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Con Law II Notes

1. Economic Liberties A. Due Process (protection of unenumerated rights) - not a huge restriction on government 1) 9th Amendment a) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. b) Questions: what are the unenumerated rights, and are they constitutional rights or just natural rights? 2) 14th Amendment, Sec. 1 a) All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 3) Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), p. 161-166 NAME CASE a) Good law: P&I of 14th has no teeth. States can discriminate against their own citizens, just not other state's citizens. But Due Process and Equal Protection are still there to limit the discrimination of states' own citizens. b) Miller Majority: Louisiana had a law which the SC here upheld granting a monopoly to operate slaughterhouses in Nawlins. The excluded butchers claimed this law violated the 14th amendment by abridging their privileges and immunities (namely right to common calling) (they also argued due process and equal protection). Court upheld the law on these grounds: The 14th amendment distinguishes between citizenship of the United States and citizenship of the several States. To be a state citizen, you must reside in the state; to be a national citizen, you must have been born or naturalized in the U.S. The 14th amendment Privileges & Immunities clause speaks only of citizens of the U.S. and not of citizens of the several States. This omission seems purposeful given that both types of citizens appear in the prior sentence, and it does not seem likely that congress intended to transfer protection of P&Is from the hands of states into the federal government -- that would radically change the theory of the relations between fed and state and state and people. Thus, only national privileges and immunities are protected by the 14th amendment against state action. Common calling is not a national privilege and immunity. They could only get protection for that P&I under state law. There is no deprivation of property implicating due process, and there is no equal protection problem, because that was intended only to help discrimination against black people. c) Field Dissent: The majority's construction of the 14th amendment renders it practically useless. The Art. IV P&I clause protects citizens of a state against discrimination by other states, and the 14th protects citizens of the U.S. against discrimination in favor of others who reside in either the same or a different state. It is designed to give equal protection to fundamental rights, of which a common calling is one. d) Bradley Dissent: The people who adopted the 14th intended to provide national security against violation by states of the fundamental rights of citizens. Deprivation of liberty and property, as well as equal protection is implicated (even if blacks were the impetus of equal protection clause, the drafting was more general for a reason). 4) Lochner v. NY, 198 U.S. 45 (1905), p. 166-170 NAME CASE a) Not good law anymore: Name case for being bad law. b) Peckham Majority: A New York Statute, held invalid by the court here, limited the hours of employment of bakers to 10 hours a day and 60 hours a week. Due Process deprivation of liberty: This law is an interference with the right to labor and freedom of contract which cannot be justified by the police power of states allow states to circumvent Due Process when in the public interest, namely the health, welfare, safety, or morals of its citizens (inherent role of government); Labor Law (leveling the unequal bargaining power between employer/ee) is not within the police power. The only relation could be to health, but the only health at stake here is that of the bakers and not that of the public. Whether a baker works 60 hours or 80 does not affect the health of the bread served to the public. Employers and employees alike have the right to decide what the terms of their contracts should be, and bakers are of no lower intelligence or capacity than men in other trades to make their own deals and assert their own rights1/56 without state interference. Industries like mining and smelting have received state interference, but there is more potential for harm to public interest in those industries. The link here is too tenuous if any.

b) Peckham Majority: A New York Statute, held invalid by the court here, limited the hours of employment of bakers to 10 hours a day and 60 hours a week. Due Process deprivation of liberty: This law is an interference with the right to labor and freedom of contract which cannot be justified by the police power of states allow states to circumvent Due Process Con Law IIpublic interest, namely the health, welfare, safety, or morals of when in the Notes its citizens (inherent role of government); Labor Law (leveling the unequal bargaining power between employer/ee) is not within the police power. The only relation could be to health, but the only health at stake here is that of the bakers and not that of the public. Whether a baker works 60 hours or 80 does not affect the health of the bread served to the public. Employers and employees alike have the right to decide what the terms of their contracts should be, and bakers are of no lower intelligence or capacity than men in other trades to make their own deals and assert their own rights without state interference. Industries like mining and smelting have received state interference, but there is more potential for harm to public interest in those industries. The link here is too tenuous if any. c) Harlan Dissent: If a state act is unquestioningly unconstitutional, the courts should interfere, but otherwise the courts are not to be concerned with the wisdom or policy of legislation. Bottom line, there is room for difference of opinion here, and if the state finds, as it has done, that long hours for bakers impact their health, that should be the end of the inquiry. The health of the bakers diminishing can impact their ability to serve the state and to provide for their dependents, so there is a public effect. d) Holmes Dissent: Unless a law infringes upon a fundamental right which the constitution is designed to protect, there should be no interference in the right of a majority to embody their opinions in law. A constitution is not intended to embody a particular economic theory, whether paternalism (what the majority argues against) or laissez faire (what the majority supports). Police power should be what the majority says it is. 5) Nebbia v. NY, 291 U.S. 502 (1934), p. 171-173 NAME CASE a) Roberts Majority: New York law fixed the maximum and minimum price of milk, and Nebbia was convicted of selling milk below minimum. Court upholds this law, because a state can adopt whatever policy it wants. Nebbia cites Lochner as interference with right to contract and argues that public control of prices is per se unreasonable in violation of due process, unless the business is one "affected with a public interest". Nebbia defines such businesses as public utilities or monopolies, but the court rejects that, saying there is no closed class of businesses that may be affected with public interest. Due Process requires that states enact laws reasonably, not arbitrarily and capriciously, with a means having a real and substantial relation to the objective. The court may look to whether a state complies with this requirement, but it may not force a policy on the states. States may adopt whatever policy for the public welfare that they deem appropriate so long as it complies with due process in the sense of having a (1) legitimate goal/state interest and (2) the law reasonably furthers it/ by any possible rationalization. Presumption of constitutionality. Courts do not touch the wisdom of the policy, or the adequacy or practicability of the enacted law. b) McReynolds Dissent: Court should be able to consider the wisdom of an enactment, at least as far as whether the purpose is wise and the means within legislative power. 6) Williamson v. Lee Optical, 348 U.S. 483 (1955), p. 174-175 a) Unanimous opinion: Oklahoma law regulating opticians and optometrists -- opticians could not fit or duplicate lenses without a prescription from optometrists/ophthalmologists. It was argued that this regulation was not necessary or reasonably related to its purpose, because opticians could use a machine to determine the prescription of a broken lens. The court says that doesn't matter: the law need not be in every respect logically consistent with its aims to be constitutional, and the court is not going to strike down state regulation on due process claims because of wisdom. The legislature could have had other reasons in any case, such as frequency of occasions when prescription is necessary or that eye exams are so critical that every change in frames and lens duplication ought to be overseen by a medical expert. (shifts burden of reasonable relationship from state to plaintiff having to show that there is no possible reason to justify -- neuters a due process right as far as economic social regulation goes.) B. Contracts Clause (Enumerated right having to do with economic values) -- not a huge restriction on government 1) Contracts Clause a) Art. I, 10 - prohibits the state from enacting any "law impairing the obligation of contracts". States could enact laws that affected contracts in the future, but no retroaction was allowed. This clause used to be the primary provision used to void legislation infringing private property rights until substantive Due Process began to be used. No similar constraint on federal government; only states. i) Bankruptcy law is a way of getting out of contracts, but it is also a power given to congress under article I -- but that is the federal government, not states ii) exception to contracts clause: law prohibiting contracts contrary to regulation of health, safety, morals of community may be passed (Brothels, alcohol regulation, etc)

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a) Art. I, 10 - prohibits the state from enacting any "law impairing the obligation of contracts". States could enact laws that affected contracts in the future, but no retroaction was allowed. This clause used to be the primary provision used to void legislation infringing private property rights until substantive Due Process began to be used. No similar constraint on federal government; only states. Con Law II Notes i) Bankruptcy law is a way of getting out of contracts, but it is also a power given to congress under article I -- but that is the federal government, not states ii) exception to contracts clause: law prohibiting contracts contrary to regulation of health, safety, morals of community may be passed (Brothels, alcohol regulation, etc) iii) exception to contracts clause: prospective limits on contracts are ok, retroactive generally not iv) Instance where contracts clause does stand with teeth: when state is a party and it makes a law impairing the contract to benefit of state -- that's suspicious, so strict scrutiny 2) Home Bldg. & Loan v. Blaisdell, 290 U.S. 398 (1934), p. 184 a) Exception to contracts clause: obligations may be modified if a vital public interest, like an economic emergency, so demands. b) Contracts clause possibly implicated by Minnesota Mortgage Moratorium Law enacted during the Great Depression. It was to remain in effect only during the continuance of the emergency and in no event beyond May 1, 1935. It extended the redemption period after real estate foreclosure sales provided the mortgagor paid a reasonable part of the rental value of the property, and this applied retroactively to past mortgages. Mortgagees could not take possession and convey title as they would normally be able to do. 5-4 majority said this does not impair the integrity of the mortgage indebtedness. The contracts clause does not allow states to repudiate debts or destruct contracts or deny enforcement, but it may temporarily restrain enforcement as part of its police power to monitor the vital interests of the community. If within police powers (public interest) and reasonable, it's ok. c) 5 Significant Factors of why this is constitutional i) emergency: emergency need to protect the vital interests of the community ii) general welfare: law not designed to favor a special group but for the protection of a basic interest of society iii) reasonably tailored: relief appropriately tailored to the emergency iv) conditions imposed were reasonable v) limited in time/temporary in operation:: legislation was temporary in operation and limited to the exigency which called it forth

C. Takings Clause (Enumerated right having to do with economic values) CHECK PROPERTY NOTES ON THIS STUFF 1) Takings Clause a) 5th Amendment: private property shall not "be taken for public use, without just compensation." Extended to states through 14th. i) Public Use = Public Purpose 2) Physical Takings (Condemnation) a) Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), Copy 399 i) If taking is rationally related to a conceivable public purpose, public use requirement is satisfied. ii) There was a land oligopoly in Hawaii as a remnant of the old feudal system. 72 private owners owned 47% of the state land, the federal government owned 49%, and the remaining 4% was left for other private owners. Homeowners who would be willing to purchase the land under their houses instead had to rent it. Hawaii passed the Hawaii Land Reform Act of 1967 which allowed tenants in single-family residential lots to ask the Housing Authority to condemn the property, then the state would sell it to the tenants. This was challenged as being a taking for private use; a naked transfer of property from A to B. O'Connor (for unanimous court) said it is part of a state's police powers to break up land oligopolies for the benefit of the public. Here there was an artificial effect on what would be the normal course of real estate, and it was for the public purpose to break that up. Legitimate purpose: to attack the evils of concentrated property ownership, not to benefit a particular class of individuals. Government can take from private people when it's rationally related to a conceivable public purpose. (Necessary & Proper clause supports the federal government's right to eminent domain; for states, the police powers support the right to eminent domain.)

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owners. Homeowners who would be willing to purchase the land under their houses instead had to rent it. Hawaii passed the Hawaii Land Reform Act of 1967 which allowed tenants in single-family residential lots to ask the Housing Authority to condemn the property, then the state would sell it to the tenants. This was challenged as being a taking for private use; a naked transfer of property from A to B. O'Connor (for unanimous court) said it is part of Law II Notes powers to break up land oligopolies for the benefit of the Con a state's police public. Here there was an artificial effect on what would be the normal course of real estate, and it was for the public purpose to break that up. Legitimate purpose: to attack the evils of concentrated property ownership, not to benefit a particular class of individuals. Government can take from private people when it's rationally related to a conceivable public purpose. (Necessary & Proper clause supports the federal government's right to eminent domain; for states, the police powers support the right to eminent domain.) b) Kelo v. New London, 545 U.S. 469 (2005), p. 180-183 i) Property need not be open to general public after the taking as long as public purpose, with deference to legislative judgment as to what is a public purpose. ii) States are allowed to place their own limits on their state-level takings power iii) Stevens majority: New London, Conn. had decades of economic decline, so it made an economic development plan whereby it purchased properties in an area, and then condemned 15 properties that belonged to 9 holdouts for compensation. The holdout properties were not blighted or otherwise in poor condition, they just happened to be in the planned development area. The property owners assert this is unconstitutional because it is not for a public use, since the government was selling the property to Pfizer who was going to develop a big facility on the land. The new facility was expected to be a catalyst to economic revitalization. But the new owner would be private, and the land would not be open to public entry as such. Is that public use? Yes, because there is a public purpose -- to spur economic development of a run-down area. The fact that this public purpose is incidental to the fact that a private company is taking over the land is not important. Majority frames it as a pursuit of a public purpose that incidentally benefits private party, while the dissent frames it in the opposite way. The legislature can basically decide whatever public policy it wants in eminent domain cases. iv) Kennedy concurrence: If there's a plausible accusation of impermissible favoritism to private parties, the court should explore that seriously, but there is a presumption that there is a reasonable intent to serve a public purpose. There may be categories of cases where the transfers are so suspicious that courts should presume impermissible private purpose. v) O'Connor Dissent: No limit to ability to take. This washes out any distinction between private and public purpose and effectively deletes "public use" from the Takings Clause. In economic development takings, private benefit and incidental public benefit are by definition merged and mutually reinforcing. vi) Thomas Dissent: The government may take property only if it actually uses or gives the public a legal right to use the property. Losses will fall disproportionately on poor communities, because they are less likely to put their lands to the highest and best social use and are also the least politically powerful. 3) Regulatory Takings (Inverse Condemnation) a) Per se rules: i) permanent physical invasions, either by the government, itself or by the government allowing public access (Loretto Teleprompter) ii) deprivation of normal economic value (Lucas & progeny) [1] Measuring diminution if only a portion of your land is affected by the regulation: (a) of the whole (the question becomes whether the deprivation goes too far) (Penn Central -- use the factors when only a portion is affected, Lake Tahoe [moratoriums] -- this is the way the court measures) (b) of the portion affected (then it would be a total deprivation per se taking of that portion) -- not the way the court measures this

b) Pa. Coal v. Mahon, 260 U.S. 393 (1922), Copy 409 NAME CASE i) Name case for establishing that there are regulatory takings, and establishing the rule: if regulation goes too far, it's a taking. ii) Holmes majority: Mahon purchased a home and surface rights in the property, but did not contract for any support rights below the surface. In fact, in the contract, Pa. Coal reserved the right to mine coal under the property and placed risk of loss on Mahon. The question here is whether the Kohler Act of 1921, which 4/56 forbids mining in such a way as to cause subsidence of human habitations, removes Pa. Coal's right to mine under the land. The regulation would deprive the coal company of the protability of it's mining endeavor, and that seems to be key, because later (Keystone case 1987) the same law was upheld because all protability was not removed. Holmes says this would not be a proper exercise of the state's police

b) Pa. Coal v. Mahon, 260 U.S. 393 (1922), Copy 409 NAME CASE

Con Law II Notes

i) Name case for establishing that there are regulatory takings, and establishing the rule: if regulation goes too far, it's a taking. ii) Holmes majority: Mahon purchased a home and surface rights in the property, but did not contract for any support rights below the surface. In fact, in the contract, Pa. Coal reserved the right to mine coal under the property and placed risk of loss on Mahon. The question here is whether the Kohler Act of 1921, which forbids mining in such a way as to cause subsidence of human habitations, removes Pa. Coal's right to mine under the land. The regulation would deprive the coal company of the protability of it's mining endeavor, and that seems to be key, because later (Keystone case 1987) the same law was upheld because all protability was not removed. Holmes says this would not be a proper exercise of the state's police powers. Police powers do not cover individual safety, but public safety, and while the public may have some tenuous interest in this guy's house not falling into the earth, it's not enough to justify police power use in contravention of due process and the contracts clause. Instead, this would be a regulatory taking requiring just compensation. My impression is that the court concludes that this wouldn't be for a public purpose/use, since the interest is really to the individuals owning the land. If the buyers and communities did not see t to secure stability below ground, the court is not going to impose what they should have contracted for. iii) Brandeis dissent: When regulation is for public health, welfare, safety, morals, it's not a taking. This is to protect the public and the means suits the end. Reciprocity of advantage (where you balance the burdens on regulated versus public advantage, I suppose) is important when state confers benets, but when it regulates for public safety, there's no room to consider reciprocity of advantage. c) Penn Central Transp. Co. v. NYC, 438 U.S. 104 (1978), p. 178 NAME CASE i) Penn Central Factors (ad hoc test) [Supreme Court has never found a taking under this test! So as a , you hope for a per se test]: [1] balance public gain v. private harm [2] economic impact [3] character of government action (how it affects your property interest) [4] purpose of regulation [5] does regulation benefit legitimate public goals? [6] Is there reciprocity of advantage? (you are denied a benefit because your use is restricted, as by zoning, but everyone else's use is restricted too, and you gain from that.) [7] does regulation extinguish a central attribute of ownership? [8] is there a physical invasion? ii) Zoning and environmental regulation schemes are seldom takings as long as they are comprehensive and not individualized, because they do not deplete all value (owners have transferrable development rights to develop other non-landmark buildings they own.) iii) Brennan majority: Penn Central not allowed to build a 55-story office building atop Grand Central Terminal, because it's a landmark. Penn is allowed to use its rights on its other properties, and so does not lose any of its rights -- this is not a taking. The question of regulatory takings is one of when justice and fairness require that economic injuries caused by public action be compensated by the government rather than remain disproportionately concentrated on a few persons. d) Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Copy 416 NAME CASE i) Scalia majority: Lucas paid $1 million for two lots of beachfront property in S. Carolina. The state passed a law, South Carolina's Beachfront Management Act (an anti-erosion law), that barred Lucas from erecting any permanently inhabitable structures on his land. Per se taking rule: when regulation denies all economically beneficial or productive use of land, it is a taking requiring just compensation. This is because total deprivation of beneficial use is the equivalent of a physical appropriation for practical purposes from the perspective of the landowner. The only exception is when the regulation stops a landowner from doing something he would not have been able to do anyway, as when the use was not 5/56 part of his title to begin with, or when state nuisance law would have prevented the use anyway. So to prevail, a state must identify background principals of nuisance and property that prohibit the uses intended in the circumstances in which the property is presently found. The court reversed the finding of no taking and remanded to determine if it's really a nuisance. On remand, nuisance and property law

d) Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Copy 416 NAME CASE i) Scalia majority: Lucas paid $1 million for two lots of beachfront property in S. Carolina. The state passed Con Law II Notes a law, South Carolina's Beachfront Management Act (an anti-erosion law), that barred Lucas from erecting any permanently inhabitable structures on his land. Per se taking rule: when regulation denies all economically beneficial or productive use of land, it is a taking requiring just compensation. This is because total deprivation of beneficial use is the equivalent of a physical appropriation for practical purposes from the perspective of the landowner. The only exception is when the regulation stops a landowner from doing something he would not have been able to do anyway, as when the use was not part of his title to begin with, or when state nuisance law would have prevented the use anyway. So to prevail, a state must identify background principals of nuisance and property that prohibit the uses intended in the circumstances in which the property is presently found. The court reversed the finding of no taking and remanded to determine if it's really a nuisance. On remand, nuisance and property law would not have prohibited the building, so Lucas was given just compensation. ii) Kennedy concurrence in judgment: Coastal property may present unique concerns for a fragile land system that might justify a state going beyond regular nuisance law. iii) Blackmun dissent: Should use case-specific inquiry instead of per se rule. iv) Stevens dissent: This freezes the state's ability to shape its own law governing rights and usage of property. v) Souter dissent: would have dismissed cert. because an amendment to the Act permitted some building on beachfront property after obtaining special permit, mooting denial of all beneficial use. e) Palazzolo v. RI, 533 U.S. 606 (2001), Copy 418 i) Kennedy-5-Majority: A property owner could challenge as a regulatory taking restrictions on his property that has originally been imposed prior to his acquisition of the property even though he knew about the restrictions, b/c future generations, too, have a right to challenge unreasonable limitations on the use and value of land and to rule otherwise would enable the state to put an expiration date on the Takings Clause. Also, when subsequent purchasers buy the land in fee simple, they get everything the old owner had, including the right to claim taking. (In other words, there is no per se bar against challenging prior restrictions.)

2. Second Amendment and Incorporation A. 2nd Amendment 1) A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. B. DC v. Heller, 554 U.S. 570 (2008), p. 298-305 1) Unconstitutional to say you can't have guns in home unless unloaded and locked. Reads the Militia clause as irrelevant to the right to keep and bear arms. No banning against self defense. 2) Scalia majority: DC law prohibited having handguns and having any guns in the home unless they were unloaded and disassembled or trigger locked. DC special police officer tried to register a handgun he wished to keep at home (need to register in order to carry, but DC law prohibits registering handguns, but you can get 1-yr licenses from police chief), but was refused. He challenged the law as unconstitutional under the second amendment. Court finds the law unconstitutional as to both prohibiting handguns and requiring trigger locks. Interpretations of 2-clause amendment: (1) protects only right to possess and carry firearm in connection with military service, (2) protects individual right to possess firearm unconnected with military service and to use it for traditionally lawful purposes, such as self-defense in the home. Scalia chooses second interpretation, because he wants to adopt the reading of the time of adoption by the states. Textually, the militia clause is not a grammatical requirement of the second clause, but merely states a purpose. Historically, that purpose comes from a specific instance where a militia was disabled by removal of weapons, not by banning the militia itself. This prompted the codification of an already extant right. Like the first amendment and others, there are limitations on the right to bear arms. U.S. v. Miller limited the right to arms in common use at the time of the amendment. Even though today the purpose of individual protection could be better served by allowing carrying dangerous and unusual weapons, that does not give us a right to change the original meaning of the constitution. Other permissible limits include, possession by felons and mentally ill, carrying in schools and gov buildings, conditions on sale of arms. The point of the 2nd is to protect the inherent right of selfdefense. This law is unconstitutional because it prohibits the weapon overwhelmingly chosen by american society for the lawful purpose of self-defense: the handgun, and especially because it prohibits such use in the home, where selfdefense is most needed. The inoperability requirement also moots the point of having a gun for self-defense. No level of scrutiny is announced, although a footnote rejects rational basis scrutiny. Scalia also rejects Breyer's choice of a balancing test, because "the very enumeration of a right takes out of the hands of government the power to decide on 6/56 a case-by-case basis whether the right is really worth insisting upon." Then it wouldn't be a constitutional guarantee at all. Even though Scalia reject's Breyer's balance test, the fact that he recognizes limitations on the right shows that he has balanced, and he recognizes the interest in some limitations.

the first amendment and others, there are limitations on the right to bear arms. U.S. v. Miller limited the right to arms in common use at the time of the amendment. Even though today the purpose of individual protection could be better served by allowing carrying dangerous and unusual weapons, that does not give us a right to change the original meaning of the constitution. Other permissible limits include, possession by felons and mentally ill, carrying in Con of arms. The point of the 2nd is to protect the inherent right of selfschools and gov buildings, conditions on saleLaw II Notes defense. This law is unconstitutional because it prohibits the weapon overwhelmingly chosen by american society for the lawful purpose of self-defense: the handgun, and especially because it prohibits such use in the home, where selfdefense is most needed. The inoperability requirement also moots the point of having a gun for self-defense. No level of scrutiny is announced, although a footnote rejects rational basis scrutiny. Scalia also rejects Breyer's choice of a balancing test, because "the very enumeration of a right takes out of the hands of government the power to decide on a case-by-case basis whether the right is really worth insisting upon." Then it wouldn't be a constitutional guarantee at all. Even though Scalia reject's Breyer's balance test, the fact that he recognizes limitations on the right shows that he has balanced, and he recognizes the interest in some limitations. 3) Stevens dissent: Would limit the right to use with militia. The Miller case supports the reading of requiring a militia. It used to be understood that the legislature could regulate civilian ownership and use of guns. Now the question is in what ways can they still regulate? 4) Breyer dissent: Also subscribes to the militia interpretation -- protected interests are militia-related, not self-defenserelated. The law is tailored to the DC-specific problem, and burdens gun owners in no greater way than at existence at time of amendment. Review of gun control should neither presume unconstitutionality (strict scrutiny) nor constitutionality (rational-basis), so an interest-balancing inquiry is proposed. Take account of law's effect on interests on both sides and existence of any clearly superior less restrictive alternative. Should give deference to legislative judgment, and ask if the law disproportionately burdens the interests protected by the amendment. There is a specific problem in DC this law is directed toward addressing, the primary interest of the amendment is military, not self-defense, self-defense was of a different character back then and the realities of dense urban life were not extant, and muskets, not handguns, were the prevalent weapon of choice. Further, hinging constitutionality on popular weapon of choice is unwise because legislatures will have to closely watch new weapons lest they become popular before regulation. C. McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), p. 305-311 1) Incorporates the second amendment to the states through the 14th, but no consensus on which provision so incorporates it. The rights that are fundamental to our scheme of liberty and deeply rooted in our history and tradition may be incorporated, even if unenumerated. 2) Alito plurality: Extends protection to states using the Due Process clause, because they do not want to disturb the Slaughter-House Cases limitations on the P/or/I clause. Is gun toting a fundamental right, or is it part of our history and tradition? Since Heller holds that self-defense is a basic right that is the central component of the second, gun toting is both a fundamental right and deeply rooted in our history and tradition. There was an argument that second is different, b/c implications for public safety, but court counters that all the provisions placing limitations on law enforcement and prosecution of crimes also have implications for public safety. More attenuated, I would say, but sure. The court held, but Thomas did not join so no majority, that this decision does not affect the ability to regulate and longstanding regulations on ownership by felons and mentally ill, carrying in schools and government buildings, and conditions on sale of firearms. 3) Thomas concurring in part and in judgment: Extends protection to states using the Privileges or Immunities clause in contravention of the Slaughter-House Cases limitation. 4) Breyer/Ginsburg/Sotomayor dissent: History shows no fundamental right, no deep rooting in our history and traditions. Concerned that incorporation can limit the states' right to regulate guns. 5) Stevens dissent: Would probably not decide the issue of fundamental right in deference to state legislative process that seems to be working for so long. This is not a procedural due process case, but a substantive due process case. Wrong to rely on Heller for liberty rights. While there are arguments supporting due process contention, they are less compelling than plurality suggests and even less compelling outside the home. The amount of attention being given to a due process issue shows how much judicial attention ought to be given. With doctor-assisted suicides, the court declined to establish a general right because the states were in heavy debate already. When minority interests are at stake (groups that may face systematic barriers in the political system), more judicial attention is warranted. "Recognizing a new liberty right is a momentous step. It takes the right... outside the arena of public debate and legislative action.... Some fundamental aspects of personhood, dignity, and the like do not vary from state to state, and demand a baseline of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.... [We] need to approach our work with humility and caution." Guns have an ambivalent relationship to liberty, causing as much destruction as safety. It does not appear that the ability to own a handgun or any type of firearm is critical to leading a life of autonomy, dignity, or political equality. As far as history and tradition, states have along history of regulating firearms, more entrenched even than the idea that the constitution protects any such right. States and localities vary significantly in the patterns and problems of gun violence. While firearms one day may have contributed significantly to personal liberty and safety, today maybe they contribute nothing or indeed undermine it, and our approach ought to take that into account [functionalist perspective].

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legislative action.... Some fundamental aspects of personhood, dignity, and the like do not vary from state to state, and demand a baseline of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.... [We] need to approach our work with humility and caution." Guns have an ambivalent relationship to liberty, causing as much destruction as safety. It does not appear Con the ability to own a handgun or any type of firearm is critical to leading a that Law II Notes life of autonomy, dignity, or political equality. As far as history and tradition, states have along history of regulating firearms, more entrenched even than the idea that the constitution protects any such right. States and localities vary significantly in the patterns and problems of gun violence. While firearms one day may have contributed significantly to personal liberty and safety, today maybe they contribute nothing or indeed undermine it, and our approach ought to take that into account [functionalist perspective]. 6) Scalia concurrence: Everything Stevens says is wrong. 3. Due Process and Privacy Interests A. Griswold v. Connecticut, 381 U.S. 479 (1965), p. 200-207 NAME CASE 1) Douglas Majority: a) Two Planned Parenthood locations in Connecticut gave birth control information, instruction, and medical advice to married persons. Two Connecticut statutes at issue: (1) criminalizes against a person using birth control for penalty of $50 or 60day-1year imprisonment or both; (2) any person who assists, abets, counsels, causes, hires, or commands another to commit any offense may be prosecuted and punished as if he were the principal offender. Connecticut charged the PP locations with doing #2 re #1 (the individuals who use the birth control were not charged, but court extended standing to PPs to assert the individuals' constitutional rights [institutional representation]). Court reverses on constitutional grounds (deprivation of liberty interest w/o due process: right to privacy). b) There are penumbral rights of privacy and repose created by several constitutional provisions. The intimate relationship of husband and wife and their physician's role in that relationship is part of that penumbral privacy right. We wouldn't allow the police to search the bedrooms of married people for contraceptives, because that is repulsive to the notion of privacy surrounding the marriage relationship. Though the constitution may not always enumerate certain rights, sometimes the existence of a right is necessary to make the express guarantees fully meaningful. First Amendment has been read to include a freedom of association and privacy in one's associations (marriage being an association, associations do not have to be political but may be social, legal, economic); right to educate child in school of choice, public, private, or parochial; right to study certain subjects. Speech and Press also yield right to distribute, receive, read, free inquiry, free thought, free teaching. Third Amendment prohibition on soldier quartering is a privacy right. Fourth Amendment search and seizure. Fifth Amendment self-incrimination. Ninth Amendment says rights don't have to be enumerated to exist. 2) Goldberg/Warren/Brennan concurrence: Does not believe that the first 8 amendments should have been incorporated to states, but believe through the 9th that the unenumerated right of marital privacy works the same result. To determine unenumerated rights, look to history and tradition to see if something is so rooted that it's fundamental. If a law outlawing birth control could be valid, a law requiring it would be just as valid, which is a ridiculous thing. The state interest is claimed to be fidelity, but the law is not narrowly tailored enough to that end [need legit purpose and direct furthering of that purpose/ no less restrictive way to further that purpose]. (Beginnings of strict scrutiny) 3) Harlan concurrence in judgment: Reads as implicit in the majority that the incorporation of rights restricts the reach of 14th Amendment Due Process. I guess he supposes that the 14th Amendment automatically means all Bill of Rights rights apply to states. Incorporation should not be required. It is not the enumeration of rights that spells out the reach of due process, but the fundamental nature of the rights. 4) White concurrence in judgment: A law that interferes in the intimacies of the marriage relationship bears a substantial burden of justification in order to not violate 14th Amendment Due Process. Strict scrutiny called for. The fact that the policy of the law is to fight promiscuity or illicit sexual relations is the problem -- a legitimate goal, but not narrowly tailored. 5) Black/Stewart dissent: Government has right to invade privacy unless specific constitutional provision prohibits it. There is no general right to privacy. The 9th Amendment was enacted to protect state powers against federal invasion, so it cannot now be used to take away state power by the fed. Just as Lochner was eventually overruled in its holding that courts can adjudge the wisdom of legislation (or rather whether something is arbitrary or capricious) as to economic interests, so should the court not inquire into a state's policies as to natural rights. 6) Stewart/Black dissent: We are not asked about the silly lack of wisdom of the law, but about whether it is unconstitutional, and it isn't. The 9th isn't intended to do what the court makes it do, and you can't go through the 14th into some penumbra right to privacy. B. Skinner v. Oklahoma (1942)

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Con Law II Notes

B. Skinner v. Oklahoma (1942) 1) 3 crimes, you get sterilized -- ruled unconstitutional (right of procreation is fundamental) C. Eisenstadt v. Baird, 405 U.S. 438 (1972), p. 207-208 1) Brennan majority: Massachusetts law made it a felony to distribute contraceptives except for registered physicians and pharmacists giving them to married persons. Baird gave contraceptive foam to a woman (marital status unknown), and was charged because he was unlicensed to distribute to anyone. Deterring premarital sex and regulating distribution of potentially harmful articles are not reasonably regarded as legislative aims, b/c the statute has too many exceptions making contraceptives freely available for health to be the justification. If the goal is then to prohibit contraceptives, violates the rights of single persons under Equal Protection. Rights must be same for married and unmarried alike. Right to privacy is an individual right, so it does not only attach to a marriage association. 2) White/Blackmun concurrence: Baird could not have been convicted for giving to a married person, b/c of Griswold and the lack of proof that vaginal foam is hazardous. Since there is no evidence that the lady was unmarried, the case is disposed of even if it could have been sustained if she were unmarried. 3) Burger dissent: Nothing suggests these contraceptives must be available on open market. D. Abortion 1) Federal Government won't fund abortions (Hyde Act) -- no constitutional right to have gov pay for it, even though you have a right to have an abortion. You have a right to read a book, but the gov doesn't have to buy it for you. 2) Roe v. Wade, 410 U.S. 113 (1973), p. 211-217 NAME CASE a) Blackmun majority: i) Texas statute made procuring an abortion a crime unless by medical advice for the purpose of saving the mother's life. The life of Jane Roe, pregnant and unmarried, was not endangered, so she could not get a legal abortion in Texas. DC found the statute unconstitutional, but denied Roe's injunctive relief, so she appealed. At the time of the Constitution, apparently, common law gave women a broader right to terminate pregnancy than most states did at the time of Roe. ii) Three historical reasons why criminalization of abortion statutes have arisen: (1) Victorian social concern of discouraging illicit sexual conduct [Texas and no one else takes this seriously], (2) Procedure was hazardous to women when criminalization statutes first enacted [but prior to end of first trimester, the procedure is now relatively safe], (3) state's interest/duty in protecting prenatal life, theory that human life starts at conception, and that the balance between the interests of the mother and the fetus only tip in favor of the mother when her life is threatened [this case focuses on the state's purported interest in protecting the fetus]. iii) A right of personal privacy, or guarantee of certain areas or zones of privacy, exists under the Constitution, though not explicit. Different justices have argued different sources: 4th/5th; penumbras of Bill of Rights; 9th; fundamental liberty under 14th (this is what the Roe court thinks supports it). Guarantee of privacy covers only rights fundamental or implicit in the concept of ordered liberty. Marriage, procreation, contraception, family relationships, child rearing and education have all been recognized as part of the guarantee of privacy. A woman's decision whether or not to terminate her pregnancy is also under this right. So strict scrutiny. iv) Factors that might affect decision to not have a child include medical problems, imminent psychological harm, child care affect on mental and physical health, unwanted child distress, unable to care for child, stigma of unwed motherhood. Appellants and amici argue that these factors make the right to terminate pregnancy absolute, but the court does not agree. State interests may affect the right, like safeguarding health, maintaining medical standards, protecting potential life, by becoming sufficiently compelling at some point in the pregnancy to justify regulation. v) If a fetus is a person within the meaning of the 14th, then it has a right to life and there would be no right to abortion. All uses of "person" in the constitution are such that application is only postnatal. Together with the fact of freer abortion practices in 1800s this indicates the "person" is not prenatal. Since medicine, philosophy, and theology are not able to form a consensus about when "life" begins, the court is not in a position to speculate.

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v) If a fetus is a person within the meaning of the 14th, then it has a right to life and there would be no right to abortion. All uses of "person" in the constitution are such that application is only postnatal. Together with the fact of freer abortion practices in 1800s this indicates the "person" is not prenatal. Since medicine, philosophy, and theology are not able to form a consensus about when "life" begins, the court is not in a position to speculate. vi) Compelling for interest in health of mother is end of first trimester, b/c mortality at end of first trimester is less than mortality in child birth. Prior to first trimester end, state may not regulate abortion. After first trimester, state may regulate for purpose of health of mother. Compelling for interest in potential life is at viability, i.e., end of second trimester (24-28 weeks) as determined by physician, b/c fetus has capability of meaningful life outside mother's womb. States may regulate to interest in protecting potential life after viability except where necessary to preserve life or health of mother. Texas statute is too broad. b) Stewart concurrence: Substantive Due Process case. The statute runs afoul of Eisenstadt which recognized the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child -- this includes abortion decisions. c) Douglas concurrence: 9th amendment includes customary, traditional, time-honored rights, amenities, privileges, and immunities that come within the "Blessings of Liberty" mentioned in Constitution's Preamble. Many of these also come under the term "liberty" in the 14th. (1) autonomous control over the development and expression of one's intellect, interests, tastes, personality [absolute rights under First], (2) Freedom of choice in basic decisions of one's life respecting marriage, divorce, procreation, contraception, education and upbringing of children [subject to some control of police power, but fundamental, compelling state interest and statute narrowly drawn required], (3) freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, loaf [fundamental, but subject to regulation by compelling state interest]. Childbirth may deprive a woman of her desired lifestyle and force upon her radically different and undesired future. Balance of woman's interest against state's interest in mother's health and potential life. d) White/Rehnquist dissent: Wrong exercise of judicial power to suddenly create a right to abortion for any old reason. e) Rehnquist dissent: This is not a privacy right, and no restrictions on first trimester is wrong. Court should not touch wisdom of legislation. Abortion is not so rooted in history and tradition as to be fundamental. At time of 14th amendment, there were 36 state laws limiting abortion, which shows drafters did not intend abortion to be covered as a liberty right. 3) Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), p. 221-244 NAME CASE a) O'Connor, Kennedy, Souter: i) I [1] Pennsylvania Abortion Control Act of 1982: (1) Women -- give informed consent prior to abortion and receive information 24 hours before abortion; (2) Minors -- informed parental consent, but judicial bypass option if minor does not wish to or cannot give parental consent; (3) Married Women -- statement saying husband notified of intended abortion; (4) Medical Emergency exempts these requirements; (5) Abortion Facilities -- reporting requirements. [2] Petitioners: 5 abortion clinics, 1 physician, class of physicians, seeking declaratory and injunctive relief, claiming none of the provisions may be upheld unless Roe is overruled (court disagrees) [3] Chief Justice: Would overrule Roe and adopt rational relation test for constitutionality. [4] Holding: Affirm essential holding of Roe: (1) women have right to choose abortion before viability without undue interference from state; (2) state has power to restrict abortions after viability with exceptions for pregnancies endangering a woman's life or health; (3) state has legitimate interests from outset of pregnancy in protecting health of woman and life of fetus. ii) II [1] Substantive Due Process Clause issue re "liberty", which is a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints. Constitution limits State's right to interfere with person's most basic decisions about family and parenthood, and bodily integrity.

Con Law II Notes

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ii) II -

Con Law II Notes

[1] Substantive Due Process Clause issue re "liberty", which is a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints. Constitution limits State's right to interfere with person's most basic decisions about family and parenthood, and bodily integrity. [2] Issue: Morality -- whether state can resolve morality issues so that a woman lacks choice in the matter, except in cases of danger to health, life, or incest or rape. [3] Liberty of woman at stake, unique to human condition and law. Her suffering is intimate and personal, too much so for the state to impose its own vision on the woman's role. [4] Abortion is the same character of decision as contraception, which has been protected. iii) III - Precedent [1] Overruling precedent: (1) whether the rule has proved unworkable [SAMTA v. Garcia]; (2) whether the rule is subject to reliance claims that would lend special hardship and inequity; (3) doctrinal anachronism: whether principles of law have developed so far away from the old doctrine that it is a mere remnant of abandoned doctrine; (4) whether facts or understanding of facts have so changed as to make the old rule unjustifiable. (a) Funk says what usually actually happens is that the court decides a case was wrong when it was decided, and that's why it is overruled. [2] None of these justifications for overruling apply to Roe. It's not unworkable; people do rely on it in their family planning by knowing they can abort if necessary; legal/constitutional principle has not evolved too far away, as it's under the Griswold line which is still celebrated; and no substantial change in factual circumstances -- despite advances in health that change date of viability, this only changes application of law, but does not undermine it. [3] If no recognition of woman's interest in deciding whether to bear and beget a child, State could just as well restrict a right to carry to term as force carrying to term. [4] Past Precedents overruled, where there would have been a price for not overruling: (a) Lochner via West Coast Hotel -- economic circumstances changed after Great Depression, justification for deciding the wisdom of state's economic regulation no longer there. (b) Plessy via Brown -- Plessy decided on a false premise that separate but equal yielded no badges of inferiority, and by the time Brown was decided it was clear this factual premise was not true [5] Here, there would be a price for overruling: undermining legitimacy of courts (a) Frequent vacillations undermine legitimacy of court (b) In the face of national controversy where court is asked to overrule under fire, court's legitimacy is undermined, and it is better to stick to the rule of law until public opinion settles into a majority rule. iv) IV - Principles [1] Undue Burden analysis. Undue burden exists and provision of law is invalid when its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability (a) Viability b/c stare decisis and state interest now override woman's right to choose (b) trimester framework rejected, viability is key [2] state may take measures to ensure informed choice, and measures will not be invalid as long as purpose is to persuade woman to choose childbirth over abortion and do not place an undue burden on the right to choose. [3] state may enact regulations to further health or safety of woman as long as no substantial obstacle placing undue burden

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Con Law informed [2] state may take measures to ensureII Notes choice, and measures will not be invalid as long as purpose is to persuade woman to choose childbirth over abortion and do not place an undue burden on the right to choose.
[3] state may enact regulations to further health or safety of woman as long as no substantial obstacle placing undue burden [4] after viability, state may promote its interest in potential life by regulating or proscribing abortion except when necessary in medical judgment for preservation of life or health of mother [5] Test: (a) Pre-viability: if restriction imposes undue burden, then it's unconstitutional (balance in favor of mother) i) undue burden = purpose or effect places a substantial obstacle to a woman seeking an abortion ii) looking now only to legitimate government interests, not compelling interests (b) Post-viability: states can restrict or prohibit abortion so long as there is an exception for the mother's health and safety (balance in favor of state) v) V - Analysis of Statute [1] A - Medical Emergency defined as "condition which, on basis of physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." Construed by COA as not significantly threatening life or health of woman -- no undue burden on abortion right. [2] B - 24-hour period before to receive information on procedure, alternatives, risks, etc. Not an undue burden. Overrules Akron I, which held that a mandatory 24 hour waiting period was unduly burdensome for raising cost of abortion because of repeat visits. The requirement does impose a burden, but not an undue one, aka, not a substantial obstacle to obtaining an abortion. (a) is it better to look at whether the burden is on women in general, or on a particular group of women? Court goes with general. [3] C - Married Woman husband consent is unduly burdensome, because of the potential for abuse from husbands, allows abusive husband to veto wife's decision. This doesn't relate to helping the woman make her decision; helping the man is irrelevant. Women do not lose constitutionally protected liberty when they marry. Same is NOT true of minor's parental consent. Parent's have children's best interests at heart, unlike husbands. (And forget about all those abusive parents!) [4] D - Minors. Courts can require parental consent for minors, as long as there is a judicial bypass procedure. [5] E - Reporting requirements. If reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible. Not only to make obtaining abortions more difficult, but to further medical research. b) Stevens concurring in part, dissenting in part: Disagreement points: trimester framework not contradictory -not contradictory to say that state has interest in potential life but that it can't regulate before viability. Persuading women to choose childbirth over abortion influence women's choice. 24-hour waiting period is either too severe or lacks rational justification. Counseling provisions except as to risk do not serve useful purpose and are unduly burdensome. c) Blackmun concurring in part, concurring in judgment in part, dissenting in part: Restrictive abortion laws deprive a woman of the right to control her life. Raises gender equality problems, because a state can force a woman to provide service of childbearing without compensating for the costs of rearing. Trimester framework is better and less manipulable than the undue burden framework. Rehnquist's opinion is more about forcing women to be maternal than regulating for her health. 24 hour waiting period unconstitutional. Reporting requirement is for economic tax dollar spending reasons, which is not tailored enough to the requirements. d) Rehnquist, White, Scalia, Thomas concurring in judgment in part, dissenting in part: Would uphold the statute in entirety. Abortion is sui generis, unlike other family decisions, because it is a decision to end life. No deeply rooted tradition to make abortion fundamental. As much lip service as the joint opinion pays to stare decisis, it 12/56 does not hold strong to the Roe decision. The idea that you can't overrule a divisive issue once it has been initially decided until it is no longer divisive is redonk, courts should do what is the law, not what one political faction or another says it should do. At least the trimester strict scrutiny framework had basis in con law; the undue burden thing comes from nowhere and is nebulous to apply, and does not command a majority of the

c) Blackmun concurring in part, concurring in judgment in part, dissenting in part: Restrictive abortion laws deprive a woman of the right to control her life. Raises gender equality problems, because a state can force a woman to provide service of childbearing without compensating for the costs of rearing. Trimester framework is Con Law II Notes better and less manipulable than the undue burden framework. Rehnquist's opinion is more about forcing women to be maternal than regulating for her health. 24 hour waiting period unconstitutional. Reporting requirement is for economic tax dollar spending reasons, which is not tailored enough to the requirements. d) Rehnquist, White, Scalia, Thomas concurring in judgment in part, dissenting in part: Would uphold the statute in entirety. Abortion is sui generis, unlike other family decisions, because it is a decision to end life. No deeply rooted tradition to make abortion fundamental. As much lip service as the joint opinion pays to stare decisis, it does not hold strong to the Roe decision. The idea that you can't overrule a divisive issue once it has been initially decided until it is no longer divisive is redonk, courts should do what is the law, not what one political faction or another says it should do. At least the trimester strict scrutiny framework had basis in con law; the undue burden thing comes from nowhere and is nebulous to apply, and does not command a majority of the court. Would adopt a rational relation to legitimate state interest test. e) Scalia, Rehnquist, White, Thomas concurring in judgment in part, dissenting in part: While abortion may be a liberty, it is not one protected by the constitution, for the same reason as bigamy: constitution is silent and longstanding traditions of our society have permitted legal proscription. Saying that you can't recognize right to birth without recognizing right to terminate birth is like saying you can't recognize right to eat without recognizing right to starve yourself. 4) Gonzales v. Carhart, 550 U.S. 124 (2007), p. 245-252 a) Kennedy: i) Partial-Birth Abortion Ban Act of 2003. Punished doctors who knowingly performed a partial-birth abortion. Defined as vaginally delivering a living fetus (whether pre-viable or post-viable), where fetus is delivered until the entire fetal head is outside the body of the mother for head-first, or where any part of the fetal trunk past the naval is outside the body for breech presentation. If no delivery to one of these anatomical landmarks, no application of the Act. Also, doctor must perform an overt act, other than completion of delivery, that kills the partially delivered living fetus. ii) Posture: DC and COA said it was unconstitutional facially, SC reverses. iii) Not unconstitutionally vague or violative as an undue burden on its face (could challenge as-applied -but Funk says how is that supposed to work?) -- doctors have a reasonable opportunity to know what is prohibited. iv) Not unconstitutional for substantive due process b/c no undue burden on mother. There are other options -- a Standard D&E, versus the Intact D&E that is prohibited by the act. In Standard, the doctor dismembers the baby in the womb and vacuums it out in several passes. Oh yeah, that's much more humane! The scienter requirement protects doctors from accidentally performing an Intact D&E and being liable -- you need either intent or foreseeability. There's a legitimate state concern in informing the woman of what the process will entail. Knowing that the baby will be outside her body before being killed may deter quite a few abortions and prevent the type of psychic harm that the mother would endure from finding that out after the fact. Lack of this option does not impose significant health risks, but in any case, there is exception in the act for life endangered. Not facially invalid, but may be challenged in discrete cases. v) Types of Abortion: [1] Standard D&E - dilate & evacuate by dismemberment and vacuuming [2] Intact D&E, aka Partial-Birth Abortion - same as Standard, but no dismemberment and you kill it outside instead of inside. [3] Vacuum aspiration -- for first term abortions, no dilation necessary. b) Ginsburg, Stevens, Souter, Breyer dissent: There should be a health exception allowing for Intact D&E, because the medical profession has said sometimes it is necessary. The Act is based on faulty assertions of fact -- that the procedure is not taught at medical schools and that it's never necessary. It is in fact safer than Standard. There is no difference in brutality of the two procedures. Aborting is no more dangerous to mental health than bearing a raising a child a woman didn't want to have. But even if the law were for psychic reasons, the solution would be to offer an informed choice, not to ban a given choice altogether. Blurs the line of viability by allowing ban previability. Stenberg said lack of health exception made statute unconstitutional on its face; same should apply here. E. Sexual Activities, Marriage, and the Family

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Con Law II Notes

E. Sexual Activities, Marriage, and the Family 1) Sexual Activities a) Bowers v. Hardwick, 478 U.S. 186 (1986), p. 282-283 NAME CASE i) White, 5-4: Georgia statute criminalized sodomy, and Hardwick was caught sodomizing another man in his own bedroom. Hardwick claims fundamental right in homosexual sodomy (not framed broadly as a right to engage in consensual sexual acts in privacy, as dissent would characterize it). Court upheld the constitutionality of that law, because the right of privacy under Griswold and Roe does not extend to homosexual sodomy, b/c no relation to family, marriage, procreation. Aside from precedent, no fundamental right to engage in homosexual sodomy (there is a liberty interest in homosexual sodomy, but no fundamental right). Fundamental rights are those "implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed." OR "deeply rooted in this Nation's history and tradition." Homosexual sodomy fits none of these. Rational Basis review holds up, because morality choices are a rational basis -- lots of laws are based on them. b) Lawrence v. Texas, 539 U.S. 558 (2003), p. 283-294 NAME CASE i) Kennedy: [1] Responding to reported weapons disturbance, police found Lawrence engaged in consensual homosexual sodomy in his home. This was violative of a Texas statute prohibiting two people of the same sex from engaging in "deviate sexual intercourse", defined as "any contact between any part of the genitals of one person and the mouth or anus of another person; or, the penetration of the genitals or the anus of another person with an object." Over the years, there has been a downward trend in the number of states that criminalize homosexual sodomy, and even fewer enforcing it. [2] Statute challenged on Equal Protection, Due Process, and overruling Bowers. Kennedy overrules Bowers, citing Due Process liberty or something like that, and also acknowledging that the Equal Protection argument has merit, but that deciding on that alone could lend to states adopting statutes that equally discriminate against anal and oral and toy sex regardless of sexuality, which would be a bad result. [3] "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expressions, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions." (a) Bowers was not just about the right to engage in certain sexual conduct; that demeans this case just as it would demean a married couple to say that marriage is simply about the right to have sexual intercourse. [4] Casts doubt upon the history and tradition relied upon in Bowers to support anti-sodomy laws. No tradition targeting homosexual conduct, but rather certain types of acts regardless of sexuality. Particularly, the tradition has been enforced to prohibit not consenting private acts, but pedophilia, force, disparity in status between adults, bestiality. Generally it was a prohibition on nonprocreative sex more than the homosexual character of the sex. Laws targeting homosexuals began in the 1970s, and enforcement of them usually involved public places. Bowers court was relying on the history and tradition in a broader sense of morality than just history of laws and their enforcement, concededly. But, as said in Casey, "our obligation is to define the liberty of all, not to mandate our own moral code." [5] New precedent overturning test: (a) have its foundations have been eroded by subsequent decisions? (b) has it been subject to substantial and continuing criticism?

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[5] New precedent overturning test:

Con Law II Notes

(a) have its foundations have been eroded by subsequent decisions? (b) has it been subject to substantial and continuing criticism? (c) has it induced individual or societal reliance that counsels against overturning? [6] History and tradition on the international and domestic scene post-Bowers is also divergent from Bowers. British Parliament and European Court of Human Rights both struck down laws that paralleled that in Bowers. States in the U.S. have also declined to follow Bowers under their own Due Process formulations. There has been no individual or societal reliance on Bowers of the kind that Casey counsels against overruling it. [7] "Bowers was not correct when it was decided, and it is not correct today." Stevens' dissent in Bowers should have controlled, saying that basing on traditional morality alone was not sufficient to uphold the law. Liberty protected by Due Process includes intimate decisions regarding physical relations of married and non-married persons alike. [8] What this case is not about: injury, coercion, consent not easily refused, public conduct, prostitution, whether gov must formally recognize (by marriage) of homosexuals, (incest, bestiality, minors, bigamy). [9] What this case is about: adults giving full and mutual consent to engage in sexual practices common to homosexual lifestyle. [10] No legitimate state interest can justify the intrusion of the Texas statute. ii) O'Connor concurrence in judgment: Would not have overruled Bowers, but would have struck down Texas law on Equal Protection grounds. But other laws that distinguished on sexuality might withstand rational basis; this one just doesn't. iii) Scalia, Rehnquist, Thomas dissent: Court does not reach fundamental right question. Nor does it apply strict scrutiny to the Texas law, if it were a fundamental right. No application of Casey precedent overruling regime. To say this isn't about morality, but then say the decision does not extend to things like prostitution, bestiality, etc. is contradictory. There is no right to liberty under Due Process -- 14th expressly allows state to deprive citizens of liberty, so long as due process is observed. Denying rational basis because basis is morality screws up all morality legislation. The court is treading where democratic process should tread. iv) Thomas dissent: The Texas law is uncommonly silly, not a worthy way of expending valuable law enforcement resources by punishing someone fore his sexual preference. But it's not our job to make the decision that the Texas legislature should make. There is no general right of privacy in the constitution, and no liberty spatial and transcendent. 2) Marriage a) Loving v. Virginia, 388 U.S. 1 (1967), p. 692-694 & 255 i) Warren: [1] Virginia statutory scheme to prevent interracial marriage (anti-miscegenation statute) -- does it violate 14th Amendment? Purported legitimate purpose was to preserve racial integrity of citizens, prevent corruption of blood, mongrel breed of citizens, obliteration of racial pride (White Supremacy). State argues that Equal Protection allows penal laws with interracial element so long as whites and blacks are punished to same degree. Court rejects this reading of Equal Protection (the equal application theory). Racial classifications, especially suspect in criminal statutes, must be subjected to the most rigid scrutiny, and if they are ever to be upheld, must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which was the object of the 14th to eliminate. Necessity, not mere reasonable relation, is the proper test. No such purpose on racial discrimination has been conceived as necessary as yet. [2] Deprive Lovings of liberty without Due Process as well. Marriage is a basic fundamental right, fundamental to our existence and survival (b/c it's connected to the idea of procreation). (Skinner v. Oklahoma -- sterilization of criminals).

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Supremacy). State argues that Equal Protection allows penal laws with interracial element so long as whites and blacks are punished to same degree. Court rejects this reading of Equal Protection (the equal application theory). Racial classifications, especially suspect in criminal statutes, must be subjected to the most rigid scrutiny, and if they are ever to be upheld, must be shown to be necessary to the accomplishmentCon Law II Notes state objective, independent of the racial discrimination of some permissible which was the object of the 14th to eliminate. Necessity, not mere reasonable relation, is the proper test. No such purpose on racial discrimination has been conceived as necessary as yet. [2] Deprive Lovings of liberty without Due Process as well. Marriage is a basic fundamental right, fundamental to our existence and survival (b/c it's connected to the idea of procreation). (Skinner v. Oklahoma -- sterilization of criminals). [3] (Because race played such a big role in this case, it was not clear to what extent the right to marry was fundamental for Due Process reasons [I interpret this to mean, maybe only racial discrimination against marriage would violate 14th, but others would be ok. The question is resolved in Zablocki.]) ii) Stewart concurrence: Thinks states cannot make criminality of an act based on race. b) Zablocki v. Redhail, 434 U.S. 374 (1978), p. 255-258 i) Marshall: [1] Wisconsin law prevented men from marrying if they were not paying their child support for minor kids from a previous relationship not in his custody; could rebut by showing compliance with support obligations and proof that the children are not likely to become public charges. Man here was not paying his support of a child who had been a public charge since birth. He was effectively blocked from ever marrying his fiance (pregnant with child), b/c he could not pay. [2] This violates Equal Protection of 14th (probably b/c discriminates against poor -- those unable to make payments), because right to marry is a fundamental right. It is of the same category as procreation, childbirth, child rearing, family relationships, and is sometimes a prerequisite to doing those things legally, so by implication it has to be a fundamental right. [3] If the right to procreate means anything at all, it must imply the right to enter the only relationship that legally recognizes the right to procreate. Marriage = Procreation, here. [4] Regulations that give prereqs to marriage must withstand scrutiny. If they significantly interfere with decisions to enter marriage, they are not ok. [5] Scrutiny (a) Must have sufficiently important (compelling?) state interest and i) Interests advanced, assumed sufficient: provides incentive to make support payments, and protect welfare of out-of custody children (b) be closely tailored to effectuate that interest. i) not closely tailored. Merely prevents marriage without guaranteeing the child will get any money. State has other more effective means to exact compliance already. ii) Stewart concurrence in judgment: Does not violate equal protection. Not discriminating against a class, but encroaching upon a liberty (substantive due process). No right to marry in constitutional sense (can limit marrying within family, marrying children, VD tests before marrying, marrying when already married to someone else. So state can regulate, but there is a limit. iii) Powell concurrence in judgment: There is no guidance to determine when an interference with ability to marry is "direct" or not -- when is it ok? Most regulation is of the prereq/barrier to marrying or divorcing type. That is a direct interference, but when is it ok? Incest, bigamy, homosex, blood tests, fault divorces. Strict scrutiny would cast doubt on these. The problem with this law is there is no fair/rational relation between the state interests and the means to achieve them. iv) Stevens concurrence: Highlights the rich versus poor inequality. c) Turner v. Safley, 482 U.S. 78 (1987), p. 258 i) O'Connor (unanimous): Prisoners were prohibited from marrying, b/c they didn't want them to do so just to have sex in conjugal visits. State argues this isn't a ban, just a delay. Interest: security, administrative concerns, and this is not the narrowest way to achieve it. Right to marry is still fundamental right to prisoners. Prison regulation allowed prisoners to marry only when approved by superintendent for compelling reasons like pregnancy/birth. There are restrictions on right to marry because of incarceration, but it is still protected, b/c:

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c) Turner v. Safley, 482 U.S. 78 (1987), p. 258

Con Law II Notes i) O'Connor (unanimous): Prisoners were prohibited from marrying, b/c they didn't want them to do so just to have sex in conjugal visits. State argues this isn't a ban, just a delay. Interest: security, administrative concerns, and this is not the narrowest way to achieve it. Right to marry is still fundamental right to
prisoners. Prison regulation allowed prisoners to marry only when approved by superintendent for compelling reasons like pregnancy/birth. There are restrictions on right to marry because of incarceration, but it is still protected, b/c: [1] they are expressions of emotional support and public commitment [2] religions give marriage spiritual significance [3] inmates will be released one day and consummate [4] pre-condition for receipt of gov bennies, property rights, etc. d) What about homosexual marriage? Several state constitutions have said it violates their constitutions. But as to federal, the SC affirmed a state supreme court without opinion finding that restricting homosexual marriage did not violate constitution. This was back when there was a right to appeal for this to the SC, instead of filing for cert. Technically a decision on the merits, but really a rubber stamp -- they didn't want to hear the case. 3) Family a) Michael H. v. Gerald D., 491 U.S. 110 (1989), p. 261-264 i) Scalia (plurality): [1] Michael claimed to be the father of a child of married couple Carol and Gerald. Carol had had an affair with Michael, and Michael's blood test showed 98% likelihood he was father, but Gerald was listed as father on the birth certificate. California law said a child born to married woman living with her non-impotent/non-sterile husband is presumptively the child of the husband, rebuttable in very limited circumstances. California courts therefore rejected Michael's claim, and the Supreme Court affirms that rejection. [2] Michael asserts that he formed a parental relationship with the child (he had held her out as her child when Carol and the child lived with him for some period), and argues that he has a liberty interest (fundamental right) in maintaining that relationship that the state has no sufficient interest to interfere. [3] Liberty interest must be fundamental and must be an interest traditionally protected by our society. Is this type of relationship a traditionally protected family unit on basis of history or whether it gets special protection on some other basis? No. Tradition protects the marital family, not the natural parenthood relation. [4] Footnote 6: Look at the statement of the right in its most specific form (still not a majority position of the court), because otherwise you would be deciding cases not before the court, and you would give the judge too much leeway to decide on his own predilections. Certain parental rights get constitutional protection. Like being an unwed father does not mean you are a presumptively unfit father. But this is not about the rights of parenthood, but the specific rights of an adulterous natural father, which is not historically recognized. ii) Stevens concurrence: no right to visitation, but might still be able to get it if it's in the child's best interest. iii) O'Connor, Kennedy concurring in part: Concurring in all but footnote 6. We should not adopt a single mode of historical analysis, lest we foreclose the unanticipated. Should not necessarily look to the most specific category in deciding historical tradition. iv) Brennan, Marshall, Blackmun dissent: Limiting the concept of liberty to "tradition" is improper. The concept of tradition is a malleable and elusive as the concept of liberty itself, so this is unhelpful. People don't always agree on what is tradition, and if they did, at what point is it enough of a tradition to be a liberty? Being able to pick the specificity of your category for the tradition analysis can impact the result. Liberty must include the freedom not to conform (even to tradition). b) Troxel v. Granville, 530 U.S. 57 (2000), p. 258-260 i) O'Connor/Rehnquist/Ginsburg/Breyer plurality:

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Con Law II Notes


b) Troxel v. Granville, 530 U.S. 57 (2000), p. 258-260 i) O'Connor/Rehnquist/Ginsburg/Breyer plurality: [1] Washington statute allowed "any person, at any time" to petition for visitation rights of a child and authorized courts to grant petitions when "visitation may serve the best interest of the child." Troxels were grandparents of a child of their deceased son, and petitioned for two weekends per month overnight visitation and two weeks each summer. The mother did not object to any visitation, but objected to the amount requested and asked instead for one day per month, no overnight. Superior court ordered more than mother wanted and she appealed. [2] Washington's Supreme Court struck down the statute as unconstitutional on its face b/c (1) Constitution only allows states to interfere with rights of parents to rear child in cases of preventing harm/potential harm to a child and the statute fails to provide a threshold of harm, and (2) the statute sweeps too broadly in allowing "any person" in the "best interest of the child". [3] SC affirms, BUT invalidates the statute only as-applied, and does not endorse the holding or reasoning of state supreme court. [4] Interest: Parents have fundamental right to make decisions as to care, custody, and control of children. The statute gives no deference to what the parent deems the best interest of the child -- a court may decide for itself. (a) Factors showing exceeding Due Process as-applied i) Granville not an unfit parent (presumption that fit parents act in the best interest of their children), and court gave no weight to her presumptively fit judgment -- she was given burden of disproving best interests ii) Granville did not seek to cut off visitation completely ii) Souter concurrence in judgment: affirm Washington SC decisions; facial invalidation is consistent with prior cases on same substantive matter iii) Thomas concurrence in judgment: Fundamental right to direct upbringing of children resolves matter, no legitimate government interest (nothing compelling) in second-guessing fit parent's decision on third party visits. Does not concur in the opinion b/c he thinks substantive due process doesn't exist. iv) Stevens dissent: State can always act in the best interest of the child. Statute not invalid in all its applications. When there's a plainly legitimate sweep, a statute cannot be facially invalid: here it is the legitimate assumption that the "any person" is going to be a once-custodial caregiver, genetic parent, or intimate relation. v) Scalia dissent: This is an unenumerated right, and as a judge I cannot deny the effect of a law on an unenumerated right, but the state has no power to interfere with parents' authority over childrearing (huh?) vi) Kennedy dissent: Third parties may be able to establish a relationship with the child that should not be subject to absolute parental veto. F. Right to Die 1) Cruzan v. Director, Mo. Dept. Of Health, 497 U.S. 261 (1990), Copy 484 a) Rehnquist 5-4: i) Assumes you can refuse nutrition/hydration/medical treatment -- not a liberty to do something but to be free from the government doing something to you. But we can't assume that the parents would be objective surrogates to make these decisions, the state on the other hand probably would be more objective. ii) Cruzan was severely injured in an auto accident, becoming vegetative. When it was clear she had no chance of regaining cognitive functions, her parents wanted to have her stop being fed and watered. Trial court said it was a liberty right to choose to die, Missouri Supreme Court reversed because there was unreliable evidence to establish that Cruzan would have wanted to die if found in such a state. Needed clear and convincing evidence of her wishes to withdraw from treatment. The SCOTUS affirmed.

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ii) Cruzan was severely injured in an auto accident, becoming vegetative. When it was clear she had no chance of regaining cognitive functions, her parents wanted to have her stop being fed and watered. Trial court said it was a liberty right to choose to die, Missouri Supreme Court reversed because there was unreliable evidence to establish that Cruzan would have wanted to die if found in such a state. Needed clear and convincing evidence of her wishes to withdraw from treatment. The SCOTUS affirmed. iii) Due Process [1] Balance state interests against individual interests (a) Individual interest: a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment (b) State interest: protection and preservation of human life [2] It is reasonable, given the balance of these interests to allow a state to require a heightened evidentiary standard of clear and convincing evidence of a person's will to die, in cases where the person is incompetent. (a) Why? State is in a better position to control this kind of decision because, not all incompetents will have loved ones available to make surrogate decisions; in some situations available loved ones may not act in the patient's best interest anyway. (b) An erroneous decision would only maintain the status quo, which is preferable, b/c scientific developments may come about to change the situation, the patient may die on their own, and these may possibly correct any wrong decisions. But to err on the side of taking life, there is no chance to rectify that error. b) O'Connor concurrence: The court is looking at the liberty interest of the patient alone in this case, and not at any possible liberty interest that the surrogate decisionmaker might have. A future case might require constitutional respect for such interest. c) Scalia concurrence: Thinks the federal courts have no business in this field, but concurs in the result anyway. This is something properly for state legislatures to decide, not the courts. Scalia phrases this as a kind of suicide - so the majority is being more specific than him in characterizing what this is about! d) Brennan dissent: State has a general interest in preserving life, but not a specific interest in a given individual's life, at least not one that would outweigh the right to die. There is no benefit to society in continuing to treat Cruzan. 2) Washington v. Glucksberg, 521 U.S. 702 (1997), p. 269-280 a) Rehnquist majority: i) Washington law prohibits causing or aiding a suicide. This is a constitutional regulation. 4 Physicians who would treat the terminally ill to assisted suicide if allowed, and Compassion in Dying, facially challenged the constitutionality of the law, citing Cruzan for the existence of a liberty interest in personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide. ii) Substantive Due Process analysis has two features: [1] Fundamental rights/liberties deeply rooted in our history and tradition [2] careful description of the asserted liberty interest iii) Fundamental rights come from our history and traditions; if an interest is not so traceable, it is not fundamental, and then you merely balance the interests on a rational basis. [1] There is no fundamental right to die; no fundamental right to assisted suicide (a) Cruzan was actually about the right to refuse lifesaving nutrition and hydration, not about any right to suicide. [2] History has been amenable to a right to refuse treatment (unwanted medical treatment has historically been considered a battery). But traditions as to suicide go to the opposite extreme. It has been a crime to assist suicide in almost every state. Suicide used to be harshly punished, as by forfeiture of property rights of suicider. This has been relaxed b/c it was unfair to punish the suicide's family for the suicider's wrongdoing. But there have never been exceptions for the terminally ill, 19/56 except Oregon's Death with Dignity Act.

Con Law II Notes

iii) Fundamental rights come from our history and traditions; if an interest is not so traceable, it is not fundamental, and then you merely balance the interests on a rational basis. [1] There is no fundamental right to die; no fundamental right to assisted suicide

Con Law II Notes

[2] History has been amenable to a right to refuse treatment (unwanted medical treatment has historically been considered a battery). But traditions as to suicide go to the opposite extreme. It has been a crime to assist suicide in almost every state. Suicide used to be harshly punished, as by forfeiture of property rights of suicider. This has been relaxed b/c it was unfair to punish the suicide's family for the suicider's wrongdoing. But there have never been exceptions for the terminally ill, except Oregon's Death with Dignity Act. [3] States are currently in debate: there is public concern over how best to protect dignity and independence at end of life. Some means to this end: living wills; surrogate decisionmaking; refusal of life-sustaining treatment. But more reluctance to go so far as assisted-suicide. For the court to decide that question in favor of fundamental right to die would be to take it out of the political process. So there is no fundamental right to die, and we switch to balance interests analysis on rational basis. iv) State's Interests - all of which are at least reasonably related to the ban on assisted suicide: [1] Preservation of Human Life (a) Should the weight of this interest depend on the medical condition and wishes of the person whose life is at stake? No. States may properly decline to make judgments about the quality of life that a particular individual may enjoy. (b) AMA thinks physician assisted suicide is incompatible to the physician's role as healer. [2] Protecting vulnerable groups from abuse, neglect, and mistakes, prejudice, stereotypes, societal indifference (poor, elderly, disabled, terminally ill). [3] Avoid slippery slope problem -- could lead to involuntary euthanasia b) O'Connor concurrence: Since this is a facial challenge, there is no need to reach the issue of whether a mentally competent person experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his imminent death. This is b/c the patients have right to palliative care, to help them manage pain, even in consequence of death. But the state's interest in protecting the incompetent or imminently dying or where hastening death would be involuntary weigh enough to justify prohibition on physician-assisted suicide. c) Stevens concurrence in judgment: There is a broader interest in personal dignity/autonomy. Avoiding intolerable pain and the indignity of living one's final days incapacitated and in agony is certainly "at the heart of the liberty to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (Casey). For terminal patient's this is not a life and death choice. Death is already chosen. The question is how, rather than whether. If this were a more particularized challenge, such a plaintiff may be successful. d) Souter concurrence in judgment: Probably the most honest statement of what Substantive Due Process is all about that I've read so far. i) The evidence about the effectiveness of regulative measures of physician-assisted suicide, per Netherlands' experience, is in question, and for that reason, it makes sense that the case comes out as it does. ii) "[The Poe dissent reminds us] that the business of such review is not the identification of extratextual absolutes but scrutiny of a legislative resolution (perhaps unconscious) of clashing principles, each quite possibly worthy in and of itself, but each to be weighed within the history of our values as a people. It is a comparison of the relative strengths of opposing claims that informs the judicial task, not a deduction from some first premise. Thus informed, judicial review still has no warrant to substitute one reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable." iii) "Constitutional recognition of the right to bodily integrity underlies the assumed right, good against the State, to require physicians to terminate artificial life support, and the affirmative right to obtain medical intervention to cause abortion. It is, indeed, in the abortion cases that the most telling recognitions of the importance of bodily integrity and the concomitant tradition of medical assistance have occurred. The analogies between the abortion cases and this one are several. Even though the State has a legitimate interest in discouraging abortion, the Court recognized a woman's right to a physician's counsel and care. 20/56 Like the decision to commit suicide, the decision to abort potential life can be made irresponsibly and under the influence of others, and yet the Court has held in the abortion cases that physicians are fit assistants. Without physician assistance in abortion, the woman's right would have too often amounted to nothing more than a right to self-mutilation, and without a physician to assist in the suicide of the dying,

iii) "Constitutional recognition Con Law II Notes integrity underlies the assumed right, good against the of the right to bodily State, to require physicians to terminate artificial life support, and the affirmative right to obtain medical intervention to cause abortion. It is, indeed, in the abortion cases that the most telling recognitions of the importance of bodily integrity and the concomitant tradition of medical assistance have occurred. The analogies between the abortion cases and this one are several. Even though the State has a legitimate interest in discouraging abortion, the Court recognized a woman's right to a physician's counsel and care. Like the decision to commit suicide, the decision to abort potential life can be made irresponsibly and under the influence of others, and yet the Court has held in the abortion cases that physicians are fit assistants. Without physician assistance in abortion, the woman's right would have too often amounted to nothing more than a right to self-mutilation, and without a physician to assist in the suicide of the dying, the patient's right will often be confined to crude methods of causing death, most shocking and painful to the decedent's survivors." iv) "I take it that the basic concept of judicial review with its possible displacement of legislative judgment bars any finding that a legislature has acted arbitrarily when the following conditions are met: [1] there is a serious factual controversy over the feasibility of recognizing the claimed right without at the same time making it impossible for the State to engage in an undoubtedly legitimate exercise of power; [2] facts necessary to resolve the controversy are not readily ascertainable through the judicial process; [3] but they are more readily subject to discovery through legislative factfinding and experimentation." e) Ginsburg concurrence in judgment: Agrees with O'Connor. f) Breyer concurrence in judgment: Would examine whether there is a right to die with dignity, but it is not necessary at this point to decide whether such formulation is fundamental, because you would need a case where a patient is not allowed to manage their pain, and in these statutes, patients may be given pain medication even in possibly fatal doses. G. Synthesis of Substantive Due Process 1) Is it a fundamental right? a) Established fundamental rights: i) Family privacy/autonomy (depends on phrasing of right, though) ii) Bear or Beget Children choice (contraceptives, abortion) iii) Sexual Intimacy (private, not public, consensual, no prostitution, no incest iv) Marriage b) Implicit in concept of ordered liberty? c) Deeply rooted in our nation's tradition and history? (characterization of issue is key) i) Undue Burden Filter: if yes, strict scrutiny; if no, rational basis ii) No = Any Rational Relationship Test [1] Legitimate state interest (anything unless prohibited, except for abortion, only health of mother and life of unborn child, not interest of husband or morals) [2] Any rational relationship between interest and action (burden on challenger to show none) iii) Yes (first do undue burden to get to here) = Strict Scrutiny [1] Compelling state interest (probably not just morals, but health/safety are) [2] Closely related / necessary to achieve government interest 2) Unconstitutional Conditions a) seems to need to be a relationship (not necessarily very close) between the condition and the thing. i) Dole case in Con law I about gov withholding highway funds unless state raised drinking age to 21.

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2) Unconstitutional Conditions

a) seems to need to be a relationship (not necessarily very close) between the condition and the thing. i) Dole case in Con law I about gov withholding highway funds unless state raised drinking age to 21. ii) Solomon Act -- gov withholds fed funds from schools that don't allow the military to recruit on campus

Con Law II Notes

4. Equal Protection - 14th amendment A. Not limited to citizens, but given to all "persons" B. Laws can discriminate as long as the discrimination makes some sense (to push into strict scrutiny, need suspect class) C. 14th applies only to states; but due process clause of 5th amendment is interpreted to have an equal protection component applicable to federal government, so equal protection applies across the board. D. Introduction -- Economics -- Traditional Approach 1) Economic issues / social welfare = mere rationality review [extreme deference/presumption of constitutionality; do not consider wisdom in legitimacy] (not based on suspect classication and do not involve quasi-suspect categories like gender and illegitimacy.) a) it is conceivable that there is some rational relation between the means selected by the legislature and a legitimate legislative objective b) Government is allowed to make overbroad laws in economic realm; they get the benet of the doubt 2) Rwy. Express Agency v. New York, 336 U.S. 106 (1949), p. 669-671 a) Douglas majority: i) One step at a time approach: an under-inclusive statute is not necessarily invalid; the leg may deal with a problem one step at a time. "regulation of the few" (this was prior to when advertising became recognized as speech for 1st amendment); if a law violates equal protection, you don't have to get rid of the law as with due process, you just have to make it broader ii) New York Traffic regulation: "No person shall operate on any street an advertising vehicle." Exception: "Business notices upon business delivery vehicles, so long as the vehicles are engaged in the usual business of the owner and not used merely or mainly for advertising." iii) Railway Express operated 1900 trucks and sold the space on the side of its trucks for advertising, in violation of the regulation. They challenged the law under Equal Protection theory, claiming the law discriminates by allowing companies to advertise their own business, but not that of another. There is no greater distraction in Railway carrying an operation's ad than that operation carrying its own ad. iv) Court rejects this argument, saying that the local authorities may have reasonably concluded that the type of advertising used on one's own business trucks is of a different, less distracting nature than advertising sold for the sake of advertising. Equal Protection does not call for equal eradication of all evils of the same genus. v) State objective: to reduce the distracting ads out there b) Jackson concurrence: i) [Equal Protection is a] salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. It is a guaranty against arbitrary and unreasonable government to require that the principles of law which officials would impose upon a minority be imposed generally. It is arbitrary action to allow officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if large numbers were affected. Laws should be equal in operation. ii) This law is ok because there is a real difference between doing in self-interest and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price.

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Con Law II Notes

3) New Orleans v. Dukes, 427 U.S. 297 (1976), p. 671-672 a) Per curiam: i) New Orleans banned all pushcart food vendors in the French Quarter, with a grandfather clause allowing vendors who had operated for 8 years or more to continue (of which there were two). Dukes operated a pushcart for only 2 years, so he challenged the law on Equal Protection, saying the 8 year requirement was arbitrary. The court found there was a legitimate state interest that was rationally furthered by the regulation. Interest: to preserve the appearance and custom valued by the Quarter's residents and attractive to tourists. Rationality: street peddlers and hawkers tend to interfere with the charm and beauty; Newer businesses less likely to have built up a reliance interest, and the older vendors have become part of the charm. ii) Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged by rationally related to a legitimate state interest. iii) States are accorded wide latitude in regulating local economies under their police powers, and rational distinctions require less than mathematical exactitude. iv) Legislatures may implement their program step by step in economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination to future regulations. v) The judiciary may not sit as a superlegislature to judge the wisdom of desirability of legislative policy in areas that neither affect fundamental rights not proceed along suspect lines; in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the 14th. 4) NYC Transit Auth. v. Beazer, 440 U.S. 568 (1979), p. 672-674 a) Law itself doesn't turn on minority issues, even though it does affect them, but that's ok b) Stevens: New York Transit Authority excluded methadone users (by excluding users of narcotics in general) from any TA employment (methadone is used often to help addicts come off their addiction). DC thought this was violative of Equal Protection b/c 75% of patients on methadone for a year are free from illicit drug use, and b/c as to non-safety sensitive jobs, there was no rational relation to banning methadone users. Basically, DC thought the city ought to drill down its criteria to separate out safety and non-safety jobs, and to build in some kind of time criteria. SC rejects that, saying "it is of no constitutional significance that the degree of rationality is not as great with respect to certain ill-defined subparts of the classification as it is with respect to the classification as a whole." The DC had decided that matters of personnel policy that do not implicate suspect classes are not asking for close examination as to a rational relation. The objective here is safety and efficiency, and it is reasonable for TA to decide that it does not want to run the risk involved in employing methadone users. the class is not characterized by unpopular trait or affiliation, and does not create or reflect any special likelihood of bias by the ruling majority. c) White/Marshall dissent: There is no difference in employability between successfully maintained people for 1 year and the general population. Therefore Equal Protection is implicated. Heroin addicts are usually poor and minorities, two suspect classes. TA is more sympathetic to afflictions that affect white/black poor/rich equally: alcoholism and mental illness. TA is more concerned with business efficiency than public policy, and is not equipped to make the kind of decisions required to form a "legitimate" interest. The state and city of New York both hire methadone users for similar jobs. Invidious discrimination is apparent. 5) Dairy milk filler case a) Stricter scrutiny in 3 circumstances: i) legislation on its face implicates one of the specific prohibitions of the constitution ii) legislation restricts the political process in a way that would undermine the safeguard of the ballot against stupid legislation iii) legislation that reflects prejudice against discreet and insular minorities (suspect classifications)

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5) Dairy milk filler case a) Stricter scrutiny in 3 circumstances:

Con Law II Notes


ii) legislation restricts the political process in a way that would undermine the safeguard of the ballot against stupid legislation iii) legislation that reflects prejudice against discreet and insular minorities (suspect classifications) b) Why? i) Can't trust majorities in these circumstances ii) legislative history of equal protection clause: to protect newly freed slave, so highly suspect if discriminating against black people iii) practical history: characteristic of discriminating on base of race is so unlikely to be based on leg state interest, and historically would be based on prejudice, and so there is no presumption of constitutionality, but rather a presumption against constitutionality. iv) natural justice: distinctions based on race are just wrong E. Race 1) Plessy v. Ferguson, 163 U.S. 537 (1896), p. 682-684 NAME CASE a) Brown Majority: Separate but equal case. 1890 Louisiana law requiring equal but separate accommodations on trains for white and colored races. Plessy was a man claiming 7/8 white heritage and 1/8 black, and saying that the black portion was not discernible and he was entitled to every right whites got (this was intended to be a test case, so they picked a plaintiff who was almost white and even he was discriminated against). He was arrested for refusing to vacate a seat. 13th Amendment regarding involuntary servitude does not apply. 14th Amendment was not designed to abolish all distinctions between the races, and was designed only to give political equality, not social equality. Requiring separateness does not imply an inferiority of either race. Separating in schools, transport, theaters, marriage are ok, but disallowing blacks in juries is not ok, because it implied a legal inferiority. Exercises of police power must be reasonable and must be for the promotion of public good, not for annoyance or oppression of a particular class. Reasonableness may reference established usage, customs, traditions for promotion of comfort, public peace, good order. Separation does not stamp a race with a badge of inferiority, the colored race is just choosing to see it that way. If commingling is to happen, it must be voluntary consent of individuals and not by legislation. Constitution protects civil and political equality, but not social. b) Harlan Dissent: Interferes with personal freedom of citizens, b/c the law's purpose is to keep blacks out of white cars, not whites out of black cars. The constitution is color blind, even though socially the whites are the dominant race and will continue to be. The claim of equal accommodations is not fooling anyone. 2) Korematsu v. U.S., 323 U.S. 214 (1944), p. 685-688 NAME CASE a) Black majority: i) Not considered to be a good application of strict scrutiny, even though it has never been overruled. Too much deference to executive and legislative for a strict scrutiny review. ii) After attack on Pearl Harbor, Pres. Franklin signed EO 9066, giving military officials legal authority to exclude any or all persons from designated areas on west coast to ensure against sabotage or espionage. Congress said violation of an implementing order by a military commander was a misdemeanor fine/ imprisonment. War Relocation Authority subjected Japanese ancestry people on west coast to curfew, exclusion from homes, detainment in assembly centers, evacuation to relocation centers in various western states. iii) Korematsu remained behind in San Leandro, CA, an area subject to exclusion, and was convicted, no question having been raised as to his loyalty to the U.S. iv) Legal restrictions curtailing civil rights of single racial group are immediately suspect and subject to strictest scrutiny. May be constitutional for pressing public necessity, but never for racial antagonism. This was such an instance of pressing public necessity, and exclusion has a definite close relationship to the prevention of espionage and sabotage. We cannot reject as unfounded the judgment that there were disloyal members of Japanese ancestry whose number and strength could not be precisely and quickly ascertained. Investigations subsequent to exclusion have confirmed this.

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iv) Legal restrictions curtailing civil rights of single racial group are immediately suspect and subject to Con Law II Notes strictest scrutiny. May be constitutional for pressing public necessity, but never for racial antagonism. This was such an instance of pressing public necessity, and exclusion has a definite close relationship to the prevention of espionage and sabotage. We cannot reject as unfounded the judgment that there were disloyal members of Japanese ancestry whose number and strength could not be precisely and quickly ascertained. Investigations subsequent to exclusion have confirmed this. b) Frankfurter concurrence: This is not about the court approving the action of the executive and congress -- that is their business, not the court's. c) Murphy dissent: It would have been possible to hold loyalty hearings for the mere 112,000 people involved or at least the 70,000 american citizens, especially when most were children or elderly. d) Jackson dissent: Guilt is personal, and not inheritable. Wartime: When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. But to ratify such military action as being constitutional even when it isn't is to create a weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. 3) Brown v. Bd. of Ed. I, 347 U.S. 483 (1954), p. 688-691 NAME CASE a) changed precedent, didn't follow original meaning, overruled laws passed by majorities in several states, so this is an activist decision in every way. b) Warren majority: Separate but equal is not constitutional (limited to education context, but later cases rely on it in other contexts). Collection of cases from various states where black students wished to be integrated into white schools, despite the separate but equal doctrine of Plessy. In the Delaware case, the DC upheld separate but equal, but allowed integration because the black schools were inferior to the white schools. c) The history of the 14th amendment is unclear. Proponents intended it to remove all legal distinctions among all persons born or naturalized in the U.S. Opponents wished for the amendment to have the most limited application possible. The intent of congress is unclear. Public education at the time of the amendment: whites were educated privately, state education not having taken hold, and most blacks were not educated. Some states forbade educating blacks. Slaughterhouse interpreted the amendment as proscribing all state-imposed discriminations. We must consider public education in the light of its full development and its present place in american life throughout the nation. Education today is perhaps the most important function of state and local government. No child may reasonably be expected to succeed in life if he is denied education, and where the state has undertaken to provide this opportunity, it is a right which must be available to all on equal terms. Children are deprived of equal educational opportunities by segregation, even if physical facilities and other tangible factors may be equal. Intangible factors created by separation make the difference. A sense of inferiority affects the motivation of children to learn. Psychological studies show that the fact of being separated teachings blacks they are inferior. Separate educational facilities are inherently unequal. The question remains whether black students must be admitted to the schools of their choice, or whether gradual integration may take place. F. Intentional Discrimination and School Desegregation 1) Types of de jure (v. de facto) discrimination: a) law neutral on its face, but i) deliberately administered in discriminatory way ii) enacted with a purpose or motive to disadvantage a suspect class iii) discriminatory effect or impact 2) Yick Wo v. Hopkins, 118 U.S. 356 (1886), p. 695-696 a) Matthews majority: i) San Francisco ordinance made it unlawful to operate a laundry in a building other than one made or brick or stone (e.g., like wood) without consent of board of supervisors. Yick Wo was denied consent by the board though he had certificates from fire and health authorities. He and 150 Chinese people were arrested for violating the ordinance, but non-Chinese operating under same conditions were not. ii) Although law is evenhanded on its face, application thereof is so unequal and oppressive as to be a practical denial of equal protection. No reason for the discrimination was offered and the conclusion is that no reason exists other than racial/national hostility. Discriminatory effect here was due to unequal application, whereas below in Washington v. Davis, whites and blacks were treated alike in application, it 25/56 just so happened that blacks failed more often. So here we have discriminatory purpose. The effect is evidence of the purpose.

2) Yick Wo v. Hopkins, 118 U.S. 356 (1886), p. 695-696 a) Matthews majority: i) San Francisco ordinance made it unlawful to operate a laundry in a building other than one made or brick Con Law II Notes or stone (e.g., like wood) without consent of board of supervisors. Yick Wo was denied consent by the board though he had certificates from fire and health authorities. He and 150 Chinese people were arrested for violating the ordinance, but non-Chinese operating under same conditions were not. ii) Although law is evenhanded on its face, application thereof is so unequal and oppressive as to be a practical denial of equal protection. No reason for the discrimination was offered and the conclusion is that no reason exists other than racial/national hostility. Discriminatory effect here was due to unequal application, whereas below in Washington v. Davis, whites and blacks were treated alike in application, it just so happened that blacks failed more often. So here we have discriminatory purpose. The effect is evidence of the purpose. 3) Washington v. Davis, 426 U.S. 229 (1976), p. 696-699 NAME CASE a) White majority: i) If there's intentional racial line drawing in the statute (even if it looks even handed like Plessy), then we use strict scrutiny, otherwise, as here, we don't have to. Instead rational relationship. ii) Laws with racially discriminatory purpose get strict scrutiny, but if no racially discriminatory purpose and neutral on its face, rational relationship test. Discriminatory effect alone is not enough to subject the law to strict scrutiny. (Note that this is different in the employment context, b/c of Title VII -- all you need is discriminatory effect and then you need to validate the test.) iii) Test 21 was administered by DC police force to satisfy physical and character standards for admittance to the force. Four times as many blacks as whites failed the test, but the DC police force actively sought out black applicants and had a black admittance ratio of 44% the previous year. Davis challenged the law as violative of equal protection. iv) District Court said the test was reasonably and directly related to requirements of police recruit training and is not designed nor operates to discriminate against otherwise qualified blacks. v) COA found the test discriminatory, despite lack of discriminatory intent, merely b/c 4 times more blacks failed it. (Disproportionate impact). There would need to be proof that the test was an adequate measure of job performance and an indicator of probable success in training, and DC police did not meet this. vi) SC: A law is not violative of equal protection solely because it has a racially disproportionate impact. A purpose/intent to discriminate must be present, proven by unequal application or systematic exclusion. Purpose/intent does not have to be express or on the face of the law, and the disproportionate impact is not irrelevant. Must not be unequally applied. Verbal requirements in the test are for the purposes of meeting the need to communicate orally and in writing as an officer. Dist. Court correctly held that the affirmative efforts to recruit blacks, the continuing rising ratio of blacks in recruit classes, and the relation of the test to the training program negated any inference of discrimination. [1] Juries (Strauder): exclusion of blacks from juries is violative, but the fact of a particular jury or series of juries not statistically representing racial composition of a community does not alone mean invidious discrimination. [2] Desegregation: Fact of predominately white or black schools alone is not enough to show violation, need discriminatory purpose or intent. b) Stevens concurrence: Most probative evidence of intent will frequently be the result, not the subjective state of mind of the actor. Actor is presumed to have intended the natural consequences of his deed. So the line between discriminatory purpose and discriminatory impact is not as clear drawn as you might think. This same test is in fact used across the federal services, not just in DC police, creating a presumption that it is neutral in effect and purpose. 4) Brown v. Bd. of Ed. II, 349 U.S. 294 (1955), p. 692 a) Warren majority: Remands to the lower courts so they can police good faith implementation of desegregation on an equity basis balancing public and private needs to achieve the constitutional result, and vitality of constitutional principles shall not yield simply because of disagreement. Plaintiffs have personal interest to be admitted to white schools as soon as practicable on nondiscriminatory basis. This may call for elimination of various public interest obstacles in a systematic and effective manner. Additional time to comply may be needed, and burden lies on schools to show need. Considerations include: administrative needs arising out of physical condition of school, school transport, personnel, revision of district lines to a nonracial basis, revision of local laws and regs. Courts will retain jurisdiction during this period to police these efforts.

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4) Brown v. Bd. of Ed. II, 349 U.S. 294 (1955), p. 692 a) Warren majority: Remands to the lower courts so they can police good faith implementation of desegregation on an equity basis balancing public and private needs to achieve the constitutional result, and vitality of constitutional principles shall not yield simply because of disagreement. Plaintiffs have personal interest to be Con Law II Notes admitted to white schools as soon as practicable on nondiscriminatory basis. This may call for elimination of various public interest obstacles in a systematic and effective manner. Additional time to comply may be needed, and burden lies on schools to show need. Considerations include: administrative needs arising out of physical condition of school, school transport, personnel, revision of district lines to a nonracial basis, revision of local laws and regs. Courts will retain jurisdiction during this period to police these efforts. 5) Green v. County School Bd., 391 U.S. 430 (1968), Copy 511 a) Brennan unanimous: School district argued that good faith freedom of choice plans of desegregation (allowing students to choose where to go to school) adequately complied with Brown II mandate. But after 3 years of operation, no white child had chosen to attend a black school and 85% of black children remained in black school. Schools had to not just offer freedom of choice, but move from a dual board system to a unitary system, so discrimination would be eliminated at root as well as branch. Schools must fashion steps to convert promptly to a system not with white schools and black schools, but just schools. b) There is no constitutional duty to provide public schools. But the Duty arises out of fact of violation of constitution, so now there is a constitutional requirement to remedy the effects. De jure segregation is bad; de facto segregation is not unconstitutional (no purpose, it just incidentally occurs). c) At the point when a school has evened out the population, it could go to the court and be dismissed from supervision, even though de facto segregation may have occurred from white people fleeing to suburbs. Those schools who could not achieve that eventually got the ok that they could lift the court order if they had done all they could do. G. Affirmative Action / "Benign" discrimination 1) Regents of the Univ. Of Cal. v. Bakke, 438 U.S. 265 (1978), p. 703-707 NAME CASE a) UC Davis med school reserved 16 of 100 seats for minority students (blacks, chicanos, asians, american indians). Bakke, a rejected white applicant, challenged the law, because some of the students admitted under affirmative action had significantly lower GPAs and test scores than him. b) 4 justices: Title VI (statute, not const made illegal) (no discrimination on basis of race if you want to get federal funding) requires schools not to take any account of race in order to get federal funds. c) 4 justices: the med school's policy is fine under a less searching scrutiny than strict scrutiny. d) Justice Powell (for himself, but ended up being followed ultimately): the Title VI requirement of not discriminating on basis of race applies only to races that would violate equal protection clause or the 5th amendment. Title VI = Equal Protection clause, strict scrutiny because racial classifications by themselves ought to receive strict scrutiny (we should not take account of race, and if we do it gets our suspicion). Compelling government interest, narrowly tailored. Interest: remedy the effects of past discrimination. Powell says this is not compelling, because there is no end point of accomplishment, if it was remedying the past desegregation that the school did, that would be ok, but societal discrimination is too hard to quantify. Interest: increasing doctors in underserved communities. Not narrowly tailored, because there is no guaranteeing minorities will indeed serve underserved communities. Interest: educational benefits that flow from diverse student body. Diversity is a compelling interest, but the means to achieve it have to be narrowly tailored, and this quota system is not the right way to achieve that end. The Harvard plan is better than the Davis plan because it does not set aside seats, but looks at every applicant individually and considers what benefits they would bring to the school. They are given application points based on other things than race. e) Funk questions whether diversity is actually a compelling government interest. In the Harvard plan, you still get the reverse discrimination, but it is disguised, so it's ok. (Two applicants otherwise equal but one black one white, the black one will get it.) 2) City of Richmond v. Croson, 488 U.S. 469 (1989), p. 729-732 NAME CASE a) O'Connor/White/Kennedy/Rehnquist plurality: Richmond was the capital of the confederacy. City ordinance required prime contractors to have at least 30% of subcontractors to be minority owned enterprises (at least 51% are owned or controlled by minority group members). Classifications on race are never permissible unless as a remedy for a past wrong, but strict scrutiny must always be used. Strict scrutiny - compelling gov interest, narrowly tailored. Richmond's interest: remedy society's past discrimination. This is not a compelling government interest (Powell's single opinion vindicated). Plurality only says government could remedy specific past discrimination subject to the particular government entity's legal control. But in this case there was not 27/56 enough evidence of such particular discrimination. Even if were compelling, would still fall, b/c no race neutral alternatives were considered, and the fact of quota is not a narrowly tailored way. A similar federal law had been upheld on the grounds that 14th amendment had different standard of analysis between states and fed (but that is no longer the law). The purpose in the federal law was to encourage creation of minority owned businesses.

2) City of Richmond v. Croson, 488 U.S. 469 (1989), p. 729-732 NAME CASE a) O'Connor/White/Kennedy/Rehnquist plurality: Richmond was the capital of the confederacy. City ordinance required prime contractors to haveCon Law II of subcontractors to be minority owned enterprises (at least 51% at least 30% Notes are owned or controlled by minority group members). Classifications on race are never permissible unless as a remedy for a past wrong, but strict scrutiny must always be used. Strict scrutiny - compelling gov interest, narrowly tailored. Richmond's interest: remedy society's past discrimination. This is not a compelling government interest (Powell's single opinion vindicated). Plurality only says government could remedy specific past discrimination subject to the particular government entity's legal control. But in this case there was not enough evidence of such particular discrimination. Even if were compelling, would still fall, b/c no race neutral alternatives were considered, and the fact of quota is not a narrowly tailored way. A similar federal law had been upheld on the grounds that 14th amendment had different standard of analysis between states and fed (but that is no longer the law). The purpose in the federal law was to encourage creation of minority owned businesses. b) Scalia concurrence in judgment: Use strict scrutiny (so we have a majority on using strict scrutiny as a test). 3) Grutter v. Bollinger, 539 U.S. 306 (2003), p. 707-715 NAME CASE a) O'Connor: U of Michigan law school admissions point system. Minority classes automatically got a certain number of points to their score. Constitutional for law school (Grutter does not get in). Diversity is a compelling state interest now (Powell vindicated again). (Ultimately, though constitutional, considered a bad idea and Michigan passed a law saying no consideration of race allowed.) Critical mass of minorities was sought. This is kind of a disguised quota, but it's apparently ok. It seems that law schools make future leaders, and so in order to have diverse future leaders, we need to account for race in some way in deciding. Race may be a plus for an applicant, as long as all factors are taken into account. Sets a kind of sunset provision that 25 years hence, race should no longer be necessary to consider at all. b) Various dissents criticize that this is not really an application of strict scrutiny, and that it is a disguised quota. c) Astonishingly, I agree with Thomas in this. Allowing affirmative action mars the image of those blacks who would have succeeded without help. 4) Gratz v. Bollinger, 539 U.S. 244 (2003), p. 715-719 NAME CASE a) Same thing, but with undergrad campus. Unconstitutional for undergrad campus (Gratz gets in). Automatically granting 20 points to minorities may have been more efficient, but it was too mechanistic, so not narrowly tailored enough to achieve diverse student body. In effect the 20 point bump makes the decision decisive, instead of just allowing race consideration without it being the deciding factor. Problem seems to be that auto points levels for other characteristics were capped at much lower levels, not guaranteeing admission. 5) Parents Involved in Community Schools v. Seattle School Dist. No.1, 551 U.S. 701 (2007), p. 719-729 a) Roberts: Seattle and Kentucky schools were trying to have diverse balance of students in public school system. Which student could attend which school was sometimes based solely on the race. i) Two compelling government interests for race determinations in schools: [1] remedying the effects of past intentional discrimination (a) does not apply here, Seattle never segregated, and Kentucky had its desegregation decree dissolved a year prior so had already remedied its past discrimination [2] interest in diversity in higher education (encompassing all factors that may contribute to student diversity, not race alone) (a) Grutter does not apply, b/c these are bare race considerations, not diversity considerations (and maybe also b/c this is not higher ed?). The interest can only be bare racial balance on the black v. white spectrum. Racial balance pure and simple is not a compelling gov interest. Also not narrowly tailored, b/c there would have been a substantially diverse student body in terms on other races than black and white if the tiebreaker system were not employed. The actual assignments of students were not largely affected by the tiebreakers, which casts doubt on the necessity. Narrow tailoring also requires consideration of race neutral alternatives, which they did not do. De facto resegregation is not a problem. b) Thomas concurrence: racial imbalance is not segregation, we should leave it alone. Forcing people together is just as bad as as forcing them apart.

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Con Law II Notes

b) Thomas concurrence: racial imbalance is not segregation, we should leave it alone. Forcing people together is just as bad as as forcing them apart. c) Kennedy concurrence in part and judgment: race consciousness can be ok in some circumstances. If race is a problem, race can perhaps be the solution. d) Dissent: doesn't see why the distinction between de jure and de facto segregation should matter. H. Gender 1) Intermediate scrutiny (burden on state) a) important government interest b) substantial relation 2) Craig v. Boren, 429 U.S. 190 (1976), p. 735-738 a) beer sales - may not discriminate b) Brennan majority: 3.2% beer in Oklahoma could only be sold to men over 21 and women over 18 -- gender discrepancy. Equal Protection violation? i) Gender discrimination requires [1] important government objective (a) administrative ease and convenience are NOT important objectives (b) generalizations concerning the financial position of women NOT important objective (c) generalizations re role of women in home NOT important objective (d) Stated objective: protection of public health and safety -- this is important [2] substantial relation to achievement of that objective (a) This is lacking; it is claimed that being male means you are more likely to drink and drive, but in reality 2% of men in the age group drink and drive and get caught, and 18% of women do. Further, the law prohibits only the selling to males, not the drinking by males, so this is not substantially related to the objective c) Rehnquist dissent: Men are challenging a statute based on gender discrimination. The level of scrutiny is designed to protect women, not men. There is no support for this heightened level of scrutiny in any case. Rational basis should be used. 3) Michael M. v. Superior Court, 450 U.S. 464 (1981), p. 745-747 a) statutory rape b) Rehnquist/Burger/Stewart/Powell opinion: Women minors not punished, but men punished. State interest: prevent illegit teen pregnancy. It makes sense to not punish the party the state is trying to protect, and also men bear few of the burdens of the teen pregnancy, so put the punishment burden on them. Minor women would be less likely to report rape if they would be punished. This is a biological/physical difference. Statutes upheld where gender class is not invidious, but realistically reflects fact that sexes are not similarly situated in certain circumstances. c) dissents: Where both parties are equally culpable of an offense, both should be equally subject to punishment. 4) Rostker v. Goldberg, 453 U.S. 57 (1981), Copy 609 a) military draft

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4) Rostker v. Goldberg, 453 U.S. 57 (1981), Copy 609 a) military draft

Con Law II Notes

b) Rehnquist majority: Males had to register for draft, but not females. Interest in raising and supporting armies is important. Combat troops are desired, and women are not allowed to combat by statute, so it is substantially related that congress chose not to draft women. High deference to congress due to the military affairs context. c) Marshall/Brennan dissent: Should register both but draft only men. Administrative convenience is not an adequate reason. No biological/physical difference here! 5) U.S. v. Virginia, 518 U.S. 515 (1996), p. 738-744 a) military institute not accepting women b) Ginsburg majority: VMI was a state men's military institute / higher education facility. It did not admit women and was found to violate Equal Protection because of that. The proposed solution was creating another institute VWIL, but it would not employ the adversative method, but an encouraging esteem building method, because women are just too delicate to go through that harsh boot camp crap. Court doesn't buy it. VMI may have to have separate bunks and tailor the physical bit to allow for female capabilities, but the adversative method can still be used across the board. i) State has burden to show that the gender classification serves an important government objective and that the discriminatory means employed is substantially related to achieving the objective. Justification must be genuine, not post hoc, must not rely on over-generalizations on the different talents, capacities, or preferences of men and women. ii) Sex class may be used (1) to compensate women for particular economic disabilities they have suffered, (2) to promote equal employment opportunities, and (3) to advance full development of the talent and capacities of our citizens. iii) None of these justifications applies here. You need an exceedingly persuasive justification for any gender-defined classification. c) Rehnquist concurrence in judgment: Would not mess with the heightened scrutiny framework by requiring "exceedingly persuasive justification". Would not frame the violation in a way that makes it sound like the only solution is admitting women: providing an actually equal school for women would be fine too. d) Scalia dissent: Substantial relation does not mean least restrictive means I. Other Candidates for Heightened Scrutiny? 1) Mathews v. Lucas, 427 U.S. 495 (1976), p. 764-765 a) Illegitimacy - no strict scrutiny, but rational basis (intermediate scrutiny has also been cited as the standard more recently, but this is still good law). i) 2 case types [1] harms illegitimate children on basis of old stereotype or attempt to influence parents not to have illegit children [2] legitimate versus illegitimate [3] some illegitimate versus other illegitimate b) Blackmun majority: Social Security Act automatically provided survivor's benefits to legitimate children of deceased wage-earners (presumption of financial dependency), but required illegitimate children to prove their financial dependency to receive the benefits. i) Like race and national origin, legitimacy is something outside the control of the individual so classed and bears no relation to the individual's ability to participate in and contribute to society. But discrimination against illegits has never been as severe or pervasive as legal and political discrimination against women and blacks, historically (not as apparent to observer). Therefore it does not require strict scrutiny (does not command extraordinary protection from the majoritarian political process). ii) Purpose: administrative convenience; Means: instead of individual case-by-case fact-finding, use a proxy to determine likely financial dependency: legitimacy. This is rational.

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financial dependency to receive the benefits. i) Like race and national origin, legitimacy is something outside the control of the individual so classed and bears no relation to the individual's ability to participate in and contribute to society. But discrimination Con Law or pervasive as legal and political discrimination against women against illegits has never been as severeII Notes and blacks, historically (not as apparent to observer). Therefore it does not require strict scrutiny (does not command extraordinary protection from the majoritarian political process). ii) Purpose: administrative convenience; Means: instead of individual case-by-case fact-finding, use a proxy to determine likely financial dependency: legitimacy. This is rational. c) Stevens / Brennan / Marshall dissent: Should have used intermediate scrutiny. Substantially related to important government objective. Legitimacy bears on social stigma even though it may not be readily apparent. 2) Romer v. Evans, 517 U.S. 620 (1996), p. 756-762 a) Sexual Orientation - rational basis (b/c does not burden fundamental right nor target suspect class), but really a more heightened type of rational basis, because irrational fear is what drives the government interest, which is not legitimate, so burden shifts to government to justify b) Kennedy: Amendment to Colorado constitution said there was no protected status (minority status / quota preferences / or discrimination basis) based on homosexual, lesbian, or bisexual orientation. i) State's proffered purpose: puts gays/lesbians in the same position as other persons. (Does no more than deny special rights. [1] Court rejects this construction of the statute: it does take away already existing protection for homosexuals but not for other already protected classes. It does not just remove special protections, but denies special protections that other people get, see below. These are protections not so special, but taken for granted by most people. They are regular protections. [2] Colorado statutes, for instance, have in the private realm required places of public accommodation, like sales/services shops, etc., to not discriminate based on various groups. The statute did not limit these groups only to those that the SC has determined needed strict scrutiny protection, but extended it to age, military status, pregnancy, parenthood, custody of minor, political affiliation, physical or mental disability, and sexual orientation. [3] Private realm: public accommodation, housing, real estate, insurance, health and welfare, private education, and employment. [4] Public realm: state employment, state colleges, (a) administration of laws: may discriminate only on non-arbitrary basis, but in order to make that determination as to sexuality, but could not decide it was arbitrary, because that would be an unconstitutional protection forbidden by the amendment. [5] Homosexuals are particularly called out as not being protectable, but anyone else could be protected, whether or not they already are. ii) Rational basis: some rational relation to a legitimate end? (Must not be for the purpose of disadvantaging the group burdened by the law) [1] Proffered purpose: respect for other citizens' freedom of association (landlords or employers with personal or religious objections to homosexuality); conserving resources to fight discrim against other groups (a) but the breadth of the amendment is too broad to credit these interests; no factual context that might have a legitimate interest; it is mere classification for its own sake (discrimination without reason) [2] Too narrow and too broad: denies protection across the board (broad) by a single trait (narrow). [3] A law making it in general more difficult for a class than all others to seek aid from the government is a literal denial of equal protection. [4] A bare desire to harm a politically unpopular group is not a legitimate interest. Inflicts injuries that belie any legitimate justifications. c) Scalia / Chief / Thomas dissent: Homos still get basic protections of the general antidiscrimination law like anyone else, this amendment just removes special treatment. For instances, prevents requiring death-benefits to lifelong partners when longtime roommates would not also get that. Bowers v. Hardwick said it was not unconstitutional for a state to make homosexual conduct a crime, so it should not be to merely disfavor it, and likewise not to even disfavor but to put on equal footing as everyone else should be ok. People are entitled to 31/56 have animosity toward homosexuality, same as cruelty to animals, murder, polygamy. The political process has spoken and there's no good reason for this court to interfere other than that no one has done this before.

Con Law II Notes

c) Scalia / Chief / Thomas dissent: Homos still get basic protections of the general antidiscrimination law like anyone else, this amendment just removes special treatment. For instances, prevents requiring death-benefits to lifelong partners when longtime roommates would not also get that. Bowers v. Hardwick said it was not unconstitutional for a state to make homosexual conduct a crime, so it should not be to merely disfavor it, and likewise not to even disfavor but to put on equal footing as everyone else should be ok. People are entitled to have animosity toward homosexuality, same as cruelty to animals, murder, polygamy. The political process has spoken and there's no good reason for this court to interfere other than that no one has done this before. 3) OConnors concurrence in Lawrence v. Texas, p. 762-763 a) Sexual Orientation b) The statute treated the same conduct differently depending on who was doing it (sodomy ok for heteros, but not for homos). c) Equal protection would probably not have achieved the desired affect: it does not say whether denial or grant or protection must be equal, so could deny rights across the board d) Purported interest: promotion of morality e) Moral disapproval of a group cannot be a legitimate government interest b/c legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law. Texas defended that it was only targeting conduct, but since the homosexual conduct attacked is so closely tied to being homosexual, it in effect targets the class. i) Note that Scalia said in his dissent: O'Connor said preserving the traditional institution of marriage is a legitimate interest, but saying that is just a kinder way of describing the state's moral disapproval of samesex couples. 4) Ambach v. Norwick, 441 U.S. 68 (1979), p. 753-754 a) Alienage: strict scrutiny, unless for government functions, then rational basis. i) Default test: alienage classifications are inherently suspect and subject to strict scrutiny ii) Exceptions (may be limited to citizens if rational basis): [1] Any federal statute [2] Government functions (applied not very strictly, all civil servants is too broad, but police and teachers is not) (a) Important post (b) formulation, execution, or review of public laws or policies b) Powell: State refused to employ as elementary and secondary school teachers aliens eligible for citizenship but who chose not to naturalize. i) Rule of governmental functions (an exception that alienage classification is subject to strict scrutiny): Government entities, when exercising the functions of government, have wider latitude in limiting participation of noncitizens (rational basis). ii) Is teaching a government function? Yes - public education, like the police, fulfills a most fundamental obligation of government to its constituency, so it gets rational basis. Teachers have a opportunity to influence their students' attitudes toward government, politics, social responsibilities. The influence is crucial to continued good health of democracy. That is a rational basis. c) Blackmun / Brennan / Marshall / Stevens dissent: Irrational: says it would be better to employ a bad citizen teacher than an excellent alien teacher. Same things could be said about an attorney -- influence of legislation and what not -- but attorneys have been said to be protected by strict scrutiny as far as alienage goes. 5) Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), p. 765-768

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Con Law II Notes

5) Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), p. 765-768 a) Mental Retardation - rational basis, but burden placed on government instead of , so this is rational relation with a bite, a more heightened scrutiny, though not called that b) White: zoning ordinance required special permit or group home for retarded. This did not survive rational basis review. Mental retardation is not quasi-suspect. They have a reduced ability to cope and function in the every day world, and this difference allows the state to treat them differently. It is better for legislatures to decide this than for the judiciary, which is why rational basis is better. They are not politically powerless, there is continuing antipathy toward them. State may not rely on a class where the relationship to an asserted goal is so attenuated as to be arbitrary. there is no rational basis to say that the retarded home would pose a threat to city's legitimate interests any more than other types of zoned buildings that do not require permits, like frathouses, sanitariums, nursing homes, private clubs, etc. Unreasonable fear by the community and catering thereto is not a legitimate interest. c) Stevens / Burger concurrence: Rational means an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. There is no reason this test could not serve all types of classification to the same result, including race and other classes deemed worthy of strict scrutiny. Questions: what class is harmed? Has the class been subject to a tradition of disfavor by laws? What is the public purpose of the law? What characteristic of the disadvantaged class justifies disparate treatment? d) Marshall / Brennan / Blackmun concurrence in j in part/dissent in part: Economic and commercial regulation supplies the rational basis. Instead strict scrutiny should be applied. This decision pretending to be rational basis threatens to have courts regress to Lochner and look into the economic decisions with more scrutiny. J. Fundamental Rights - Voting 1) Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966), p. 770-771 a) Douglas: A poll tax of $1.50 to vote in state election is an unconstitutional violation of equal protection, since voting is a fundamental right. Though state election right to vote is not in the constitution, once the franchise is granted, lines may not be drawn to violate equal protection. Wealth has no bearing on one's ability to participate intelligently in the electoral process. Irrelevant factor that does not withstand strict scrutiny. Fencing a person out because of the way they may vote is unconstitutional. b) Dissents believe the rational basis test ought to be used b/c strict scrutiny had only been applied in race discrimination cases thus far. They say it is rational to have a poll tax, cause those willing to pay are more likely to be invested in the welfare of the state and be more intelligent and more worthy of confidence. 2) Kramer v. Union Free School Dist., 395 U.S. 621 (1969), p. 771-773 a) Warren: School district election -- law said you may only vote in it if you owned or leased taxable real estate within the district, or are the parent or custodian of a child in the school district. Apparently, you could be a resident of the district and not fall into those two categories, thus being denied a vote (like the plaintiff, who resided with his parents in the district, but did not fall into the categories). The school claims a goal of having only those most interested in the election in having a vote. the court says this is not tailored to that purpose, b/c it includes people who would not be interested, while excluding people like the bachelor plaintiff who is interested. In order to not be violative, the excluded class must be necessary to achieve the stated purpose, and it isn't here. b) Dissent again challenges the classification of voting as a fundamental right, saying a right of suffrage is not conferred by the constitution, and so this should be rational basis. 3) Reynolds v. Sims, 377 U.S. 533 (1964), p. 774-778 NAME CASE a) One person one vote (each man's vote must be worth the same as the next's) b) Warren: In Alabama, the state const. required reapportioning the legislature to be proportional to population every 10 years, but they had not done so since 1901, and as a result, 25% of the population were able to vote on a majority of the senate and house reps. The Equal Protection clause requires that the seats in both houses of a bicameral legislature must be apportioned on a population basis. Mathematical exactitude is not required, but as close as practicable, legislative districts need to be apportioned to the population at least every ten years. 33/56 Legislators represent people, not trees or acres. They are elected by voters, not farms or cities or economic interests. The reason for legislative apportionment is to create equal representation of the people. To not equally apportion would be as damaging to equal protection as invidious discrimination on race or economic status. The federal system is different because of the nature of states as quasi-sovereigns; it was a compromise required

3) Reynolds v. Sims, 377 U.S. 533 (1964), p. 774-778 NAME CASE

b) Warren: In Alabama, the state const. required reapportioning the legislature to be proportional to population every 10 years, but they had not done so since 1901, and as a result, 25% of the population were able to vote on a majority of the senate and house reps. The Equal Protection clause requires that the seats in both houses of a bicameral legislature must be apportioned on a population basis. Mathematical exactitude is not required, but as close as practicable, legislative districts need to be apportioned to the population at least every ten years. Legislators represent people, not trees or acres. They are elected by voters, not farms or cities or economic interests. The reason for legislative apportionment is to create equal representation of the people. To not equally apportion would be as damaging to equal protection as invidious discrimination on race or economic status. The federal system is different because of the nature of states as quasi-sovereigns; it was a compromise required to form the union. Subdivisions of states are not quasi-sovereigns. c) Dissent by Clark for two other cases decided that day: Does not understand why we don't just hold elections at large, absent districting, if population is the crux. And why not apportion per geography like the federal senate system? d) Dissent by Harlan for all the cases: Does not see how construing the 14th amendment reaches this result, especially when section 2 allows states to deny its citizens the vote and provides remedies therefor. Also, we needed amendments to gives blacks and women the vote, but are somehow able to read a population-based apportionment of state legislatures into the 14th amendment? come on. Also, being able to district by political party has the same problems as geography, but the majority is not concerned about that as long as population is the prime consideration. 4) Bush v. Gore, 531 U.S. 98 (2000), p. 796-799 a) Per Curiam: The Bush/Gore Florida recount fiasco. Florida Supreme Court ordered a recount in order to discern the intent of the voter. That is a fine premise, but the execution lacks standards to make it comport with equal protection and fundamental fairness. Different standards were employed sometimes even within a district and between districts as to what qualified as a countable vote. The FSC court did not say who would recount the ballots. Altogether, there were not enough standards in place to make the recount constitutional, so this court cancelled it. b) Stevens dissent: The standards employed are no less sufficient than the nebulous "beyond a reasonable doubt" standard. c) Souter dissent: would remand to Florida to institute standards. K. Other Fundamental Rights 1) Right to Travel / Welfare a) Shapiro v. Thompson, 394 U.S. 618 (1969), Copy 360 i) Right to Travel across state lines per 14th Equal Protection / P&I of Art. IV; classifications that would otherwise receive rational basis would receive strict scrutiny if interstate travel were involved, because that is a fundamental right ii) Portability of a benefit seems to bear upon which rights would receive strict scrutiny per right to travel versus those that are only rational basis. If it's portable, more likely you can have durational residency requirements (like in-state tuition). iii) Brennan: To get welfare benefits, you had to live in the state for over a year. State's desire was to discourage influx of poor families in need of assistance (I guess the state's bennies were very good, so poor could get better bennies by moving in). Valid state interest in preserving fiscal integrity of state programs, but this is not a compelling interest, so it may not use invidious classes to accomplish it. You can have a bona fide residency requirement (not just passing through; having an address; having an intent to stay), but not a durational residency requirement. Welfare is a basic necessity of life to an indigent, and the one-year waiting period irretrievably forecloses the benefit for that first year, rather than merely delaying a right without burdening the person of a necessity (like requiring a year before divorcing an out of stater was ok). But this regime would discourage moving in or penalize them if they did so, which impinges upon individual liberty (right to travel). Relative importance of the denied benefit was an important consideration. b) Saenz v. Roe, 526 U.S. 489 (1999), p. 800-804 i) Stevens: California Welfare bennies for first year residents were limited to an amount equivalent to that payable under their prior state's regime. This would not violate Equal Protection (does not penalize right to travel). So the court gets creative and applies Privileges or Immunities Clause of 14th Amendment. 34/56 This is the only case where this P/I clause has been used in this way.

Con Law II Notes

Con Law II Notes


b) Saenz v. Roe, 526 U.S. 489 (1999), p. 800-804 i) Stevens: California Welfare bennies for first year residents were limited to an amount equivalent to that payable under their prior state's regime. This would not violate Equal Protection (does not penalize right to travel). So the court gets creative and applies Privileges or Immunities Clause of 14th Amendment. This is the only case where this P/I clause has been used in this way. [1] Right to Travel: (a) right of a citizen of one state to enter and leave another state (b) right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in second state (c) right to be treated like other citizens of the second state i) protected by first two sentences of 14th (incl. Privileges or Immunities clause): (A) All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S. and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S. [2] State argues rational basis should be applied since fundamental right to travel not impinged. Legit Interest: saving $10 mill per year on payouts. (a) Deterrence of travel is not the only concern that classifications create. Right to travel embraces citizen's right to be treated equally in the new state, thus discriminatory classification is a penalty. Deterrence may have been allayed by this regime, but the penalty against equal protection is not. (b) Further, since those receiving welfare must consume the bennies in the state, there is no risk that one will move there just for the benny then leave, like they might with divorce or college education or other portable benny. (c) As for rational basis, the purpose stated is legitimate, but are the means proper? There is another way to achieve the same result without classifications: evenhanded reduction of 72 cents per month per beneficiary. But bottom line is that duration of residency bears no relation to need for benefits. It is also not related to the interest in saving money. The citizens are constitutionally equally eligible for benefits. (d) Though Congress passed a statute ratifying these types of durational classifications, Congress may not violate 14th, so that changes nothing. ii) Rehnquist / Thomas dissent: Does not understand how the right to become a citizen of another state is the same as the right to travel. You are not traveling when you take up residence. This case is not about prohibiting travel, either. This is like tuition residency requirements. While the tuition is undoubtedly used in state, the benefits of that tuition subsidy -- the education itself -- may be taken elsewhere. Same with welfare, used in order to get a job or while getting educated, which can be taken elsewhere. iii) Thomas / Rehnquist dissent: We should consider what the founders meant by the Privileges or Immunities clause. 2) Access to Courts a) M.L.B. v. S.L.J., 519 U.S. 102 (1996), Copy 676 i) Ginsburg: MLB's parental rights for her two children were to be terminated, and she wished to appeal as of right (right granted under state law), but she could not afford to pay the record prep fees of $2.3K that the court asked her to pay in advance. She challenged that denying her the ability to appeal would violate due process and equal protection. Court agreed and made the state waive her up front payment requirement. [1] Griffin criminal case: Constitution guarantees no right to appellate review, but once the state affords that right, it may not bolt the door to equal justice.

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a) M.L.B. v. S.L.J., 519 U.S. 102 (1996), Copy 676 i) Ginsburg: MLB's parental rights for her two children were to be terminated, and she wished to appeal as of right (right granted under state law), but she could not afford to pay the record prep fees of $2.3K that Con Law II Notes the court asked her to pay in advance. She challenged that denying her the ability to appeal would violate due process and equal protection. Court agreed and made the state waive her up front payment requirement. [1] Griffin criminal case: Constitution guarantees no right to appellate review, but once the state affords that right, it may not bolt the door to equal justice. (a) This has generally been limited to the criminal context, and in that context only to situations where the defendant faced jail time. In general for civil cases, indigent persons have no constitutional right to proceed in forma pauperis. (b) Civil cases did receive some attention, though for things that were quasi-criminal in nature, as in cases of divorce, but not in bankruptcy or welfare (cause those are government benefits, not rights like divorce). The difference is that bankruptcy proceedings are not the only way to get debts forgiven, but to terminate a marriage, you have to go through the court system. The magnitude of loss and the permanence is an important consideration. Loss of custody is not as serious as termination of parental rights, which are permanent foreclosures of legal rights concerning the most fundamental family relationship. (c) Burden weighing: State: financial v. : parental rights --- parental rights deeply outweigh. Also, there are relatively few cases of termination of parental rights, and appeals are few, and so allowing an indigent to proceed would not burden the state too heavily on finances. (d) Normally rational basis, with state's need for revenue to offset costs meeting rationality, but exceptions: i) basic right to participate in political processes as voters and candidates cannot be limited by those who can afford to pay ii) access to judicial processes in criminal or quasi criminal in nature cases may not turn on ability to pay. (e) Constitution generally confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, property interests of which the government may not deprive the individual. But that applies in cases where 's privately initiate actions or for economic circumstances apart from state action. Where state takes action, there can be a different story. ii) Kennedy concurrence: Due process would be sufficient basis for this holding. iii) Thomas dissent: Criticizes majority for not explaining how due process and equal protection create the result they come to. Due process gives right to hearing, but not appeal. As for Equal Protection, by nature, financial burdens will not treat anyone equally. Just as college tuition may be prohibitive to some, it is not a denial of equal protection. Equal protection guarantees equal laws, not equal results. Would overrule Griffin or at least restrict it to criminal context. 3) Education a) San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973), p. 806-811 i) Powell: State system for raising and disbursing state and local tax revenues for education. School district with most residents having higher property values and higher incomes received higher tax bennies than a comparably poorer district (that also happened to be made up substantially of minority student body). Mexican-American parents as a class claimed this regime violated Equal Protection under a theory of (1) fundamental right to education [which would require strict scrutiny], and (2) suspect classification based on wealth [likewise would require strict scrutiny]. The court rejects both arguments and instead analyzes the system as an economic policy, where the state legislature gets high deference and the court does not delve into the wisdom of the policy, but leaves it to political process. [1] In order for wealth to be a suspect class: (a) discrimination of individual wealth i) one must be completely unable to pay for a desired benny (A) here, the education is not completely unable to be paid for, it just receives less funding

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on wealth [likewise would require strict scrutiny]. The court rejects both arguments and instead analyzes the system as an economic policy, where the state legislature gets high deference and the court does not delve into the wisdom of the policy, but leaves it to political process. [1] In order for wealth to be a suspect class: (a) discrimination of individual wealth

Con Law II Notes

i) one must be completely unable to pay for a desired benny (A) here, the education is not completely unable to be paid for, it just receives less funding ii) thus resulting in absolute deprivation of a meaningful opportunity to enjoy the benny (A) the funding regime supposedly supported a perfectly acceptable education across the board (b) district-level wealth discrimination instead of individual i) No, court rejects this. That classification is too amorphous. No traditional indicia of suspectness, like disabilities, historical unequal treatment, political powerlessness [2] To be a fundamental right (a) don't look at how important something is to life, but look at whether the constitution supports it as a fundamental right either explicitly or implicitly. (b) There is certainly nothing explicit as to education (c) s argue that the First Amendment implies a fundamental right to education, because in order to vote and speak effectively, you need to be properly educated. Court says there's no way they could guarantee that everyone will have the most effective and informed skills to exercise their First Amendment rights. ii) Brennan dissent: To be fundamental, a right need not be implicitly or explicitly stated in the Constitution. Fundamental is a function of the right's importance in effecting a right which is in fact constitutionally guaranteed. iii) White / Douglas / Brennan dissent: The court says this is a legitimate goal but does not show rational relation. There is no option for school districts to increase their state educational expenditures, because they can only raise taxes on property so high, and not high enough for the poor districts to even out the disparity, even if it were not prohibitive in a practical sense to do so. iv) Marshall / Douglas dissent: The court has established a historical commitment to equality of educational opportunity, and retreats from it here. The implicit/explicit constitutional connection to fundamentality is bogus. Where is it found for procreation? Right to vote in state elections? Right to appeal criminal convictions? Should look instead to the extent which constitutionally guaranteed rights depend on unmentioned rights, and those unmentioned supportives are fundamental (I, however, fail to see how this is different from implicitness). b) Plyler v. Doe, 457 U.S. 202 (1982), p. 811-813 i) Brennan: Texas statute denied free education to illegal alien children, and this court said it violated equal protection. A state could justify withholding benefits from people whose presence in this country is the result of their own illegal conduct, but here you are punishing children who are not responsible for the conduct of their parents. Illegal aliens are not a suspect class -- their situation is a result of illegal voluntary action; but at the same time children are not at fault for their parent's actions. (Legal aliens are a suspect class, but illegal not.) This is also not a fundamental right. Rational basis (heightened to substantial interest -- basically have to show that this is really going to solve the problem). The state claims an interest in discouraging an influx of illegals. But the evidence shows illegals underutilize public services, while contributing labor and tax money to state. The main motivator for illegal entry is employment, not education. State also claims illegals impose special burdens on state's ability to supply high quality education (probably because of language issues), but court claims the educational costs are indistinguishable because no different than legal aliens. State also claims illegals are less likely to use their education as citizens. This interest, even if legit, is too difficult to quantify, there is no assurance of what the children will do. Also, many of the illegals will remain, so to not educate them is worse for us. So there is no legitimate interest. ii) Blackmun concurrence: Classifications of complete denial of education are unique because in effect they create permanent class distinctions: educated and uneducated.

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public services, while contributing labor and tax money to state. The main motivator for illegal entry is employment, not education. State also claims illegals impose special burdens on state's ability to supply high quality education (probably because of language issues), but court claims the educational costs are indistinguishable because no different than legal aliens. State also claims illegals are less likely to use Con Law II Notes their education as citizens. This interest, even if legit, is too difficult to quantify, there is no assurance of what the children will do. Also, many of the illegals will remain, so to not educate them is worse for us. So there is no legitimate interest. ii) Blackmun concurrence: Classifications of complete denial of education are unique because in effect they create permanent class distinctions: educated and uneducated. iii) Powell concurrence: Interests must be substantial and means must bear a fair and substantial relationship to achieving them iv) Burger / White / Rehnquist / O'Connor dissent: This is a weird quasi suspect class and quasi fundamental rights analysis. Likely will be limited to facts of the case. rational relation to legitimate purpose should suffice.

5. First Amendment A. Introduction-- Incitement / Advocacy of Illegal Action Tracey's First Amendment Notes 1) Schenck v. U.S., 249 U.S. 47 (1919), p. 315-316 NAME CASE a) Holmes: The 1917 Espionage Act prohibited conspiracy to cause insubordination in the armed forces and obstructing recruiting and enlistment. s printed a circular encouraging people to assert their rights by avoiding the draft or assert their opposition to it. In ordinary times, this would have been free speech, but in war times it is not. Context matters in free speech determinations. You cannot, for instance, falsely shout "fire" in a theater. In this case, actual obstruction is not necessary to be proved, because the act covers conspiracy to obstruct as well as actual obstruction. The tendency and intent of the circular to obstruct the draft was enough. b) Question is: whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils" 2) Abrams v. U.S., 250 U.S. 616 (1919), p. 318-320 (Holmes' Dissent only, look for rest elsewhere) Abrams v US a) Clarke: Court affirms refusal to rule in favor of Russian national alien defendants who were charged with violation of Espionage Act for circulating circulars that encouraged workers to start a revolution against the U.S. government during WWII because we were fighting against Russia. b) Holmes dissent: "But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned." Here there is lacking the necessary intent to bring about interference with the U.S., meaning knowledge that it will come about by the speech. 3) Gitlow v. NY, 268 U.S. 652 (1925), p. 320-322 a) State Sedition Laws (like criminal anarchy and criminal syndicalism) b) Sanford: NY 1902 sedition law / criminal anarchy statute prohibited advocacy, advising, or teaching the duty, necessity, or propriety of overthrowing or overturning organized government by force or violence, and the publication or distribution of such matter. s the Left Wing Manifesto advocating necessity of Communist Revolution and encouraging mass political strikes for destruction of parliamentary state. i) First amendment is incorporated to the states via the 14th. BUT... ii) It is within the state's police power to regulate for the welfare of citizens, which includes regulating speech that incites overthrow using unlawful means. By very nature such speech encourages acts that endanger public peace and state security. It is ok for the state to snuff out the spark before waiting for it to kindle into flame. (no need to wait for actual disturbances of the peace; may suppress threatened danger in its incipiency). iii) If the natural tendency and probable effect of speech is to bring about the regulable result (the substantive evil which the legislative body might prevent), the speech is likewise regulable. The Schneck analysis of clear and present danger is only required where the legislature has not already made the determination of danger. c) Holmes / Brandeis dissent: There was no present danger as requires by Schneck, and the court should apply Schneck. The only difference between expression of opinion and an incitement is enthusiasm for the result.

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Con Law II Notes

c) Holmes / Brandeis dissent: There was no present danger as requires by Schneck, and the court should apply Schneck. The only difference between expression of opinion and an incitement is enthusiasm for the result. 4) Dennis v. U.S., 341 U.S. 494 (1951), p. 327-336 a) Vinson/Reed/Burton/Minton plurality: 's -- communists -- indicted for violating conspiracy provisions of Smith Act. Court granted cert. to determine if these provisions of the Smith Act violate First Amendment. They do not. s convictions affirmed. i) 2 of Smith Act: unlawful to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying the government by force or violence or by assassination of any officer of the government. ii) 3 of Smith Act: unlawful to attempt to commit or conspire to commit any prohibited act. iii) Congress has the power to regulate to protect existing government from change by violence, revolution, and terrorism (as opposed to by peaceable, lawful, constitutional means). This case is to determine whether the means to achieve this end -- the Smith Act -- is constitutional. iv) Clear and Present danger test: [1] Does not mean the government has to wait until it's about to happen [2] does not rely on probability of success of plans [3] Learned Hand's formulation: whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. [4] Existence of conspiracy itself creates danger [5] But to have a conspiracy, teaching and advocacy of action must be reasonably calculated (intended) to incite persons to such action. b) Frankfurter concurring in affirmance of judgment: Courts need to be reluctant to be swayed by political, economic, and social pressures. Policy making is not for the courts, but Congress, as long as they have some rational basis. Clear and present danger ought to take account of relative seriousness of danger compared to value of occasion for speech, availability of more moderate controls, intent of speech. Basically, weigh values of speech against danger. c) Jackson concurrence: Clear and present danger test should not be used for cases like this (communism/ overthrowing), because government would only be able to act when the danger became imminent. Why should you have a constitutional right to work people up to something that is unlawful to attempt? Direct incitement by speech should be able to be a crime without regard to likely success. Conspiracy is not a civil right. If the end is punishable, the means to achieve the end should be restrictable/punishable. d) Black dissent: We should analyze laws restricting free speech more critically than by reasonableness. Otherwise we get laws where only the most benign speech is safe, and that is the speech that needs the least protection anyway. e) Douglas dissent: This was not a conspiracy to overthrow the gov, but a conspiracy to form a group where they talk about that, but specifically Marxist/Leninist doctrine. Freedom of speech turns not on what is said, but on the intent with which it is said. Clear and present danger should be a jury matter, not law matter. Communism carries no great weight in this country and they are not likely to succeed. If the circumstances were different and there were a more likely result, that would be a different story. 5) Brandenburg v. Ohio, 395 U.S. 444 (1969), p. 337-339 NAME CASE a) Modern incitement to lawlessness b) Per Curiam: Ku Klux Klan leader convicted ($1K fine and 1-10 years' imprisonment) of violating Ohio Criminal Syndicalism statute (advocating crime/violence/unlawful methods of terrorism as means of political reform; voluntarily assembling to advocate such). The Klan invited the media to take videos of one of their rallies, where they held some guns and burned some crosses, and said negroes and jews don't belong here, and said they are not a vengeful group, but may have to seek revenge at some point, and announced plans to march. 39/56

5) Brandenburg v. Ohio, 395 U.S. 444 (1969), p. 337-339 Con Law II Notes NAME CASE a) Modern incitement to lawlessness b) Per Curiam: Ku Klux Klan leader convicted ($1K fine and 1-10 years' imprisonment) of violating Ohio Criminal Syndicalism statute (advocating crime/violence/unlawful methods of terrorism as means of political reform; voluntarily assembling to advocate such). The Klan invited the media to take videos of one of their rallies, where they held some guns and burned some crosses, and said negroes and jews don't belong here, and said they are not a vengeful group, but may have to seek revenge at some point, and announced plans to march. i) Mere advocacy is not enough; need incitement to imminent lawlessness (relying on Dennis) [1] Constitutional guarantees of free speech, press, assembly do not permit a state to forbid or proscribe advocacy of the use of force or of law violation EXCEPT where such (1) advocacy is directed to inciting or producing imminent lawless action and (2) is likely to incite or produce such action. ii) Based on this test, the Ohio statute cannot stand, because it punishes mere advocacy. c) Black & Douglas concurrences: Agrees with this opinion, but cautions the use of Dennis in so far as that case relied on the clear and present danger principle, which these justices think is bad. Especially in days of peace, the clear and present danger principle has no place in first amendment jurisprudence, but probably also not in times of war. B. Free Speech - Default = strict scrutiny Balancing the value of speech against the social harm 1) Libel, Emotional Distress a) Libel i) Public Figure (assumption of public issue) [NY TIMES] (general or limited, thrust self into public light) to recover for libel, must show [1] clear and convincing evidence of (a) falsity (this used to be affirmative defense, but Times made it part of prima facie showing for ) (b) Malice (knowledge of/intentional falsity or reckless disregard for truth) [so no strict liability or negligence] (c) statements must be about the (d) appellate review of facts that go to above elements [2] NO PUNITIVES ii) Private Figure, Public Issue [GERTZ] to recover for libel, must show [1] falsity [2] PUNITIVES IF MALICE iii) Private Figure, Private Issue [1] No protection under 1st Amendment, but state may protect if desired iv) NY Times v. Sullivan, 376 U.S. 254 (1964), p. 343-348 NAME CASE [1] Times had published an ad that lambasted the commish for doing things against blacks at the Alabama campus. The allegations were not entirely true, and Sulli sued and got a half mill verdict for libel. This court reverses. [2] No robust protection for commercial speech at the time of this case. [3] Criticism of public officials / government officials [4] The punitive award of half mill would have shut the NY Times down -- serious stakes.

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Con Law II Notes


[3] Criticism of public officials / government officials [4] The punitive award of half mill would have shut the NY Times down -- serious stakes. [5] This is a 14th amendment case incorporating the first amendment (b/c state action not congressional action?) [6] The first amendment and bill of rights in general originally were designed to place power in the hands of juries, but here the jury's discretion is disregarded. They do not trust juries because of the civil rights circumstances. [7] As to public officials, need actual malice (meaning reckless disregard for the truth or knowledge of falsity [so negligence does not count]) and falsity of fact (not opinion) in a statement made of and concerning the in order to get defamation or libel compensatory damages. v) Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), p. 349-356 [1] Powell: States may define standards of liability for private figures libelled by publishers or broadcasters. Recovery may only be for actual injury (reputation and standing in community, personal humiliation, mental anguish and suffering), and no punitives unless malice (knowing falsity or reckless disregard for truth). Basically you can't be negligent as to private individuals -reasonable care. [2] Public figure (a) General (b) Limited - look to nature and extent of 's involvement in the issue that brought up defamation charges i) voluntary injection ii) involuntarily drawn into public controversy [3] Public figures - those who voluntarily thrust themselves into the public eye -- or private figures if they are involuntarily associated with a matter of public interest. [4] No constitutional value in false statements of fact, but false opinions may have some value in that it contributes to competition of ideas. But we have to protect some falsehood of fact in order to protect speech that matters (accidental mistakes). [5] Importance of talking about public issues versus protecting those who have not voluntarily thrust themselves into the public eye b) IIED i) IIED (Snyder v. Phelps, Husler) [1] If Famous (a) you just have to live with satire, even if nasty [2] In Public Place, acting lawfully (like funeral picketing) (a) protected by first amendment if it addresses a public issue [3] Intent [4] Outrageousness [5] Resulting Severe Emotional Distress ii) Hustler Magazine v. Falwell, 485 U.S. 46 (1988), p. 357-358 [1] For pub figures/officials, IIED can be recovered for facts falsely stated with malice. Believability of the truth of the facts is important in determining malice. Satire for public figures is protected by first amendment (where clearly no one would take it to be true).

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Con Law II Notes


ii) Hustler Magazine v. Falwell, 485 U.S. 46 (1988), p. 357-358 [1] For pub figures/officials, IIED can be recovered for facts falsely stated with malice. Believability of the truth of the facts is important in determining malice. Satire for public figures is protected by first amendment (where clearly no one would take it to be true). [2] Public issues / concerns are protected for discussion, get less defamation protection, even if the injured party is a private figure [3] falwell 2) Offensive and Harmful Speech a) Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), p. 383-385 NAME CASE i) Fighting Words Doctrine: words which when uttered to someone directly (in person), and ordinary person in those shoes would be moved to imminent violence ii) Murphy: Chaplinsky was a street proselytizing Jehovah's Witness who denounced organized religion on the street. Chaplinsky was facing some abuse from the crowd while the city marshall looked on doing nothing. Chaplinsky asked the marshall to arrest those who had committed violence against him, and the marshall called Chap a damned bastard and told him to come with him (though not arresting him). Chap then called the officer a "damn racketeer" and "damn Fascist". Chap was charged with violating a state statute forbidding anyone to address any offensive, derisive or annoying word to any other person who is lawfully in any public place or calling him by any offensive or derisive name. (Rather broadly worded, methinks.) iii) "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd [now protected] and obscene, the profane [now protected], the libelous [often protected now], and the insulting or 'fighting' words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." iv) Purpose of statute: to preserve public peace by forbidding words which have a tendency to cause acts of violence by the recipient. [1] Includes (a) classical fighting words (b) words in current use less classical but equally likely to cause violence (c) other disorderly words like profanity, obscenity, threats. v) The offensiveness of the words is to be judged not by the recipient, but by whether men of common intelligence would understand the words to be likely to cause an average addressee to fight. -- Plainly tending to excite the addressee to a breach of the peace / acts of violence. b) Feiner v. NY, 340 U.S. 315 (1951), p. 385-387 i) Incitement to imminent riot or incitement to other to riot against you, rather than to go out and riot against something else, per Brandenburg regime (Heckler's veto case -- stop a speaker by having a bunch of people threaten violence) [1] As a last resort to stop violence, you may stop speech ii) Vinson: Feiner was a black man speaking on a street corner to a mixed black and white crowd of 75-80 people. He called out the president as a bum, the american legion as the nazi gestapo, and the Syracuse mayor as a champagne-sipping bum, and said negroes don't have equal rights and should rise up in arms and fight for them. The crowd was restless with angry muttering and pushing, and one man with wife and child present said to two police officers who were listening that if they didn't get that SOB off the stage, he would do it himself. The police wanted to prevent a fight, asked the speaker to stop speaking twice, and when he didn't, they arrested him for disorderly conduct.

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ii) Vinson: Feiner was a black man speaking on a street corner to a mixed black and white crowd of 75-80 Con Law bum, the people. He called out the president as aII Notes american legion as the nazi gestapo, and the Syracuse mayor as a champagne-sipping bum, and said negroes don't have equal rights and should rise up in arms and fight for them. The crowd was restless with angry muttering and pushing, and one man with wife and child present said to two police officers who were listening that if they didn't get that SOB off the stage, he would do it himself. The police wanted to prevent a fight, asked the speaker to stop speaking twice, and when he didn't, they arrested him for disorderly conduct. iii) While police may not be used as an instrument for suppression of unpopular views, they may suppress incitement to riot. "When clear and present danger of riot, disorder, interference with traffic upon the public street or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious." iv) Black dissent: The police have an obligation to protect the speaker's constitutional right to talk. Before interfering with a speaker in the name of preserving order, they must make all reasonable efforts to protect him. In this case, that would have been using crowd control, quieting the crowd, warning or arresting the man who threatened the speaker, clear a path on the sidewalks so people could pass without going in the street. v) Douglas / Minton dissent: One may not incite a riot, but that was not happening here. Just an unsympathetic audience and a threat on the speaker. This is police censorship, which is just as bad as city hall censorship which we have repeatedly struck down. c) Cohen v. California, 403 U.S. 15 (1971), p. 387-391 NAME CASE i) Fuck/Offensive Speech is constitutionally protected, because how you choose to deliver a message is just as important to the message as the bare meaning itself ii) Harlan: Cohen wore a jacket bearing the words "Fuck the draft" to a courthouse. He did not say or do anything else that might have been unprotected speech, so the question is whether displaying such words in public may be controlled by the state. Cohen took the jacket off and placed it over his arm while in the courtroom; an officer asked the judge to hold him in contempt for it and the judge refused; the officer then arrested Cohen once he left the court for violating a California statute prohibiting: "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct." The COA interpreted offensive conduct to mean behavior tending to provoke others to acts of violence or to disturb the peace, and found it reasonably foreseeable that the words on the jacket might cause others to rise up to violence against him or attempt to forcibly remove his jacket. iii) The conduct in question here is the wearing of the jacket, or "fact of communication" iv) So long as there is not showing of intent to incite to disobedience or disruption of the draft, you could not punish the speech of asserting inutility or immorality of the draft, which is what he claimed to be expressing. v) Location not important: absent words in the statute placing on notice, this section applies to all locations equally. vi) Not obscenity: need eroticism to be obscene, per Roth. vii) Not fighting words: need someone it's directed to and meant to provoke violent reaction viii) Not intentional incite to violence: No once was in fact hostilely aroused. ix) No captive audience issue: Government may shut off discourse when it interferes with rights to privacy, like TV/radio coming into homes. x) The only available justification would thus be censoring/cleansing language itself. [1] Problem: How to distinguish what is offensive and what is not? One man's vulgarity is another man's lyric. Because government officials cannot make principled decisions in this area, the Constitution leaves matters of taste and style to the individual. [2] As much as the constitution protects communicative content, it should also protect communicative emotion, which sometimes gets the message across better than the bare meaning itself. [3] You run a substantial risk of suppressing ideas if you allow deciding what words are appropriate and what not.

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x) The only available justification would thus be censoring/cleansing language itself.

Con Law II Notes


[2] As much as the constitution protects communicative content, it should also protect communicative emotion, which sometimes gets the message across better than the bare meaning itself. [3] You run a substantial risk of suppressing ideas if you allow deciding what words are appropriate and what not. xi) Dissent: this is conduct, not speech, and it is fighting words. d) Virginia v. Black, 538 U.S. 343 (2003), p. 472-473 i) Burning a cross is protected speech, but not if done with intent to intimidate beyond a reasonable doubt. ii) O'Connor: Virginia law made it a felony to burn a cross with the intent of intimidating any person or group of persons. The fact of cross burning was prima facie evidence of intent to intimidate, and the jury was so instructed, resulting in conviction of Black for burning a cross at a KKK rally and saying he'd love to shoot blacks. (The cross was actually placed on the lawn of a private individual.) Virginia SC said statute unconstitutional and overturned conviction. SCOTUS says the ban on cross burning with intent of intimidating was constitutional, but it's unconstitutional to have the prima facie evidence provision, because burning a cross may be done for reasons other than to intimidate, and it permits a jury to convict in cross-burning cases where the exercises his constitutional right not to put on a defense, and because the cards are stacked against him even if he does; instead the state should have the burden to show intent. iii) First amendment permits banning of true threats, including intimidation, and cross-burning is a particularly virulent form of intimidation if it is done with intent to intimidate. iv) Scalia / Thomas concur/dissent: The SC did not supply a proper statutory construction of the prima facie provision in order to judge whether it is constitutional. v) Souter/Kennedy/Ginsburg concur/dissent: Prima facie provision would bring under the statute cross burnings that may be tasteless but certainly not intimidating. vi) Thomas dissent: Cross burning is not speech; it is conduct. Prima facie is fine, because jury still has to find each element beyond a reasonable doubt. 3) Sex Speech and Prior Restraint, Vagueness and Overbreadth, and Content and Viewpoint Neutrality a) Roth v. U.S., 354 U.S. 476 (1957), Copy 862 i) Brennan: Federal statute barred mailing of "obscenity". Roth was charged with mailing obscene advertising and book. [1] "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests." [2] Obscenity is utterly without redeeming social importance, and is thus not constitutionally protected speech. [3] Sex and obscenity are not synonymous. [4] Obscenity is material which deals with sex in a manner appealing to prurient interest. (a) Prurient interest is lewd; tendency to incite lustful thoughts; shameful or morbid interest in nudity, sex, or excretion, if it goes substantially beyond customary limits of candor in description or representation of such matters (b) Measured by contemporary community standards b) Miller v. California, 413 U.S. 15 (1973), p. 372-380 NAME CASE i) Obscenity: SLAPS test. ii) Burger: Mass mailing of unsolicited ads featuring men and women having group sex.

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b) Miller v. California, 413 U.S. 15 (1973), p. 372-380 Con Law II Notes NAME CASE i) Obscenity: SLAPS test. ii) Burger: Mass mailing of unsolicited ads featuring men and women having group sex. [1] Reaffirms Roth holding that obscene material is not protected First Amendment Speech [2] Obscenity may thus be regulated by the states without needing to show that the material is utterly without redeeming social value. (a) Test: i) the work (1) taken as a whole appeals to the (2) prurient interest in sexual conduct (A) e.g. Types of sexual conduct i) ultimate sex acts, normal or perverted, actual or simulated if represented in patently offensive way ii) masturbation, excretory functions, lewd exhibition of genitals if patently offensive ii) the work depicts or describes in a (3) patently offensive (by contemporary community standard) way sexual conduct (4) specifically defined by applicable state law iii) whether the work taken as a whole (5) lacks serious literary, artistic, political, or scientific value. --> not just about exciting, but about communicating an idea (national standard) [3] Must determine by applying contemporary community standards, not national standards (communities in Vegas may differ from communities in Maine, e.g.) iii) Douglas dissent: Thinks the test is vague and does not give adequate notice of what is prohibited. iv) Brennan/Stewart/Marshall dissent: Agrees the test is too vague. I'm not sure what he proposes as an alternative, as his opinion sways vigorously. I think he thinks we need court precedent to lay some standards rather than just coming up with a test. c) NY v. Ferber, 458 U.S. 747 (1982), p. 398-402 i) Child Porn, not necessarily obscene, still regulable by state (not about preventing people from seeing, but about protecting the child involved. So drawings, novels, cgi are ok, as long as no real child, or cgi is not so real as to be indistinguishable) ii) White: Ferber sold films depicting young boys masturbating in violation of a NY law prohibiting promoting sexual performance of a child under 16. The question is whether you can prohibit dissemination of under age sexual material even if not obscene. [1] Important government objective of preventing sexual exploitation and abuse of children. Legislative judgment which court does not question shows that using children as porn subjects is harmful to them physiologically, emotionally, and mentally. [2] Intrinsic relation between distribution of films/photos of underaged children in sexual acts and sexual abuse of children. (a) harm to child exacerbated by circulation of permanent record of their abuse on film (b) If you dry up the market for child porn by criminal prosecution of its distribution, it will help fight abuse. (c) Miller standard does not adequately prevent child sexual abuse: Child porn does not have to be patently offensive or appeal to abnormal (prurient) sexual interests to harm a child, not does it need to lack SLAPS value. [3] Ads and selling of child porn creates economic motive to produce it, which production is itself criminal, so it should be ok to regulate ads and selling.

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Con Law II Notes

[3] Ads and selling of child porn creates economic motive to produce it, which production is itself criminal, so it should be ok to regulate ads and selling. [4] Any value in child sex acts is de minimis, or if not, someone of age who looked young could be used, so as not to damage the child. [5] Content of speech bears upon whether it is protectable or not. If harm of speech outweighs benefits of allowing it, it may be regulated. iii) Test for constitutionality of child porn laws: [1] must be limited to visual depictions of sexual conduct by minors (if not a live performance, photo, or other visual reproduction, still first amendment protected) [2] the sexual conduct prohibited must be limited and described (not vague) [3] does not have to appeal to prurient interest of average person [4] does not have to be patently offensive showing of sexual conduct [5] material does not have to be considered as a whole [6] must have scienter element for criminal liability [7] THE CRUX IS IT DAMAGES THE CHILD, whether adults find social value in it is irrelevant in that case. iv) Overbreadth challenge: (would cover permissible situations not before court) [1] laws not invalidated for overbreadth unless it reaches a substantial number of impermissible applications, which this law does not. May national geographic type stuff and medical stuff, but probably not even those. 4) Speech/Conduct regulation a) U.S. v. O'Brien, 391 U.S. 367 (1968), p. 415-418 NAME CASE i) Draft Card burning case ii) Expressive conduct does get protection; but regulating conduct (regulable act incidentally affecting speech) -- the closer speech gets to action, the more you can regulate, and the closer action gets to speech, the less government can regulate it iii) Warren: O'Brien burned his draft card publicly as a statement of protest against the war, in violation of a statute that said you could not knowingly destroy or mutilate your draft registration certificates. O'Brien claimed this statute was unconstitutional b/c it singled out for special treatment persons engaging in protests (viewpoint discrimination?). Further, the subject matter of his offense was already covered under a statute requiring having the card on your person at all times. Lower courts agreed the statute was unconstitutional, but the SC upholds it. [1] What qualifies as expression conduct: (a) intent to be expressive (b) would reasonable observer understand the act to be expressive [2] When speech and nonspeech (conduct/action) elements are combined (speech plus), the nonspeech elements may be regulated if there is a sufficiently important government interest, even if there is incidental limitations on first amendment freedoms [3] government regulation of nonspeech elements is justified despite incidental effects on speech if (a) it is within the constitutional power of the government

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Con Law II Notes


[3] government regulation of nonspeech elements is justified despite incidental effects on speech if (a) it is within the constitutional power of the government (b) it furthers an important or substantial government interest (c) the governmental interest is unrelated to the suppression of free expression / effect on expression should be incidental (unintentional) AND (d) the incidental restriction on alleged first amendment freedom is no greater than is essential/necessary to the furtherance of that interest [4] If you fail this test, you go to strict scrutiny as a final measure of constitutionality [5] This statute meets that test, b/c the government has an interest in the smooth and efficient functioning of the selective service system, and the statute is limited to furthering that interest b) Texas v. Johnson, 491 U.S. 397 (1989), p. 418-426 i) Flag desecration ii) Brennan: Johnson burned a flag in protest at the GOP National Convention 1984, in violation of a TX penal code prohibiting desecration of venerable objects, including flags, if they know that a person is likely to observe and be offended. [1] Analysis under O'Brien (modern way of approaching): (a) is the government regulation directed toward suppression of speech [2] Claimed state interest(1): preventing breach of peace. But there must not only be a potential for breach, but an imminent likelihood, per Brandenburg. These are also not fighting words, because not taken as personal insult inviting fisticuffs. [3] Claimed State interest (2): preserving flag as symbol of unity. Texas law does not oppose burning flags to dispose of them when they are too worn to display, so it's not about physical integrity. Tied to the statute is serious offense-causing to others. This focuses on the communicative impact. CONTENT-BASED. This means the most exacting scrutiny is required. We cannot prescribe the messages that symbols may convey. [4] (1) was this expressive conduct? (2) If so, was state reg related to suppression of free expression? (3) If not suppression, then O'Brien noncommunicative conduct; If yes suppression, then weigh state interest against speech. (a) (1) was there an intent to convey a message, and likely to be understood? iii) Rehnquist/White/O'Connor dissent: Gist is that he didn't need to burn the holy symbol of the flag to make his point, but I think this falls for the same reason that you could say "screw the draft" instead of "fuck the draft" -- the communication of the second is more emotive, rousing. iv) Stevens dissent: The act of Desecration of a valued symbol is content neutral; it is divorced from the intent of a message c) Young v. American Mini Theatres, 427 U.S. 50 (1976), Copy 895 i) Zoning restrictions on how many adult bookstore and movie theaters could be located in an area in relation to other regulated business, like bars, billiards halls, hotels, cabarets). [Basically, desire is to avoid "skid rows".] It is claimed that differentiating between adult movies and regular movies is unconstitutional regulation based on the content of speech. City's argued reason: too dense of such establishments attracts undesirable transients, lower property values, and increased crime (SECONDARY EFFECTS). ii) Stevens plurality: Society's interest in protecting adult movies is less than the interest in protecting things like political debate that is what inspired the "defend to the death your right to say it" thing. So accordingly, we can allow states to regulate this lesser valued speech to a greater extent. First Amendment does protect against total suppression, but the content allows for a different classification. We don't appraise the wisdom of a city's zoning plans: whether to separate or clump all together. Cities should have leeway to experiment 47/56 with different solutions to different problems. Plus, there are plenty of locations for these establishments to set up business.

Con Law II Notes


ii) Stevens plurality: Society's interest in protecting adult movies is less than the interest in protecting things like political debate that is what inspired the "defend to the death your right to say it" thing. So accordingly, we can allow states to regulate this lesser valued speech to a greater extent. First Amendment does protect against total suppression, but the content allows for a different classification. We don't appraise the wisdom of a city's zoning plans: whether to separate or clump all together. Cities should have leeway to experiment with different solutions to different problems. Plus, there are plenty of locations for these establishments to set up business. iii) Powell (concurrence supplying a majority judgment): This should not reach the classifiability of different kinds of speech, but should instead be resolved as land-use regulation incidentally and limitedly implicating First Amendment, which passes muster under the O'Brien test above. Pertinent questions: does ordinance impose content limitation or restrict ability to make available to desired audience? does it restrict in a significant way the viewing by those who desire to view? No on both counts. iv) Stewart dissent: content should no bear on regulability at all. d) Renton v. Playtime Theatres, 475 U.S. 41 (1986), p. 433-437 i) Rehnquist: Zoning keeping adult movie theaters 1,000 ft from residence, church, park, school, effectively shutting them out of 94% of land in city (much of the rest of the 6% is occupied). This is time, manner, place regulation, not content regulation, so its constitutional if designed to serve a substantial government interest and does not unreasonably limit alternative avenues of communication. Though the statute targets a type of content in its identification of adult theaters, the predominant concern is the secondary effects of the theater being somewhere (unsavory types and all), and not on the movies themselves. So the regulation is unrelated to the suppression of speech. Closing or restricting number would be more content-oriented regulation. Government owes no duty to ensure that zoning keeps a place for adult theaters or any kind of speech business; they just can't deny it. ii) Brennan/Marshall dissent: This is facial content discrimination. But even if it was TMP, it would be unconstitutional b/c no reasonable alternative for communication. No reasonable opportunity to run this business. e) Erie v. Paps AM, 529 U.S. 277 (2000), p. 438-440 i) Nude dancing ii) Secondary effects is a way to get into the O'Brien test, even when the statute is directed at speech, because we consider it lower value speech. iii) O'Connor plurality: Statute forbade appearing publicly in a state of nudity. State of nudity is not inherently expressive (but what of the classic arts?), and nude dancing may be expressive, but only on the outer ambit of 1st protection. So content-neutral O'Brien analysis. Gov interest in prevent crime and other health and safety problems. Requiring pasties and G-strings may not greatly reduce these secondary effects, but minimal furthering of the interest is enough. No less restrictive means analysis necessary, b/c content-neutral. iv) Scalia/Thomas concurrence: This is a law regulating conduct, not expression. v) Souter concur/dissent: Need evidence of the claimed harm. vi) Stevens dissent: Completely ineffective at approaching problem. Secondary effects is limited to zoning cases, not total bans. 5) Commercial Speech (Ads) a) Not speech of commercial institutions, but means advertising. Historically it wasn't protected at all. b) Va. State Bd of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976), p. 440-445 i) Blackmun: Virginia statute prohibiting advertising prices of prescription drugs held invalid. Though commercial speech serves economic interests, it also may serve speech interests and may have 1st amendment protection. There must be a public interest element. It is claimed that the ad ban keeps professionalism in pharmacy by allowing customers to have a relationship with their pharmacist, but there are regulations to that effect on the industry regardless. Commercial speech may be regulated when it is false, when there's a significant gov interest, and when it's electronic broadcast media. If it's a lawful activity and truthful (and not misleading), cannot be suppressed. You could regulate the prices (the 48/56 activity), but not the telling of the prices (truthful speech).

b) Va. State Bd of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976), p. 440-445 i) Blackmun: Virginia statute prohibiting advertising prices of prescription drugs held invalid. Though commercial speech serves economic interests, it also may serve speech interests and may have 1st Con Law II Notes amendment protection. There must be a public interest element. It is claimed that the ad ban keeps professionalism in pharmacy by allowing customers to have a relationship with their pharmacist, but there are regulations to that effect on the industry regardless. Commercial speech may be regulated when it is false, when there's a significant gov interest, and when it's electronic broadcast media. If it's a lawful activity and truthful (and not misleading), cannot be suppressed. You could regulate the prices (the activity), but not the telling of the prices (truthful speech). ii) Stewart concurrence: Regulating false and deceptive commercial speech is important. iii) Rehnquist dissent: Prescription drugs have dangers like tobacco and alcohol that should be more regulated than other commercial speech. c) Central Hudson Gas & Elec v. PSC, 447 U.S. 557 (1980), p. 449 NAME CASE i) Powell: Advertising of electrical utility was completely banned b/c we want people to conserve electricity. This was an unconstitutional ban on protected speech. [1] Commercial Speech cases 4-part test (a) the expression is commercial speech protected by 1st amendment i) it concerns lawful activity AND ii) is not misleading (is truthful) (b) the asserted government interest is substantial (more than legit, less than compelling) (c) the regulation directly advances the government interest (d) the regulation is not more extensive than necessary to serve the gov. interest / good fit between ends and means [2] Commercial speech that has seen regulation in the past (a) vices: smoking/drinking/gambling (b) professionals: lawyers, doctors, accountants, pharmacists d) 44 Liquormart v. RI, 517 U.S. 484 (1996) i) RI statute forbidding ads of liquor prices except price tags on the merch and not visible from outside violated 1st amend. State claimed an interest in temperance and said competitive prices resulting from ads of prices would lead to increased consumption. (Real reason was to protect mom and pop liquor stores that could not compete with the prices of the costcos of liquor). ii) Stevens/Kennedy/Gins: for regulating misleading or aggressive sales speech or speech requiring disclosure of beneficial consumer info, less strict scrutiny needed (Central Hudson). But strict scrutiny when complete ban on truthful info for reasons unrelated to preservation of fair bargaining process. To say otherwise would be to buy the offensive assumption that public responds irrationally to the truth. Should also abandon the greater includes the lesser theory that if a state could ban the product outright, it could strongly regulate the advertising, b/c it's a lesser imposition. 21st amend allows state regulation of alcohol, but does not affect 1st amend. iii) O'Connor/Rehnquist/Souter/Breyer: Agree w/ Stevens, but not as to strict scrutiny; central hudson good enough (though agrees w. Stevens that it fails even this test because less intrusive methods available), and does not necessarily think greater includes lesser theory is wrong. iv) Thomas: If gov interest is to keep public ignorant, central hudson should not be used, but the interest is per se illegit (unconst). e) Lorillard Tobacco v. Reilly, 533 U.S. 525 (2001), p. 449-455 i) O'Connor: Cigarettes, smokeless tobacco, cigars. Regulations were for purpose of eliminating false impressions of safety in ads and appeals to children. No ads 1,000 feet from schools, parks, etc., if visible from outside, and no ads in retail establishments lower than 5 feet from floor. The Federal Cigarette Labeling and Advert Act of 1965 apparently precludes states from regulating cigarette ad location. But they maybe could do cigars and smokeless tobacco. 49/56

Con Law II Notes


e) Lorillard Tobacco v. Reilly, 533 U.S. 525 (2001), p. 449-455 i) O'Connor: Cigarettes, smokeless tobacco, cigars. Regulations were for purpose of eliminating false impressions of safety in ads and appeals to children. No ads 1,000 feet from schools, parks, etc., if visible from outside, and no ads in retail establishments lower than 5 feet from floor. The Federal Cigarette Labeling and Advert Act of 1965 apparently precludes states from regulating cigarette ad location. But they maybe could do cigars and smokeless tobacco. [1] Central Hudson (rather than strict scrutiny) provides the basis of analysis. (a) First Amendment protectability presumed (b) Important state interest in preventing use by minors presumed (c) Furtherance of interest by means? i) Yeah, there's evidence that adverts correspond to increased use of products and controlled adverts correspond to decreased use (d) Not more extensive regulation than necessary? (least restrictive means is NOT the standard; but a reasonable fit or narrow tailoring) i) NOT SATISFIED. The reach is too far, b/c it precludes advertising in 87-91% of the area. Adults have a right to hear the speech. Near complete ban on truthful info. ii) Kennedy / Scalia concurrence in part and in judgment: Third part of Central Hudson test gives insufficient protection to truthful, nonmisleading commercial speech. iii) Thomas concurrence in part and in judgment: There should be no difference between commercial and noncommercial speech treatment. Strict scrutiny should be used. iv) Stevens / Ginsburg / Breyer concurrence in part / dissent in part: FCLAA does not preclude state regulation of cig ads. Record has not enough info on whether alternate avenues of communication are left open, like print ads. 6) The Public Forum and Time, Place, and Manner Restrictions a) When government acts like a private citizen, in terms of owning property and speaking, should it be treated like private individuals? Think market participant doctrine from con law I. b) Gov can't restrict speech on public forum on basis of content, unless strict scrutiny is met. If content-neutral (TPM restriction), narrowly tailored (sort of) to significant gov interest and allowing for alternative avenues of expression. c) Forum categories i) Public Forum [1] parks, sidewalks, and streets which from time immemorial have been a place for people to express themselves [2] But if the sidewalk goes onto the property in a way that makes it less public, like the Multnomah post office, then even though the public is allowed there, it's more like the function of private property, and so restrictions are allowed. Same with military sidewalks. ii) Limited Public Forum [1] place that government voluntarily and intentionally opens to the public for forum purposes. Gov could change mind and revoke public forum status. Could limit to certain purposes or groups (as long as still content-neutral). iii) Non-Public Forum [1] gov can make reasonable content-based regulations (but not viewpoint-based)

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iii) Non-Public Forum

Con Law II Notes

d) Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), p. 427-431 i) Symbolic city of tents in DC national park to show the plight of the homeless. Overnight sleeping at a protest is assumed to be part of expression to communicate plight of the homeless. Subject to reasonable time, manner, place restrictions. Gov int: maintaining parks in heart of DC in attractive and intact condition. ii) TMP restrictions as to speech reasonable if: [1] content-neutral [2] narrowly tailored (good fit) to significant gov interest [3] ample alternative channels for communication iii) O'Brien restrictions as to conduct reasonable if: [1] content-neutral (unrelated to speech suppression) [2] narrowly tailored to sig gov int [3] conduct itself may constitutionally be regulated iv) Dissent: we shouldn't assume this is protectable expression. This Lafayette-Mall park is a frequent venue for demonstrations. e) Krishna v. Lee, 505 U.S. 672 (1992), p. 511-518 i) Solicitation of money or distribution of literature was prohibited in the airport terminals of NY/NJ, but permitting it outside the terminals. The Krishnas are a religious group that likes to hand out literature and solicit money in public places. This case covers solicitation. Next case covers literature. Government need not permit all speech on property it owns and controls. If gov property has traditionally been available for speech, limitations subject to strict scrutiny. If the gov property has expressly been opened for speech -- a public forum limited or unlimited in character --, strict scrutiny. Other public property, rational basis review: reasonable regulation, as long as not directed to speech suppression b/c of disagreement. Airports are neither traditional nor designated public fora. Tradition of such activity at bus and train stations irrelevant: those are private property, not public. Purpose of airport is facilitation of travel, not speech. This speech impedes the flow of travelers, and avoiding that is reasonable. Ban on solicitation is constitutional. f) Lee v. Krishna, 505 U.S. 830 (1992), p. 519 i) Ban on lit distribution is unconstitutional. It is argued that solicitation slows people down cause they have to think about whether to contribute, but with leaflets, they do not have to read them on the spot and need only take them and move on. g) Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009), p. 522 i) Ten Commandments monument and 15 total monuments, 11 donated by private people in public park. Summums wanted to put another monument with their aphorisms there. Permanent monument in public park is not subject to public forum analysis nor strict scrutiny. It is government speech not private speech; government can choose what it wants to say. Can discriminate as long as speech is permanent, but not temporary. Otherwise, by accepting one statue, the gov would have to accept statues of opposing viewpoints, or else just refuse all of them. Government speech is subject to establishment clause. But otherwise regulating this speech is subject to political process. 7) The Right Not to Speak and the Freedom of Association a) WV St. Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), p. 561-562 i) Public school students can refuse to salute the flag and say the pledge. When governments force their people to hold a sentiment, it backfires. Citizens may not be forced to have an opinion or to express it.

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7) The Right Not to Speak and the Freedom of Association a) WV St. Bd. of Ed. v. Barnette, 319Con Law(1943), p. 561-562 U.S. 624 II Notes i) Public school students can refuse to salute the flag and say the pledge. When governments force their people to hold a sentiment, it backfires. Citizens may not be forced to have an opinion or to express it. b) Wooley v. Maynard, 430 U.S. 705 (1977), p. 562-563 i) Live Free or Die slogan was required to be displayed on vehicle license plates. Jehovah's Witness covered it up several times and sought declaratory relief. He had a right to refrain from speaking. Strict scrutiny. Compelling interest? (No.) Claimed as: Identify license plates from similar state ones (found to be readily distinguishable without - less drastic means), promote appreciation of history, state pride, individualism (interest in communicating an official view cannot outweigh right of individual not to be a courier of the message. c) John Doe #1 v. Reed, 130 S. Ct. 2811 (2010) i) Referendum was put on the ballot by signatures to overturn a law expanding rights under domestic partnerships in the state of Washington. Reed sought to have the signatures on the petition disclosed, and the plaintiffs argued that this violated the First Amendment. The supreme court rejects that, saying that disclosure is important to check that the signatures are accurate, even though the Sec of State is already charged with doing that, he would certainly make some mistakes, so disclosure is an important government interest and there is substantial relation. d) Hurley v. Irish-American GLB Group of Boston, 515 U.S. 557 (1995), p. 565-566 i) Gay Paraders were asked to carry a disclaimer banner that the organizers did not support their view. This was violative of right not to speak. Instead the organizers can post general signs disavowing connections. e) Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), p. 571-575 i) Women not allowed to be full voting member of Jaycees, but could be associative members. ii) freedom of association [1] freedom of intimate association (a) personal liberty, individual freedom to decide whom you associate with, not to be undone undue burden [2] freedom of expressive association (a) first amendment, right to associate for protected expressive efforts. strict scrutiny --- would the state regulation affect the group's ability to have the discussions and portray the messages it wants? f) Boy Scouts of America v. Dale, 530 U.S. 640 (2000), p. 575-577 i) BSA thinks homosexuals are not morally right, and requiring them to admit a homo as a scout leader would violate their expressive freedom of association. You don't have to be associated for the purpose of portraying the expressive message in order for an expressive edict to apply. The question is whether the group engages in expressive activity that could be impaired by the law. Intermediate standard of review. C. The Religion Clauses 1) Establishment Clause a) Theories: i) Equality/neutrality theory (two views) [1] We must be equal and neutral between religion and non-religion [2] We must be equal and neutral between religions ii) The wall of separation [1] Clause was made to erect a wall between religion and government

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ii) The wall of separation

Con Law II Notes

[1] Clause was made to erect a wall between religion and government iii) No coercion [1] Whatever government does, it should not coerce people into supporting (either in word, deed) any religions practice or belief [2] As long as no coercion, no violation b) Material / Financial Support i) Everson v. Bd. of Ed., 330 U.S. 1 (1947), p. 602-603 [1] NJ Township reimbursed parents the cost of busing children to school, including parochial schools. This was complained to be contrary to the establishment clause. The court rejects that b/c the money goes to all students on the bus regardless of religion. [2] Establishment means the government cannot do the following: (a) no setting up church (b) no laws aiding one religion, all religions, or preferring one over another (c) no forcing people to go to or stay away from church nor to profess belief or disbelief (d) no punishment for believing or disbelieving, attending or non-attending (e) no tax to support religious activities or institutions (f) no participating in religious orgs or groups [3] But it does not mean the government is an adversary to religion, only that it must be neutral to it ii) Walz v. Tax Com'n, 397 U.S. 664 (1970), p. 604 [1] State tax exemption for property used exclusively for religious, educational, or charitable purposes upheld. [2] No excessive government entanglement with religion [3] State program: property tax relief for religious institutions (a) Exemptions also granted to other charitable/educational/religions institutions [4] Rationale: (a) Since the beginning of time churches have never had to pay property taxes (b) Aligns this type of program with that of the neutral program in Everson (c) Legislative purpose neutral; granting the exemption did not entail excessive government involvement with religion iii) Lemon v. Kurtzman, 403 U.S. 602 (1971), p. 604-605 NAME CASE [1] Lemon Test (a) Purpose is to further religion OR i) statute must have a secular legislative purpose (b) Primary effect OR i) primary effect neither advances nor inhibits religion

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(b) Primary effect OR

Con Law II Notes

i) primary effect neither advances nor inhibits religion (c) entanglement i) statute must not foster an excessive government entanglement with religion [2] The current Lemon test: (a) Statute must have a secular legislative purpose (b) The principle/primary effect must be one that neither advances nor inhibits religion (the most dispositive prong of the test) i) Agostini add-ons: (A) Does it involve religious indoctrination (coercion concern here)? (B) Does it dene its recipients by reference to religion (neutrality concern here)? (C) Can it reasonably be viewed as an endorsement of religion (incorporation of lemon twist test as a factor)? (D) Is there excessive government entanglement (drops the third prong and only makes it relevant to deciding the second prong)? (c) The statute must not foster an excessive government entanglement with religion i) This means administrative entanglement ii) Political divisiveness is NOT what is meant by this [3] Endorsement Test (Lemon twist - common for symbols cases) (a) Intent to endorse religion OR (b) Reasonable person perceives endorsement OR (c) entanglement [4] The Lemon twist test: (a) Alters the second prong to be: i) Would a reasonable person view this effect to be the fostering of religion iv) Mitchell v. Helms, 530 U.S. 793 (2000), p. 605-606 [1] Agostini Test (financial support cases only) (a) Is a financial benefit conditioned upon doing something religious -- secular purpose, offers financial aid evenhandedly/neutrally (b) Core essence: neutrality, nonindoctrination v) Zelman v. Simmons-Harris, 536 U.S. 639 (2002), p. 606-617 [1] if you give the money to the person for a secular purpose and the person individually decides to put the money toward a religious institution, it is the person acting to support religion, NOT the government = OK c) Symbolic Support i) Wallace v. Jaffree, 472 U.S. 38 (1985), p. 617-622

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Con Law II Notes


c) Symbolic Support i) Wallace v. Jaffree, 472 U.S. 38 (1985), p. 617-622 [1] Law required in school 1 minute silence for meditation or prayer at beginning of day. (The prior law only said meditation, not "or prayer"). SC invalidates the law b/c the purpose of the law is to restore prayer to public schools. No possible secular purpose for adding "or prayer". Court bent over backwards to find a problem with the law, it seems. 5-4 case. ii) Lee v. Weisman, 505 U.S. 577 (1992), p. 641 [1] Religious people from community invited to give prayers at graduation ceremony of middle school. Guidelines are given as to how to write an appropriate prayer. Person praying is Jewish. Person complaining is Jewish. Unconstitutional, b/c an individual should not be put in the position of having to choose to avoid religion (graduation ceremony was not required to get a diploma, but Kennedy thinks there is pressure to attend the ceremony, so it's not really voluntary but coercive). [2] Coercion Test (a) being forced to be there and respect the moment of prayer is enough to be coercive [3] Concurrence applies Endorsement Test, although they acknowledge that coercion is sufficient to get there too. iii) Allegheny County v. ACLU, 492 U.S. 573 (1989), p. 624-633 [1] Manger scene on grand stair of courthouse, also menorah, christmas tree, salute to liberty. intent for manger which stood all alone may have been to celebrate holidays, but reasonable person would perceive an endorsement. The menorah is ok, because it is next to the tree and salute to liberty. Context is important. iv) McCreary County v. ACLU, 545 U.S. 844 (2005), p. 633-635 [1] Posting ten commandments in courtrooms. suddenly posting them can only be for religious purposes. Unconstitutional v) Van Orden v. Perry, 545 U.S. 677 (2005), p. 636-641 [1] 10 commandments monument had been there a long time, and was surrounded by other religious monuments. It was constitutional 2) Free Exercise and Accommodation a) Sherbert v. Verner, 374 U.S. 398 (1963), p. 646 i) Sherbert held sincere religious convictions that she could not work on Saturdays (the Sabbath), and was denied unemployment compensation b/c of it. She was left with a choice between following her religious precepts and forfeiting benefits, or accepting benefits and abandoning a principle of her religion. This has the same effect as the government imposing a fine upon the exercise of religion, and is violative of the free exercise clause unless withstands strict scrutiny with a compelling government interest with no less restrictive means. ii) government actions that substantially burden a religious practice must be justified by a compelling government interest b) Employment Div v. Smith, 494 U.S. 872 (1990), p. 648 NAME CASE i) When a regulation is generally applicable, instead of targeting a practice of a particular religion as a religious practice, it is ok. Basically if its a generally applicable law, it does not raise the free exercise clause at all. ii) unemployment cases (if law is targeted and not generally applicable) and amish case (another constitutional right in addition to free exercise is involved) are the only ones that ever won under this test of when there's a generally applicable law that even indirectly burdens religion, you apply strict scrutiny. (These technically still survive Smith)

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b) Employment Div v. Smith, 494 U.S. 872 (1990), p. 648 NAME CASE

Con Law II Notes i) When a regulation is generally applicable, instead of targeting a practice of a particular religion as a religious practice, it is ok. Basically if its a generally applicable law, it does not raise the free exercise clause at all.
ii) unemployment cases (if law is targeted and not generally applicable) and amish case (another constitutional right in addition to free exercise is involved) are the only ones that ever won under this test of when there's a generally applicable law that even indirectly burdens religion, you apply strict scrutiny. (These technically still survive Smith) iii) If a criminal law does not violate free exercise, then the lesser burden of denying unemployment bennies does not violate it. iv) Smith smoked Peyote religiously, got fired from his job b/c of it, and then was denied unemployment benefits, b/c they were discharged for work related misconduct. v) Scalia declines to employ the Sherbert balancing test of strict scrutiny, b/c in this land of religious diversity, "we cannot afford the luxury of deeming presumptively invalid every regulation of conduct that does not protect an interest of the highest order." vi) O'Connor/Brennan/Marshall/Blackmun concurrence: Laws that criminalize a religious practice ought to be subject to strict scrutiny, regardless of general applicability. Would reach the same result by applying strict scrutiny. vii) Blackmun/Brennan/Marshall dissent: No evidence that use of peyote ever harmed anyone -- where is the compelling interest? c) Church of Lukumi v. Hialeah, 508 U.S. 520 (1993), p. 656 i) Santeria ritual animal sacrifices were barred by city ordinance, in violation of free exercise, b/c restrictions were b/c of religious motivation. Secular killings of animals were not prohibited by the statute. There were compelling government interests, by the statute is more restrictive than necessary. d) RFRA - Federal gov by statute is not allow to enact a law that has an adverse effect on religion unless strict scrutiny passes. (Kind of overrules Smith at the federal level) Employment Division v. Smith is still good constitutional law, but in practice statutory rights limit the case, and there's a land use case that does strict scrutiny in that context as well. e) Locke v. Davey, 540 U.S. 712 (2004), p. 656-658 i) Rehnquist: State scholarship program could not be used for theology degrees, but this did not violate free exercise, largely b/c the law was not directed as hostility toward religion like in Lukumi. For one thing, you could still go to religious institutions on the scholarships and take religious classes. State thinks it would abuse taxpayer money to use it to subsidize religious study (and that in itself might violate establishment). Discrimination not motivated by animus toward religion. ii) If the reason for the discrimination is not motivated by religion, it's ok. iii) Scalia/Thomas dissent: This is facial discrimination against religion. Since only religion is singled out as a field of study not available, this is violative. f) Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987), p. 660-663 i) Civil Rights Act exempts religious institutions from its prohibition against employment discrimination on basis of religion. Amos, a guy who was fired from the Deseret Gym b/c he didn't have a temple recommend, argues that this violates establishment. State sometimes has to accommodate religion, so long as it does not tread into establishment. He loses his argument, b/c it was the church and not the government that put him in the position of having to choose between changing his religion and changing his job. Allowing a religion to further itself is part of what free exercise is all about, and that's why it is permissible to grant them an exception. ii) key is balancing establishment against free exercise. -- So even though under Smith, you can make a generally applicable law that happens to burden religions, but you also may grant an exception to allow religions their free exercise, without violating establishment.

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