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Federal Judicial Power Article III • Sec. 1 states judicial power shall be vested in one Supreme Court and in such inferior courts as Congress may ordain and establish. • Sec. 2 grants original Jx to cases&controversies regarding ambassadors, public ministers, consuls and where a state is party. • Sec. 2 grants appellate Jx over cases &controversies regarding admiralty, maritime, and between citizens of different states, with such exceptions as Congress shall make. Judicial Review • Marbury v. Madison established that the role of the judiciary is to say what the law is; the federal judiciary has the last word as to what the constitution means; the constitution is the supreme law of the land and federal courts have the authority to review the constitutionality of executive and legislative actions. The constitution does not expressly grant federal court the power of judicial review. • Martin v. Hunter’s Lesse & Cohens v. Virginia established that the supreme court has authority to review state court decisions regarding state law when a constitutional issues is raised. Exceptions Clause • Judicial power is vested in one Supreme Court and such inferior court as Congress shall make. Congress has exclusive control over the jurisdiction of the lower federal courts - it can confer and remove jurisdiction and may define what types of cases may be heard by federal district and circuit courts. • The SC has original Jx over cases involving ambassadors, consuls, public ministers and cases where a state is a party. It has appellate Jx of cases between citizens of different states, treaties, and admiralty, with such exceptions and regulations as Congress shall make. Congress may confer or repeal Jx in exceptions made in express terms. Standing • Part of the cases & controversies requirement, a plaintiff must plead and prove the following to establish standing: • (1) that P has or will imminently suffer an injury in fact (a contract and particularized harm that is actual and imminent, not conjectural or hypothetical). • (2) P’s injury is fairly traceable to the defendant’s conduct (causation) • (3) and a favorable federal court decision will likely redress the situation (redressibility). Congress cannot confer standing by statute on a class of persons who otherwise • do not meet the cases&controversies requirement. P must have concrete personal stake in the outcome.
• Potential injury or injury to a cognizable interest is not sufficient and without injury there can be no redress. Allen v. Wright & Singleton v. Wulff • • •
Third Party Standing • Generally a party may only assert his own rights. However a P may assert the rights of an injured 3rd party only if: • the person represented suffered an actual injury; • the P can be reasonably expected to effectively represent the 3rd party’s interests; • and there is a sufficient relationship between the P and the 3rd party. Elk Grove Unified v. Newdow • An association must be able to show that at least one of its members is suffering the requisite injury to have standing in order to sue on their behalf. Tax Payer Standing • Generally a person cannot sue as tax payer who shares a grievance in common with all other tax payers. US v. Richardson. • An exception to this general rule occurs when the challenged enactment exceeds congress’s Taxing and Spending power. Flast v. Cohen • The tax payer must be challenging an appropriation under the Taxing & Spending clause; and • The expenditure must violate a specific limitation on the Taxing and Spending power of Congress. Ripeness • Also part of the cases&controversies requirement, a case cannot be heard if it is premature and does not allege actual or imminent harm. Abbot Lab v. Gardner • An exception to the general rule, the court will hear a case prior to actual injury when there would be substantial hardship to a party were the court to deny preenforcement review (catch-22 scenario). In such cases the injury is inevidible and therefore concrete enough to be considered a particularized harm. Mootness • A case is moot unless an actual controversy exists at all stages of review. Political Question Doctrine • The court will not exercise judicial power to resolve political questions. • Baker v. Carr established that one or more the following factors must be present in a controversy to mark it as a political question: • the issue is textually committed to a coordinate branch of government • there are inadequate judicial standards for the court to apply • the issue cannot be considered without making a policy decision • there is a need to adhere to a policy or political decision already made • there is potential for the different branches to take disperate positions on the issue
and ‘among the states’ means any commercial activity with direct interstate effects. Ogden established that ‘commerce’ includes all species of commercial activity. 7 requires that all bills pass through the House of Reps and the Senate (bicameralism) and be presented to the President (presentment).all of which were considered local interests under the police power of the states.• the case cannot be decided without unduly offending alternate branches of government Federal Legislative Power • Article I • Sec. • Pre-1937 C/C • ‘commerce’ was narrowly construed and did not include such things a production. Commerce Clause • • Gibbons v. • Sec. • ‘among the states’ was narrowed construed to only include commercial activity that had a direct effect on interstate commerce. manufacturing and wages . 10 forbids the states to interfere with existing contracts • Necessary & Proper Clause • McCulloch v. 3 establishes that the Senate has the sole power to try impeachments • Sec. including navigation. The Sick Chickens Case held . 2 establishes that the House of Reps has the sole power of impeachment • Sec. 8 lays out Congress’s enumerated powers: • to borrow money • to regulate commerce with foreign nations. Madison established that the N&P clause is not restrictive and as such the Constitution expressly states that Congress has the authority to make all laws necessary and proper to fulfill its duties enumerated in the Constitution. • The Shreveport Rate Case permitted Congress to regulate intrastate train rates that had a harmful effect on interstate commerce. Therefore Congress’s authority includes all powers expressly mentioned as well as one rationally related to its enumerated powers. among the several states and with the Indian Tribes • to establish uniform rules of naturalization and uniform laws on bankruptcy • to coin money and determine its value • to declare war and make rules regarding captures of war prisoners • to raise and maintain the army and navy • to make all laws necessary and proper for executing its enumerated powers • Sec.
nor prohibited to the States. Heart of Atlanta Motel v. Jones set forth a shift in judicial interpretation of the C/C. Tax & Spending Clause • Congress has the express power to tax and spend and may do so. • Cumulative Effect Test: Congress may regulate even private individual behavior.S. • 1937 . 10th Amendment • Powers not delegated to the federal government in the Constitution. if that behavior taken with the individual behavior of others would have a cumulative effect on interstate commerce. New York v. intrumentalities.present C/C • The C/C grants Congress authority to regulate: channels of I/C. production. • 1995 . or the people. or they may create regulations and permit states to take them over (cooperative federalism).S. And Hammer v. and activites having a substantial relation to I/C • Under the modern substantial effects test set forth in U. U. so long as it is for the general welfare and does not violate another provision of the constitution. • The Constitution does not give Congress the power to require that the States regulate and they cannot coerce States into regulating. Rather they may regulate matters directly and preempt contrary state regulations. the law is constitutional under the C/C. congress could not regulate it. persons or things in I/C. Lopez/Morrison. Wickard v. are reserved to the states. U. • Substantial Effects Test: if Congress had a rational basis to find a purely local activity (such as discrimination) substantially affected I/C and the federal law was an appropriate means to a legitimate end.• • that unless a product was in the stream of commerce. U. Filburn / Gonzales v. • there is a jurisdictional ‘hook’ specifically stating that the Act is meant to regulate intrastate activity that has a close and substantial relationship with I/C (a hook alone has never been enough to make a law constitutional under the C/C).S. U.S. Butler . but very helpful). • there are legislative findings that relate the noneconomic intrastate activity and interstate commerce (findings are not necessary. manufacturing are now considered ‘commerce’. a Congressional act regulating purely noneconomic intrastate activity is constitutional only if the following factors are present: • the Act is part of a larger regulation of economic activity. Under this rule congress has authority to regulate purely intrastate activities so long as that activity has a close and substantial relationship with interstate commerce. v. v. Raich • In this period the SC granted substantial deference to Congress’s findings and wages.S. Daghert prohibited Congress from regulating wages as such was considered within the scope of the state’s police power.1995 C/C • NLRB v. v Darby.
and only ever for federal offenses) • Sec. there must be a new law with bicameralism and presentment present. Chada. South Dakota v. Federal Executive Power • Article II • Sec. • If Congress wants to overturn an executive action. 3 grants the power to appoint principal officers. 2 establishes that the President is Commander in Chief. American Trucking. the courts or the heads of departments (but not in themselves) • Inherent Powers • Article II does not limit presidential powers to those ‘herein granted’ and as such it has been held that the president has inherent power to act without express constitutional or statutory authority. Condition cannot be ambiguous and must be logically related to a federal interest. • Sec. Morrison held that the federal government is not authorized to create acts like VAWA.S. Legislative vetos are unconstitutional. 5 of the 14th amendment has been construed as granting Congress authority to enforce the provisions of the amendment . as regulation regarding gender based violence falls within the scope of the State’s police powers. States may always rejects such fund and avoid the regulation if they chose.enforce however is limited to providing remedy.• • • • Congress can regulate indirectly under the T&S clause by attaching conditions to the receipt of federal funds. However. • City of Boerne v. Dole Post-Civil War Amendments • The Civil Rights Cases held that the 14th amendment applied only to government action and as such Congress cannot use the 14th amendment to regulate private behavior. v. Nondelegation Doctrine • Congress may not delegate its legislative power to administrative agencies unless there is an intelligible principle that provides guidance to the agency Whitman v. with Congress having the power to vest appointment of inferior officers in the president. U. and he has power to grants pardons (except in cases of impeachment . there are differing approaches to the . Flores held that while congress may create laws that prevent or remedy violations of the 14th amendment. Constitutional delegation requires the following: • Congress must delineate the general policy to be executed • Congress must designate the agency that is expected to execute the policy • Congress must specify the limits of the delegated authority Legislative Veto • Congress may not include in a statute a provision which authorized Congress to overturn an agency’s action without adopting a new law IRS v. Remedies must be proportionate to the constitutional violation. they cannot create new rights or expand the scope of rights.
U. or usurp the functioning of another branch of government. Congress also has express war powers. and does not have the unilateral authority to act in an emergency and seize the steel mills during war time.breadth of such inherent powers. or in the absence of constitutional/statutory authority. but it does protect deliberative communications when disclosure would be injurious to the president’s office. • when he takes action incompatible with the express or implied will of congress. none of which have been conclusively adopted by the SC which are as follows: (1) there are no inherent presidential powers and the president may only act with express constitutional or statutory authority (2) the president has the inherent authority to act without express constitutional or statutory authority so long as his actions do not interfere with. (4) the president has inherent powers that may not be restricted by congress and he may act so long has he does not violate the Constitution. his authority is at its maximum and presumptively valid. • when the evidence is necessary to the case. • Executive Privilege • Executive privilege is not expressly granted in the constitution. but there is a zone of twilight in which he and congress may have concurrent authority. Sawyer explained as follows: • when the president is action pursuant to an express or implied authorization of congress. the strength of which depends upon whether he is acting in accordance with constitutional/statutory authority. The privilege does not protect all presidential communications. • when he acts in the absence of either a congressional grants of. “A state of war is not a blank check for the President when it comes to the rights of the nation’s citizens. contrary to constitutional/statutory authority. or in which the distribution of power is uncertain. or denial of authority. he can only rely upon his own independent powers. but the need for the protection of the confidentiality of presidential communications has been assumed. Sawyer held that the president does not have the unilateral power to • make war. v. (3) the president has inherent powers.” • Congressional Increases of Executive Power • Congress may not by law increase presidential authority if such an increase will violate any other provision of the constitution. Youngstown v.S. . Justice Jackston in Youngstown v. his power is at its lowest and because he is disobeying a federal law. Nixon • Three factors that may override presidential privilege: • when the communications are needed as evidence in cases involving criminal prosecution or infringement of fundamental rights. such actions are only valid if the law enacted by congress is unconstitutional.
Executive Agreement • An agreement signed between the U.no senate ratification is necessary. Jones Appointment Power • The president has the power to appoint principal officers. and a foreign nation that is effective when signed by the president and the head of the other government . being able to vest appointment of inferior officers may also limit their removal.• • • • • • • • and similar claims will likely be so infrequent that presidential privilege will not often be infringed upon Presidential Immunity • A president may not be sued civilly for conduct while in office. they are limited in jurisdiction. CurtissWright permitted congress to delegate to the president the authority to ban weapon sales because such authority belongs to the nation as a whole. Foreign policy powers are not specifically enumerated and belongs to the nation as a whole. Congress however may vest the appointment power of inferior officers in the president. while he is still in office. the one adopted last in time controls. in our system of government only the president has this power. This is party of the president’s inherent foreign policy power to act quickly and speak for the nation.S. the office is limited in tenure. and such implied powers as are necessary and proper to carry into effect the enumerated powers. with the president holding the concomitants of nationality. Treaties cannot violate the Constitution and if there is a conflict between a treaty and a federal statute. the federal government may only exercise power enumerated in the constitution. unless removal is limited by statute. v. • Factors determining an inferior officers: they are subject to removal by a higher executive official. such as heads of departments and cabinet members. the judiciary or the heads of departments. Examples: deputy cabinet members. and a foreign nation that is negotiated by the president and is effective when ratifies by the senate. they perform limited duties. The power to remove is incident to the power to appoint and as such Congress.S. the president may remove executive officials. • Concomitants of nationality . however they cannot completely prohibit all removal Bowsher v. The president may likewise rescind a treaty without senate ratification. In general. U.the power for one person to speak for the nation. Treaties • An agreement between the U. Clinton v. members of federal agencies Removal Power • no provision of the constitution address removal power. Snyder Foreign Policy • With regard to internal affairs.S. War Powers . they do not formulate policy for the government. He may however be sued for conduct that occurred before taking office.
Dept. separation of powers precluded the court from ordering a hearing to decide whether an individual was properly detained.S. it preempts state laws even if they serve the same purpose and do not impede the implementation of federal law. • In Hamdi v. • impedes federal objective .even if congress has not expressly preempted a state law. if the federal law is viewed as setting merely a minimum standard. given the executives authority over military and national security affairs. Typically found in areas where the federal government has played a unique role.wherever congress has the authority to legislate. • express preemption . have been held to have certain liberty interests protected by the constitution.if federal law and state law are mutually exclusive so that a person could not simultaneously comply with both. the president has the authority to suspend the writ of habeaus corpus in cases of rebellion. that federal law preempts any state or local law under the authority of the supremacy clause.• Under the suspension clause. but the extent to which the holding in Hamdi will be applied to foreign nationals has not been decided. the state law is deemed preempted. • state and federal laws are considered to be in conflict if the federal law is viewed by the court to be setting an exclusive standard. Lorillard v. Provisions in the federal law may expressly preempt state laws. The court rejected the argument and held the judicial branch had a necessary constitutional role in evaluating an individual’s claim to liberty. congress can make federal law exclusive in a field. or to protect public safety. Rumsfield the government argued that during times of military conflict. . and even if the federal law does not exclusively occupy a field and even if there is no conflict between state and federal law. even if the detention involves military and national security matters. State Powers • Preemption • If Congress has passed a law and it is a lawful exercise of congressional power. foreign nationals within the U. • The president’s inherent power to protect and defend the country does not negate judicial power to decide cases involving individual liberty. • because the federal law is exclusive in the area. Florida Lime v. Reilly • conflict preemption .a court will find field preemption if congress expresses a clear intent that the federal law be exclusive in an area. invasion. • Additionally. preemption can still be found if a court concludes that the state law interferes with a federal goal. of Agriculture • field preemption . then states may create stricter standards which are not considered to be in conflict. immigration). However. or if a comprehensive federal regulation evidences a congressional intent that federal law completely occupy the field (ex.
• Non-discriminatory laws . Applies only to person citizens. such as the right to earn a livelihood. a state regulation will be found unconstitutional under the commerce clause in its dormant aspect if it places an undue burden on interstate commerce • Pike v. Alaska Privileges AND Immunities. a state may not attach conditions to a sale that discriminates against interstate commerce Central Timber v. Witsell. state and local laws may be found unconstitutional as violating the commerce clause if they discriminate against interstate commerce or place an undue burden on interstate commerce HP Hood & Sons v. not corporations or aliens. • A state law that does not violate the DCC may still violate the P&I if it infringes on a fundamental right without substantial justification Toomer v. N. it can narrowly construe the federal objective and interpret the state goal as different from or consistent with the federal purpose PG&E v. However. • Discriminatory laws . and out-of-staters must be a peculiar source of the harm . Laws that are facially neutral but have a discriminatory effect. Article IV • ‘The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. • Dean Milk Test: if a state exercises its traditional police powers and in doing so discriminates against out-of-state residents.even if a state law does not discriminate againt outof-staters. State Energy Resources Conservation Dormant Commerce Clause • Even if congress has not acted and its commerce power lies dormant.laws that draw a distinction between in-staters and outof-staters are presumed unconstitutional and will be upheld only if it is necessary to achieving an important purpose. such a law is void if there are reasonable nondiscriminatory alternatives available.Y.when a state is literally acting as a participate in the market and not acting as a regulator.’ • The court has interpreted the P&I clause as limiting the ability of states to discriminate against out-of-staters with regard to fundamental rights. • Substantial justification means the law must be narrowly tailored to meet the problem. • Fundamental rights are one which bear upon the vitality of the nation as a single entity.• • • if a court wants to avoid preemption. Bruce Church Test: balance the nature and extent of the burden against the putative local benefits and interests.even a clearly unconstitutional discriminatory state law will be upheld if Congress approves it • market participant . The legitimate state purpose cannot be economic protectionism • Exceptions to the DCC • congressional approval . then the state may favor its own citizens in operating that business. or have only a protectionist purpose are upheld only if it is proven that the law is necessary to achieve an important purpose.
rules and decisions of government agencies. City of Baltimore • HOWEVER. free exercise and establishment • 4th amend protection against search and seizure and requirement of a warrant • 5th amend protection against double jeopardy.Civil Rights • Privileges OR Immunities. effectively negating the privileges or immunities clause. New Jersey • incorporated rights: • 1st amend free speech. • state actions: all legislative bodies. To show a violation of the 14th amend. and chance to confront and counsel if the punishment includes imprisonment • 8th amend prohibition against excessive bail and cruel and unusual punishment • State Action Doctrine • The constitution’s protections of individual liberties and requirement for equal protection apply only to the government and not to private conduct. Therefore. • Selective Incorporation • Generally. the Bill of Rights does not apply to the states . if a right is such that it is fundamental to the principles of liberty and justice which adhere to the very idea of free government. Roe to protect the fundamental right to travel. Violations of the 13th amendment are the only part of the Constitution that do not require a showing of a state action. 14th Amend • ‘No state shall abridge the privileges or immunities of citizens of the United States” • The Slaughterhouse Cases established a narrow interpretation of the 14th amend. • Revived only once since. holding that it applies only to emancipated slaves. Twining v. persons employed by the government and acting as a government officer (including school teachers) and government officers acting under the color of the law. in Saena v. a plaintiff must show a state action in the discrimination. with notice.only to federal conduct Barron v. then such a right is incorporated into the Due Process clause of the 14th amendment. Alabama • entwinement exception: private conduct will be considered a state action if state officials are pervasively entwined in the structure of private organization Brentwood Academy . self-incrimination and just compensation for public takings • 6th amend right to speedy trial. if a guarantee of the Bill of Rights is a part of what is mean by ‘due process’ then the states cannot deny it. even if the conduct is unauthorized • public function exception: private conduct will be considered a state action if the private actor is exercising powers traditionally exclusively reserved for the states/federal gov Marsh v. press. assembly.
such as those in the first 10 amendments. v. then the law was considered arbitrary and capricious • Post-Lochner . Laws interfering with economic rights were upheld only if they served an adequate state purpose: that is to protect public health.• entanglement exception: private conduct will be considered a state action if the government authorizes. Contract interference is subject to the rational basis test: (1) is there a substantial impairment to contractual rights? (2) if so. The legitimate purpose need not be what was intended. The government may not regulate to serve any legitimate purpose so long as it passes the rational basis test U.S. If there was no adequate police purpose. the court held that freedom of contract is a basic right protected under the due process clause (of 5th amend and 14th amend). • • • Contract Clause • State and local governments may not impair existing contract rights unless an important and legitimate public interest exists.generally the court will defer to the government and uphold economic laws so long as there is a rational basis. Harris Economic Liberties • Economic Substantive Due Process • The constitution implicitly limits governmental interference with life.such laws require heightened scrutiny. it need only be conceivable • Carolene Products footnote 4 . • Lochner Era . liberty and property regarding economic laws and regulations. Carolene Products • rational basis test: an economic law passed within the scope of a state’s police power satisfies due process if there is a legitimate governmental purpose served by the law. does it serve a significant and legitimate government purpose? (3) is it rationally related to achieving the government purpose? Home Building & Allied Structural Steel • Takings Clause . safety and morals. or discrimination against discrete and insular minorities .the court no longer protects freedom of contract or other economic freedoms as fundamental rights. This deference does not extend to laws interfering with fundamental rights. Wilmington Parking Authority • generally government licensing or regulation is insufficient for a finding of state action with out more evidence of government encouragement Moose Lodge. encourages or facilitates the private conduct by engaging in joint participation in the challenged activity with economic interdependence equalling a symbiotic relationship Burton v. Government subsidies will be found state actions if the purpose is to undermine protection of constitutional rights Norwood v. restrictions of the political process. and there is a rational relationship between the regulation and the legitimate purpose served.during this time.
There must be a nexus between the legitimate state interest and the permit condition. Just compensation is measured by the property owner’s loss. both governments must pay just compensation • possessory takings: government confiscation of property. the more likely a taking will be found Penn Central v. or a permanent physical occupation Loretto v. i. • ad hoc factual determination of when regulation goes too far: • the loss of economic use of the land • the extent to which regulation interfered with distinct investment backed expectations • whether the government action is similar to a physical invasion of the property versus a public program adjusting the benefits and burdens of economic life to promote the common good • determining whether it is a reasonable land use • conditional takings: governments may place a condition on development of private land if it is rationally related to preventing harms caused by new construction. Fritz • • Reverse Incorporation • The 14th amendment applies only to state actions. The more diminished in value. When property is taken for public use. A taking is for public use so long as it is an exercise of the states police power and the government is acting out of a reasonable belief that the taking will benefit the public Kelo v. City of New London • just compensation: generally fair market value. Teleprompter • regulatory takings: occur when federal or state laws place so many restrictions of property use that it leaves no reasonable economically viable use of the property. Per Bolling v. not the government’s gain Brown v. Legal Foundation of WA Equal Protection • There is only one equal protection clause in the Constitution . and the exactions on development must be roughly proportionate to the government’s justification for regulating Dolan v. simply that they treat all people equally. Tigard • public use: the court has expansively defined public use so that virtually any taking will meet the requirement. N.• Both state and federal governments have the power of eminent domain. similarly situated people in similar circumstances being treated similarly • Rail Road Retirement v.Y.e. Sharp the court has held that the 5th amendment’s Due Process guarantee includes equal . • All laws inherently classify and divide and the EP does not forbid such classifications does not require that laws treat people identically.the 14th amendment ‘no state shall deny to any person within its jurisdiction the equal protection of its laws’.
• P’s must prove intentional segregative acts affecting a substantial part of the . U.• • protection. • discriminatory impact: laws that are facially neutral but have a discriminatory effect do not merit strict scrutiny. EP applies to the federal government through reverse incorporation of the 5th amend DP clause. including laws requiring separation of the races and laws burdening blacks and whites equally. Discriminatory purpose implies more than intent as volition or intent as awareness of discriminatory consequences . it must be shown that the law has both a discriminatory effect and a discriminatory purpose. where the court held that military necessity permitted the government to pass and enforce the law. To receive strict scrutiny.proving discriminatory purpose is very difficult .A. Strict scrutiny is applied to classifications based on race. J. even if they are intended to remedy past discrimination Richmond v. Plaintiff must show the discriminatory purpose/effect and then the burden shifts to the government • affirmative action: all racial classifications receive heightened scrutiny. The burden of proof is on the challenger of the law. and they must show that the law is the least restrictive of the least discriminatory alternatives. a pattern that is unexplainable other than race based. Rational Basis Test • All laws subject to EP challenges must at the minimum satisfy the rational basis test.this is narrowly tailored to achieving the compelling state university interest in achieving diversity Grutter v. is the only facially discriminatory law that has been upheld under strict scrutiny.e. The burden of proof is on the government. Evans • Virtually any goal not forbidden by the constitution will be deemed sufficient to meet the rational basis test. Bollinger. and in general the court is very deferential to the government Romer v. Therefore. Korematsu v.S. A law will be upheld only if it is rationally related to a legitimate government purpose. religion. includes more people than necessary in order to accomplish its purpose) Strict Scrutiny Test • Laws subject to strict scrutiny are upheld only if they are necessary to achieve a compelling government purpose. national origin. Legitimate government purposes include all traditional police powers: protecting health safety and welfare • The rational basis test is tolerant of both underinclusive laws (laws that don’t regulate all who are similarly situation) and overinclusive laws (laws that regulate individuals who are not similarly situated. the historical background of the issue. i. Crosen • schools may use race as a flexible ‘plus’ factor in the context of individualized consideration . school desegregation: absent laws requiring school segregation in the past. alienage and laws burdening fundamental rights • express/facial discrimination: laws that facially discriminate based upon race are automatically subject to strict scrutiny.can be found in legislative history.
but schools need only show a good faith attempt to comply. Fundamental Rights • General Definition • Laws which burden a person’s exercise of a fundamental right are generally subjected to strict scrutiny. • After Brown courts could require schools to provide relief ‘in a reasonable time’ with ‘all deliberate speed’. but the classification must be limited to those who participate directly in the formation. Remedies included busing. not citizens and as such EP scrutiny is applied to alienage claims. Miliken v.a court imposed remedy for interdistrict de jure segregation was ruled impermissible without first showing a constitutional violation of all the districts. The government has the burden of proof under intermediate scrutiny. Bradley imposed a substantial limit to the courts remedial powers . The state need only show a rational relationship between the interest sought to be protected and the limiting classifications. older people are not a suspect class and have not been subjected to a history of purposeful and unequal treatment and are not a discrete and insular minority who lacks representation. Intermediate Scrutiny • Law subject to intermediate scrutiny are upheld only if the law is substantially related to an important purpose Craig v. Other rights. or review of broad public policy and perform functions that go to the heart of representative government Foley v. . Courts were empowered to order these compulsory remedies. are recognized as ‘fundamental’ if they: (1) are deeply rooted in our nation’s history and tradition. execution. redrawing district lines and inter-district transfers. but they do receive intermediate scrutiny as a sort of ‘quasi suspect’ class Age • Age discrimination is subject only to the rational basis test. Rights deemed so important to be ‘fundamental’ begin with those set forth the Bill of Rights.as such de facto segregation is unconstitutional only with proof of a discriminatory purpose. Boren. Applies to laws involving gender classifications and laws discriminating against nonmarital children and undocumented alien children with regard to education Alienage • The EP clause refers to persons. Connelie Undocumented Aliens • Undocumented aliens are not a suspect class.• • • • school system . or (2) are implicit in the concept of ordered liberty. Although a history of discrimination exists. Therefore the means chosen must be more than just a reasonable way of attaining the end. Richardson established that classifications based on alienage are inherently suspect and therefore receive strict scrutiny • exception: discrimination against aliens in areas relating to self-government are subject to the rational basis test. not expressly stated in the constitution. Graham v.
however regulation in the public’s interest is permissible (the state as parens patriae may restrict parental control by requiring school attendance. Skinner v. Griswold v.a fundamental right to marry. • right to procreate .the right to procreate is fundamental. This right was found as part of the right to privacy. Baird. • right to purchase and use contraceptives . and filing fees for legal proceedings implicating this right are unconstitutional.• • 9th Amendment • “the enumeration in the Constitution of certain rights shall not be construed to disparage others retained by the people.the right to purchase and use contraceptives.parents have a fundamental right to control the upbringing of their children. implicit in the penumbra of rights protected by the constitution. Boddie v. Mass. Gerald D. the state’s interests become more compelling. Virginia. and there must be a direct and substantial interference to trigger strict scrutiny (an incidental burden of the right is not sufficient). Prince v. Moore v. Established Fundamental Rights • right to marry . v. To merit constitutional protection individuals must be related to each other to be considered family. City of East Cleaveland. held that an unmarried biological father’s right to custody is not fundamental if the mother was married to someone else at the time of conception. Wade established a fundamental right to an abortion.there is a fundamental right to keep a family together that extends beyond parents and children to encompass extended families. specific the right to control reproduction is fundamental. • The fundamental right is countered by the state’s compelling interests in the health and safety of the mother and the protection of prenatal life. Casey the court abandoned the trimester distinction in Roe and held that a state may regulate previability abortions so long as such regulations do not unduly burden a woman’s fundamental right. • right to control upbringing of children . • right to keep a family together . however it has been used to support implied and inferred rights found within the ‘penumbra’ of protections conferred in the express provisions. • right to an abortion .Roe v. Oklahoma. This is a qualified right however and in Planned Parenthood v. An undue burden is a substantial obstacle in the path of a woman’s right to an abortion. Michael H. Conneticut. regulating child labor).” • There are not explicit rights conferred in the 9th amendment. • right to custody of children . The fact that a right is not expressly enumerated in the Constitution does not mean that it is not protected by it. and essential to the existence and survival of the nation. .a fundamental right to custody of one’s children. After a fetus becomes viable. Loving v. Connecticut and Eisenstadt v.
Roe.S. but like other rights it is not absolute and may be regulated by the states. Ball v. The right is specific to the individual and cannot be exercised by others. Saenz v. Virginia poll taxes. unless the burden the exercise of another fundamental right.S. Filing fees are not unconstitutional. James. • right to interstate travel . Roe. • Residency requirements that provide a benefit to current residents that is not available to nonresidents are constitutional. such as family members. v. and parents of minors have the fundamental right to control the upbringing of their children. Modernly.there is a fundamental right to refuse life-saving medical treatment. • Minor women have the right to obtain an abortion. Durational residency requirements which draw a distinction among current residents based on their length of time in the state are unconstitutional.the right to vote is fundamental and preservative of all rights. if a state choses to provide a free education. and as such the government may deny funding for nontherapeutic abortions. Kras. it must do so equally.there is a fundamental right of access to the courts and the right to be heard in court is essential to due process. Marion County. • The right to vote includes a guarantee on an equally weighted vote. no matter how small are unconstitutional. Doe. Lewis v.there is a fundamental right to travel and interstate migration in the U.previously the court held that prison regulations limiting prisoner access to law libraries and legal aid unconstitutional.the court has expressly said that education is not a fundamental right. Reynold v. Not all property ownership requirements are unconstitutional and may permitted if property owners are more directly affected and if the governing body being elected is one of limited authority. or that she is mature enough to decide for herself. • right to vote . Sims • right of access to courts ..D. • right of prisoners to courts . specific injury as a result of not having sufficient access to the courts . Plyer v.they must show that the prison regulations bar against access to legal materials directly prevented adequate relief. requirements are constitutional. Only population is a permissible basis for drawing district lines. but only if a bypass procedure is present where the minor may obtain an abortion after persuading a judge that it would be in her best interests. . Missouri Health Dept. a prisoner must be able to demonstrate that he suffered an actual. Marher v. • right to refuse treatment . U. Cruzan v. Casey Established Non-Fundamental Rights • right to education . Crawford v. State’s may require parental notification for an unmarried minor’s abortion. Photo I. Per Harper v. However.• • The existence of a constitutional right does not create a duty for the government to subsidize the exercise of the right.
The did not however hold that this right was fundamental (they found that such laws fail the rational basis test). mere governmental negligence is insufficient to trigger 5th/14th amendment protections. They did however state that constitutional protection exists for individuals in the most intimate and private aspects of their lives. • property .Town of Castle Rock v. liberty and property do not come to harm through private actors.• right to physician-assisted suicide . Washington v. There is not affirmative government obligation to ensure that your due process rights to life. Liberty is based upon the importance on the interest at stake and based on the expectations engendered by state law. Gonzales held that there was no property interest in enforcement of a restraining order. liberty or property. Property • liberty . County of Sacramento v. As such it is extremely difficult to hold the government liable for conduct during emergency circumstances. • In emergency circumstances.in Lawrence v. Daniels v. Texas the court held that states may not prohibit private consensual sexual activity between consenting adults of the same sex. William. Winnebago County. A benefit is not an entitlement if government officials may • • • • .rights which are expressly or impliedly stated in the constitution are protected liberty interests. Paul v. liberty or property.the court expressly held that there is no fundamental right to assisted-suicide. Procedural Due Process General Definition • Refers to the procedures that the government must follow before it deprives a person of life. Lewis. except when a special relationship exists between the government and the injured person. (3) without due process of law? Deprivation • Establishing a denial of due process requires demonstrating an intentional or reckless deprivation by government action. As such. DeShaney v. Three Basic DP Questions • (1) has there been a deprivation. • The court does not have a duty to protect individuals from privately inflicted harms. (2) of life. Glicksberg • right to protection of sexual activity and sexual orientation . A property interests exists only if there is an entitlement. Liberty. the government will only be held liable if its officer’s conduct shocks the conscious which requires a showing that the officer acted with deliberate or reckless indifference to life. Davis held that harm to reputation is not a deprivation of liberty and that a liberty interest is created by the Bill of Rights or by the state. however a state could create such a right if it so chose to. liberty or property. Concerns what kind of notice and what form of hearing the government must provided when it takes a particular action that infringes on a person’s life. Life.
Goldberg v. Turner v. as well as based upon the reasonable expectation to continued receipt of a benefit.• grant or deny it at their discretion. Hinges on whether the law creates a justifiable expectation that the benefit will be received in the future. Kelly held that individuals receiving welfare have a property interest in continued receipt of benefits and such benefits. • what is an entitlement . the more procedural safeguards the court will require. Goss v. then the law must meet strict scrutiny. This is an ad hoc weighing that depends to a great extent upon how the court subjectively views the underlying interest at stake. FCC. While there is no fundamental right to education. if content neutral. (3) the burden imposed on the government by requiring the additional procedures the more expenses the additional procedures will be. or a content based restriction.the more important the interest.the following factors must be balanced to determine whether process is sufficient to satisfy the due process clauses: (1) the importance of the interest to the individual . Barnette) and a freedom to speak anonymously (McIntyre v. Freedom of expression includes a freedom to remain silent (West Virgina v. Sufficient Process • matthew v. (2) the ability of additional procedures to increase the accuracy of fact finding . the more likely the court will require them. as well as expressive conduct.the court has found a liberty or property entitlement based upon the importance of the interest to the individual. Berry) and it cannot regulate speech based on the topic of the speech (subject matter discrimination - . once bestowed become a property rights requiring due process before termination. Lopez held that there is a property interest in the continued receipt of an education when the government creates a public school system and requires children to attend. The government cannot regulate speech based on the ideology of the message (view point discrimination .a law restricting speech must be content neutral to be constitutional.the more the court believes that additional procedures will lead to better. • Content Neutral Regulations . eldrigde test . there is a property interest in continued schooling created state law and a liberty interest in not being stigmatized by suspension. and state law determines what an entitlement is. less erroneous decisions. the less likely the court will require them.Boos v. and the clause has never been read as an absolute ban on government regulation of speech. more accurate. Ohio Elections Commission). 1st amendment analysis: determine whether the law is content neutral. If a content based restriction. Constitutional law creates the right to an entitlement. 1st Amendment Freedoms • Freedom of Expression • The first amendment freedom of expression clause protects speech. the law is subject only to the rational basis test.
Sullivan however upheld a regulation that prohibited the recipient of federal funds to counsel women on abortion. Watchtower Bible v. • gag orders . A person to whom an overly broad law constitutionally applies may still challenge the law as unconstitutional as applied to others (and exception to the general rule of standing). Such content based laws are subject to strict scrutiny. • Vagueness . (3) there must be procedural safeguards in place. FCC.an injunction against pre-trial coverage of a criminal trial is permitted only if: (1) there is a showing of extensive publicity that without a prior restraint will jeopardize the ability to select a fair and impartial jury. • licensing requirements . • secondary effects . such as to avoid the undesirable effects of the speech. but the government can refute this by persuading the court that the regulation is justified by a content-neutral purpose. Turner v. Velasquez held the government cannot restrict the actions of lawyers receiving funds from the Federal Legal Services Corp.a prior restraint is the suppression of speech before it occurs. (2) less restrictive measures would not insure the defendant a fair trial. Unduly vague laws violate due process and can be invalidated if a judge concludes that they provide inadequate notice as to what speech is prohibited. • Overbreadth . Prior restrains are presumed invalid. however they are not per se invalid and may be found constitutional if couched in the narrowest terms possible to achieve the pin-point objectives of the suppression. Statton: (1) there must be an important reason for the licensing. who clarified that viewpoint based funding can be maintain in cases where to government itself is the speaker (Rust) but not when the speakers are private (Velasquez) Less Protected Speech . • Prior Restraints . • Unconstitutional Conditions . and the government cannot deny a benefit to a person because they exercise that right.the government cannot condition a benefit on the requirement that a person forgo a constitutional right. Playtime Theaters.• Republican Party v.a law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. but law. administrative system or judicial order. Renton v. The two cases were distinguished by the court. the following must be present. a prior restraint is still only permissible if it is determined that one would be a workable and effective method of securing a fair trial. (3) and even if the first two requirements are met. White). Legal Sevices v.a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted.a law that on its face regulates speech based upon viewpoint or subject matter discrimination will be presumed content-based. (2) there must be clear standards leaving almost no discretion to the licensing authority.for a licensing requirement to be valid. Rust v.
Roth v. • Fighting Words . • hate speech . if a audience is hostile enough to the speech such that it poses a clear and present danger. • Sexual Speech . The court noted a need for deference to the legislature and held that such statute are presumed valid.S. • the risk formula: does the gravity of the evil discounted by its improbability justify an invasion of speech as necessary to avoid the danger? Dennis v. • Chaplinsky is still good law. NY. but either holding the law as overly broad or vague. Black • hostile audiences . and any such distinctions must meet strict scrutiny. Paul the court held that even within unprotected categories of speech the government cannot draw content based distinctions. U. or if the distinction directly advances the reason why the category of speech is unprotected.the court has held that obscenity is a category unprotected by the 1st amendment. Virginia v. and occurs in circumstances where it creates a clear and present danger that it will bring about the substantive evils that Congress has a right to prevent.S.the court has held that cross burning is expressive conduct and states cannot ban all cross burning. the speaker can be punished. or by finding the laws to be content-based restrictions that prohibit only some kinds of fighting words but not all (RAV v. unless the distinction is directed at remedying the secondary effects of speech. • Incitement . • the brandenburg formula: the most modern test for when incitement speech is unprotected. • miller obscenity test . A conviction is only constitutional if the speech incites: imminent harm. Over the years the court has articulated various tests to determine what constitutes unprotected incitement.S. Gitlow v. there is a likelihood of producing illegal action and there is an intent to cause imminent illegality. NY. permits convictions when speech is of such a nature. Feiner v. specifically during WWI.• The following categories of speech are exceptions to the general rule that contentbased restrictions on speech must meet strict scrutiny. • clear and present danger: utilized only during war times. Requires the likelihood of an imminent and significant harm. St. U. • the reasonableness approach: permits convictions occurring under criminal syndicalism laws is the government’s law and the prosecution were reasonable. New Hampsire. U. Only cross burnings done with the intent to threaten or intimidate are unprotected (where the speaker means to communicate a serious intent to commit an unlawful act or violence to particular individual or group). Schneck v. Chaplinsky v. but in all prior fighting words cases the court has reversed the convictions.incitement to violence has long been held as less protected speech.words which by their very utterance inflict injury or tend to incite an immediate breach of the peace are unprotected by the 1st amendment.even if a speaking is behaving lawfully.
child pornography . taken as a whole.(1) a plaintiff who is a public official or running for public office. Commercial speech is: (1) is an advertisement of some form. This prohibition does not extend to material that includes adults who look childlike or animation. taken as a whole. The need to protect reputation and the need to safeguard expression is balanced by the following rules: • public officials as defamation plaintiffs . and (3) the speaker has an economic motivation for speaking. • less protected speech . Pacifica. NY Times v. or acted with reckless disregard for the truth). (3) will the work. NY v. Sullivan. (2) refers to a specific product or service. lack serious literary. (2) the court must then determine whether the government’s interest in the regulation is substantial. Virginia State Board of Pharmacy v. (2) must prove his case with clear and convincing evidence. FCC v. Public Service Commission established that commercial is accorded less constitutional protection than other protected expression. Young v.(1) would the average person applying contemporary community standards find the work. American Mini Theater. deceptive or of illegal activities (such speech has no constitutional protection). political or scientific value. Defamation . This is a version of intermediate scrutiny. Public officials are those among the hierarchy of government employees . but is deemed to be low value. (2) does the work depict or describe in a patently offensive way. (3) must prove the falsity of the statement and (4) must prove actual malice (knew falsity. appeals to the prurient interests (excites lustful or lascivious thoughts). • Commercial Speech . Virginia Citizen Consumer.Central Hudson v. even if it does not meet the Miller test for obscenity. sexual conduct specifically defined by applicable state law.some sexual speech does not meet the Miller test for obscenity and is therefore protected by the 1st amendment.the government may prohibit the sale and distribution of • child porn. Although tort litigation is generally between private parties.commercial speech is now protected under the 1st amendment.generally profanities and indecent language do not meet the test for obscenity and is protected by the 1st amendment with some exceptions: broad cast media merits only limited 1st amendment protection because it is uniquely pervasive. and (4) determine whether the regulation is more extensive than necessary to serve that interest. (3) determine whether the regulation directly (substantially) advances the government’s interests. • low value sexual speech . Ashcroft v. there is state action in that the state’s law permits the recovery. and as such the government has latitude to regulate it. artistic. Free Speech Coalition. • protected indecent language . Ferber. Commercial speech may be regulated when: (1) if the speech is not false. as the government’s interest in safeguarding children is not hindered by such speech.the 1st amendment limits the ability of the government to impose tort • liability.
Cox v. matters of public concern . this tort includes the publication of truthful information. • Symbolic Speech . Falwell. but expenditure limits are not. Greenmoss.who have. public officials and public figures whoa re targets of parody cannot recover for IIED unless there is proof of actual malice.the New York times standard defines the level of protection afforded a public figure. Spending money is a form of political speech and the 1st amendment is implicated when the government limits spending in politics. Gertz v. when the government’s interest is unrelated to the suppression of free expression and if the incidental restriction on 1st amendment freedoms is not greater than is essential to further the government’s interest (similar to intermediate scrutiny) • spending money as speech . A matter of public concern is one in which the public has a legitimate interest. • public disclosure of private facts . and (2) there is a substantial likelihood that the message would be understood by those receiving it. Valeo. A public figure is one who has assumed a role of special prominence in the affairs of society or who has thrust themselves into the forefront of a public controversy in order to influence the resolution of the issues involved. when it furthers an important government interest.if P is a private figure and the matter is of public concern. . contribution limits are constitutional. The disclosure of private facts are protected by the 1st amendment if they were lawfully obtained from public records and were truthfully reports. Hustler v. Conduct is communicative when (1) there is an intent to convey a specific message. or appear to the public to have a substantial responsibility for the control of government affairs. he must prove actual malice. For P to recover presumed or punitive damages. a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limits on the 1st amendment protections. the state interest in compensating private individuals for injury to reputation extends only to compensation for actual injury.the tort of public disclosure of private facts exists if there is a publication of nonpublic information that is not of legitimate concern to the public. • IIED . Cohen. they must plead according to the New York Times standard to recover for IIED. Dun & Bradstreet v.conduct that communicates is protected under the 1st amendment. Specifically.when speech and nonspeech elements are combined in the same conduct. Generally.speech in connection with elections and the electoral process is at the very core of the 1st amendments protection. Buckley v.when P is a public official or public figure. A government regulation is sufficiently important when it is within the constitutional power of the government. • o’ brien test . Unlike defamation. • private figures. • public figures as defamation plaintiffs . and a reasonable person would find offensive to have published. Welch.
there are three types of government property: public forums. and other government property that have been held in trust for the public since time immemorial. • speech in the military .the government may regulate speech in public forums only if the regulation is content neutral and the regulation is a reasonable time.• Places Available for Speech . • The freedom of association is fundamental. . Prisoner speech may be regulated if it is neutral and rationally related to a legitimate penological interest. Levy. but the government may restrict speech of military members beyond the restrictions they may place on ordinary citizens (and rules like vagueness and overbreadth do not apply). but it is not absolute and infringements may be justified if the law serves a compelling state interest unrelated to the suppression of ideas that cannot be achieved through less restrictive means. time.(1) intimate association is the right to enter into certain highly personal relationships and is part of the right to privacy found in the penumbra of freedoms protected by the 1st amendment. • speech in schools . Morse v.prisons are government operates places where great deference is provided to regulations of speech. • types of associations . place or manner restriction . however the Court has held that the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect o the liberty guarantee of the due process clause and embraced by freedom of speech.military members have 1st amendment protection.the freedom of association is not listed among the rights protected by the 1st amendment. Frederick.government owned properties that the government is constitutionally obligated to make available for speech. • public forums .v Jaycees. The government’s regulation need not be the least restrictive means. Tinker v. Schnieder v. Abbot. parks. The constitutionality of a regulation of speech depends on the place and nature of the government’s action. • content neutral. • speech in prisons . but must be narrowly tailored to achieve the government’s purpose. CIO • limited public forums . Thornburgh v. limited public forums and nonpublic forums. (2) expressive association is the right to associate with others for personal expressive purposes. Public forums include streets. Ward v. • Freedom of Association . and is implicit in the protection of free speech and peaceable assembly. Hague v. Roberts . but that the government voluntarily. Rock Against Racism. New Jersey. Parker v.student speech has 1st amendment protection. affirmatively opens to speech Once such property is voluntarily opened to speech the same rules apply as in a public forum. Des Moines. place or manner restriction that serves an important government interest and leaves open adequate alternate places for speech. This first protection amendment is reduced because of the authoritarian environment.places that the government could close to speech.
nondenominational. Minneapolis Star • generally applicable laws . but it does not give the press a constitutional right to special access to information not generally available to the public.• Boy Scouts of America held that freedom of association protects a right to discriminate when the discrimination is integral to the expressive activity of the association. nor can the government create laws the purport to decide what religion is. • right of access to prisons . Cowles • right to information . Such laws apply to the press even if they have a chilling effect. Richmond Newspapers v Virginia. Santa Fe v. or silent is impermissible. Does not apply to print or cable television. (2) a law’s principal or primary effect must be one that neither advances or inhibits religions (determined by how a reasonable person would view the effect of the law).taxes that single out the press are unconstitutional. Hayes • fairness doctrine . Sherbert v. promotion or preference for religion. apply to the press and do not violate the 1st amendment protection of the press.laws of general applicability such as contract and tort laws.the court has consistently held that prayer in schools even if voluntary.‘congress shall make no laws respecting the establishment of religion’ means that the government cannot put into law an endorsement. Kurtzman established a test to determine whether a law violates the establishment clause: (1) a law must have a secular legislative purpose (cannot have the ostensible or predominate purpose of advancing religion). KQED • Establishment Clause .no longer applicable law. Miami Herald and Turner v. FCC. FCC • right to attend criminal trials . • Lemon v.the government cannot compel or punish religious beliefs. • Freedom of the Press • taxation .there is no special right of access for the press under the 1st amendment. but did require public broadcasters to provide adequate coverage of public issues. Doe • Free Exercise Clause . • prayer in schools . Red Lion v. (3) the law must not foster excessive government entanglement with religion (excessive entanglement is determined by the cumulative impact of the law on the relationship between government and religion). A law is unconstitutional if it fails any prong of the test.there is a 1st amendment right to the public and press to attend criminal trials and such a right is implicit in the express guarantees of the 1st amendment. Houchins v. but the press can be required to pay general taxes applicable to all businesses. This does not mean there is a complete ban on laws regarding religion. (1) is it an expressive association? (2) would compelling the group to be less discriminatory alter their expressive message? (3) is there a less restrictive means available. Cohen v. .news gathering is protected by the 1st amendment. Brandenburg v.
Verner the court expressly held that strict scrutiny should be used in evaluating laws burdening the free exercise of religion and a denial of unemployment benefits based on a discharge for not working on saturdays was unconstitutional . but it may consider the sincerity of belief.the court held that the free exercise clause cannot be used to challenge a neutral law of generally applicability. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ .still good law in the narrow holding . A person may be recognized as having sincere religious belief even if it is different from the rest of the adherents to his faiht.no longer applies to criminal laws. • employment division standard . No matter how much a law may burden religious practices. does not single out religious behavior for punishment and was not motivated by a desire to interfere with religion(neutral) • the constitution does not allow the government to define religion. Individual religious beliefs do not excuse a person from compliance with valid state laws prohibiting conduct that the government is free to regulate (such as the used of controlled substances). it is constitutional so long as it is generally applicable.
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