Constitutional Law I Spring 2010

Prof. Barrett

The major areas of Constitutional Law: 1. Judicial ReviewA federal court may only hear a case if it involves a case or controversy under Art III of the Constitution. 2. Separation of PowersA Separation of Powers question involves the relationship between or among branches of the federal government. 3. Federalism Federalism question involves the relationship between the federal government and the states. 4. Individual RightsThese questions typically involve a gov t, fed or state, taking some action which abridges the right of an individual. An analysis should include the following steps: (i) Determine which gov t is acting, (ii) identify the interest that has been abridged, (iii) place the abridged interest in the Con, (iv) ascribe constitutional weight to the interest abridged, and (v) set the appropriate level of scrutiny.

Judicial Function:
y Art. III, §1: Provides the basis for and the scope of federal judicial power: The judicial power of the US shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish Note: Establishes S.Ct. not the whole system (thru subsequent Congressional acts). y Art. III, §2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the US, and treaties made, or which shall be made, under their authority Note: Lays out judicial powerall cases under Constitutionlanguage that grants judiciary cases under Constitution textual support for judicial review, but no clear statement. y Original Jurisdiction: The Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and in those in which a State shall be a party o Under present statutes, the S.Ct. has exclusive original jurisd only when a state sues a state; in all other cases involving the S.Ct s original jurisd, Congress, under its power to ordain and establish inferior federal courts, has conferred concurrent original jurisd on fed dist cts. The original jurisd of the S.Ct can neither be expanded nor diminished by statute. o Note: How Marshall relies on for ultimate decision in M v. Mno original jurisd for writ of mandamus. y Appellate Jurisdiction: In all cases other than those listed under its Art III original jurisd, the S.Ct has appellate jurisd, with such exceptions and regulations as Congress shall make. o Under this grant of app jurisd, the Court has app jurisd over all cases coming from lower fed cts, and from cases coming from state courts, as long as state court cases involve a fed ques.

Judicial Review:

Marbury v. Madison y Marbury: Establishes the authority of the Sup. Ct to interpret the Const. It is the foundation of judicial review of congressional laws. Note: Marshall establishes judicial review in a very crafty way. Lost the smaller battleno jurisd for writ of mandamus, but wins the bigger battlecreates broad power of S.Ct to interpret the Constitution. There are other ways he could have gone. Marshall s ingenuity: He attacked the constitutionality of § 13 of the Judiciary Act of 1789, under which Marbury sought the mandamus. By this tactic he could establish the S. Ct s authority to review the constitutionality of a laws enacted by Congress, drop Marshall diplomatically and censure Jefferson. To do this, hwr, he had to reverse the order of the issues. Instead of deciding

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jurisd first, which would have defeated his purpose, for it would have meant the dismissal of the case without the need for further comment, he considered the merits of Marbury s case instead. Issues: (i) Has the applicant the right to the commission he demands? Yes, Marbury had a vested right in the office, his appointment was non-revocable and protected by the laws of the country; (ii) If he has a right, and that right has been violated, do the laws of the country afford him a remedy? Yes, Marbury has a right to the commission, a refusal to deliver was a plain violation of that right, for which the laws of his country afford him a remedy. Marshall makes it clear that delivery was a legally mandated act and not political question of an executive officer performing a duty in which there was discretion; (iii) If they do afford him a remedy, is it a mandamus issuing from this Court? NO, a mandamus was the right remedy, but it could not be issued by the Court. § 13 of the Judiciary Act of 1789 granted the Court the authority to issue writs of mandamus. Marshall reasoned that the Constitution conferred original and appellate jurisd on the S. Ct and its original jurisd only extended to ambassadors, etc and to those in which a state was a party. Congress, by law, could only grant appellate jurisd to the Court. To Marshall the issuance of a writ of mandamus was the same in effect as an original action and therefore belonged to original jurisd and @ § 13 was unconstitutional. Tool of constructionplain meaning b/c the Constitution enumerates original jurisd, it is a finite list & clearly defined so Congress can t try to expand. By this maneuver, Marshall could develop his main point that the SCt had the authority to declare laws of Congress invalid when in violation of the Consit. He expounded the doctrine of judicial review: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

Judicial Supremacy:
Art. VI, cl.2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Constitutional Interpretation: 1. Textual: look at the written text of the Const. 2. Historical Argument: a. Originalism: determining the original drafter s intent or established the original meaning of its text b. Vectors of history: look at the way the const. has changed over time. The const. is not static, it evolves contantly. 3. Structural Argument: meaning can be derived from the structure of gov t. It can be used to add meaning to a textual provision that is otherwise ambiguous, or they may be employed independent of any textual provision as a source of meaning of their own. Common when the underlying issue is federalism: Proper allocation of power b/w federal and state gov ts or separation of powers: b/w the different branches of gov t. 4. Doctrinal Argument: Stare Decisis: rule of precedent: Asserts principles derived from precedent and sometimes judicial or academic commentary on precedent. 5. Prudential: Advancing particular doctrines according to the practical wisdom of using the courts in a particular way. 6. Cultural: rooted in widely shared cultural norms, such as nontextual sources as moral concepts of justice, theories of human autonomy, and cultural assumptions about fairness.

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y y

Tiers of Review: 1. Rational Basis: The action must be rationally related to achieving a legitimate state objective and completely arbitrarily. The first requirement is satisfied if the government is pursuing practically any type of health, safety, or general welfare goal. The second requirement will be satisfied unless the government has acted completely arbitrarily. 2. Intermediate Scrutiny: The actual purpose of the regulation is important and it is substantially related to an important government objective. 3. Strict Scrutiny: To pass strict scrutiny, the law or policy must satisfy three prongs: 1. Compelling governmental interest; 2. The law must be narrowly tailored to achieve that goal or interest. a. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. 3. The law must be the least restrictive means for achieving that interest. a. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. The Const. does give Congress and the states one obvious method of rejecting and reversing SCt decisions they dislike: Art V that permits amendment of almost every provision. States judges are obligated to apply federal law as superior to state law. They bound by the constitution, their interpretations is subjected to the Sup. Ct interpretations of what the const. is. o Allowing multiple interpretations will be chaos: There is a need for uniformity in federal law throughout the United States within the Const. o States interpreting their own const. can expand the liberty beyond the quarantees of the Const, with the result that its citizens should enjoy greater liberty that citizens of other states But, they cannot extend such greater right to its citizens beyond that which is given by the Const. o Review of State Judgments: Martin v. Hunter s Lessee stands for the proposition that the Sup. Ct has the power under Art. III to review the final decisions of state courts in cases involving questions of federal law.  Adequate & Independent State ground decisions: The Sup. Ct cannot review state courts ruling on issues of state law. Both is needed to insulate the state court from judicial review. y Adequate: A state ground of decision is adequate if it fully supports the result and does not conflict with the Const., federal statute, and federal treaty. However, a state decision will be deemed not adequate if a state decision has attempted to take away rights protected by the Const., laws, or treaties of the U.S. y Independent: is one that is not based on the state court s understanding of federal law. A mistake by the state court in its understanding of federal law would undermine both the federal and state decision. Put simply, state decision must be independent of federal law. It must reach its own conclusion. o Michigan v. Long: rests on the principle that state court s interpretation of the Const. must exactly match that of the

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Sup. Ct. States are prohibited from construing the Const. to give ind. fewer rights or more rights than the Sup. Ct has prescribed but they can impose greater/less restrictions under their own constitution.

Limits of Judicial Review:
y Direct Political Controls: 1. Amendment: the Const. may be amended to reverse constitutional decisions of the court; rare but full merge baptism Have seen it done. Basic modes of Amendment: Art. V 1. Amendment may be proposed either by a two-thirds vote of each house of congress or by a const. convention called by congress upon the application of two-thirds of the states. 2. In either case, a proposed amendment must be ratified by three-fourths of the state legislatures or state ratification conventions (whatever congress specified) 3. Appointment: Presidential constitutional power to appoint Sup. Ct justices 4. Impeachment: Art. II, §4: provides that all civil officers of the U.S. shall be removed from office on impeachment for, and conviction of, Treason, Bribery, or other high crimes and misdemeanors. Art. I, §2: vests the House of Rep. with the sole power of impeachment. Art. I, §3: gives the Senate the sole power to try all impeachment and stipulates that conviction and removal from office occurs if twothirds of the Senators present and voting concur in the House s articles of impeachment. Congressional Power: 1. Art. II itself suggests that Congress may place certain limits both on the Supreme Court s appellate jurisdiction and on the jurisdiction of the lower federal courts 2. Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn t expand the Supreme Court s jurisdiction beyond the federal judicial power. 3. Congress also may decide what lower federal courts there should be, and what cases they may hear. Again, the outer bound of this power is that Congress can t allow the federal courts to hear a case that is not within the federal judicial power. Congress does not have unlimited power to tamper with the Supreme Court s appellate jurisdiction. a. Any jurisdictional limitation must be neutral; that is, Congress may not decide the merits of a case under the guise of limiting jurisdiction. Justifiability Doctrines: refers to a body of judicially created doctrines that define and limit the circumstances under which Art. III federal court may exercise its const. authority, including its authority to engage in judicial review. o Court in Madison says the judicial review is an unavoidable aspects of the courts obligation to decide cases b/w adverse parties with real rights at stake when the resolution of such cases requires determination of the const. validity of the legislation o Article III, §2: provides that the judicial power shall extend to certain enumerated categories of case of controversy. This requirement forbids courts from invalidating legislative or executive action merely because it is unconstitutional. The courts may only rule in the context of a constitutional case.

y

y

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1. in which there is an actual dispute involving the legal relations of an adverse parties, and 2. For which the judiciary can provide some types of effective relief. 1. Advisory Opinions: opinions issued outside the context of a justifiable case or controversy. 3. Constitutional & Prudential requirement 1. Standing: The Supreme Court will not decide a constitutional challenge to a government action unless the person who is challenging the government action has standing to raise the constitutional issue. 1. By standing , we mean that the 4 must have a significant stake in the controversy a concrete or particularized interest in the case. The Court has broken down standing limitations into constitutional and prudential limits. A court can raise standing sua sponte. 2. Organization standing:An association may have standing to assert the rights of its members under the following circum s: (i) The assoc can only represent members who have not filed suit on their own behalf, (ii) any member who is represented must have suffered an injury-in-fact, (iii) joinder of the individual members is not necessary to the disposition to the lawsuit; and (iv) the interests of the members is germane to the purposes of the organization. Constitutional minimum of standing contains three elements. 1. First, the 4 must have suffered an "injury in fact," an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not "conjectural" or "hypothetical." 2. Second, there must be a causal connection between the injury and the conduct complained of, the injury has to be fairly traceable to the challenged action of the (, and not the result of the independent action of some third party not before the court. 3. Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Prudential Considerations: (a) 3rd Party Standing: The plaintiff generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interest on 3rd parties. Only difficulty is when you have parties that stand in some parental or professional relationship to some party. 3. To waive 3rd Party standing, there must be  Substantial or special relationship b/w the claimant and third party;

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Proof of impossibility or impracticality of the 3rd P asserting his or her own rights;  Risk that the rights of the 3rd P will be diluted or lost unless claimant is allowed to assert such rights. (b) Zone of Interest: The plaintiff s complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Even when the plaintiff has alleged redressable injury sufficient to meet Article III s requirement, the Court refrains from adjudicating abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in Congress.

Mootness/Ripeness/Political Question: Mootness: The mootness doctrine prevents courts from hearing cases when events subsequent to the institution of the lawsuit have deprived the plaintiff of a stake in the action. Voluntary cessation of allegedly unlawful conduct does NOT moot the case. Mootness (after the case is started); Redressability (when the case is brought). Ripeness: The ripeness doctrine bars a court from deciding cases that are premature too speculative or remote to warrant judicial intervention. For example, a challenge to a criminal statute before a prosecution is initiated. Ask: maybe there s injury, but have enough things happened to place the plaintiff in harm s way now? Political Questions: The Court will not decide political questions. Political questions are: a. Those issues textually or structurally committed by the Constitution to another branch of government; or 1. A textually demonstrable constitutional commitment of the issue to a coordinate political department Baker b. Those inherently incapable of resolution and enforcement by the judicial branch. 1. A lack of judicially discoverable and manageable standards for resolving an issue Baker. 2. These questions ought to be avoided to prevent judicial embarassment. o The Political Question doctrine originated in Marbury. 1. Did the Court have any business messing with the President s appointments? o Other political questions include: 1. The validity of the constitutional amendment process. 2. Foreign relations In Baker v. Carr (1962): the Court listed several factors, at least one of which must be present in order to find a non-jusiticiable political question. Each of these factors relates in some way to the separation of powers. Furthermore, there was precedent that such Guaranty Clause actions presented classic political questions. 1. Commitment to Another Branch A textually demonstrable constitutional commitment of the issue to a coordinate political department.

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2. Lack of Standards A lack of judicially discoverable and manageable standards for resolving the issue. 3. Unsuitable Policy Determination The impossibility of deciding the issue without an initial policy determination of a kind clearly for non-judicial discretion. 4. Lack of Respect for Other Branches The impossibility of a court s undertaking independent resolution without expressing lack of respect due coordinate branches of government. 5. Political Decision Already Made An unusual need for unquestioning adherence to a political decision already made. 6. Multiple Pronouncements The potential for embarassment from multiple pronouncements by various departments on one question. 1. Hot Potato Doctrine: The Court uses the political question doctrine as an escape hatch, so it doesn t it have to decide hot potato political issues.

Government Powers in a Federal System (Federalism)
The U.S. has a federal system. The national government and the government of each of the states coexist. The most important principle in this whole area is that the federal government is one of limited, enumerated powers. In other words, the three federal branches (Congress, the executive branch, and the federal courts) can only assert powers specifically granted to them by the United States Constitution. Principle of Federalism the Constitution allocated powers among nations and states. The power that Congress might exercise are specified (most notably Art. 1, § 8) while the 10th Am emphasizes that undelegated powers were reserved to the States and the people. Also, the less than total powers given to the national gov t were diffused among three separate branches of gov t, separately delineated in the first three Articles of the Constitution (Separation of Powers). y On the other hand, each state has a general police power, i.e., the ability to regulate solely on the basis that the regulation would enhance the welfare of the citizenry. But there is no general federal police power, i.e., no right of the federal government to regulate for the health, safety or general welfare of the citizenry. McCulloch v. Maryland (1819) (Introduction) The Second Bank of the US, chartered by Congress, issued notes w/o complying w/ state law that sought to impose a tax upon such notes. Issues: Does Congress have the power to incorporate the bank & could the state tax? Although, among the enumerated powers, we do not find the word bank or incorporation, we find the great powers to law and collect taxes; to borrow money; to regulate commerce; to declare and conduct war; and to raise and support armies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are entrusted to its gov t. Government entrusted with such ample powers, must also be entrusted with ample means for their execution.  Necessary and Proper Clause: (Art 1, § 8, cl. 18): Expand the enumeration of powers by adding that Congress has the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers vested by this constitution, in the gov t of the US, or in any dept thereof  Necessary To employ the means necessary to an end, is generally understood as employing any means calculated to producing the end, and not as being confined to those single means, w/o which the end would be entirely unattainable. Does not mean absolutely necessary.

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Held: Congress has the power to establish the Bank b/c necessary and proper to carrying out enumerated powers, implied power to carry out express power.  Held: The state may not tax the Bank b/c the power to tax is the power to destroy and the states don t have the power to control the operation of constitutional laws of Congress to carry into execution the powers vested in the general government (The great principle is, that the constitution and the laws made in pursuance thereof are supreme).  Important language of means-ends relationship: Let the end be legitimate, let it be w/i the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.  Language of pretext (will see again): Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the gov t; it would become the painful language of this tribunal . . . to say that such an act was not the law of the land.  Both quotes articulating limits on congressional exercise of implied powers as necessary and proper to effectuate the enumerated ones.  Note: The necessary and proper clause cannot be used by itself as a source of power. It must be coupled with some other constitutional provision. (Egthe right to establish post offices and post roads power and duty to carry the mail right to punish those who steal letters. Essential to the beneficial exercise of the power, but not indispensably necessary). State Oversight of the Federal Government The Term Limits Problem May the states limit the terms of members of Congress? y No. Permitting individual States to formulate diverse qualifications for their congressional representatives would result in a patchwork that would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States. th Amendment only lets the states retain powers they already had before the enactment of The 10 the Constitution. y The power to add qualifications for federal elections was not an original power that the states had before enactment. o Furthermore, the Constitution was intended to be the sole source of qualifications for membership in Congress

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To regulate

The Commerce Power: Art I, § 8, cl. 3 grants Congress the power
commerce with foreign Nations, and among the several states, and with Indian Tribes.

Commerce: is describes as commercial Intercourse b/w nations (states), in all its branches, and can be regulated by congress Marshall s definition in Gibbons.
Congress s power to regulate commerce among states is plenary; is complete all by itself, subject to no limitations except such as may be found in the constitution. y Congress can ban items from commerce. General Rule - Three Categories Commerce Power can Regulate: 1. Congress may regulate the use of channels of interstate commerce. Darby E.g., Motels, railroads, roads, highway, waterway etc. 2. Congress may regulate the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities. E.g., Items that move in interstate commerce such as lottery tickets, food & drugs, trucks, plane, internet etc., regulate electricity, insurance, stocks, people because they go across state line. 3. Congress may regulate those activities having a substantial relation or affect on interstate commerce. ). The proper test requires an analysis of whether the regulated activity substantially affects interstate commerce. a. Substantial effect can be based on cumulative impact (aggregating principle) only when congress is regulating economic activities U.S. v. Morrison. i. If things can be bought and sold in interstate commerce econ activities. b. When congress is regulating Non-economic activities Substantial effect cannot be based on cumulative impact that power belongs to the state. United States v. Lopez (1995): Facts: In the Gun-Free School Zones Act of 1990, Congress made it a federal offense for any individual to possess a firearm in a school zone. Held: The Court held that the Act exceeded the authority of Congress to regulate Commerce among the several states . For the Gun-Free School Zones Act to be sustained, it must have fallen within the third category as a regulation of an activity that substantially affects interstate commerce. Wilkard v. Filburn (1942):Farmer planted and cultivated more wheat than federal act allows y The court held that the production of wheat for consumption on the farm may be trivial in the particular case is not enough to remove the grower from the scope of federal regulation, where his contribution, taken with that of many others similarly situated, is far from trivial. o Aggregating Principle: The cumulative effect of Lopez + Morrison = Black allowing one thing leads to another. If he is allowed to, Letter Law Elements (3rd then everyone else will too. category) y The more wheat consumer for home consumption, the less 1. Economic Activity wheat that is bought in commerce (i.e. by other farmers), 2. Jurisdictional Element which affects price and market conditions (excess wheat (qualifying language in statute would check market prices). connection to interstate United States v. Morrison (2000): commerce) Facts: A female student at Virginia Tech who said she had 3. Congressional Findings (not been raped by two members of the school s football team sufficient alone) sued them under the Act. 4. Link between the activity and a substantial effect on y

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Held: The Act was beyond Congress Commerce power. Where an activity is basically noncommercial, its aggregate affects on commerce cannot suffice. y Reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct s aggregated effect on interstate commerce. The Constitution requires a distinction between what is truly national and truly local. Ct tries to avoid any categorical rule of aggregate effects. y This Act goes too far economic effects are too remote from the activity involved Gonzales v. Raich (2005) Facts: California CSA permits the use of marijuana for medical purposes. Held: Maj. Relied on Wilkard that Congress can regulate intrastate activity that in itself not economic if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market of that commodity y May regulate purely local activities that are part of an economic class of activities that have substantial effect on interstate commerce (wilkard s language). y Congress has plenary power to regulate what it wants so long as it is within the CC in that economic activity having substantial effects on IC/noneconomic activity failure to regulate will affect IC (interstate/intrastate).

State Autonomy Limits: The question is whether a state s activities, even though they
otherwise relate to commerce, are nevertheless immune from federal regulation, because of external limits:

10th Amendment: the powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people. y Key Principle: Congress cannot compel state legislative or regulatory activities. o The Supreme Court used to treat the 10th Amendment as a limit on federal power, barring anything that would impair a state s ability to carry out traditional functions. o Congress cannot force state to adopt a law or regulation. o Congress can try to induce local state government to act by putting strings on grants, so long as the conditions are explicitly stated and relates to the program. New York v. United States (1992) & Printz: Congress cannot commandeer the legislative process of the states by directly compelling them to enact and enforce a federal regulatory program or compel a state or local government s executive branch to perform functions, even ones that are easy-to-do and involve no discretion. The bottom line is that: 1. Congress can regulate private activity alone (Darby) 2. Congress can regulate private and state activity together (Garcia) 3. If Congress regulates the States alone and does it in a way that compels (indirectly or directly) the states to regulate their citizens in a way that the states don t want to there is a 10th Amendment issue.

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Taxing & Spending Powers
TAXING: Congress has the power to "lay and collect taxes." (Art. I, §8). This is an independent source of congressional power, so it can be used to reach conduct that might be beyond the other sources of congressional power, like the Commerce clause. 1. A tax is permissible when congress s primary motive is raise revenue and when congress may impose the incidental effect of discouraging certain types of conduct through such a tax. 2. Even if Congress principal motivation is to regulate rather than tax, so long as the tax produces some meaningful revenue and any regulatory provisions accompanying the tax are reasonably related to the tax s enforcement, the tax will probably be upheld. 3. However, Congress exceeds its power when a tax is not designed to raise money, but instead becomes a penalty with the characteristics of regulation and punishment. 4. Under the taxing power , Congress is given far-reaching ability to tax in order to raise revenue. Congress may also regulate via taxation. SPENDING: Under the spending power, Congress may provide for the common Defense and general Welfare of the United States (Art. I, §8). The power to spend is linked to the power to tax money may be raised by taxation, and then spent for common defense and general welfare. Limitations on spending power: 1. must be in pursuit of the general welfare, 2. must allow States to exercise their choice knowingly, 3. must be related to federal interest in particular national projects or programs, 4. may be barred by other constitutional provisions spending power may not be used to induce the states to engage in activities that themselves would be unconstitutional SUMMARY: 1. For congressional enactment to be valid, Congress must assert that it acts pursuant to a delegated
power as expanded by the Necessary and Proper Clause.

2. Government frequently imposes Commerce Clause power as the basis for imposing regulation. 3. As a general rule, Congress has the power to regulate the use of the channels of interstate commerce;
may regulate and protect the instrumentalities of the interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and can regulate activities that have substantial relation or effect on interstate commerce.

The Dormant Commerce Clause: Art. I, §8
Provides that states local law are unconstitutional if they discriminate against out of commerce to benefit its own local interest and if it place undue burden on interstate commerce. It is a situation where the federal govt commerce power lies dormant; where it has the power to regulate in an area, but has not done so or has done so incompletely. 1. First, think Is States Preempted from making laws in that area? Meaning the area exclusively reserved to the federal gov t a. if yes, state law Invalid; b. If yes, but consent is granted, state can proceed c. if no state can proceed 2. Notion of consent: If Congress gave the states a green light, then Congress felt that the States are not unconstitutionally entering the part of interstate commerce they can t enter. The Courts must look at this. a. If Congress is silent and the states have legislated, the courts have to simply decide whether the States have violated the dormant commerce power.

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If states proceeds The questions becomes does the state local law discriminate against out of commerce or does it treat instate and out of state commerce alike? That is the key issue for Dormant Clause and P & I (iv). Discrimination against Interstate Commerce 1. Facially Discriminatory Laws: Determine whether the state law openly
discriminates against interstate commerce in favor of intrastate economic interests? 1. A state cannot discriminate against interstate commerce, If a law is found to Openly discriminate against interstate commerce , the regulation is only valid if the state can prove that the law furthers a legitimate state interest that cannot be accomplished by any less discriminatory (retrictive) means. Strict Scrutiny: a. It violates commerce clause unless it necessary to achieve an important government interest and no less restrictive alternative is available to accomplish its objective. 1. Courts determine whether legislation involves discrimination against interstate commerce by examining the statute s language, as well as its stated objectives and its effects. 1.

Exception: Discriminatory laws may be upheld only if they serve a
legitimate local purpose that could not be served as well by available nondiscriminatory means. This is an exception that prove the rule. Maine v.Taylor, Dean Milk.

2.

Purposes & Effect If a law is discriminatory in purpose and effects, the court
will treat it as openly discriminatory and subject it to the Strict Scrutiny legitimate interest and less restrictive means
If a law that is discriminatory in purposes and effect but applies impartially to in-state and out-of-state commerce and serves a legitimate state objective, the analysis move to the second step, whether the state local law places an undue burden on interstate commerce? 1. A Balancing test of the local benefits against the interstate commerce burden is used to decide whether the burden on interstate commerce outweighs benefit to the law. i. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved . ii. Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

3.

Facially Neutral Laws

Market Participants Exception for State
The Market Participants says that a state make favor his own citizens in receiving benefits from government programs. The Dormant Commerce clause does not prevent a state from preferring its own citizens when the state is acting as a market participant provided that the state imposes burdens only within the market in which it is participant. 1. Market Participants for the state means it has the freedom to choose who he chooses to sell to or buy from just like a private individual.

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THE PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV
The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states (Art IV §2). Under Article IV, P & I, No States can t deny to non-residents the privileges and immunities afforded to its own citizens. 1. The clause has explicit language that forbids states from discriminating against nonresidents differently from residents. 2. The Privileges and Immunities clause bars only state discrimination that burdens fundamental rights, i.e., access to the courts and pursing lawful trades. 1. For example, a law requiring you to live in NY to practice law in NY could be attacked via the Privileges and Immunities clause. Another example is a law forbidding non-residents from attending CA state colleges. Its function overlaps those of several other provisions of the Constitution: 1. Like the commerce clause, it serves as a restraint on state efforts to bar out-of-states from access to local resources. 2. Like the 14th Amendment, it protects citizens against discrimination, in this context, on the basis of state residency. Applicability: What does the privileges and immunities clause apply to? 1. Only applies to fundamental rights that are attributes of our national sovereignty. a. Fundamental rights under privileges and immunities are mostly economic rights such as the right to engage in business or a profession. b. The right to engage in recreational activity is not a fundamental right. Differences from the Commerce Clause: 1. The courts say that the privileges and immunities clause, because of its wording, may only be invoked by individuals not corporations. 2. While Congress may consent to state practices that would otherwise be impermissible under the Commerce clause, the Privileges and Immunities clause is a rights provision, not a grant of authority to Congress, and so is arguably non-waivable by Congress. 3. Standard of review for privileges and immunities denials is arguably stricter than the balancing test used in dormant commerce clause analysis 4. Extends not to all commercial activity but only to fundamental rights. 5. No market participant exception.

PREMPTION
What happens when Congress does take action in a particular area of commerce, and must ask, to what extent does Congress valid exercise of power restrict what the states may do? 1. In the case of a direct, obvious conflict between a federal and state statute, the resolution is clear: the state statute is simply invalid because the Supremacy Clause says federal law is going to trump state law. a. Preemption can be found in one of the following ways i. Express Preemption if a federal statute explicitly said federal law is exclusive in an area state laws are preempted ii. Implied Preemption can be found exist these ways: 1. If federal law and state law are mutually exclusive states law is preempted

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2. If it is not possible to simultaneously complied with both federal and state law 3. If a state local law impedes the achievement of a federal objective the sts law is deemed preempted. 4. If congress is evidence with clear desire that sts law is preempted 5. Sts cannot tax or regulate the federal gov t. 2. Much more likely to arise is the situation where the federal and state actions involve similar or identical subject matter, but there is no clear-cut conflict. a. Preemption and undue burden on commerce clause arguments go together like ham & eggs if there s a federal law on the subject. y If the law gets attacked on one of those grounds, it will most likely be attacked on both grounds. There are two types of preemption: 1. Field Preemption: preemption where Congress occupies the field. a. If Congress wants to occupy the field, it should expressly state so. b. If Congress has the right to be in a field, then it has the right to occupy that field. When it occupies the field, no one else may enter the field. 2. Conflict Preemption: First, the congressional statute and the state action may be in actual conflict. If so, the state regulation is automatically invalid. If Congress doesn t occupy the field, we ask whether there was a conflict. There are two types of direct conflicts: a. If it is impossible to obey both the state and federal regulations simultaneously, there is an actual conflict. b. There may also be an actual conflict the objectives behind the two sets of regulations may be inconsistent. Here, too, the state regulation must fall even though the regulated party could theoretically comply with both sets simultaneously.

Consent to State Laws
Congress, if it wants to, can unplug or wake up the dormant commerce clause by simply legislating that it s okay for the states to keep out goods from other states. Congress can specifically legislate that it s okay. 1. Though Congress may authorize protectionalism under the Dormant Commerce clause, it may not under the Privileges and Immunities clause.

Yes

Premption ? No Consent? Yes
Sts may regulate/effect Interstate Commerce

Nat l Power

Exd No DCC bar? No Yes

Exclusive Nat l Power SUMMARY 1. Where there is no federal regulation, state regulation might be permissible. However, courts will strike down legislation when the state has attempted to discriminate against interstate commerce in favor of its own citizens. 2. Courts sometimes will allowed states to legislate in favor of its own citizens when the state is acting as a market participant.

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3. Even when a state is acting neutrally toward interstate commerce, courts will may invalidate state legislation that imposes an undue burden on interstate commerce. 4. In cases where the federal government has chosen to regulate a particular area and the state is inconsistent with the valid federal law, the state law is preempted by the federal law.

EXECUTIVE AND LEGISLATIVE ACTION
1. Delegation: No limit exists on congress s ability to delegate legislative powers. 1. Administrative agencies, which are generally part of the executive branch, have been given or granted considerable lawmaking authority. Congress often gives them little guidance. 2. The Court had held that one option for congressional control over executive action is to be very specific and limiting in the delegation of power to agencies, so that their rulemaking power will in turn be limited. It must be accompanied by some guidance on how they must be enforced. i. Congress cannot give these agencies a blank check to enforce the law as they see fit. ii. For congress to act there must always be a bicameralism pass by both the house and congress and a presentment to the president. 2. Aggrandizement: when congress unreasonably enlarges the single powers, or legislates without conforming to the constitutional procedures of bicameral action 3. Encroachment: when congress enacts law that undermines the authority and independence of any other branch of the federal gov t

Separation of Powers
By insisting upon separation of powers, the Framers sought to promote such aims as safeguarding against tyranny and promoting efficiency. The constitutional provisions themselves reveal, however, that separation was not intended to be airtight. Repeatedly, powers are intermixed, as with the participation of the President in the legislative process through the veto power  Tension exists as, when the Constitution was written, it did not have an administrative state of such complexity in mind. o The cases attempt to maintain notion of distribution of powers without disenabling administration.

Executive Powers: Art. II, §2
There are a few powers which are explicitly granted by the Constitution to the President. These are enumerated in Article II, §2. They include, for instance, the President s status as Commander-in-Chief of the armed forces and his treaty-making power. 1. However, the most important single separation of powers principle to remember is that the President cannot make the laws. All he can do is to carry out the laws made by Congress. J. Jacksons Concurrence stated the level in Executive Actions is at highest or lowest: Green Light: When the President acts pursuant to an express or implied authorization from Congress, his authority is at its highest. There would be a strong presumption as to constitutionality and wide latitude of judicial interpretation. The burden of persuasion rests heavily on challengers to the President s authority.

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Yellow Light: When President acts in absence of a congressional grant or denial of authority, he can rely only on his independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which distribution is uncertain. Any challenge will depend on the imperatives of events and contemporary imponderables. Red Light: Where the President acts in contradiction of the expressed or implied will of Congress, his power is at its lowest ebb. The President may only have authority if it is within his domain and Congress does not have authority. Careful scrutiny. 1. President may still proceed if Congress s red light is unconstitutional (i.e. Congress interfering with president s power to pardon federal criminals a power that only the president has) 2. Most of the time that Congress posts a red light and has the authority to do so the President must stop. 3. In Youngstown the light was red Congress rejected the power to seize in deliberating over the Taft-Hartley Act.

Treaties, War & Foreign Affairs Powers
1. Treaty, Art. II, §2: The President may make a treaty, but it must be ratified by 2/3rds of the Senate vote is required for ratification. a. A treaty may not violate any distinct constitutional prohibitions or guarantees. Thus, a treaty cannot infringe upon individual rights. 2. War, Art. I, § 8: Congress is given the power to declare war, and to tax and spend for national defense. Also, it is explicitly given the right to raise and support armies and to provide and maintain a navy. All of these powers are given by Article I, §8. The President, by contrast, is made the Commander in Chief of the Armed Forces. Thus, Congress and the President in effect split the war powers. 3. Foreign Affairs: Congress has broad authority to conduct foreign affairs this is an inherent attribute of sovereignty. The states have very limited authority in this area. The power in Congress to regulate foreign affairs has been repeatedly recognized by the Court, though the source of the power remains unclear. The Court has recognized a general constitutional principle that foreign affairs are the proper province of the federal government War Power Resolution 1. The President has the power as commander-in-chief to conduct war but Congress has the power to declare war.

EXECUTIVE

PRIVILEGE AND IMMUNITIES

Executive Privilege
Several Presidents have evoked the executive privilege to justify their refusal to disclose information which they claimed to be confidential. 1. It is not a constitutional power, but rather it is an inherent privilege necessary to protect the confidentiality of presidential communications.

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2. The determination whether presidential communications can be use as evidence or otherwise admissible must be made by the trial judge after hearing the evidence. 3. Where the claim of privilege is a general one, and not related to a need to protect military, diplomatic, or national security secrets, the executive privilege is a qualified one. United States v. Nixon: 4. The President has absolute immunity from civil liability for acts within the outer perimeter of his official [responsibility]. Nixon v. Fitgerald  There remain several checks against misconduct: remedy of impeachment, constant scrutiny by the press, vigilant oversight by Congress, desire to earn reelection, need to maintain prestige as element of Presidential influence. 5. There is no immunity from civil liability for unofficial acts, including those committed before taking office. Nor does the Constitution afford the President temporary immunity from civil damages litigation arising from events that occurred before he took office. Clinton v. Jones.

Individual Rights: Procedural/Substantive Due Process:
The Bill of Rights is applicable to the federal government. But these amendments did not apply to the states expressly all of the provisions of the Bill of Rights; rather the 14th Amendment provided simply: "All persons born or naturalized in the US, and subject to the jurisdiction hereof, are citizens of the US and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Some of the Bills of Rights are now applicable to the state through the 14th Amendment through a process called Incorporation. Meaning the individual rights afforded to all citizens of U.S cannot be infringe on by state laws that are unconstitutional. Thus, there are three substantive provisions in the 14th Amendment: 1. Due Process based on 5th Amendment 2. Equal Protection 3. Privileges and Immunities Clause (similar to Art. IV) No states may deprive any citizens the privileges and Immunities of United States citizenship. a. P & I is always the wrong answer unless the question involves the right to travel (only one place the court have uses it) b. Differences b/w Art. IV & 14th A P & I The original privileges and immunities clause provided that states can t deny citizens of other states the P&I enjoyed by citizens of that state. On the other hand, the 14th Amendment s P&I clause provided that states can t deny their own citizens the P&I enjoyed by citizens of the U.S. The Slaughter-House Cases Facts: The Louisiana legislature passed a statute granting the exclusive right to engage in the slaughterhouse business to one state-chartered company. Several butchers sought to invalidate the statute under all three substantive grounds of the 14th Amendment: Privileges and Immunities  The 14th Amendment s P&I Clause was designed primarily to overrule the holding of the Dred Scott decision. It merely forbade state infringement of the rights of national citizenship, not the rights of state citizenship.

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o

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Examples of national rights include the right to petition for redress of grievances and the privilege of the writ of habeas corpus.  The sort of right asserted by the butchers, namely the right to pursue a particular livelihood, was not encompassed by P&I of citizens of the U.S., but were instead privileges of state citizenship, that the state itself could expand or contract as it saw fit. There are two quite different functions that the Due Process Clause serves. It imposes certain procedural requirements on governments when they impair life, liberty, or property. But the Due Process Clause also limits the substantive power of the states to regulate certain areas of human life. 1. Due Process: Procedural a. The Court gave the Due Process Clause a narrow reading and held that it protects only against procedural unfairness. b. It includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.  Or, to put it more simply, where an individual is facing a (1) deprivation of (2) life, liberty, or property, (3) procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge. Substantive: 1. This "substantive" component of the Due Process Clause derives mainly from the interpretation of the term "liberty" certain types of state limits on human conduct have been held to so unreasonably interfere with important human rights that they amount to an unreasonable (and unconstitutional) denial of "liberty". 2. The Court focuses on three types of rights under substantive due process in the Fourteenth Amendment. Those three types of rights are: 1. the first eight amendments in the Bill of Rights; 2. restrictions on the political process (e.g. the rights of voting, association, and free speech); and 3. The rights of discrete and insular minorities. 3. The Court usually look to see whether: 1. there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. 2. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. 3. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.

INCORPORATION
The Supreme Court has implicitly rejected the notion that that Amendment automatically made applicable to the states all of the Bill of Rights guarantees (which had previously been binding solely on the federal government). The Supreme Court has never said that due process requires the states to honor the Bill of Rights as a whole. Instead, the Court uses an approach called "selective incorporation".

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1. Under this approach, each right in the Bill of Rights is examined to see whether it is of "fundamental" importance. If so, that right is "selectively incorporated" into the meaning of "due process" under the 14th Amendment, and is thus made binding on the states. 2. Fundamental rights are those that are essential to the concept of ordered liberty. a. Picks and choose among them based on ranking. b. Only 2nd, 3rd, grand jury indictment clause of 5th, and 7th. i. Fundamental vs. Non-fundamental rights ii. Justice Cardozo double jeopardy fails of what constitute fundamental rights iii. Freedom of speech and religion pass the test

ECONOMIC LIBERTIES
Lochnerism: A form of judicial activism in which court decisions are made based upon presumed rights not specifically addressed by existing (Constitutional) law, especially when influenced by political or personal beliefs Today, the test for whether a court could step in and decide whether an economic law violates the due process clause is the rational-basis test; an economic statute has to meet only two easily-satisfied requirements to be in conformity with substantive due process: 1. Legitimate state objective: The state must be pursuing a legitimate state objective. a. But virtually any health, safety or "general welfare" goal comes within the state s "police power" and is thus "legitimate". 2. Minimally rationally related: Second, there must be a "minimally rational relation" between the means chosen by the legislature and the state objective. a. To put it another way, the Court will presume that the statute is constitutional unless the legislature has acted in a completely "arbitrary and irrational" way.

Privacy Rights
If a state or federal regulation is impairing a fundamental right, the court strictly scrutinizes the regulation. Here is what it means in practical terms for the Court to apply strict scrutiny to a state or federal regulation that impairs a fundamental right: 1. The objective being pursued by the state must be "compelling" (not just "legitimate" as for a non-fundamental right); and 2. The means chosen by the state must be narrowly tailored to achieve that compelling end. a. In other words, there must not be any less restrictive means that would do the job just as well. The only rights that have been recognized as "fundamental" for substantive due process purposes are ones related to the loose category "right to privacy." This right of privacy or autonomy derives indirectly from several Bill of Rights guarantees, which collectively create a "zone" of privacy. 1. The list of rights or interests falling within this "right to privacy" include just a few related areas: sex, marriage, child-bearing, abortion and child-rearing.

Contraception
Individuals interest in using birth control is "fundamental." So, whether a person is married or single, he or she has a fundamental interest in contraception, and the state cannot impair that interest without satisfying strict scrutiny. Griswold v. Connecticut

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Abortion

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The right of abortion is the primary example of a right protected by substantive due process. Roe v. Wade recognized that the right of privacy limits a legislature s freedom to proscribe or regulate abortion. But in Carey, the court rejects the premises of Roe that abortion is a fundamental right. Apparently, abortion is no longer a fundamental right, and restrictions on it are no longer to be strictly scrutinized. This represents a huge departure from the law as it stood under Roe. Informed Consent, 24 Hour Waiting Period, Spousal Notification, Parental Consent No Undue Burden all not undue burden on the woman s right to abortion. GENERAL RULE: The Undue Burden Standard A woman has a constitutionally-protected privacy interest in choosing to have an abortion before viability. However, the state has a somewhat countervailing interest in protecting "potential life," even before viability. Regulation: 1. The state may regulate pre-viability abortion only if it does not place an "undue burden" on the woman s right to choose abortion. However, a regulation will constitute an "undue burden" if the regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman" seeking a pre-viability abortion. 2. A state after viability may prohibit a woman from obtaining an abortion unless an abortion is necessary to protect the mother s life or health. 3. This is an issue with Carhart II because the court had ruled that partial abortion is ban. a. So does that mean that even if the woman s life is at stake, to abort the baby is still prohibited Make an argument for both on exam. 4. A state requiring informed consent, waiting period, parental consent partial-birth abortion ban and physician only requirement will not place undue burden on a woman. However, spousal consent is undue burden.

Family Relationships
Parents have a fundamental right to make decisions concerning the care, custody, and control of their children. 1. Whenever the state interferes with a person s decision about how to live his family life and raise his children, you should be on the lookout to see whether a fundamental right is being interfered with. Loving v. Virginia

Right to Die
The law of "right to die" and "right to pull the plug" is developing. The Supreme Court has issued two major decisions, one on the right to decline unwanted medical procedures and the other on the right to commit suicide. As a result of these decisions, there are several major propositions that we can recite at this point: 1. A competent adult has a 14th Amendment liberty interest in refusing unwanted medical procedures, including artificial life-sustaining measures. It s not clear whether this is a "fundamental" interest. 2. There is is no fundamental right to commit suicide; thus, a state may ban persons from giving individuals assistance in commiting suicide. 3. The state has an important countervailing interest in preserving life. 4. In the case of a now-incompetent patient, the state s interest in preserving life entitles it to say that it won t allow the "plug" to be "pulled" unless there is "clear and convincing

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evidence" that the patient would have voluntarily declined the life-sustaining measures. Cruszan.

Sexuality: Consensual Sexual Choices
The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial and a state law making it a crime for members of the same sex to engage in sodomy violates the due process clause. 1. A person s sexual conduct (apart from any issues of procreation or family life) may in some instances be entitled to substantive due process protection. However, there seems to be no general fundamental right to engage in adult consensual sexual activity. 2. In fact, outside of the marriage relationship, there is probably no kind of sexual activity the practice of which is a "fundamental right". Thus the state can almost certainly prohibit, and punish, adultery and fornication. 3. But where the parties are married, there probably is a fundamental right to have even "deviant" sex, as long as it s not physically dangerous and is consensual. For instance, the state probably may not prohibit oral sex in marriage, since that would fall within the marriage area of the right to privacy. a. Liberty protects the person from unwarranted government intrusions. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. Ds are adults and their conduct was in private and consensual. b. The right to privacy is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Equal Protection:
Equal protection is part of the 14th Amd. It provides that no state shall make or enforce any law which shall . . . deny to any person within its jurisdiction equal protection of the laws. In the Slaughterhouse Cases, the Court narrowly interpreted the Equal Protection Clause as having been enacted only to protect the newly freed slaves from discrimination. This soon changed. The Court did a 180 , and it has never returned to its original notion that the clause only applies to racial discrimination.

Standard of Reviews:
Intermediate Scrutiny Standard: A law will be upheld if it served important governmental objectives and is substantially related to achievement of those objectives. Applicable To: Court uses this standard when a law is based on quasi-suspect classification. Quasi-suspect classification: 1. Gender 2. Illegitimacy

Rational Basis Standard: A law will be upheld if the distinction between classes is rationally related to a legitimate interest (a constitutionally permissible purpose), and not deemed arbitrary or irrational. The court will usually defer to legislative s decision that a law is rational.

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Applicable To: Applies when the other two are not applicable (i.e. most leg). Includes: 1. Mental 2. Sexual Orientation 3. Wealth & Poverty

Prof. Barrett

Strict Scrutiny: Standard: A law (violating the fundamental right or suspect classification) will be struck down, unless the government shows that the law was enacted because it has a compelling governmental interest and the law is narrowly tailored to achieve that interest. Applicable To: Court will scrutinize the law/action when a suspect classification or fundamental right is involved. 1. Thus, where there is a fundamental right (right to travel, voting, privacy, all 1st amendment rights ) or where there s a suspect classification, the burden shifts, and the State has the burden of proving that the law was narrowly tailored to serve a compelling interest. 2. Court will look to see if less burdensome means for accomplishing the legitimate goal are available. Suspect Classification Examples: a. Race b. Alienage Suspect Classifications/ Race & Ethnicity If governmental actions classifies persons based on exercise of a fundamental rights or involves a suspect classification, strict scrutiny is applied. A group of people will be deemed a suspect class if: 1. Historically discriminated against - when an immutable trait group have been discriminated against for a long period of time 2. Politically powerless (nature of harm to victims)- couple with a lack of access to that political power 3. Immutable characteristics (i.e. race, gender, etc.) classifications by an immutable trait a fixed, unchangeable quality like race. Purposeful Discrimination For a legislative classification to be constitutionally suspect, the challenger must prove that the classification is intentionally discriminatory. 1. Strict scrutiny applies only when if the challenger proves that action was intended to deliver invidiously discriminatory effects and the government is unable to rebut that proof by showing that the action would have been taken anyway
Segregation

The most important example of government action which classifies by race, but which, superficially at least, does not explicitly disadvantage minorities, is segregation, i.e., the maintenance of physical separateness between races. Brown v. Board of Educ.: 1. If it is proven that a school has engaged in racial segregation of schools, the school must take steps to eliminate the effects of that discrimination. 2. Therefore, only intentional segregation in schools will be evaluated under the equal protection by subjecting it to strict scrutiny. 3. Segregation of children in the public schools solely on the basis of race denies to black children the equal protection of the laws guaranteed by the Fourteenth Amendment, even

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though the physical facilities and other may be equal. Education in public schools is a right which must be made available to all on equal terms. 4. The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the role of public education in American life today. The separate but equal doctrine adopted in Plessy v. Ferguson, which applied to transportation, has no place in the field of public education. 5. Separating black children from others solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The impact of segregation is greater when it has the sanction of law. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law tends to impede the educational and mental development of black children and deprives them of some of the benefits they would receive in an integrated school system.

AFFIRMATIVE ACTION
Affirmative Action = steps that are taken to benefit minorities in a situation where minority applicants for education or employment get some kind of preferential treatment. Two vital questions are raised:  What standard should be used to review the benign use of a suspect classification such as race?  Does it matter whether the discrimination is intended to benefit minorities? The strict scrutiny is required of affirmative action attempts based on race as is required of race-based classifications that disadvantage a minority. Government may discriminate to benefit minorities, only if it satisfies strict scrutiny. Rationale: Anytime classification is based on race or national origin, whether it is benign or invidious, it must be examined under strict scrutiny. Academic Admissions: Ethnic diversity (race) may be a factor in the admissions process, as long as it is not the only one. A number of factors enter consideration for admissions, but equal protection guarantees that individual rights may not be disregarded. No facial infirmity meaning no discrimination exists in an admissions prgm where race/ethnic background is simply one element to be weighed fairly against the other elements in the selection process. See Bakke; Hopwood v. TX.  Quotas based on race are not allowed.

Education
The Court has declined to extend the list of fundamental rights to include education. There is no fundamental right to equality in public school education. Therefore, the law was subject to rational basis analysis.

Alienage
There are other classifications that arguably warrant heightened scrutiny. In deciding whether or not to treat a particular type of classification as suspect, the Court has given substantial weight to whether the class which is disadvantaged is a discrete and insular minority, i.e., a minority which is politically powerless and has historically been discriminated against.. In general, the Court has applied strict scrutiny to classifications disadvantaging aliens.

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Alienage as the term is used by the Court, means not having U.S. citizenship. Discrimination against aliens often takes the form of discrimination against all aliens, without regard to their country of origin. In Plyler v. Doe, the Court invalidated a TX statute denying free public education to illegal alien children. 1. Children can affect neither their own status nor that of parents. 2. Importance of education to children and nation generally (would create a permanent underclass)

GENDER
Gender- based discrimination is analyzed through Intermediate Scrutiny. Sex-based classifications get intermediate review: 1. The Court articulated the applicable standard as being that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. a. Where we apply the intermediate scrutiny standard, the government objective must be "important," and the means must be "substantially related" to that objective. b. So if gov t intentionally classifies on the basis of sex, the burden shifts to the gov t to show that it s pursuing an important objective, and that the sex-based classification scheme is substantially related to that objective. 2. Pure administrative convenience can never be an important government interest sufficient to justify gender based discrimination. Craig v. Boren: Facts: An OK statute forbade the sale of 3.2 beer to males under the age of 21, and to females under the age of 18. The constitutional claim was that the statute denied equal protection to males aged 18 to 20. Held: The Court articulated the applicable standard as being that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Intermediate scrutiny 1. Under this standard, the law was held unconstitutional. Here, the government purpose was traffic safety, but stats did not bear out a reason for subjecting men to greater restrictions than women. 2. Besides, even if the stats did show what the state believed (i.e., the men were more likely to drive drunk), the law was not substantially related b/c the women could go and buy the beer and give it to the guys. U.S. v. Virginia Facts: Woman wanted to enter all-male Virginia Military Institute. Virginia Military Institute (VMI) was the only single-sexed school in Virginia. VMI used a highly adversarial method to train (male) leaders of the future. There was no equal educational opportunity to that of VMI in the State for women. Held: VMI s policy of excluding women violated equal protection, and the alternative program was not sufficiently comparable to the VMI program. Rationale: J. Ginsburg: Diversity of educational approaches may be legitimate interest, but not allowing women into VMI does not further this interest.

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Not allowing women b/c they would destroy VMI s atmosphere is not legitimate state interest. Of course the place would be different there would be women there! This tautology is not enough to sustain intermediate scrutiny. Analysis: This case is prime example of the court using watered down strict scrutiny to conduct its analysis Whenever it analogizes to race or national origin, expect a more strict intermediate scrutiny. o The court is especially likely to strike down a gender-based classification system that seems to be based on faulty generalizations or stereotypes about the differing abilities of the two sexes. o After VMI, sex-based classifications apparently would have to undergo skeptical scrutiny, and would be upheld only if the state demonstrated an exceedingly persuasive justification.

FUNDAMENTAL RIGHTS
Fundamental Rights are another area where Equal Protection requires the Strict Scrutiny Standard be applied. Two fundamental rights that get scrutiny, even though the discrimination in the statute has nothing at all to do with race, gender, etc., are: 1. Voting 2. Access to justice [the courts].

Voting
The Ct. has found that the right to vote is a fundamental right. If this right is infringed upon, it will have an impact on the exercise of other fundamental rights. See Harper v. Va. Bd. of Elections (invalidating poll tax). Voting is different than other rights because it cannot be absolutely quantified. Your right to vote is always measured against that of other citizens.

Access to Court
Existence of a classification based on wealth has never been enough to trigger strict scrutiny. But where the state imposes fees which have the effect of preventing the poor from gaining access to the courts, the Court has sometimes been willing to apply strict scrutiny if the particular type of judicial access being sought is found to be sufficiently important. The Court has carefully scrutinized and frequently invalidated economic barriers impeding access to the criminal and civil processes. The Court has repeatedly divided on the issue of whether procedural due process or equal protection provides the appropriate analytical framework. Generally, the Court has shown a greater likelihood of striking down barriers to the pursuit of judicial remedies in criminal cases than in civil cases. Griffin v. Illinois is the leading case:

Freedom of Expression
The 1st Amendment provides, in part, that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Freedom of speech is not absolute and must be balanced against other important state interests. 1. Exclusions like bribery, perjury, and counseling to murder are not considered protected under 1st Am

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2. Closer calls: incitement, fighting words, libel, obscenity, and child pornography ( unprotected boundaries shrinking especially anything resembling political speech, which gets extra protection) 3. Lower value categories commercial speech and sexually-explicit-but- non-obscene speech protected, but not fully so

CONTENT BASED VS. CONTENT NEUTRAL
Courts distinguish between content-based and content-neutral regulations on expression. If the government actions is content-based, the action will generally be subject to strict scrutiny, and the action will usually be struck down. o Regulation aims at the content of speech. On the other hand, if the government action is content-neutral, the government s action is subjected to intermediate scrutiny, and will usually be upheld. Most content-neutral regulations of speech or symbolic conduct are subject to heightened rather than mere rationality review. o Regulation aims at some other, content neutral interst, such as peace & quiet, the orderly movement of crowds, the aesthetic attractiveness of public spaces, or the economic competitiveness of an industry. o Content neutral regulations generally simply regulate the time, manner, and place of speech.

Content-Based Restrictions
When a law discriminates based on content by placing burden on speech - Regulation aimed at subject matter. i.e., political speech. Strict scrutiny applies - which places the burden on the government to show that the regulation is narrowly tailored to achieve a compelling governmental interest and that it has no less restrictive alternative to achieving that interest. Exception Includes: incitement, fighting words, libel, obscenity, and child pornography ( unprotected boundaries)  It is difficult to find content-based discrimination that survives strict scrutiny. The Court has considered several distinct types of content-based regulations: Viewpoint restriction The Court generally treats restrictions of the expression of a particular point of view as the paradigm violation of the 1st Amendment. See e.g., Brandenburg; R.A.V. Subject Matter Restriction The Court has generally scrutinized subject matter restrictions strictly.

Content-Neutral Laws
Regulation aimed at the suppression of ideas; usually aimed at the way the speech is likely to be delivered such as regulating the time, place, or manner in which the speech occurs. i. These regulations are generally valid and as such subjected to Intermediate Scrutiny Standard which places the burden on the gov t to show that the regulation furthers some important governmental interest and is substantially related to achieving that objectives. Two types of content-neutral laws have come before the Court on free speech challenge:

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One type of content-neutral law, instead of focusing specifically on expression, is aimed at a wider range of behavior and has only an incidental impact on speech. o A 1st Amendment challenge typically arises against such a law when the violator seeks to engage in an instance of expressive or symbolic conduct.  A second type of content-neutral law aims at expression, but for reasons unrelated to its content. o Ex: Law limiting the decibel level of amplified sound or an injunction keeping protestors at a certain distance from an abortion clinic entrance aim at interests in tranquility and orderly movement that have nothing to do with the communicative impact of the speech. 1. Time, place, and manner regulations of speech in the public forum represent the largest single example of this type of content neutral law. Time, Place, Manner test to be used when the gov t is using content-neutral regulations b/c concerned with conduct: 1. Significant (important, substantial) government interest 2. Narrowly tailored to achieve asserted interestdoesn t have to be the least restrictive alternative, but has to be a good fit. 3. Adequate alternatives must be available. Standard of review The contemporary standard of review for content-neutral regulations, as opposed to that that are content-based, is a form of intermediate scrutiny: government can justify contentneutral regulations of speech, or of conduct that might amount to speech, only if it can show that they are closely tailored to serve a substantial or significant govt interest. o The interest need not be compelling, and the means/ends fit need not be perfect; the state is not obliged to exhaust less restrictive alternatives before it may enact or enforce a content-neutral law.

Symbolic Conduct
What if critics of public policies seek to express their views through symbolic behavior rather than words: e.g., by burning a draft card (O Brien), or by mutilating or burning the flag? Can such critics claim as much protection as would be afforded if the criticism was expressed through the spoken or printed word?  Actions such as flying a flag can be expressive conduct entitled to as much protection as traditional speech. However, there has to be a point at which actions stop being symbolic speech and simply become criminal actions.  One cannot derail a troop train as expression of his objection to war. One cannot commit a crime and wrap it in the flag of expression. After all, terrorism expresses a viewpoint and yet it is not protected speech. In cases such R.A.V. (burning cross), the challenged law was aimed expressly at symbolic conduct for reason of its symbolism and communicative impact.  But what about laws that have the incidental effect of prohibiting symbolic conduct?  The court inquiry into whether there is an incidental intrution into the prohibition of conduct starts and ends on the face of the statute.

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In a Nutshell Symbolic speech is communication effected through conduct  flag burning, draft card burning, nude dancing. Symbolic speech always involves both a communicative element and a conduct element.  Look to see if the government it totally prohibiting the symbolic speech (apply the O Brien test) or just moving it around (time, place, manner test). General rule; Where speech and non-speech are combined in conduct, a regulation that has only an incidental restriction on expression will be tolerated only when it passes intermediate scrutiny test: The Four Test: 1. regulation was within the constitutional power of the government; 2. it furthered an important or substantial governmental interest; 3. the interest was unrelated to the suppression of free expression; 4. incidental restriction on Firs Amendment freedoms was no greater than it is essential to the furtherance of governmental interest. Erogenous Zoning Erogenous zoning laws are laws that disperse or concentrate establishments that specialize in materials of specified sexual content. 1. The state can t ban non-obscene materials and films, but it can sure them geographically. Thus, to limit or prohibit the proliferation of nude films porn theaters a city can enact zoning ordinances limiting the amount in any particular area. A plurality of the court advocated that not all protected speech is protected equally (two-tier approach), however, the majority of the court has not accepted this. Low Value Speech? (Two Tier Approach) A number of cases suggest that the court may believe that certain types of expression, while not directly suppressible on the grounds of their content, are inherently less valuable and may therefore be regulated more extensively than speech closer to the core of 1st Amendment values, such as political speech. This less-favored speech seems to include mainly speech that is indecent. Young v. American Mini Theatres (1976) The court has split the categories of where some speech may fall on as 1A and Non-1A. Speech protected are Playboy(SS), O Brien(IS) and Unprotected are Obscenity, Incitement, Child Porn If you happen to find yourself in the non-1A the govt can do what it want. Page 801 list of the content matter 

Incitement, fighting words, libel, obscenity, and child pornography falls under the ³Non1A unprotected´ boundaries

Unprotected Speech: Obscenity
To begin with, obscenity is unprotected speech. Expression that is obscene is simply unprotected by the 1st Amendment, so the states can ban it, punish it, or do whatever else they want without worrying about the First Amendment. Therefore, all the state needs is a rational basis. The Court continues to view obscenity as unprotected speech so long as it is sufficiently defined. However, if speech is sexually explicit but is not obscene and does not constitute child pornography, it is within the realm of 1st Amendment protection, but the Court has wrestled with it should occupy a subordinate position as lower value speech. Three Part-Test:

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Obscenity, defined for purposes of free speech, is not deemed constitutionally protected speech. However, laws designed to regulate obscene materials must be carefully limited. In Miller v. California (1973), the Court agreed on a definition of obscenity . In order for a state to regulate material on the basis of obscenity, the material must, when taken as a whole: 1. Appeal to a prurient interest in sex based on local community standards; a. It has to be a turn on 2. Be patently offensive based on local community standards; 3. Lack significant redeeming literay, political, scientific or social value national standard i. S.L.A.P.S ii. So something will not be "obscene" unless it depicts or describes "hard core sex". (For instance, mere nudity, by itself, is not obscene.)

FIGHTING WORDS
Fighting words receive no 1st Amendment protection because, like other unprotected categories of speech (e.g., defamation, obscenity, etc.) they are not normally part of any dialogue or exposition of ideas. Fighting words are words which are likely to make the person to whom they are addressed commit an act of violence (probably against the speaker). 1. Fighting words are defined as words that would provoke a reasonable person to actual likelihood of imminent violence (elicit a breach-of-peace). 2. True Threat - Unprotected Statements meant to communicate an intent to place an individual or group in fear of bodily harm (Virginia v. Black) 3. States may Ban words likely to INCITE Physical Retaliation those personally abusive epithets that, when addressed to ordinary citizens, are inherently likely to incite immediate physical retaliation. a. However, limited by Chapinsky (( was a Jehova s Witness who called the city marshal a God damned racketeer and a damned Facist and then got in a fight with him on the sidewalk,) 1. Fighting words are directed at a particular person. The fighting words doctrine originated in Chaplinsky. 2. Offensive Speech is analyzed under fighting words - CONFIRM

HATE SPEECH
Government efforts to regulate "hate speech" speech attacking racial minorities, women, homosexuals, or other traditionally disfavored groups are likely to run afoul of the 1st Amendment for being content-based. 1. Public expression of ideas may not be prohibited just b/c the content (of the ideas) are offensive (R.A.V v. City of St. Paul) 2. Thus, hate speech is protected under 1st amendment, unless it rises to level of "fighting words." a. Within the area of unprotected speech the government may not proscribe some unprotected speech, but permit other unprotected speech based on point-of-view

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(i.e. specifically ban only fighting words which are racial in nature such as cross burning). 3. However, A state can increase a convicted defendant s sentence based on the fact that it chose the victim of his crime based on race (Wisconsin v. Mitchell).

Protected but limited Commercial Speech - Commercial speech is speech that advertises a product or proposes
some commercial transaction. 1. Commercial Speech in general have some 1st amendment protection, however, false advertising does not. In determining a regulation on commercial speech is valid: i. Determine whether the commercial speech concerns a lawful activity and is not misleading or fraudulent. If it is, the regulation will be held valid only if it: i. Serves a substantial government interest; ii. Directly advances asserted interest; and iii. Is narrowly tailored to serve the substantial interest. This part of the test does not required that the least restrictive means be used. Rather, there must be a reasonable fit b/w the legislation s end and the mean chosen. 2. The court was clear in VA Pharmacy that commercial speech would not be protected when it fell in one of these categories: 1. Advertising of illegal products (machine guns) 2. Discriminatory advertising (blacks only; males only) 3. False of deceptive advertising.

Content- Neutral Regulation as applied to Public Forum
1. If regulation is content-based, it makes no difference whether the expression is or is not in a public forum: strict scrutiny will be given to the regulation, and it will almost never be upheld. 2. It s where a regulation is content-neutral that the existence of a public forum makes a difference; especially regulations on time, place & manner" are less likely to be upheld where the expression takes place in a public forum. 3. When expression takes place in a non-public forum, the regulation merely has to be rationally related to some legitimate gov t objective, as long as equally effective alternative channels for the expression are available. 4. When the expression takes place in a public forum, the regulation has to be narrowly drawn to achieve a significant gov t interest (roughly intermediate-level review). It is necessary, but not sufficient, that the government also leaves alternative channels available. 5. One drop of content discrimination or regulation means that it is content based and the strict scrutiny test must be applied Does not matter that it is otherwise a TMP restriction, any content discrimination subjects the statute to strict scrutiny.

Overbreadth ² A statute is overbroad if, in addition to prohibiting activities which may be constitutionally forbidden, it also sweeps within its coverage speech or conduct which is protected by the First Amendment. A governmental purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.

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A defendant could claim overbreadth even if even if may have been found guilty under a narrower statute. 1. Basis chilling effect on speech and selective enforcement. 2. Overbreadth means that a law will affect protected conduct as well as unprotected conduct and is therefore facially invalid Good roots but potentially unhealthy branches Overbreadth analysis is an exception to two traditional rules of constitutional litigation: 1. First, it results in the invalidation of the law on its face rather than as applied to a particular speaker. Thus, when invalidated for overbreadth, the law is not narrowed, but rather becomes wholly unenforceable until a legislature rewrites it or a properly authorized court construes it more narrowly. 2. Second, overbreadth is an exception to the usual rules of standing. Challengers are in effect permitted to raise the rights of third parties. 3. Concern with the chilling effect of speech on overbroad laws. Laws affect many people some who may be afraid to challenge the law. 4. Substantial Overbreadth The overbreadth must be substantial before facial invalidation is appropriate. a. Is a general doctrine not limited to content based free speech. It may be made with respect with the right to travel, infinge the right to abortion

Vagueness 1. A statute will be held void for vagueness if 2.

person of common intelligence must necessarily guess at its meaning and differ as to its application.

If a law does not provide sufficient definite warning as to the proscribe conduct when measured by common understandies and practices, it is unconstitutional vague and its enforcement is a denial of due process. 1. Basis This stems from the Due Process Clause s requirement that people be given fair notice of what conduct is prohibited. Challenger will often assert both vagueness and overbreadth. Vagueness, however, is concerned with all statutes not only speech. There is no exception for standing in vagueness as there is in overbreadth The closer you get to the core of the 1st Am, the more precise the law has to be. The generic dangers of vagueness are as follows: 1. Insufficient notice 2. Hidden viewpoint-based discrimination (licensing cases) 3. Being governed at the whim of the executive (rule of law objection) Vagueness is a procedural due process problem. 1. For instance, a law gives an awful amount of discretion to the arresting officer to decide loitering, vagrancy, etc. There is the combined problem of unlimited discretion plus a reasonable person is not put on sufficient notice that they are doing something unlawful 2. Unconstitutional vague laws burdening expression are usually, but not invariably, facially invlaid because such laws chill speech and permit covert view point based enforcement.

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Prior Restraint is an administrative or judicial order that prohibits speech before it occurs, and does so, on the basis of the speech s content. Only content-based restrictions on speech before it occurs are prior restraints. 1. A content-neutral ban on speech before the fact is permissible if its purpose and effect are not to suppress ideas but to advance legitimate state interests unrelated to the suppression of speech 2. Punishments after the fact of the speech are not prior restraints. Any governmental action which prevents expression from occurring is considered to be constitutionally invalid prevents speech before it even gets out to the marketplace. With prior restraints, you have not been charged with anything yet. You do not have any of the protections in prior restraint as when you have been prosecuted for a crime. You just have a law that prevents the speech from being uttered. Rationale 1. Public has a right to receive information, and if prior restraints are applied, then that info will never enter the proverbial marketplace. 2. States have to criminalize act/publication after the fact. a. People would prefer to have a DA make that decision, rather than a board of censors (better for the people b/c DA has other issues to deal w/) 3. Challenging a censorship board decision would place burden on the challenger, as opposed to burden on gov't to prove no 1st amend violation a. There s a chilling effect if the speech has to go through a censor: I don t need the hassle People will take the line of least resistance 4. Ensures const'l right to jury, judicial process, etc. There are two basic types of prior restraints: 1. Requiring a license or permit before a particular type of expression may be engaged in. 2. Governmental orders and court injunctions telling a particular person that he cannot engage in a particular type of communication. Despite the general rule against prior restraints, the gov't may in fact use prior restraints in certain situations. However, the gov't must show a lot to justify a prior restraint.

FREEDOM OF ASSOCIATION
Although the 1st Amendment does not mention a right of freedom of association, the right to join together with other persons for expressive or political activity is protected by the 1st Amendment. 1. However, the right to associate for the expressive purposes is not absolute. 2. Infringement on such right must be justified by compelling state interest, unrelated to the suppression of ideas that cannot be achieved through means significantly less restrictive of associational freedom.

COMPELLED SPEECH: FREEDOM NOT

TO SPEAK The freedom of thought protected by the First Amendment includes both the right to speak freely and the right to refrain from speaking at all. 1. The government may not force a person to speak or to affirm any prescribed belief of idea. 2. The unenumerated right not to speak is based on the protections of the 1st Amendment. a. Can t be made an unwilling mouthpiece of the state

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3. When examining compelled speech, the following factors are relevant. (Cited cases are dealt with in detail below). i. Will person being forced to carry the speech be able to easily disavow it? Or will they be identified with it in some way? ii. Will being forced to carry the speech make someone who would prefer to remain silent speak up in order to disavow the unwanted speech? iii. Has the government specified the message, as opposed to allowing private individuals to do so? iv. Is viewpoint the trigger for the regulation?

The Religion Clause: Free Exercise & Free Establishment
The 1st Amendment provides that: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Thus, there were two clauses which sought to protect religion: (1) Free Exercise Clause; and (2) Establishment Clause. They both apply to the state through the 14th Amendment.

FREE EXERCISE
The Free Exercise clause guarantees the free exercise of religion. Freedom of religion can only be exercised to the extent of the law. Exercise often implies conduct or action p to what extent may the state regulate activity which the actor claims is required by religion? 1. Claim of Free Exercise Violation + Law of General Application = Rational Basis 2. If object of law is aimed at religion = Strict Scrutiny

ESTABLISHMENT CLAUSE
The Establishment clause prohibits state sponsored or established religion we don t want to have a Church of America. It may also forbid government money from being given to religious institutions.
Lemon Test

The Lemon Test, which still exists today is a guide, not an absolute rule, applied differently in different cases and sometimes not at all. 1. Does the law have a secular purpose? 2. Is its principle or primary effect one that neither advances nor inhibits religion? 3. Does it foster an excessive government entanglement with religion? Endorsement Test: A violation of the Establishment Clause is determined by the "Endorsement Test": 1. Whether or not government is endorsing religion by its actions (would reasonable person see this as endorsement)? 2. Look at: a. The message program is sending (point to argue about)? b. Direct benefit to school? c. Whether it has a secular purpose? d. Legislative history? 3. Key to Endorsement: if it is a mandatory event or at a public school, then may = endorsement. a. Examples of Endorsement i. moments of silence ii. prayer meetings

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iii. 10 commandments in class (= clearly assoc'd w/ religion) iv. creationism in school (= mandating religious doctrine in school) v. released time program, where religion brought to a public school (allowed if go off campus b/c accommodating students who do not participate) › here a different message is sent via venue (if at school = saying "we support these religions")

STATE ACTION
There are two classifications of questionable areas that depend on how closely related the private action is to the usual functions of government: 1. Private entities assuming public/government functions; 2. Significant state involvement, i.e. whether there is state involvement in private activity sufficient to constitute state action. a. If a private individual is doing something that would clearly pose constitutional problems were it done by government, that s a tip off to a state action problem. b. In all of these situations, there will be no state action (and thus no constitutional violation), unless additional facts are presented that somehow tie the state in to the private actor s conduct.

Public Function
Under this approach to state action, if a private individual (or group) is entrusted by the state to perform functions that are governmental in nature, the private individual becomes an agent of the state, and his acts constitute state action. Company town case functioning like a regular town does except it is privately owed Significant State Involvement Even if the private individual is not doing something that s traditionally a "public function," his conduct may constitute state action if the state is heavily involved in his activities. This is the "state involvement" branch of state-action doctrine. Thus, where there is sufficient state involvement, private activity can be dragged over the line and become a state action. The state may become responsible for the private party s actions because it commanded, i.e., required, the private party to act in that way. Skelly v. Kraemer the state enforced a private agmt among neighbors that none will sell his house to a black. 1. Because the state has lent its state judicial enforcement mechanism to this otherwise private K, the combination of enforcement and private discrimination violates equal protection. The state was throwing its weight behind the enforcement of the covenant. 2. The state is responsible for the act of a private party when the state, by its law, has compelled the act. There is state action if there exists between the state and private actor a "symbiotic" relationship, i.e., a relation between the two that is mutually beneficial. Burton v. Wilmington Parking Authority, a Wilmington, Delaware city agency owned and ran a parking garage complex. The agency gave a 20 year lease to a privately-operated restaurant located in the complex. The restaurant refused to serve African Americans. Section 5 of the 14th Amendment: Authorizes Congress to enforce laws of the 14th Amendment. 1. Under section 5, congress cannot create new rights or expand the scope of rights, all the congress can do is act to prevent a remedy violation rights already recognized by the courts. a. Must be narrowly tailored The law must be Proportional and Congruence to remedy proven constitutional violation. City of Boerne v. Flores

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