining the extent of due process required. did not violate due process. via deprivation of life. California (1966) (holding that removing the blood of a conscious person. fired for insubordination.) • Board of Regents v. Roth (1972) (holding that in order for one to be protected by due process. because it did not offend the ‘sense of justice. does not have a right to an administrative hearing) • Paul v. Lewis (1998) (holding that a 1983 action’s requirement of deprivation of due process shocking to the conscience’ is satisfied when ‘only the purpose to cause harm.

his picture and charges are part of the public record and can be distributed freely to the public as such. as a general rule.” • Megan’s Law (2003) (holding that a state’s interest in requiring a sexual offender to register within 4 days of moving. This . Lopez (1975) (holding. The rationality test is applied.because it would be a deprivation of a basic civil right. and that the academic review procedures in place were adequate. or counseling about contraceptives. o This is the first modern-era case where a substantive due process-like approach was used to protect a fundamental right. Connecticut (1966) o Facts: A Conn.  What kind of hearing. and is forever deprived of this right. Griswold was convicted of counseling married persons in the use of contraceptives. o The court reasoned that there exists in the Bill of Rights a ‘penumbral’ right of privacy. if he disagrees with the basis for the suspension. JR o The Right of Privacy. does not violate due process because the given individual has not been focused in upon. 9th amendments. 3d. 5th.) • Ingrahim v. because there exists legally available remedies for abuse.employment as a result did not entitle him to a due process claim because he was not deprived of property. that before a student is suspended for 10 days.passing bad checks. Wright (1977) (holding that a student is not entitled to a hearing in Florida before corporal punishment is inflicted. stating that they would rely on the historic judgment of educators. • Griswold v. distributing. 4th. and when? • Goss v. stemming from the 1st. Furthermore. • Parham v. Horowitz (1978) (the court refused to consider the merits of a case regarding a woman’s dismissal from medical school. he has a right to a hearing in order to present his side of the story. and because the state has a compelling interest in doing so.) • Board of Curators v. in order to inform the community of the presence of a convicted/released sexual offender. statute forbid using. Autonomy & Personhood  Introduction • Skinner v. Oklahoma (1942) (holding that equal protection protects one from being sterilized upon committing a crime 3 times.

Eisenstadt v. is free from unwarranted governmental intrusion into matters so fundamentally affecting a person) • Carey v. o Issue: Was there a compelling state interest in prohibiting abortion? o At stake here is a fundamental right. be she married or single. so as to fulfill only that state interest. and that no such interests were found in this case. right of privacy. means that the individual. Wade (1973) o Facts: Jane Roe wanted an abortion. o The two interests that conflict here are the mother’s interest in her own body. The court reasons that the term of pregnancy can be divided into three trimesters. reasoning that where a fundamental decision. as the interests of the concerned parties will weight differently. regulations may only be placed on it for compelling interests. Baird (1972) (holding unconstitutional on • equal protection grounds a statute that held a physician could only give contraceptives to married persons.) Abortion Cases • Roe v. and those regulations must be narrowly drawn to express only those interests. but Texas did not allow it because her life was not threatened. which can only be outweighed if there is (i) a compelling state interest in outlawing abortion. The court reasoned that the right of privacy. like whether to beget a child is involved. The woman and her physician shall make the decisions. the court reasoned. Population Services Int’l (1977) (holding unconstitutional a NY law forbidding dispensing contraceptives to persons aged under-16.  Second Trimester: A state may regulate abortions in only allowing them when they are ‘reasonably related to the mother’s . extended to the bedroom of a married couple. and not to single persons. The state has no compelling interest at this point in protecting the mother’s health. and that a different standard applied to each trimester.  First trimester: a state may not ban or regulate abortions. and the state’s interest in protecting the health of the mother (which does not vest until the 2d trimester) and the fetus (which does not vest until viability. and (ii) the state statute is narrowly drawn. if it meant anything.3d trimester).

Hardwick (1986) (upholding a law banning sodomy on the grounds that there is no ‘constitutional right for homosexuals to engage in sodomy. A state may therefore regulate and proscribe abortion.) Sodomy & Privacy • Bowers v. a fetus becomes viable and the state has a compelling interest in regulating the fetus. andd that (ii) it imposed an undue burden on the mother in choosing whether to get this type of abortion as opposed to a D&E. is violative of fundamental right to privacy because no ‘lifeline’ exists) • Planned Parenthood v. and child bearing. whether something is a substantial obstacle to one getting an abortion. which could possibly be more dangerous under some conditions. Wade. Casey (1992) (reaffirms Roe. the state has an interest in protecting the mother’s health.” That is. Abortion must be permitted where it is necessary to protect the life/health of the mother. • Danforth (holding that requiring written consent by a spouse. marriage.” At this point. Bolton (1977) (Companion case to Roe v. • Doe v. and may require abortions be carried out in such a way so as to protect this. motherhood. Roe (holding that Medicaid does not have to reimburse patients for the cost of elective or nontherapeutic abortions) • Harris v. procreation. and says that an obstacle placed in the way of one seeking an abortion cannot be an “undue burden. and holding that gov’t limitation of abortion funding does not violate Roe because it does not deprive women of their ability to have an abortion. or if under age 16 by the parents. merely the financial resources to avail herself of the right) • Stenberg v. on two grounds. health.’ and that laws . affirming a Georgia statute allowing a physician to perform an abortion when in his best clinical judgment he thought it necessary) • Maher v. Carhart (2000) (striking down as unconstitutional a Nebraska statute banning partial-birth abortions (D&X). o Individuals now have a compelling interest in privacy in five areas: family. McRae (1980) (reaffirming Maher.  Third trimester: At this point. that it (i) did not make an exception to protect the life of the mother.

The court reasoned that the liberty interest in taking one’s life was not ‘fundamental. and therefore (i) no legitimate state interest was being served. is a personal choice. Evans (1996) (holding that a Colorado Constitutional Amendment. and that the removal of a feeding tube from someone in a persistent vegetative state and therefore incompetent. Director. Missouri Dept.) . protecting the vulnerable from subtle coercion and undue influence.the Georgia legislature said it is immoral to engage in sodomy) • Lawrence v. The court reasoned that the law gives substantial protection to people deciding how to conduct their private lives in matters pertaining to sex. and the Court held that this statute was rationally related to those ends. does not violate one’s substantive due process rights. protecting the integrity of the medical profession. and is protected by the Right to Privacy (as per Griswold.) Sexual Orientation • Romer v. of Health (1990) (holding that the state has an interest in protecting the living. which can never be a legitimate state objective. that removes antidiscrimination legislation for gays and lesbians. was motivated by the animus toward an unpopular group. Glucksberg (1997) (upholding a Washington law. And. Texas (2004) (overturning Bowers. (as Oregon has done) are free to permit physician-assisted suicide. and held that there was a legitimate state interest in protecting life. and (ii) the means chosen by the state were not rationally related to the interest the state asserted. There is a substantive due process right for a competent person to refuse life sustaining treatment. there is a rational basis for the law. and holding that an individual’s sexual life. including whether to engage in sodomy. not being a fundamental right. etc).) The Right to Die • Cruzan v. and that anyone who assists in such an action can be guilty of a felony. and that the state has no compelling interest in criminalizing it. stating that an individual has no substantive due process right to take active measures to end their life. States. etc. and protecting the state from a ‘slippery slope’ arising. and the Missouri law that it can only be done by clear and convincing evidence. The court applied the rationality test.’ and did not say whether there was a non-fundamental liberty interest in doing so.) • Washington v.  banning sodomy are deeply rooted in history.

and discretionarily. Oklahoma (1982) (holding that the judge/jury must consider any relevant mitigating factor during sentencing. the standard for whether punishment is cruel and unusual. Georgia (1972) (holding that the death penalty.)  Cruel and Unusual Punishment o Introduction  Weems v. and in the second portion. denied. US (holding that the punishment must fit the crime)  Since 1910. and the attempt fails. discriminatorily. . is that it must be “shocking. The court dismissed the Baldus study.”)  Eddings v. including difficult upbringing. Georgia (1976) (holding that the death penalty can be constitutional if a statute in which its use is authorized is carefully drafted. “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. from which Blackmun dissented. which proves statistically that the race of a defendant plays a part in the determination of whether capital punishment should be applied. Collins (1994) (cert. There must be a bifurcated trial (guilt/sentence). o The Death Penalty as Cruel and Unusual  Furman v. etc. and therefore unconstitutional. and holding that equal protection does not give rise to a right to physician-assisted suicide. There must also be an automatic appeal to the highest court in the state in which the punishment is carried out. and because it is not a systemic wide failure like in Furman. o Mandatory Death Sentences  Lockett v. • The court disagreed and upheld his sentence of death.)  Callins v.”  If the state attempts to execute someone in good faith. they may try again. The court dismissed this study because it did not show that race played a factor in McCleskey’s particular case. Kemp (1987) • Facts: McCleskey argued that the application of capital punishment is arbitrary and capricious. defense counsel should be able to do anything to save his client. violated the 8th amendment’s ban on cruel and unusual punishment)  Gregg v. saying that no procedural/substantive rules can ever save the death penalty from its constitutional deficiencies) o Death Penalty & Race  McCleskey v. Quill (1997) (case accompanying Glucksberg.• Vacco v. when applied haphazardly. Ohio (1978) (holding that a judge/jury must consider as a mitigating factor.

but rather. United States (1919) (holding that Schneck’s mailing out of anti-war leaflets was not protected by the First Amendment because it posed a ‘clear and present danger. the Sixth Amendment does not permit a defendant to be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury trial alone. United States (1919)(holding that Debs’ anti-war speech.’)  Debs v. Further. there need not be a clear and present danger. o New Restrictions  Atkins v. Arizona (2002) (holding that a judge may not be the ‘fact finder’ during the sentencing phase of the trial. • Holding: The court held that the ‘clear and present danger’ test did not mean there had to be a clear and present danger of an actual attempt to overthrow the government. Simmons (2005) (holding that it is a violation of the 8th amendment to sentence to death a defendant who was under 18 years of age at the time of the crime’s commission)  The First Amendment o Introduction  To abridge means to curtail. posed a ‘clear and present danger.)  Roper v. the jury must be the finder of fact. pornography. was violative of New York’s criminal anarchy statute.  Free Speech is not absolute  Schneck v. By then.) o Illegal Action  Dennis v. United States (1951) • Facts: Dennis was convicted of violating the Smith Act by advocating violent overthrow of the US government. advocating revolution.’)  Gitlow v.  Sedition. and that McCleskey’s argument is best presented to the legislature. New York (1925) (holding that Gitlow’s Left-Wing Manifesto. the court reasoned. it would be too late. That a group was ready when the conditions for • . that there would have been an attempt at the first opportunity. and of conspiring to reorganize the US Communist Party. etc. obscenity are not protected.The court said that the finding of Baldus would throw into question our entire criminal justice system. restrict. Virginia (2002) (holding that it is a violation of the 8th amendment to administer capital punishment on someone who is mentally retarded)  Ring v.  Federalist 25: the Constitution should not be our suicide pact. and that because the ‘clear and present danger’ standard applied only to acts. which violated the Espionage Act.

v. justifies an invasion of free speech. • This is what “speech action” is. Butts (1967) and Assoc Press v. o Reputation and Privacy  Public Officials/Seditious Libel • NY Times v. and they get their panties in a knot and sue the Times for libel. • The court abandoned earlier tests. o The court ‘nationalizes’ libel law o The court holds that when a public official is libeled by the press. • Merely teaching the moral necessity of violent overthrow of the government is not “speech action. Second. which forbade the use of violence to achieve political change. Any other rule would chill free speech. • The test applied by Learned Hand was whether the gravity of the evil. and there are some inaccuracies. Spock (1969( holding that Dr. Walker • (1967) (holding that public figures have to meet the NY Times v. but it was legal to advocate an ‘abstract doctrine. it is the plaintiff’s burden to show with “convincing clarity” that the newspaper acted with actual malice or reckless disregard of the truth. whether the advocacy is likely to produce such action. discounted by its probability. United States (1957) (holding that it is illegal to seditious  acts. because this was a natural consequence of vigorous speech)  Brandenburg v. Sullivan (1964) o Facts: NY Times publishes an advertisementeditorial about some racist southern motherfuckers. First. whether the advocacy is directed toward inciting or producing imminent lawless action.revolution came to fruition is adequate to satisfy the clear and present danger test. Ohio (1969) • Facts: Brandenburg was KKK member. Sullivan standard in order to recover damages for libel) .’  United v. and formulated the twopronged “clear and imminent danger” test.” and thus does not pose a clear and imminent danger. Spock could not be guilty of advocating ‘draft dodging’ from the mere fact that he hoped the frequent stating of his views might give young men courage to take active steps in draft resistance. Is this interest of the government substantial enough to infringe on free speech? Yates v. Speech that translates & causes actions. Curtis Pub Co. Convicted under Ohio’s criminal syndicalism statute.

But see. Private Individuals • Gertz v. damages may only be had for statements made with actual malice or reckless disregard of the truth. even simple negligence. Robert Welch. a private individual and lawyer. v. (1974) o Facts: Gertz. Metromedia (1971) (holding that the NY Times rule be extended to all matters of general or public interest. Hill (1967) (holding that in issues of national importance concerning private individuals. Gertz. Gertz) Emotional Distress • Hustler Magazine v.) • . and become part of a public controversy. o The court held that where a private individual is libeled. o Only actual damages are permitted for these types of libel.” and is therefore a public figure for all purposes. • Rosenberg’s kids (1951) (holding that when two people are involuntarily thrust into the limelight. o A public figure is one who has achieved “general fame or notoriety in the community. they are public figures whether the will it or not. the states may impose whatever standard they want. Falwell (1988) (holding that a public figure could not recover for intentional infliction of emotional distress. called a commie by Welch in the John Birch Society paper.’ and are then public figures only for the purpose of that controversy) False Light Privacy • Time. Inc. But see. regardless of whether the actors were famous or anonymous. but may not impose a standard of strict liability. Firestone (1976) (holding that persons who have not assumed a role of especial prominence in the affairs of society are not public figures unless they have ‘thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Inc. unless the publication contains a false statement of fact made with actual malice or reckless disregard of the truth. o Absent reckless disregard or actual malice. the plaintiff may not recover punitive/presumed damages. Inc.) • Time. Punitive/presumed damages are only permitted when reckless disregard or actual malice is present.   Rosenbloom v. v.

adultery.” This pretty much makes nothing obscene.) • An exception to this is child pornography  Paris Adult Theaters I v.  Kingsley International Pictures Corp. whether the work taken as a whole lacks serious literary. to the average person. the dominant theme of the material taken as a whole appeals to the prurient interest. Hostile Audiences  Fighting Words • Chaplinsky v. taken as a whole.) • In 1966. Regents (1959) (holding that advocating an obscene idea.) o Obscenity  Roth v. whether the average person. punishment may only be opposed when a statute is narrowly tailored to fulfill a compelling state interest. this rule is changed to add. or scientific merit. Slaton (1973) (holding that the showing of pornographic films in an Adult Theatre was not protected by the First Amendment)  Miller v. “utterly without redeeming social value. appeals to the prurient interest. whether the work depicts or describes.Disclosure of Private Facts • Florida Star v. political.in this case. New Hampshire (1942) (holding that ‘fighting words’ are not protected speech. Offensive Words. Pap’s AM (2000) (holding that nude dancing is protected as a form of expressive conduct) o Fighting Words. v. applying contemporary community standards. artistic. Third. California (1957) (holding that pornography and obscenity is not protected by the First amendment.’  Erie v. United States (1957) and Alberts v. Second. applying contemporary community (local) standards.is protected by the first amendment)  Stanley v.) • States may only ban depictions of ‘hardcore sex. Thus. in violation of a statutory provision. Fighting words are defined as those words “which by their very utterance tend to incite an immediate breach of the peace.”) Hostile Audiences   . First. would find that the work. BJF (1989) (holding that when a newspaper publishes truthful information it obtained lawfully. private possession of obscenity is not a crime. Georgia (1969) (holding that one has a right to have obscene materials in one’s home. Whether something is obscene is determined by asking if. in a patently offensive way. sexual conduct specifically defined by applicable state law. California (1973) (creating a 3-prong test for whether something is obscene. and that the state has no interest in determining what people can watch/read.

stating that violence was imminent from counter-demonstrators.’ contained within it an otherwise inexpressible idea. o The court also reasoned that ‘Fuck the Draft. o After Cohen. and (ii) whether the words are reasonably interpreted as saying something vitriolic about that person. New Orleans (1974) (holding that vulgar or • offensive speech is protected under the first amendment) o Should categories be created?  New York v.) • Dick Gregory Case (holding that when the police dispersed demonstrators with a permit. Chicago (1949) (holding that words must incite to violence.’ and that to cleanse public debate to make it palatable to the most squeamish among us is to violate the 1st. While ordinary murmuring and objections of a hostile audience are not enough to silence a speaker. Lewis v. the standard for ‘fighting words’ is (i) whether the words were aimed at a specific person.’ o The court reasoned that audiences were not captive. California (1971) o Facts: Cohen arrested in a courthouse by a pig for wearing a “Fuck the Draft” jacket. we will be exposed to ideas we find offensive.’ stating that the police made the determination that a riot was imminent. as the first amendment is there to protect such ideas. The court upheld the arrest of ‘trying to incite a riot.” • Feiner v. because obscenity has to be.) Offensive Words  • Cohen v. o The court reasoned that ‘one’s man vulgarity is another man’s lyric. merely angering the listeners is not adequate. because outside of our homes. There is no such thing as a “heckler’s veto. even if not • . Ferber (1982) (holding that it is illegal to sell materials depicting minors engaged in sexual activity. they violated first amendment rights because they failed to call for backup first. Feiner was creating much more than that. Last ‘fighting words’ conviction that was upheld. New York (1951) (holding that when someone threatened to attack Feiner during a speech. ‘erotic. prompting the police to remove Feiner. The jacket could be avoided by averting one’s eyes. o The court held this was not obscene. in some significant way.Terminiello v.

coupled with the lack of a captive audience. Scienter is not important. one does not have to know that materials he possesses depict minors. because the state has a compelling interest in protecting children from harm and sexual exploitation. Free Speech Coalition (2002) (holding that the government may not ban ‘virtual child pornography.) o Unconventional Communications  US v. and it is therefore illegal to possess child pornography in one’s home. • The court held that it was within Congress’ power to regulate this type of symbolic speech. that outweighs any First Amendment interest. on the grounds that the individual’s interest in free expression outweighed the government’s compelling interest in compensating the victims from the fruits of the crime. • You must ask four questions as to whether a government regulation of speech violated the First Amendment: o Was the regulation within the constitutional power of government? . reasoning that. taking money from all of a person’s income. that is.obscene. This case establishes the time/place/manner restrictions on free speech. What is at stake here is the content of the ideas expressed. Hudnut (1985) (holding unconstitutional a statute mandating adult booksellers be fined if someone assaulted a woman after reading a book that ‘degraded women. Ohio (1990) (holding that the state’s compelling interest in protecting children from sexual exploitation overcomes any first amendment claims.)  Simon & Schuster v. Smith (holding that the city of Skokie could not deny the ANP a permit to march based on their political beliefs. someone has to react before the parade can be stopped. mere possession is adequate to find guilt. It is viewpoint-based discrimination.)  Ashcroft v. Members of NY State Crimes Board (1991) (holding unconstitutional a New York law requiring income derived from works in which individuals admit to crime involving victims. because it did not account for works that did this but had redeeming qualities. Setting up a victim’s compensation fund is probably constitutional if done in a uniform way. as per precedent.’ that is to say computer generated pornography or adults posing as minors) o Pornography & Women  American Booksellers Assoc v. as opposed only to protected free speech activity)  Osborn v.’ This statute eliminated level 3 of Miller.) o Racist Speech  Collin v. O’Brien (1968) • Facts: Draft Card burning in violation of law making it a crime to destroy or mutilate your draft card.

• The court reasoned that if Texas’ interest in banning burning the flag was to preserve the flag as a symbol of national unity and to prevent others from being seriously offended by its burning.’ and therefore protected under the First Amendment.’ the zoning is subject to intermediate. Playtime Theaters.)  Texas v. • Facts: City zoning mandated that adult shops had to be on the outskirts of town. but Texas’s means were not necessary. Inc. •  Tinker v. Des Moines School District (1969) (holding that the wearing of black armbands at school to protest the Vietnam War was ‘symbolic speech akin to pure speech. Because of this. • The court held that government has a substantial interest in protecting its citizens from harmful secondary effects. Statute was upheld. and that if the purpose of the zoning is done for this reason (and not because of content per se) and is therefore ‘content neutral. then to prohibit Johnson’s conduct using the statute. prohibiting protestors from sleeping there to dramatize the plight of the homeless was subject to the O’Brian test. • The city still allowed a forum for Playtime theaters to exist.  Clark v. The zoning will only be found unconstitutional if not substantially related to the government’s interest in combating secondary effects. • The court held that the statute under which he was convicted was violative of the First Amendment. A compelling interest may exist to protect the dignity of the flag. the statute was subject to strict scrutiny. Johnson (1989) • Facts: Johnson burned a flag in protest. Community for Creative Non-violence (1984) (holding that a statute prohibiting sleeping in a public park was contentneutral. . citing the harmful secondary effects of such places.) o Is Some Protected speech less equal than other types?  Renton v. and therefore. made the statute’s restriction on activity/speech content-based (content-specific).o Did it further an “important or substantial government interest”? o Was the interest “unrelated to the purpose of free expression”? o Is the “incidental restriction” on First Amendment Freedoms “no greater than is essential to the furtherance of” the government interest? The court held that all of these conditions were satisfied. • The court applied the time/place/standard test of O’Brian.

)  Erie v. Almeida Books (2002) (affirming Renton) o Hate Speech  R. and therefore strict scrutiny applied (whether to advance a compelling interest. Barry (1988) (holding that a Washington D. because the act is done to intimidate people in order  . not for his thoughts. it is a content-neutral restriction on free speech and therefore time/place/manner restrictions apply. As content-based. A hate-speech statute made this a crime. Paul (1992) • Facts: Some teenagers burnt crosses on the lawn of their black neighbors. Pap’s A. statute prohibiting signs of protest within 500 feet of a foreign embassy was content-specific.’ • The court held that. could serve the intended purpose. like in Renton. even as construed. the statute making this a crime was overbroad. sexual orientation. The statute failed on the second prong. o It was content-based because it applied only to hatespeech that was directed toward people based on race. but it can be zoned. o The Court held that while there was a compelling governmental interest. The MN Sup Ct construed the statute only to apply to ‘fighting words. but not another. The court reasoned that he was being punished for his motive as exhibited through speech-action. That is. The state must then only show. for example. that the zoning is substantially related to combating harmful secondary effects.M. content-neutral statutes.C. Mitchell (1993) (holding constitutional hate-speech laws that mandated an increased sentence for crimes committed where the victim is selected because of his race. Not covered were political affiliation. in an argument.A. religion. and as narrowly tailored as possible). it allowed one person to insult a certain way. v. with the Court holding it could be more narrowly tailored. (2000) (holding that nude dancing is protected under the First Amendment.  Wisonsin v.V. but the statute was not narrowly tailored.Boos v. there must be a compelling governmental interest and the law must be narrowly tailored to meet that interest. because. the statute had to pass a strict scrutiny • test.)  Los Angeles v. or union membership. Since the zoning was for secondary effects. Black (2003) (holding that it a ban on cross-burning is constitutional. St. o The court held it was viewpoint based. as other. color. and impermissibly contentbased.)  Virginia v. creed. or gender.

Had there been a substantial certainty of the threat of ‘direct. Progressive.’ an injunction may have been upheld. The US argued that this information could pose a threat to national security. independent of race.FBI’s terrorism definition.  US v.) o Prior Restraints and National Security  New York Times Co. • The court employed a balancing test between the Interest of the Government in protecting national security. since the statute is not narrowly tailored to meet the ends sought by the city. could be subject to subsequent punishment. he was not allowed to collect on the proceeds of his book containing within it confidential materials not cleared by CIA). v. • The court held that prior restraint comes to this court bearing a heavy presumption against its validity and the government carries a heavy burden of showing justification for the enforcement of such a restraint. national origin.  Snepp v. Fed Dist Ct. on the grounds that it is a prior restraint on speech.to bring about social change. • Facts: Progressive sought to publish (mostly declassified) technical information about how to build an H-Bomb. Reasoning that preventing the publication of material would not contribute to disarmament (the stated goal of Progressive).and poses a ‘clear and imminent’ danger to the public. (1979).  Watchtower Bible & Tract Society v. color. • The court bought it. Stratton (2002) (holding that a ban on solicitation without prior permit is unconstitutional. and irreparable damage to the country. and the rights guaranteed under the first amendment. Inc. etc.assuring the ‘privacy’ of residents) o Newsgathering . US sought an injunction to prevent their publication. • The case was dropped when the information was published elsewhere. immediate. • The court reasoned that there were no issues of national security at stake with the documents. US (1980) (holding that an employee of the CIA who signed an employment contract not to publish any information without consent of CIA. the court decided that the First Amendment was not interfered with and the presumption of unconstitutionality was overcome. US (Pentagon Papers) • Facts: Sensitive documents about US involvement in Vietnam were leaked to the press.

with . seeking information on crimes related to assassinating the President and ‘violent overthrow of the government. al. there were other alternatives to avoiding prejudicing the jury  Change of venue.) o Here.’ He says as a reporter he is privileged from divulging his sources to the grand jury. it cannot be speculative. Hayes (1972) o Facts: Branzberg.’ like investigating crimes. Maxwell (1966) (holding that if a convicted defendant can show that pretrial publicity prejudiced the jury. o One can only claim a press privilege if the grand jury sought the evidence in bad faith. restricting statements by lawyers & police. This will almost never happen. is greater than the damage from impairment of First Amendment Rights. that is to say.” This prejudicing of the jury must be proved.  Publicity About Trials • Sheppard v. discounted by its improbability. with the intent of harassing Branzberg and disrupting his sources. Stuart (1976) (holding that pretrial gag orders on the press (prohibition from publishing anything out of fear it will prejudice the jury). o The court reasons that the grand-jury is allowed to seek evidence and that a reporter has no greater protection than other citizens in front of a grand jury. et. o The court weight the interest in protecting sources with the interest of a grand jury needing to investigate crimes and rules in favor of the Grand Jury. Protection of Confidential Sources • Branzburg v. It will only be allowed if the “gravity of the evil. voir dire. Stanford Daily (1978) (holding that a First Amendment claim does not arise when a search. • Zurcher v. The court disagrees. o A press privilege cannot be claimed if grand jury asserts a subpoena for ‘compelling reasons. is brought before a grand jury. postponement of trial. he is entitled to a reversal of the decision) • Nebraska Press Assoc v. will only be upheld if there are compelling governmental interests. the jury came in with opinions already formed about the case.

o The court holds that the Right to a Fair trial does not trump First Amendment claims. the Krishna’s speech is banned but vendors are allowed to sell inside the airport. Lee (1992) & Lee v. Access to Trials and other Government controlled Arenas  • Richmond Newspapers v. The First Amendment requires they be open. o Government Property  ISKCON v.  Access to Private Sources • Food Lion v. All groups must be equally abridged from free speech activity. o There is a compelling reason to stop soliciting. o However.” publishing information obtained illegally about it isn’t not punishable.warrant. Vopper (2001) o Facts: Bartnicki published a communication that was obtained illegally. The court allows them to solicit outside the airport. o Court also reasons that an open trial is necessary to a fair trial. The parties sued him.to prevent fraud and bothering people. and that as such. Capital Cities • Bartnicki v. the government regulation of the expression must be ‘reasonable in the light of the purpose served by the forum’ and ‘viewpoint neutral. . and that trials may only be closed to the public if there is an ‘overriding interest’ to close the trials. handing out literature. the government must have a compelling interest in preventing the Krishnas from soliciting. the person who obtained it may be punished. o There is no compelling reason to stop them from handing out literature because everyone else is allowed to hand out literature. ISKCON (1992) • Facts: Krishnas told they cannot solicit in the NY Port Authority Airports.’ • Where.delays the ability to publish a newspaper. because the freedom of the press is not abridged.two teacher’s union heads saying they wanted to blow up the porches of some school board officials. Virginia (1980) o Guy keeps getting mistrials because everyone knows about his bloody shirt seized illegally. o The court uses intermediate scrutiny (?) and reasons that where an event is “extremely newsworthy. as in this case. • The court reasons that the Airport is a non-public forum.

may not subject ordinances to strict review as would traditional ‘content-based’ ordinances.  Lehman v.  Nuclear Submarine.’ reasoning that the test survived strict scrutiny because it was a valid regulation on time/place/manner. a traditional public forum. so long as that speech is not restricted across the board. because it was content neutral. • 3 levels o Traditional Public Forum  Parks. Shaker Heights (1974) (upholding a city’s ban on political advertising on buses. o Nonpublic Forum  Governmental forum where there is no trespass. etc. Not historically a public forum. and was content-neutral. reasoning that they were a non-public forum. within 100 feet of an abortion clinic.’ o Government Support of Speech  Subsidies • Rust v. theaters. on the grounds that it passed strict scrutiny because the government had a compelling interest in protecting its citizen’s rights to vote freely. and that avoiding subjecting a captive audience to political advertising was a important government interest. Sullivan (1991) (holding that the government. Airport. passing out leaflets. They can change it into a science lab.in this case. and because the law was narrowly tailored to meet that objective. etc. if done for a compelling reason.  Government can change its mind anytime. political versus commercial. o Limited Public Forum  Philips center. whereby the government can selectively fund certain kinds of speech.) o Privacy and the Public Forum  Hill v. Military bases. This establishes selective federal funding. It is important to note from this that different categories of speech. and narrowly tailored to meet the compelling government interest on making sure people are ‘let alone.here.  Burson v. or picketing. not funding clinics who promote abortion. when it allocates funds to promote a given idea.) • . Freeman (1992) (upholding a ban on political campaigning within 100 feet of a polling place.Government needs compelling reason to restrict activity in limited public forum if restrictions are content based. Colorado (2000) (upholding a ban on ‘approaching people. where commercial advertising was allowed.it does not have to use funds to promote a competing idea.

 Rosenberger v. it cannot choose which to fund and which not to fund based on viewpoint.) Government as educator and editor • Pierce v. Kuhlmeier (1988) (holding that a principal may censor a student newspaper if it is done for reasons reasonably related to legitimate pedagogical concerns) • Board of Educators v.and therefore this legislation amounts to a particular type of speech being discriminated against. the armbands were speech for the purposes of the 1st amendment because it was ‘symbolic speech akin to pure speech. like educational suitability. or if they are pervasively vulgar. Des Moines School District (1969) (holding that the school’s restricting students from wearing anti-Vietnam War armbands was unconstitutional because it discriminated against a particular type of speech. on the grounds that it is a content-based restriction on free speech.’) • Bethel School District v. Velazquez (2001) (holding unconstitutional a statute saying that Legal Aid will lose federal funding if it represents people in cases against welfare systems. A school can refuse to add a book to its collection. Books can be removed for valid reasons. Nebraska • Tinker v. on the grounds that it is viewpoint based as it does not allow for a disfavored type of speechbecause lawyers help resolve disputes.) • Nat’l Endowment for the Arts v. by not funding obscene artists. Society of Sisters • Meyer v. Frasier (1986) (holding that a student who makes a speech that is considered lewd and disruptive by teachers. etc. it may discriminate as to where its money goes. can be disciplined. If the book is available somewhere in the • . because the obscene artists are not barred from doing their work. it is the teachers who determine what is a substantial disruption of the educational process) • Hazelwood School District v. University of Virginia (1995) (holding that if the government (state university) funds speech by Third Parties (in this case a student newspaper). merely from receiving federal funding for their work) • Legal Services Corp v. Pico (1982) (holding that books may not be removed from shelves in a ‘narrowly partisan or political manner’ or to deny students access to ideas with which the authorities disagree. Finley (1998) (holding that where Congress allots funds to fund the arts.

it has wide latitude to impose conditions on the use of those funds. he must be given an opportunity to respond for equal time. (2003) (holding that where a library receives federal funding. Cable is subject to regulation greater than broadcast TV. V.’ you must prove it is pornography. American Library Assoc. which mandated a candidate criticized in a newspaper has an right to an equal reply in that newspaper. where Congress provides funds. Nobody knows what the hell to do with computers.)  Turner Broadcasting System v. essentially. on that radio station. passed midlevel review. and certain groups/productions cannot be excluded merely because a different theater is available. as a ‘limited medium. To ban ‘Hair. What is the substantial government interest? To educate the citizen and to make sure cable TV doesn’t become a ‘trust’ by forcing local channels out of business)  Arkansas Educational Television v. Therefore it is presumed to be unconstitutional on its face. Congress has a substantial interest in making sure people get fair treatment on the airwaves. If you remove books.public library. mandating cable TV systems to carry local programming and educational TV free of charge. The regulations are subject to intermediate scrutiny. you implicate the “pall of orthodoxy”) • Southeastern Promotions.’ even though some protected speech is inevitably filtered out.  Miami Herald v. Tornillo (1974) (holding unconstitutional a Florida statute. for free. Further. This was ruled to be constitutional on the ground that because fiber-optics are limited.) (1997) (holding that ‘must carry’ provisions of legislation. because TV is a level 2 forum. it may require the computers therein to put on ‘pornography filters. Conrad (1975) (holding that where a city theater puts on productions.’ is subject to stricter government regulation). FCC (1994) (holding that where regulation of cable TV is content neutral. mid-level review is to be used. it becomes a public forum. is telling the press what it can/can’t print. Ltd. but lesser than newspapers.)  Red Lion Broadcasting v. and the government .it is not censorship. Forbes (1998) (holding that government may not select candidates for the purpose of a political debate based on viewpoint. filters could be removed for academic research) o Access to the Mass Media  Print media (where restrictions are prior restraints) fares much better than TV/Radio (which.) • US v. FCC (1969) (holding that where a political person is disparaged on radio. Again.community. on the grounds that it is a prior restraint. because forced access. although the debate machinery was a Level 3 nonpublic forum on the grounds that some people were excluded.

Establishment Clause Both the establishment clause & the free exercise clause present compelling interests of the people. as a level 2 forum.’ and therefore did not inhibit the attainment of their goal of fostering civic responsibility. and because it was not ‘central to their activities. unpopular with the viewers.)  Ashcroft v. ACLU (2004) (both suggesting that the internet is more akin to print media and that encryption codes are protected under the First Amendment. League of Women Voters (holding that where the regulation against broadcasters. Twin Cities Area New party (1997) (holding that a political party’s freedom of association is not violated when a state refuses to put its candidate on the ballot when he is already nominated by another party.’ their freedom of association (or.) Electronic Media & Content Regulation  FCC v. because it was not narrowly tailored enough to meet the government’s end of protecting kids from online pornography. Pacifica Foundation (1978) (holding that. because it restricted many kinds of legitimate speech. The court struck down the COPA because it was unconstitutional on its face.e. US Jaycees (1984) (holding that there was no compelling reason to keep women out of the JC’s based on their sex because they have a freedom of association. freedom not to associate) was violated by an anti-discrimination law barring them from excluding gays as members. is content based.e. ACLU (2002) & Ashcroft v. Dale (2000) (holding that because opposition to homosexuality was part of the Scouts’ ‘expressive message. sex other suspect criterion)  Boy Scouts of America v. etc.)  Timmons v. gov’t restriction on editorializing on public airwaves did not pass the test because the legislation was not narrowly tailored to meet a substantial government interest.if played at a certain time of the day)  FCC v.) Freedom of Association  Roberts v. because of government’s interest in preserving the scarce airwaves. here.i.o o o o can choose to exclude him on other reasonable grounds. TV & Radio.i. children. Strict scrutiny also applied to race.  Aid to Religion . it is subject to a mid-level review. the FCC has a right to ‘time zone’ certain radio programs which may offend persons. This law ‘impaired’ their message. because applying this restriction was a reasonable and nondiscriminatory way of achieving the state’s important regulatory interest in ballot integrity and political stability).

)  Its principle effect must neither advance nor inhibit religion • (Post Mitchell. Board of Education (1947) (holding that public funds could be used to provide buses to transport students to and from private religious schools because the funds also funded public school buses. Tax Comm’n (1970) (holding that the granting of property tax exemptions to churches does not violate the Establishment Clause. Tilton v. Helms (2000) o Holding that non-textbook materials (computers. and books that consist wholly of writings sacred to a religious faith.• • • • • • Everson v.religious or not. Standard. o Establishes a three part test to determine whether government action violates the establishment clause  It must have a secular legislative purpose • (post Mitchell: whether the materials are in-themselves ideological or non ideological in nature. AV equipment) could be given to religious schools so long as  The materials are not religious in nature  The materials are not diverted for religious purposes (computers not used to run religious programs)  All schools. Kurtzman (1970) K-12 standard.are eligible for the materials on the same terms. Richardson (1971) Higher Ed. religion not favored over nonreligion) Texas Monthly v. religion was favored over nonreligion) Lemon v.) Walz v. aimed wholly of writings promulgating the teaching of the faith. on the grounds that it violated the Establishment clause. Would likely not be upheld under the Lemon Test. . Bullock (1989) (holding unconstitutional a Texas sales tax exemption on periodicals published or distributed by a religious faith. Supplementing religious education is okay. but not supplanting gov’t funds for it)  It must not foster an excessive government entanglement with religion • (Post Mitchell: You must prove excessive entanglement with religion) Mitchell v.

Simmons-Harris (2002) (holding that tuition vouchers given to parents may be used to pay tuition at religious private schools if they could also be used to pay tuition at non-religious private schools. Graham • Epperson v. Arkansas (1968) (holding unconstitutional a statute that banned the teaching of evolution in the classroom on the grounds that its sole purpose was a religious one: barring the teaching of a theory at odds with the Bible. even though it is silent not compulsory. Board of Public Works (1976) (holding that a scheme of subsidies given to private colleges.’ on the grounds that there is no secular purpose. If done more than once. Board of Education (1948) (holding it unconstitutional to have privately-employed religious teachers conduct classes on school premises during school hours because it helped religious groups obtain pupils through the state’s compulsory public school machinery. The court concluded that enacting legislation mandating this was done solely to advance religion.) • Zorach v Clauson (1952) (upholding a program where students who were to receive religious instruction were released and attended classes away from the school) • Stone v. and if it is only a ‘one-time’ grant. Jaffree (1985) (holding that a ‘silent prayer’ period failed the Lemon Test. o Holding that money given to a university to build a new building if not violative of the establishment clause if the building is used for a secular purpose. Also. and that the legislative history showed the motivation was to advance religion. facilities were only available to religious groups.” • Zelman v.) • McCollum v. not the government) Religion and Public Schools • Wallace v. including private religious colleges. Aguillard (1987) (holding unconstitutional a statute that forbade teaching evolution without teaching ‘creation science.) • Good News Club v. it is ‘government entanglement) • Roemer v. reasoning that any ‘advancement of religion’ was incidental and resulted from the choice of individuals. did not violate the establishment clause because the colleges performed an “essentially secular educational function. not equally available to nonreligious groups. Milford Central School (2001) (holding that it does not violate the constitution to allow religious groups to meet in public school facilities during .) • Edwards v.

v. Doe (2000) (holding that a speech by a member of the student body that is given before a high school football game is not a private speech because it is at a level 3 forum. it violates the establishment clause. in the absence of a holiday celebration. School Dist. Inc. even a non-denominational prayer. it will be subject to the most strict scrutiny.) • Santa Fe Ind. not just those of a particular religious credo. it will be a violation) • Lee v. Weinberger (holding that a Rabbi in the military cannot wear his hat for national security reasons) • Church of Lukumi Babalu Aye.) • Sherbert v. Weisman (1992) (holding that where school officials endorse a prayer. Hialeah (1993) (holding that where governmental actions has an intent to disfavor a particular religion.) Official Acknowledgement of Religion  • Allegheny County v. Verner (1963) (holding that a 7th day Adventist on unemployment does not have to take a job where she is required to work on Saturdays because the exemption does not substantially hinder the fulfillment of the government goal. religious or nonreligious. and because Christians were not made to take jobs where they had to work on Sundays) • Yoder (holding that the Amish do not have to go to public schools) • Goldman v. Smith (Peyote)(1990) (holding that when a prohibition on religious beliefs is merely an incidental effect of a generally applicable law.) . ACLU (1989) (holding that when a crèche is not part of a ‘holiday celebration. v. there is no violation of the free exercise clause. and the purpose of the legislation was to advance religion. at school ceremonies. only surviving if it is ‘neutral’ (doesn’t disfavor a particular religious practice) and ‘generally applicable’ (applies to all persons. When this happens.) o Free Exercise Clause  Conflict with State Regulation • Employment Division v. chances are.’ the test to determine whether the establishment clause has been violated is to ask whether a reasonable observer upon seeing the display would think the government was endorsing a religious or sectarian message.after-school hours if the facilities are equally available to all groups. the government has to show it is a ‘particularly important governmental goal’ and that an exemption would ‘substantially hinder’ the fulfillment of that goal. it is given by a single person before every game.

United States (1944) (holding that race is subject to strict scrutiny and that any statute discriminating on the basis of race loses its presumption of constitutionality. there is a violation of equal protection. and o Is the law narrowly tailored to achieving that end and it could not be achieved by less drastic means.) Unusual religious Beliefs • US v. Watkins (1961) (holding that both theistic and non-theistic religions receive free exercise protection) •  Equal Protection o Race & Ethnic Ancestry  Historical Background • Dred Scott v. bussing) • Loving v. and that actions be taken ‘with all deliberate speed.) • Brown v. the courts in desegregating will be guided by equitable principles. Virginia (1971) (holding that anti-miscegenation laws violated equal protection because there was no compelling government interest in prohibiting interracial . Charlotte (court orders integration of schools.) o Is there a compelling government reason for it. West Virginia (1880) (holding that an act which violated on its face against blacks violated equal protection) • Plessy v.’ Court threatened to withhold federal funds otherwise) o Swann v. Board (II) (1955) (holding that desegregation is a matter of local concern and must be taken care of locally. Board (I) (1954) (holding that where two facilities are separate but tangibly equal. because what is important is nontangible qualities in a school. that defendants make a prompt and reasonable start to full compliance. • Brown v. Ferguson (1896) (holding that separate but equal facilities does not violate the equal protection. the government’s reason was to prevent violence in the cars. Davey (2004) (holding that one’s free exercise rights are not abridged when a state scholarship funds refuses to provide scholarship to those attending schools and seeking degrees in devotional theology.) • Korematsu v. Sanford  Discrimination against Racial & Ethnic Minorities • Strauder v. Ballard (1944) (holding that faith healers could not be charged with fraud because their beliefs were sincere) • Torasco v. incapable of measurement. and that separate facilities are inherently unequal. Locke v.

it passes strict scrutiny.’ with each applicant being treated like an individual. Bollinger (2003) (holding unconstitutional a quota-like system on the grounds that it was not narrowly tailored enough to meet the compelling interest of diversity.marriages. where no less drastic measure could have been taken.) o Gender Discrimination  Defining the Level of Scrutiny • Reed v. even if not a ‘discrete and insular minority. and to place them on the same footing for consideration. although not necessarily according to the same weight. even if it is constitutional on its face. must be subject to strict scrutiny. Good faith about the desire for a diverse student body as a compelling interest is presumed. v.’ The government had to have a compelling reason and racial classification had to be necessary to achieve that objective. Davis (1976) (holding that a law is only violative of equal protection if it is a product of discriminatory purpose.  Grutter v. Inc. even if done for benign purposes. violates equal protection) • Washington v. Bollinger (2003) (holding that when race is one of many factors taken into account in constructing a diverse student body. Bakke (1974) (Powell’s opinion held that racial/ethnic classification must be subject to strict scrutiny. Pena (1995) (holding that all racial classifications. absent a showing the contrary. In education. disproportionate racial impact may be a factor in ascertaining intent. Reed (1971) (court applied rationality standard) . De Facto Segregation  • Yick Wo v. It was of no matter that the law applied ‘equally’ to blacks and whites) De Jure v. Key: this is a quota. Key: this is a GOAL)  Gratz v. and the law narrowly tailored to achieve that end. Such an admissions program may be “flexible enough to consider all pertinent elements of diversity in the light of the particular qualifications of each applicant. Cal v. and race being only one of many factors taken into account)  Adarand Constructors. with a compelling governmental interest behind them. the applicants were not considered in the ‘entirety of their character. but it can never by itself be sufficient to prove discriminatory intent) o Affirmative Action & Benign Discrimination  Regents of U. this could only be done to create a ‘diverse student body. Hopkins (1886) (holding that discrimination in the active administration of a statute. Difficulty in implementing a constitutional program is no excuse.” Let’s check this out again in 25 years to see if it is still necessary.’ which is wrong. By giving ‘points’ to an applicant.

)  Benign-Compensatory-Remedial Discrimination • Califano v. where US officers break into • . • Every person on US soil is entitled to 4.Frontiero v. Also. Perhaps lowest standard because they are ‘represented in government’ and therefore not a discrete and insular minority. but perhaps more rigorously than with economic discrimination.) • Orr v. if the matter of evidence occurs outside the continental limits of the US.) o Alienage  Alienage is a discrete and insular minority. Orr (1979) (holding that by allowing alimony to only be paid to women by men was not substantially related to remedying past discrimination) • Mississippi Univ. a state attempt to remedy this must pass the intermediate scrutiny test. that is. the use of faulty stereotypes about the genders will not serve to justify discrimination. o Mental Retardation  Cleburne v. ability to form unions) • 3d applies… • 4th becomes rather complex. the mere rationality standard is applied. Provisions in the constitution may or may not be applicable. 5. Richardson (1973) (court applied strict scrutiny) • Craig v. It does not matter whether it is done with animus or not. 6 amendment protections if it is a criminal case. • However. (1985) (holding that the retarded are not a quasi-suspect class. Pre-9/11. Virginia (1996) (holding that a state must show an ‘exceedingly persuasive justification” for a gender-based scheme. Hogan (1982) (holding that gender-based classifications in admissions to Mississippi University for Women Nursing school did not pass intermediate scrutiny because women had not been historically disadvantaged in the sphere of nursing. Cleburne Living Center. Webster (1977) (allowed women to not include three years of lowest earnings when calculating social security payouts.” • US v. Inc. Boren (1976) (beer distributor… court holds that gender classifications are subject to intermediate scrutiny whether benign or not. Holding that in a particularly narrowly defined sphere where women have been previously disadvantaged. and it must be substantially related to the achievement of those goals. for them. for Women v. the law must be meant to achieve an important governmental objective.  All of the 1st amendment rights apply (incl.

. • Material Witness Act (government can keep you as long as they want. 5. 6. bring it back. so long as a court agrees that yo uare a person of interest at a habeas corpus hearing. 3. 4. try him with the stolen evidence.an office. 6th. he gets counsel but confesses on the way. 5th. • You can introduce this into evidence.) . • 6th amendment says. • But. 4th. unless the other nation has a similar 4th amendment provision. 8 amendment… • Illegals have the same rights. • Aliens are between low and middle level review.. you cannot introduce coerced confessions. persons who are lawfully on the soil of the US or its territories. seize evidence. are entitled to constitutional protections under 1st. unless caught at the border. • If a person is lawfully within US borders they get 1.