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CONSTIUTIONAL LAW 14th Amendment is a limit on the states There is no Equal Protection clause in the 5th Amendment, but

ut the Due Process clause protects citizens from Equal Protection by the federal government. THE FEDERAL JUDICIAL POWER JUSTICIABILITY DOCTRINES: The requirement for cases and controversies Standing: is the plaintiff the proper party to bring a matter to the court for adjudication. Standing is determined at the beginning of a suit. 4 Requirements: Injury plaintiffs must allege and prove that they have been OR imminently will be injured. o Plaintiff only may present injuries that they have personally suffered. Sierra Club failed to allege that any of their members ever used the park. o Plaintiff seeking injunctive or declaratory relief must show a likelihood of future harm. Lyons did not show that he would be subject to a chokehold in the future. o TIP: in best standing questions look for personal suffering on the part of plaintiff. If there is more than one, choose the one that has suffered economic harm (a dollar and cents claim). Causation & Redressability plaintiff must allege and prove that defendant caused the injury so AND that a favorable court decision is likely to redress the injury. o A prohibition on advisory opinions If federal courts decision is subject to review by a different branch of government it is not a juridical decision. It will be held to be an advisory opinion. o Tax exempt status case need to show that the tax exempt status is the cause of lack of free care. Limitation on Third Party Standing: o No third party standing is allowed. Cant assert claims of those not before the court. o Exceptions: (must meet other requirements of standing). Close relationship between the plaintiff and the injured third party E.g. doctor/patient relationship But compare Newdow father doesnt have standing to challenge on behalf of daughters he had no custody over. Third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights E.g. Criminal defendants have third party standing to raise the rights of potential jurors to be free from discrimination in jury selection. An organization may sue for its members if: The members would have standing to sue The interests are germane to the organizations purpose Neither the claim nor relief requested requires participation of individual members. A Seller of goods or provider of services that adversely effects his customers if he too has suffered harm will have standing No generalized grievances o NOT a generalized grievance because a large # of people suffer. o It is a type of claim it cant be a suit solely as a citizen or taxpayer trying to force the government to follow the law. Statement of Accounts Clause guy tried to challenge the keeping of CIA budget secret. Court says no standing. o Exception: taxpayers have standing to challenge government expenditures as violating the Establishment Clause.. When suing as a citizen or taxpayer it is a generalized grievance. Only can challenge the

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expenditure of money, but not on the grant of land/property. Ripeness: may the federal court grant pre-enforcement review of a statute or regulation (declarative judgment) usual way to challenge a law is to violate and be prosecuted and then challenge. Sometimes people want a declaratory judgment this is when ripeness issue arises. Two criteria: o The hardship that will be suffered without pre-enforcement review. Greater the hardship, more likely they will hear the challenge. o Fitness of the issues in the record for judicial review. I.e. fact bound issue OR pure question of law that can be decided once and for all. FDA required all ads to identify generic names, if no gain in waiting, standing. Mootness: if events after the filing of a lawsuit end the plaintiffs injury, the case must be dismissed as moot. Need a live controversy at all stages of the judicial process. Exceptions: o Capable of repetition but evading review. **** o Voluntary cessation if voluntarily haults the offending practice but is free to resume at any time, the case is not moot. o Class action if the named plaintiffs case becomes moot, the case wont become moot so long as one member of the class has an ongoing injury. Political Question Doctrine: Refers to allegations of constitutional violations that the federal courts will not adjudicate. These four types of cases will be dismissed. o The republican form of government clause. E.g. voters adopt something by way of initiative process. Challenge is brought as violating this clause. It is dismissed. Always a wrong answer. o Challenges to the Presidents conduct of foreign policy E.g. challenges to Vietnam because there was no declaration of war. Dismissed. o Challenges to the impeachment and removal process Walter Nixon v. U.S. judge is impeached by the house and challenges senate trial. Court dismissed. o Challenges to partisan gerrymandering Political party that controls the legislature draws the districts to maximize seats. Non justiciable political questions. o If Constitution gives the power to some other branch of government. SUPREME COURT REVIEW Virtually all cases come to the Supreme Court by writ of certiorari (e.g. from state courts or from Ct. of Appls) Only one instance when appeal is obligated when there has been a 3 judge federal district court. Court has original and exclusive jurisdiction for suits between state governments. Generally, the Court may hear cases only after there has been a final judgment of the highest state court, of a COA, or of a 3 judge federal district court. No interlocutory appeal to S. Ct. AISG Doctrine: if a state court decision rests on two grounds, one state and one federal law, if the supreme courts reversal of federal law ground will not change the result in the case, the Supreme Court cannot hear it. (minority beat by police, has state battery claim and federal equal protection claim). LOWER FEDERAL COURT REVIEW Federal courts (and state courts) may not hear suits against State governments 11th A bar suits against states in federal court state cant be named as .

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Sovereign immunity bars suits against states in state courts or federal agencies. Exceptions state may be sued under following circumstances: o Waiver states may waive SI and consent to be sued. Waiver must be explicit. No implied waiver. o Congress authorizes pursuant to federal laws adopted under 5 of the 14th A. Since it came after the 11th A it altered the balance of power. Congress cannot authorize suits against states under other Constitutional provisions. o The federal government can sue a state government. State officers may be sued. o Even if the government cant be named, the officers can. o They can be sued for injunctive relief do not name the state as the . Identify who will enforce the law and name him the . o State officer can be sued for money damages to be paid out of own pocket. o State officer may not be sued if the treasury will be paying retroactive damages. Abstention: Federal court may not enjoin pending state court litigation. Even if federal court has jurisdiction but does not exercise it (all justiciability requirements are met). Rarely tested.

THE FEDERAL LEGISLATIVE POWER CONGRESS AUTHORITY TO ACT Need express or implied Congressional Power NOTE: Congress generally doesnt have police power Exceptions: (MILD) o Military o Indian reservations o Federal lands and territories o District of Columbia Necessary and proper clause Congress can choose any means to carry out its authority within constitutional limits. The Taxing and Spending power Congress may tax and spend for the general welfare or for MILD exceptions TIP if you have a question and an answer says general welfare that is right answer if it is a tax and spend question or you are in area where congress has the police power. If there is any rational basis for the power it will be upheld. Whenever federal statute distributes money the best constitutional justification will be power to tax and spend Commerce Clause: congress can regulate commerce with foreign nations, with Indian tribes, and among the states. Three situations to use commerce power: o channels of interstate commerce (highways, waterways, the internet) o instrumentalities of interstate commerce and persons or things in interstate commerce (trucks, planes, the internet) (persons and things = commerce is all kinds of intercourse things that go across state lines). o activities that have a substantial effect on interstate commerce Classic case is controlling production of farmers home consumption of wheat, because has a cumulative effect. In the area of non-economic activity, substantial effect cannot be based on cumulative impact. Like Morrison VWA saying violence effects commerce. Cant base substantial effect on cumulative impact. BUT Wickard v. Fillburn if the activity is non economic, then you can aggregate.

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Congress can delegate the power to the States to deal with commerce States can pass law that effects commerce, but cannot be an undue burden i.e. mud flaps regulation th 10 Amendment: all powers not granted to the U.S. , nor prohibited to the states, are reserved to the States and the people respectively. Congress can induce, but cannot compel state regulatory or legislative action. o NY v. US Congress cant force state legislation (nuclear waste) o Printz v. US Brady Handgun act requiring background checks before issuing permits. Court rejects. Congress cant commandeer the state to make them do this. o NOTE: congress can try to induce the state governments to act by putting strings on grants, so long as the conditions are expressly stated AND related to the purpose of the spending program. Congress may prohibit harmful commercial activity by state governments. o Reno v. Congdon federal law says that state dmv cant release personal info about people. State says this violates 10th A. Court upholds the law. Congress was not imposing a duty, they were preventing a harmful activity. Congress power under 5 of the 14th Amendment: Congress cannot create new rights OR expand the scope of rights. Congress can only act to protect rights already recognized by the court. Congress may delegate its power to an administrative agency. The laws must be proportionate AND congruent to remedying constitutional violations. DELEGATION OF POWERS No limit exists on Congresss power to delegate legislative powers. Since 1937 non delegation doctrine is dead. Doesnt matter how broad the delegation is. TIP: on every multistate there is a question that gives an answer based on non delegation doctrine. These are always the wrong answers. Legislative veto or line item vetos are unconstitutional. For Congress to act there must always be bicameralism (passage by House and Senate) and presentment to the president. If either bicameralism or presentment is absent, that is a legislative veto and always unconstitutional. Line-item veto-The president must sign or veto the bill in its entirety. If president attempts to veto part of the bill and sign the rest into law. This is unconstitutional. Congress may not delegate executive power to itself or its officers. Congress can give its powers away but it cannot take more. Congress cannot authorize federal court to issue advisory opinions. o o THE FEDERAL EXECUTIVE POWER (Article II presidential powers) FOREIGN POLICY Treaties: agreements between the U.S. and foreign country negotiated by the President AND ratified by the Senate. State laws that conflict with treaties are invalid. If a treaty conflicts with a federal statute, the one adopted last in time controls. If a treaty conflicts with the Constitution, it is invalid. Executive agreements: do not require senate approval. This is an agreement between the executive and a foreign country effective when singed by the president. Executive agreements can be used for any purpose Executive agreements prevail over state law, but never over conflicting federal laws, treaties or over the Constitution. Commander in Chief: president has broad powers as to use American Troops in foreign countries.

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Presidents use of troops has never been held unconstitutional by the Court. Congress has the power to declare war Congress cannot direct president on where to send troops. Best answer is that this is a political question BUT second best is that the president has this power. DOMESTIC AFFAIRS The appointment and removal power Appointment: o The president appoints ambassadors, federal judges and officers of the U.S. o Congress may vest the appointment of inferior officers in the President, the heads of departments OR the lower federal courts Inferior officers = those that can be fired by an officer of the U.S. o Congress may not give itself or its officers the appointment power HYPO: Congress creates new federal agency in which president, speaker of house, and senate will all appoint some of the officers. This is impermissible. Removal: o Unless removal is limited by federal statute, the president may fire any executive branch official. o Congress can limit removal by statute but need to meet two requirements: It must be an office where independence from the president is desirable (not the presidents cabinet) AND the statute cannot prohibit removal, it can only limit removal to good cause. Impeachment and Removal: president, vice president, federal judges and officers of the U.S. can be impeached and removed from the office for treason, bribery, or high crime and misdemeanors. o Impeachment does not remove a person from office. Need to be convicted by the senate. o Impeachment by the House requires a majority vote, conviction in the Senate requires a 2/3 vote. Presidential Immunity, Privilege and Pardon Power: o The president has absolute immunity to civil suits for money damages for any actions while in office. o President does not have immunity for acts that took place prior to taking office. o The president has executive privilege for presidential papers and conversation, but such privilege must yield to other important government interests. Nixon invokes privilege to try and keep Watergate tapes secret. Court says this privilege is not absolute and yields to the need for evidence at criminal trial. o President has the power to pardon all accused or convicted of federal crimes. Exception: is when there has been impeachment by the House. Bill Clinton can never be pardoned for the offenses for which he was impeached. TIP: president can pardon only for federal crimes, NOT state crimes. President can pardon only for criminal liability, never for civil liability. FEDERALISM PREEMPTION The Supremacy Clause provides that the constitution and treaties made pursuant to it are the supreme law of the land. Express Preemption: if federal statute says that federal law is exclusive in a field, state and local laws are preempted. Implied Preemption: Conflict Preemption: If federal and state law are mutually exclusive, state law is deemed preempted. (e.g. person cant comply with both). o NOTE: states can set environmental standards stricter than federal law unless Congress clearly prohibits this. Only against private parties, not federal government. (important). If a state law impedes the achievement of a federal objective, federal law preempts state law. If congress evidences a clear intent to preempt state law, federal law preempts.

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o Even if not express or implied (like above), if Congress has expressed the desire that federal
regulation be exclusive in the field.

o Important example is federal immigration law Congress intends to wholly regulate this field.
Intergovernmental Immunities: It is unconstitutional for states to tax or regulate federal government activity. States cant tax the federal government cant pay a state tax out of the federal treasury. o Questions will involve fact pattern of private business on federal land. State can tax because the tax is owed by the private business, not the federal government. If federal government owns the business, then it cannot be taxed. o Also, Cant force federal government to pay state property tax. States cant regulate the federal government if they put a significant burden on federal activity o E.g. state trying to regulate pollution created by federal government. Federal government never has to follow state environmental regulations. The above (strict laws note) only applies to regulation of private parties.

DORMANT COMMERCE CLAUSE AND THE P&I CLAUSE OF ARTICLE IV The Dormant Commerce Clause: principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. Inferred from grant of power to congress to regulate commerce among the states. This is often referred to on the MBE as the negative implications of the commerce clause. The Privileges and Immunities clause of Article IV No state may deny citizens of other states the P&I it accords its own citizens. It is an anti discrimination provision limits ability to discriminate against out of staters. Privileges or immunities clause of the 14th A only involves the right to travel (otherwise wrong answer) o Step 1: Does the state law discriminate against out of staters? o Step 2: analysis if the law does not discriminate: The p&I clause of Article IV does not apply. If the law burdens interstate commerce, it violates the dormant commerce if its burden exceeds its benefits. E.g. IL law regulates mud flats on trucks (all trucks, in or out of state). Court says it is unconstitutional because it burdened interstate commerce (avoid IL or change mud flaps) and court didnt see any benefit in the law. o Step 3: analysis if the law discriminates against out of staters. If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. Helping in staters at the expense of outer staters will never be sufficiently important. Main v. Taylor: MA prohibits importing out of state bait fish. They were worried that they carried parasites that would endanger indigeneous species. Court says this is ok. Also the government has to show that no less discriminatory alternative would achieve the goal. Exceptions: o If Congress approves the state or local law, it is allowed even if it would otherwise violate the dcc. Once congress has acted, the commerce power is no longer dormant. o The Market Participant Exception: a state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned business. o E.g. making out of state people pay higher tuition at public schools. This is

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ok because of market participant exception. E.g. state owned cement factory. They charge more to out of staters. Court says that since they are market participant, they can favor the in staters. If the law discriminates against out of staters with regard to their ability to earn their livelihood, it violates the privileges and immunites clause of the Article IV unless it is necessary to achieve and important government purpose. Applies only when there is discrimination against out of staters Discrimination must be with regard to civil liberties or important economic activity (ability to earn a living) o E.g. South Carolina says to get a shrimp fishing license, out of staters pay $2000 more than in staters. Violated P&I of IV. o E.g. Montana adopts a law that says to get elk hunting license, out of staters must pay a larger fee than in state. Court upheld the law elk hunting is a hobby so the P&I clause of Article IV does not apply. Corporations and aliens cannot invoke this provision. o Citizen refers to individuals that are U.S. citizens. use only the dcc in your analysis Discrimination is allowed only if it is necessary to achieve an important government purpose. o Need to show that no less discriminatory alternative can achieve its goal. o NOTE: See chart page 17 of NYH. o

DCC: Does not require discrimination against out-of-staters in order to apply Requires burden on interstate commerce Corporations & aliens can sue under it EXCEPTIONS: (i) Congressional approval (ii) market participant exception

Privileges & Immunities Clause: Requires discrimination against out-of-states in order to apply Requires discrimination with regard to (i) civil liberties or (ii) important economic activities Corporations & aliens can NOT sue under it NO exceptions

STATE TAXATION OF INTERSTATE COMMERCE (rarely tested. Never tested on NY bar.) States may not use their tax system to help in-state businesses.

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E.g. OH has law that says person who purchased ethonal produced in-state, they get tax benefit. This is unconstitutional. Dairy taxes lower on milk from NY farms. A state may only tax activities if there is a substantial nexus to the state. State taxation of interstate business must be fairly apportioned. Based on miles traveled, or revenue States cannot place a total block on its natural resources States can only place ban on imports of harmful products when there is no other way to deal with the problem. Full Faith and Credit a judgment of a state in one court must be enforced in other courts so long as: the court that rendered the judgment had jurisdiction over the parties and the subject matter. The judgment was on the merits The judgment is final.

PROTECTION OF INDIVIDUAL LIBERTIES State Action Doctrine: is there government Action? private conduct need not comply with the Constitution. (cannot sue private university for 1st amendment speech violation, but can sue a public university). Congress, by statute, may apply constitutional norms to private conduct under: o The 13th Amendment can be used to prohibit private race discrimination TIP: discrimination never violates the 13th A itself, only slavery does. Discrimination can violate federal statutes adopted by Congress under 13th A. The 13th Amendment has been held to confer upon Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery. o The commerce power can be used to apply constitutional norms to private conduct. E.g. Civil Rights Act E.g. hotels and restaurants cannot discriminate o Congress cannot use 5 of the 14th Amendment to regulate private behavior. Exceptions: when private conduct must comply with constitution: o Public functions exception: when a private entity performs a task traditionally, exclusively done by the government. E.g. the company town. E.g private utility company customer said that they should have to provide due process like government utility would have. Court says that running a utility is NOT task traditionally or exclusively done by the government. No due process required. o The entanglement exception: The constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Seven examples: 1. Courts cannot enforce racially restricted covenants to land 2. When the government leases premises to a restaurant that racially discriminates. 3. When a state provides free books to private schools that racially discriminate. 4. There is not state action when a private school, 99% funded by the government, fires a teacher because of her speech. Government subsidy is insufficient for finding state action. Need the encouragement

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5. There is not state action when the NCAA orders the suspension of basketball coach at a state
university.

6. There is state action when a private entity regulates interscholastic sports within a state.
Court pointed to the entwinement between the organization and the state. Only distinction between this and the NCAA is that this organization operated only in one state. 7. There is not state action when a private club with a liquor license discriminates. Moose Lodge -- Liquor license was not enough to find state action. 8. Licensing an activity and s receipt of government funds or land will NEVER on its own be enough for government action. THE APPLICATION OF THE BILL OF RIGHTS applies directly only to the federal government applies to state and local government through incorporation into the due process clause of the 14th Amendment. All incorporated except: 2nd Amendment right to bear arms state and local government can adopt whatever gun control they want 3rd Amendment right to not have soldiers quartered in a persons home 5th Amendment right to grand jury indictment in criminal cases states dont have to use grand juries. 7th Amendment right to jury trial in civil cases state court abolish jury trial 8th Amendment right against excessive fines o BUT other provisions of 8th A cruel and unusual punishment or excessive bail are incorporated

LEVELS OF SCRUNTIY Strict scrutiny: a law will be upheld if it is necessary to achieve a compelling government purpose Must be the governments actual purpose. necessary = least restrictive alternative analysis is used no other less restrictive alternative would achieve this objective. Means must be narrowly tailored. Government has burden of proof. Intermediate scrutiny: a law is upheld if it is substantially related to an important government purpose. o Goal must be more than legitimate, it must be important. o Must be the governments actual purpose. Conceivable important purpose is not enough. o Substantially related = must be narrowly tailored to achieve the objective. NOTE: least restrictive alternative analysis does not apply. o Government has the burden of proof. Rational basis test: under this test, a law is upheld if it is rationally related to a legitimate government purpose. o Doesnt have to be their actual purpose, just that there be one legitimate government purpose. o Challenger has the burden of proving that there is no legitimate purpose or a rational relationship.

PROCEDURAL DUE PROCESS


Has there been a deprivation of life, liberty or property? o A deprivation of liberty = loss of significant freedom provided by the Constitution or a statute. Except in an emergency, before an adult is institutionalized, there must be notice and a hearing. When a parent institutionalizes a child, there only has to be screening by a neutral fact finder. Harm to reputation, by itself is not a loss of liberty. (pictures of shoplifters in stores). Prisoners rarely have liberty interests. o A deprivation of property occurs if person has an entitlement and that entitlement is not fulfilled. NOTE: Court no longer distinguishes between rights, privileges and immunities. New doctrine

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revolves around whether there is an entitlement. An entitlement exists if there is a reasonable expectation to continued receipt of a benefit. 1. e.g. person promised a job for a year by the government. Fired mid year. He had entitlement b/c he had a reasonable expectation to the right of that job. 2. E.g. Roth has year to year contract. He says he should get due process on denial of renewal. Court says that there is not entitlement. Government negligence is not enough to establish a due process violation. o Usually need intentional or reckless government conduct. BUT In emergency setting, need government conduct that shocks the conscience. 1. E.g. Prisoner slips on pillow left on the step. Just negligence. No DP violation 2. E.g. high speed police chase, boy died. Parents sue for officers recklessness. Govt can be liable if actions shock conscience, here it was a shock. Governments failure to protect people from privately inflicted harms does not deny due process. o Government has no duty to protect Deshaney, 4 year old boy beaten by his father. Failure of child services to respond in two years was failure of DP. Govt had no duty to protect individuals from privately inflicted harm. o NOTE: Only if the government literally creates the danger or the person is in government custody does the government have any duty to provide protection. What procedures are requires?: Three part balancing test: The importance of the interest to the individual The ability of additional procedures to increase the accuracy of the fact finding. The government interest in administrative efficiency. Examples: (can only be tested on these) o Before welfare benefits can be terminated, there must notice and a hearing before termination. o When social security disability benefits are terminated, need only a post termination hearing. o When a student is disciplined by a public school, there must be notice of the charges and an opportunity to explain, but not a trial type hearing. o Before parental rights to a child can be permanently terminated, there must be notice and a hearing. o Punitive damage awards require instructions to the jury and judicial review. 1. Grossly excessive punitive damages violate due process. o An American citizen detained as an enemy combatant must be accorded due process. At minimum, must have notice of the charges, representation by attorney, meaningful factual determination. o Except in exigent circumstances, pre-judgment attachment or government seizure of assets must be preceded by notice and a hearing. 1. Exigent circumstances: if reason to believe the person will get rid of the property if notice is before hearing. 2. Due process does not require an innocent owner defense to government seizure. Govt may seize property even if owned by innocent owner. E.g. if car is used in a crime, government can seize it even if the owner or co owner was not involved. Wife sued to get car seized because husband was in trouble for prostitution. But she could not get it. SUBSTANTIVE DUE PROCESS Substantive due process asks whether government has an adequate reason for taking away a persons life, liberty or property. Used in two areas: Economic liberty and privacy. Economic Liberties: Constitution provides only minimal protection for economic liberties. Only a rational basis test is used for laws affecting economic rights. o E.g. minimum wage laws, state regulation of trade or profession, consumer protection laws and government wins.

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The takings clause: 5th Amendment says that government may take private property for public use so long as just compensation is paid. o Separate Test just for taking clause: 1. Is there a taking? Posessory taking government confiscation or physical occupation of property is always a taking. Does not matter how small property is. o E.g. 1 cubic foot for cable boxes requires compensation. Regulatory taking government regulation is a taking if it leaves no reasonable economically viable use of the property. Is constitutional if it promotes an o Not a taking just because it decreases the value of a persons property. important public purpose and permits continued use of the o E.g. Penn Central: company buys grand central and it is subsequently property by the owner classified as a landmark. They say the government decreased the value of their investment. Court rejects they still have viable use of the building that is still there. o Cf Lucas guy buys beachfront property on S. Ct. law says he cant develop the property. Court says that since the government was preventing any economic development, there is a taking. NOTE: government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking. o E.g. you can have permit if you build a bike path. NOTE: a property owner may bring a takings challenge to regulation that existed at the time the property was acquired. Even if bought property knowingly of regulation. NOTE: Temporarily denying an owner use of property is not a taking so long as the governments action is reasonable. o 3 year moratorium on development for environmental research is not a taking so long as it is reasonable. 2. Is it for public use? If not, have to give it back. Very broad definition. A taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. o Is public use to take from some private owners to give to private developers, because govt reasonably believed the taking was a benefit for public use. 3. Is just compensation paid? Measured in terms of the loss to the owner, the gain to the taker is irrelevant. Reasonable market value is usually the measure, not the gain to the government. [look at chart 6 on p. 31]

The Contracts Clause: o Article 1, Section 10 no state shall impair the obligations of contracts. o Does not apply to the federal government (can only be challenged on DP) o Applies only to state or local government is interfering with existing contracts. Not future contracts o State or local interference with private contracts must meet intermediate scrutiny 1. Does the legislation substantially impair a partys rights under an existing contract? 2. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? o State or local interference with government contract must meet strict scrutiny. o The ex post facto clause does not apply in civil cases. 1. It must criminally punish conduct that was lawful when done or that increases the punishment

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for a crime after it was committed. E.g. imagine puns in lectures is illegal as of today, but govt goes after someone who did it yesterday. 2. Retroactivity civil liability only need meet a rational basis test. 3. A bill of attainder is a law that directs the punishment of a specific person or persons without a hearing. PRIVACY: Privacy is a fundamental right protected under substantive due process. Strict scrutiny applies Fundamental Rights Are: o the right to marry o the right to procreate o the right to custody of ones children 1. BUT - State may create an irrebutable presumption that a married womans husband is the father of her child. o The right to keep the family together 1. Broader than parents + children. Includes the extended family. 2. Moore v. City of East Cleveland ordinance limited number of unrelated people who could live together. Court overrules. If the individuals are related to each other, cant break them up. But college students bringing the same challenge, who are not related will lose. o The right to control the upbringing of ones children. 1. Parents can choose to send their children to parochial school. 2. It violates due process for a court to order grandparent visitation over the parents objections. o The right to purchase and use contraceptives. o The right to abortion is a fundamental right but does not get strict scrutiny 1. Prior to viability, the government cant prohibit abortion. They can regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. (replacing strict scrutiny) 24 hour waiting periods are NOT undue burden a requirement that abortions be performed by a licensed physicians is not an undue burden. BUT - The prohibition of partial birth abortions is an not an due burden 2. After viability, states may prohibit abortions unless necessary to protect the womans health or life. 3. The government has no duty to subsidize abortions or provide abortions in public hospitals. 4. Spousal consent and notification laws are unconstitutional. 5. Parental notice and consent laws for unmarried minors. State may require parental notice and/or consent for an unmarried minors abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minors best interests or that she is mature enough to decide for herself. o The right to privacy protects a right to engage in private consensual homosexual activity 1. Lawrence not clear what level of scrutiny is to be applies. o The right to refuse medical treatment 1. Competent adults have the right to refuse medical treatment, even life saving medical treatment. 2. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended. 3. A state may prevent family members from terminating treatment for another. There is no a constitutional right to physician assisted suicide.

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[look to chart 7 on p.35] EQUAL PROTECTION Whenever govt draws a distinction amongst people. An approach to equal protection questions: What is the classification? (how is govt drawing a distinction amongst people?) What level of scrutiny should be applied? Does this law meet the level of scrutiny? Constitutional provisions concerning equal protection important for MBE The equal protection clause of the 14th Amendment applies only to state and local governments, never to federal government. Equal protection is applied to the federal government through the due process clause of the 5th Amendment. Classification based on race and national origin: Strict scrutiny is used To prove existence of racial classification o The classification exists on the face of the law law by its terms draws a distinctions based on race. E.g. blacks cannot serve on juries. o A facially race neutral law requires proving both a discriminatory impact and discriminatory intent. Otherwise only rational basis review 1. E.g. test to be a cop that black people fail more than white people. No SS. RB. 2. E.g. discriminatory use of peremptory challenges (strikes of prospective jurors) based on race denies equal protection. Does not matter if civil or criminal. Racial classifications benefiting minorities o Strict scrutiny is applied. o Numerical set asides require clear proof of past discrimination. 1. E.g. Croson city sets aside public works money for MBEs. Court says that this was not a remedy for proven past discrimination. 2. E.g. Federal district court judge says that police were discriminatory. Judge says to remedy, every time white is hired, black must be hired. Court upholds as a remedy for clearly proven past discrimination. o Educational institutions may use race as one factor in admissions decision to help minorities. 1. But cant add points to application just because person is a minority. 2. Compelling interest in diversity of student bodies. They can use race as a factor. But no quotas. 3. Government may use race to assign students in districts, but only if it meets strict scrutiny o Seniority systems may not be disrupted for affirmative action. 1. Last hired first fired is still applied even if the last hired are benefits of affirmative action. Gender Classifications: intermediate scrutiny is used Need an exceedingly persuasive justification. Existence of gender classification proven by: o Classifications exists on the face of the law women can drink at 18, men can drink at 21. Another example is that only men could attend military school. o If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact AND discriminatory intent. 1. E.g. height and weight requirements for hiring police. Need to show intent to discriminate against women. Otherwise rational basis. If no intent to discriminate women, does not violate. 2. Discriminatory use of peremptory challenges based on gender denies equal protection. Gender classifications benefiting women: o Gender classifications benefiting women that are based on role stereotypes will not be allowed.

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1. E.g. in case of divorce, women can get alimony, but men cannot. Court says unconstitutional. Based on stereotype. 2. Women getting automatic survivorship benefits, and men getting it if they can prove dependency is unconstitional. o Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. 1. Social Security benefits office used a formula that advantaged women b/c of long history of discriminating against women in economy. 2. Upheld: because men could serve in combat, but women could not it is allowed for women to have 10 years in military before firing, whereas men had 6 years. Alienage Classifications: generally, strict scrutiny is used. Laws that discriminate against non united states citizens. o E.g. only u.s. citizens get welfare benefits. SS applied and unconstitutional. o E.g. only u.s. citizens could have civil service jobs. SS applied and unconstitutional. o E.g. only us citizens can be admitted to the bar. SS and unconstitutional. NOTE: Only a rational basis test is used for alienage classifications that concern self government and the democratic process. o I.e. voting, serving on a jury, being a police officer, a teacher, or a probation officer. Government can discriminate as to these people. 1. But not notary publics they have nothing to self government and the democratic process. NOTE: Only a rational basis test is used for Congressional discrimination against aliens. NOTE: It appears that intermediate scrutiny is used for discrimination against undocumented alien children. o Plyerly v. Doe TX law says that children of undocumented aliens have to pay for public education. Court overrules. Seemed to apply intermediate scrutiny. o Note that children of documented aliens get free education. Discrimination against non marital children: intermediate scrutiny is used laws that deny a benefit to all non marital children, but grant it to all marital children are unconstitutional. E.g. only marital children could inherit from their fathers, unconstitutional. E.g. law that allows some non-marital children is allowed. Requiring paternity to be established before death of parent, allowed to avoid fraud. Rational Basis Review is Used for All other Types of discrimination under the Constitution age discrimination disability discrimination o e.g. town adopts zoning ordinance that prevents home for disabled for being built. Only rational basis review, but government lost. wealth discrimination o poverty is not a suspect classification economic regulations o e.g. New Orleans says that in order to operate push cart in the French quarter, you need to work there for 8 years. Court says this is economic regulation and gets rb. Govt wins. sexual orientation discrimination o Romer v. Evans Amendment 2 that repealed all laws protecting gays and lesbians from discrimination and prohibited any new prohibitory laws. Court applied RB, but struck down the law. 1. What is the classification: (a) Classification is on the face of the law; OR (b) If law is facially neutral, there is both (i) discriminatory intent, AND (ii) discriminatory impact 2. What is the level of scrutiny: Strict Scrutiny: Intermediate Scrutiny: Rational Basis Test:

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Law must be necessary to achieve a compelling government purpose


Race National origin Alienage (generally) Travel (but not foreign travel) Voting

Law must be substantially related to an important government purpose


Gender Legitimacy Undocumented alien children Commercial Speech

Law must be rationally related to a legitimate government interest


Alienage classifications related to selfgovernment & the democratic process Congressional regulation of aliens

Age; Handicap; Wealth All other classifications

3. Does the law meet the level of scrutiny? FUNDAMENTAL RIGHTS PROTECTED UNDER EQUAL PROTECTION If choosing between equal protection and due process, EQ is focused on how people are treated relative to one another. Due process is always about whether govt has adequate reason to take that persons life, liberty, or property. The right to travel: Laws that prevent people from moving into a state must meet strict scrutiny Durational residency requirements must meet strict scrutiny. o E.g. must live in state before you get a state benefit. o Shapiro PA adopts a law that says welfare benefits only go to those who live in the state for a year. SS applied and declared this law unconstitutional. o NOTE: for voting 50 days is the maximum allowable durational residency requirement. o NOTE: Only a rational basis test is applied to restrictions on international travel. The right to vote: Must meet strict scrutiny laws that keep some citizens from voting. o E.g. poll taxes are unconstitutional Property ownership requirements for voting or holding public officer are almost never allowed. o Only time this has been upheld is for water district elections (govt entity to restrict water rights). One person one vote must be met for all state and local elections o For any elected body, all districts must be about roughly equal in population. At large elections are constitutional unless there is a proof of a discriminatory purpose. Discriminatory impact is not enough, there needs to be intent. The use of race as a predominant factor in drawing election district lines must meet strict scrutiny. Counting uncounted votes without pre-existing standards in a presidential election violates equal protection. There is no fundamental right to an education. Does not matter if less tax money in one town is spent on schools. [see chart 8 page 42] The First Amendment Free Speech Methodology Content-based v. content-neutral restrictions o Content based restrictions on speech generally must meet strict scrutiny. Two types of content based laws: 1. Subject matter restrictions application of law depends on topic. e.g. no picketing in residential neighborhood unless it is a labor related picketing. This gets SS and unconstitutional. 2. Viewpoint restrictions application of the law depends on the ideology of the message. E.g. pro war demonstrations are allowed, but anti war are not allowed. This gets SS and unconstitutional. o Content neutral laws need only meet intermediate scrutiny E.g. all parades and demonstrations in city park.

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Constitutional because content neutral Prior Restraints: judicial order or administrative system that stops speech before it occurs. o Court orders suppressing speech must meet strict scrutiny (e.g. preliminary injunction restricting speech, Pentagon papers case preventing NY Times from printing Pentagon papers). o Gag orders on the press to prevent prejudicial pretrial publicity are NOT allowed. (e.g. highly publicized crime and judge puts gag order to protect . Unconstitutional). 1. NOTE: procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it. o The government can require a license for speech only if there is an important reason for licensing AND clear criteria leaving almost no discretion to the licensing authority. 1. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review. Vagueness and Overbreadth o Vagueness: a law is unconstitutionally vague if a reasonable person cannot clearly tell what speech is prohibited and what is allowed. 1. E.g. a law that says you cant sell books that would corrupt morals. Too vague. o Overbreadth: a law is unconstitutionally overbroad if it regulates substantially more speech that the constitution allows to be regulated. 1. City prohibits all live entertainment. Even assuming nude dancing is not allowed, this prohibits more than that. o Fighting words laws are always unconstitutionally vague and overbroad. 1. TIP: look for fact pattern where really nice person is berated by speaker. Choose answer that law prohibiting fighting words is unconstitutionally vague and overbroad. Symbolic Speech: o Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message AND if the impact on communication is no greater than necessary to achieve the governments purpose. Examples: 1. Beating someone up is not protected speech. Government has interest in battery. 2. Flag burning is constitutionally protected speech 3. Draft car burning is NOT protected speech. 4. Nude dancing is not protected speech. 5. Burning a cross is protected speech unless it is done with the intent to threaten. One case involved a clan rally on an isolated farm. No conviction because there is not intent to threaten because no onlookers. Second case is when clan burned a cross on black mans lawn. Here there is intent. 6. Contribution limits in election campaigns are constitutional, expenditure limits are unconstitutional. Government may limit the amount a person can contribute to candidate or his committee. But they cant limit the amount a person can spend overall. 7. Anonymous speech is protected by the first amendment. There is a right to speak and not speak. Right to not speak includes anonymity. Circulating anonymous leaflet for election, is protected speech. There is a 1st amendment right to speak without revealing identity. What speech is unprotected or less protected by the 1st Amendment? Incitement of illegal activity is unprotected the government may punish speech if o there is a substantial likelihood of imminent illegal activity AND o if the speech is directed to causing imminent illegality o e.g. lets beat up professor while holding baseball bat. Arrested for incitement of illegal activity.

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Obscenity and sexually-oriented speech o Standard: (applies a contemporary community standard) 1. The material must appeal to the prurient interest a shameful or morbid interest in sex, Community/ Statewide whereas healthy interest in sex is allowed standard 2. The material must be patently offensive under the law prohibiting obscenity Any law must delineate which depictions showing what activities are patently offensive. National Standard 3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value (viewed on national scale, not local standard). o The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters. 1. E.g. Detroit adopts ordinance that limits number of adult bookstores on a single block. Court upholds based on states interest in character of neighborhood. 2. City ordinance said all adult bookstores and cinemas had to be on one corner of the city. 3. Erogenous zoning is permissive. o Child pornography may be completely banned, even if it is not obscene. 1. NOTE: To be considered child porn, children must be used in its production. Computer generated images or adults who look like children are not child pornography. o The government may not punish private possession of obscene material; BUT the government may punish private possession of child pornography. o The government can seize the assets of businesses convicted of violating obscenity laws. 1. E.g. owner of adult book store convicted of selling obscene materials. He goes to jail and government seizes all of the contents in all of his stores. They destroy $9mil of merchandise. Court upholds the government action. Even though seven items were found obscene. o Profane and indecent speech is generally protected by the 1st A. 1. fuck the draft jacket court says you cant punish this. 2. Exceptions: over broadcast media (TV and radio) that is free, not paid for: cable tv. In Schools (can prohibit and punish profane use of language). o Schools have a vital interests in preventing speech they perceive encourages drug use Commercial Speech: o False and deceptive ads are NOT protected by the 1st Amendment o Even true ads that inherently risk deception can be prohibited. 1. The government may prevent professionals from advertising or practicing under a trade name Four eyes, Advocates. 2. The government may prohibit attorney, in-person solicitation of clients for profit. Too great a danger of deception in face to face solicitation When a lawyer offers free representation to client, speech is protected. No reason to fear deception. Solicitation by mail is ok no pressure or risk of deception. 3. The government may not prohibit accountants from in person solicitation of clients for profit. o Other commercial speech can be regulated if intermediate scrutiny is met. 1. Attorneys could not solicit accident victims or their estates for 30 days after accident, upheld. o Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative. 1. Thus not allowing commercial solicitors on campus upheld. Defamation:

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o public official OR running for public office can recover for defamation by proving falsity of the
statement AND actual malice. 1. Actual malice knew the statement was false or acted with reckless disregard of the truth. o a public figure can recover for defamation by proving falsity of the statement AND actual malice. 1. Public figure thrust themselves in the limelight, has access to media to defend themselves. o a private figure and the matter is of public concern that state may allow the plaintiff to recover compensatory damages for defamation by proving falsity AND negligence by the defendant. 1. However, the plaintiff may recover presumed (automatic) or punitive damages only by showing actual malice. 2. public concern: something the public legitimately should know. o a private figure and the matter is not of public concern can recover presumed or punitive damages without showing of actual malice. 1. Supreme court never said who has burden of proof [see chart 9 on p.48] Privacy: o the government may not create liability for the truthful reporting of information that was lawfully obtained from the government. 1. E.g. if you get a rape victims name legally you can report. no liability for invasion of privacy o Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality AND it involves a matter of public importance. o The government may limit its own dissemination of information to protect privacy. 1. Only have right to attend criminal trials, other than that, government has broad latitude to protects its privacy. o No first amendment protection for government employees while they are on the job within the scope of their duties. Other government restrictions based on the content of speech must meet strict scrutiny. Other than these above exceptions, you must meet strict scrutiny. What places are available for speech? Public forums: government property that the government is required to make available for speech (e.g. sidewalks and parks) o Regulations allowed but must be subject matter and viewpoint neutral, or it will have to meet strict scrutiny. o Regulation must be a time, place, or manner regulation that serves an important government purpose AND leaves open adequate alternative places for communication. 1. No trucks with sound amplification devices at night. o Government regulation of public forums need not use the least restrictive alternative. 1. E.g. NYC has ordinance that says to have concert only if you use city sound system and their engineers. Challenged to say that city could control the volume by other means. Court rejects because means were narrowly tailored. o City officials cannot have discretion to set permit fees for public demonstrations (parades). Limited public forums (designated public forums): government properties that the government could close to all speech, but chooses to open to speech. o E.g. school facilities evenings and weekends are non public forums. But if the government chooses to open these up, then it creates a limited public forums. o Rules are identical to open public forums. So long as govt chooses to open to speech. Non public forums: government properties that the government constitutionally can and does close to speech.

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o The government may regulate speech in non public forums so long as the regulation is reasonable
AND viewpoint neutral. 1. Military bases 2. Areas outside prisons and jails. 3. Advertising space on city buses. E.g. city allows commercial ads on buses but not political ads. Court upholds. 4. Sidewalks on post office property. 5. Airports Govt can prohibit solicitation of money for religious organizations, but cannot prohibit distribution of literature. Private Property: There is no 1st A right of access to private property for speech purposes. o Cant use privately owned shopping centers for speech purposes. o Since it is private property, 1st amendment does not apply. [see chart 10 on p. 51] Freedom of Association Protected as a fundamental right under the 1st Amendment. Laws that prohibit or punish membership in a group must meet strict scrutiny. To punish membership in a group it must be proven that the person: o Actively affiliated with the group; and o Knowledge of the groups illegal activities; and o With the specific intent of furthering the illegal activties. Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny. o NAACP v. Alabama: disclosing membership list was unconstitutional because it could chill its membership. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association OR expressive activity. o E.g. MN has law that says private clubs cannot discriminate based on gender. Jaycees are all male organization. Court upholds the MN law government has compelling interest in combating gender discrimination. o Exceptions are: 1. Intimate association: small dinner party uninvited have no rights. 2. Expressive activity: Discrimination is integral to expressive activity of the group the clan can exclude blacks, boy scouts can exclude gays, nazis can exclude jews. Freedom of Religion Free exercise clause cannot be used to challenge a neutral law of general applicability. (MBE always tests this rule.) o Native Americans challenged pioti ban because it was part of their religion. The law was neutral, so it is was upheld. Free exercise clause cannot be used to challenge no matter how much it burdens a religion. Only if it can be shown that it targeted a reiligion. The government may not deny benefits to individuals who quit their jobs for religious reasons. o Woman quits because she doesnt want to work on the Sabbath. They deny her unemployment. Court says that you cant deny unemployment. Cant make person choose between religion and job. The Establishment Clause Govt can make no law that effects establishment of a religion The test (law is unconstitutional if it meets any one of these): o there must be a secular purpose for the law

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1. primary purpose cant be to promote religion.


2. Ten commandments are inherently religious, cant post them in classrooms.

o The primary effect must be neither to advance nor inhibit religion,


1. Government must no symbolically endorse religion or a particular religion. 2. E.g. nativity alone unconstitutional, nativity + menorah and secular symbols are ok. 3. E.g. 6 foot high, 3 foot wide 10 commandments. No symbolic endorsement it had been there a long time, not paid for by the state, other symbols around. o There must not be excessive entanglement with religion 1. Government cannot directly pay teachers salaries in parochial schools because they would need to monitor if they are teaching secular things, but this is entanglement. 2. Seculuar, must be secular 3. Excessive, government cannot be entagled. The government cannot discriminate against religious speech or among religious unless strict scrutiny is met. Government sponsored religious activity in public schools is unconstitutional. o No moments of silent prayer o No clergy delivered prayers at graduations o No student lead prayers at football games BUT religious student and community groups must have the same access to facilities as non religious groups. The government may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents with vouchers that they may use in parochial schools if this was the parents choices. Email: chemerinsky@law.duke.edu

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