IF YOU HAVE TIME: Add extra information on standing, ripeness, mootness, etc. IF YOU
ANSWER WHAT WAS ASKED (EXTRA POINTS). EX: “In addition, I would raise the
following standing problems”
Interpretive Tools
Originalism vs. Non-Originalism
● Strict Originalism: original meaning at the time adopted
● Original Meaning Originalism: based on historical practices and understanding at the
time (not view of drafters)
● Nonoriginalism (three arguments in favor)
○ Constitution evolved by interpretation and not only by amendment
○ Not an unambiguous, knowable framers’ intent that can be found to resolve
constitutional questions
○ Framers did not intend an originalism interpretation
How to Write a Con Law Essay:
● Pick one interpretation (above) and stick to it.
● Then take the opposing interpretation and argue that as a counter.
● How to structure literally any conlaw argument:
○ First, spot the issue. More than likely there will not be two competing arguments
about how it should be interpreted. You might need to infer one or both
arguments.
○ Next, find the most current interpretation based on precedent. Treat this like a
rule statement. It might involve more than one element/totality of circumstances.
If there are several applicable rules, analyze them separately. BREAK THEM UP.
○ Take the facts from the case and apply them. There WILL be competing
interpretations so do that counter-analysis before your conclusion.
○ Write your conclusion. If you’re analyzing multiple issues maybe put an umbrella
conclusion.
APPROACH TO QUESTIONS:
(1) Case or Controversy?: Justiciability Doctrines
(2) What kind of Constitutional Law Question?
(A) Separation of Powers? (Judicial, Legislative, Executive Power)
(B) Federalism? (State v. Federal Power)
(C) Individual Rights? (i.e. Equal protection/DP/BoR)
EQUAL PROTECTION QUESTION:
I: Is there equal protection violation
R: there is a 4 part test for equal protection analysis.
A: Here, ____
C: Therefore, this _ violates the equal protection clause.
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I. Is There a Case or Controversy
(JUSTICIABILITY DOCTRINES)
Judicial Review
Judicial Review is the doctrine under which actions of the legislative and
executive branches must fall within the review of the judiciary branch.
o Judiciary may invalidate laws and decisions that are considered in
conflict / incompatible with the Constitution (Either from Congress or
Executive)
Allows the Court to nullify the actions of the other two branches as part of
the “checks and balances”
o May strike down legislation enacted by Congress
o Congress may NOT increase the jurisdiction of federal courts
Judicial Review: Judicial branch can declare Executive and (mainly) Legislative branch
actions unconstitutional and invalidate their laws and decisions. It is considered an
important check/balance on the other two branches.
Supremacy Clause
● Although it subordinates all laws and decisions to the Constitution, there are
some limits on this power. (cannot hear every case that comes before them)
Actual Dispute Requirement
- Federal courts do not, under Art. III, have the power to resolve legal questions that do
NOT arise out of an Actual Dispute
- Disputes must be construed as BETWEEN REAL PARTIES
- Must be a LIVE actual case or controversy
- meaning the “requisite person interest” must be present throughout the litigation
Justiciability Doctrines
-
The federal judiciary can only review “cases” and “controversies”
Five major doctrines:(LIMITS)
o(1) prohibition against advisory opinions, (2) standing, (3) ripeness, (4)
mootness, (5) and the political question doctrine.
§ All must be met for any federal court, at any level to hear a case.
Read the dicta of a case.
Is it justiciable? You need:
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Prohibition against advisory opinions
-
-
-
Cannot be an advisory opinion. (advisory opinion: given when there is no actual
case or controversy, but a direct, non-binding judgment is transmitted to the
heads of another branch absent a case or controversy) (EX: if there is a way to
get relief but no adverse party)
Is it an active case or controversy where there is a substantial likelihood that
a decision would have some sort of effect?
- If there's a way to get relief but no adverse party, you cannot seek an
advisory opinion.
There must be an actual dispute between adverse litigants.
- Plaut v. Spendthrift Farm, Inc: so long as a case retains the essentials
of an adversary proceeding, involving a real—not hypothetical—
controversy, it is justiciable.
- Supreme Court may not issue advisory opinions.
Standing
-
There must be standing. Does the petitioner have a personal stake in the
controversy?
Three Constitutional Standing Requirements
- (1) INJURY: P must have suffered OR imminently will suffer an injury (an
invasion of a legally protected interest)
- Injury must be (a) concrete and particularized, and (b) actual or
imminent (CANNOT be conjectural or hypothetical)
- Injury can be either economic or non-economic
- Specific TYPES of injury that is sufficient for STANDING
- Common Law rights (property, contracts, torts)
- Const. Rights (individual rights, freedom of speech, due
process)
- NO generalized grievances
- Statutory rights (violation of a right created by STATUTE)
- Other harms court views as sufficiently important
(environmental, economic)
- ZONE OF INTEREST TEST: two tests used by SCOTUS here
- ZONE OF INTEREST: P is arguably within the zone of
interest protected by the statute or Const. provision
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-
-
-
-
ZONE OF INJURY: P’s injury is arguably within the zone of
injury of the KIND of injury that Congress expected might be
addressed under the statute.
(2) CAUSATION: P must establish a Causal Connection between the
injury and the conduct complained of, so that the injury is FAIRLY
TRACEABLE to the challenged action of the D, and NOT the result of
INDEPENDENT ACTION of some THIRD PARTY that is not before the
court.
- The injury is traceable to the defendant
(3) REDRESSABILITY: Must be LIKELY, NOT speculative, that a
favorable court decision will redress the injury. Plaintiff must demonstrate
the relief sought will substantially eliminate or redress the injury.
PRUDENTIAL Standing Requirements (Judicially Created)
1. Prohibition on THIRD PARTY standing: a party may only assert HIS or
HER rights and CANNOT raise the claims of a THIRD PARTY who is NOT
before the court.
a. EXCEPTIONS
i.
(1) Close Relationship between Plaintiff and Third Party
(advocate seeking standing is a part of third party’s
constitutionally protected activity)
ii.
(2) Where the Third Party is unlikely to be able to sue
(substantial obstacles to third party representing themselves;
injured party unlikely to assert rights) or
iii.
(3) Standing for Associations (if members of an organization
will be injured or affected in a tangible way, the association
or organization can sue on behalf of membership)
2. Prohibition of GENERALIZED GRIEVANCES: generally, plaintiffs cannot
sue if the injury is WIDELY SHARED with many people. Court says these
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are more appropriately handled by POLITICAL branches. Does not want
to risk violating the separation of powers.
a. EX: No federal taxpayer standing complaints about spending or
federal funds TOO remote from the process of acquiring them.
i.
US v. Richardson: no standing suing as a tax payer
regarding CIA spending disclosure. P’s remedy through
political process, NOT the courts. There was no
PARTICULARIZED HARM
b. Establishment Clause Exception
i.
Taxpayers may challenge government spending as violating
the Establishment Clause against religion
1. Ex: Government giving money directly to religious
schools
ii.
Taxpayer may not challenge any government grant of land
as violating the Establishment Clause (ONLY MONEY)
Ripeness
- The determination of whether a federal court can grant pre-enforcement review.
- For a suit to be ripe for adjudication, the injury threatened must be relatively
immediate and certain to occur without court intervention
- The litigant must show that an injury has occurred or will imminently occur
without court intervention.
- The Abbot Balancing Test is helpful for determining if a litigant is entitled to
pre-enforcement review for declaratory judgment. Evaluate:
O (1) fitness for judicial review
O (2) hardship to both parties of withholding court consideration
- Indicators:
o Laws that have been enacted but never applied may lack ripeness.
o No Pre-Enforcement Review unless immediate threat of harm (court
will not hear a case if the injury is speculative or may never occur)
O Hardship Requirement : The more likely a plaintiff can demonstrate
substantial harm if the court denies review, the more likely the court is to
find ripeness?
o Fitness of Issues and Record (court has what it needs to review the
case; no need to wait for review)
O Exhaustion of Administrative Remedies
O Finality of Administrative Decision
Examples of UNRIPENESS
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O If facts of dispute are in the early stages and insufficiently developed
(assessing potential injury or extent of personal stake may be speculative)
o Where plaintiff seeks an injunction or TRO (forms of anticipatory relieve)
§ ALTERNATIVE: May seek declaratory relief, rather than a
specific remedy??
Mootness
-
If MOOT = DISMISSED
Legal matter is MOOT if the claim has been RESOLVED at ANY POINT
Plaintiff must present a LIVE CONTROVERSY to the court at ALL STAGES of
litigation
If resolved = NO live dispute for the court to resolve
EXCEPTIONS
- Wrongs Capable of REPETITION but evading review
- Where the duration of the injury is SHORT, so that it would evade
review, but is likely to be repeated (EX: abortion bc pregnant when
filed but pregnancy completed by the time it reaches court, but
could have been repeated)
- (e.g., injury ceases so quickly but is a wrong that is capable of
repetition)
- Voluntary Cessation
- If there is NO reasonable chance that the defendant could resume
the offending behavior
- (e.g., defendant voluntarily ceases offending behavior, but, chance
of resumption of injury may persist or chance that harm could
resume)
- Voluntary cessation of an offense or voluntary
compliance with the law does NOT render a legal claim
moot because the proper behavior can be repeated
- EX: Pollution, we aren’t putting sludge in the river but
post controversy they can go back
- Class Action Suits
- Is it a class action that (a) have sharply presented issues in (b) a
concrete factual setting (c) among two conflicting, self interested
parties (d) who are advocating for opposing positions.
- As long as the MEMBERS of the class still have a LIVE
CONTROVERSY
- (e.g., properly certified class action suit excepted when named
plaintiff’s claims are mooted)
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-
Secondary Legal Consequences or Collateral Consequences
- (e.g., collateral injury survives even though plaintiff’s primary injury
has been resolved)
Political Question Doctrine
-
Generally applicable to:
1. Issues presented before the court that have been committed to another
branch or should properly fall within the responsibility of the political
branches to resolve.
2. Issues that are inherently INCAPABLE of judicial resolution
-
APPLIED
- Congressional Self-Governance
- Challenges to restrictions on congressional membership
- Challenges to revenue-raising bills originating in the Senate as
opposed to the House
- Foreign Policy
- Deciding if a treaty has been terminated
- MOST issues relating to the Constitutionality of a foreign policy
matter, military decisions, and war are generally considered
NONJUSTICIABLE
- Impeachment and Removal
- The House has sole power of impeachment, Senate has sole
power to try all impeachments.
SIX PART ANALYSIS
1. History of management by other branches
2. Lack of judicially manageable standards for resolving the issue
3. Impossibility of deciding the case without an initial political determination
4. Impossibility of deciding the case without a lack of due RESPECT for
other branches of government.
5. An unusual need for unquestioning adherence to a political decision
already made
6. Potential of embarrassment due to conflicting decisions by different
branches of government.
a. EX: Courts may not review the constitutionality of impeachment
proceedings done by the Senate
-
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II. What Kind of Constitutional Law Question
A. Separation of powers? (Judicial, Legislative, Executive
Power)
The Federal Judicial Power
a. Judicial Powers (ABOVE AS WELL)
i.
Doctrine of Judicial Review (interpretations above)
1. Doctrine under which actions of the legislative and executive
branches must fall within the review of the judiciary branch.
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ii.
iii.
iv.
a. Judiciary may invalidate laws and decisions that are
considered in conflict / incompatible with the
Constitution (Either from Congress or Executive)
b. Allows the Court to nullify the actions of the other two
branches as part of the “checks and balances”
c. May strike down legislation enacted by Congress
d. Congress may NOT increase the jurisdiction of
federal courts
Stare decisis
1. is the doctrine that courts will adhere to precedent in
making their decisions.
Other Judicial Doctrines
Limitations on Judicial Power (Doctrines above)
The Federal Legislative Power
b. Legislative Powers
Powers of Congress:
-
Commerce Clause
Tax and Spend Power
Necessary and Proper Clause
Power to Declare War
Citizenship Power
- Naturalization Clause
- Migration Clause
Congress may act only if there is express or implied authority in the Constitution
The States may act unless the Constitution prohibits the action (Art 1 and 10A)
Questions to ask:
- How is congress trying to justify the law?
- Congress cannot pass laws if they are not authorized to do so under one of these
powers
- What r they doing, are they justified to do it, did they do it, what are the limitations
on that power
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When Evaluating the ACTS OF CONGRESS:
1. Does Congress have the authority under the constitution
2. Does the act of Congress violate another constitutional provision or doctrine?
-
-
In evaluating the constitutionality of any act of Congress’s:
1. Does Congress have the authority under the constitution to legislate?
2. Does the law violate another constitutional provision or doctrine, such as
by infringing separation of powers or interfering with individual liberties?
When evaluating the constitutionality of a state law, there is a single question:
- Does the legislation violate the constitution?
Key difference between federal and state governments is that only the latter
poses police power.
- The police power allows state and local governments to adopt any law that
is not prohibited by the constitution.
Necessary and Proper Clause
-
“To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers and all other powers vested by this constitution in
the government of the united states”
ANALYSIS: Allow use of ANY MEANS if…
1. The use of the underlying power is legitimate
2. Means is…
a. Rationally related
b. To the implementation of a constitutionally enumerated power
3. The means is not prohibited by the Constitution
-
-
Federal laws need NOT be “absolutely necessary” to be justified under the NPC
(this clause is placed upon the POWERS of congress, not among the
LIMITATIONS of those powers)
- 2 Part Test For Assessing Appropriateness
1. The law must be directed toward a legitimate end, which is “within
the scope of the Constitution”
2. There must be a necessary and proper fit between the means
(the federal law) and the ends (the enumerated power/s) it is
supposed to serve.
NPC Allows Congress to Enact Laws that PROTECT THE PUBLIC (US v.
Comstock)
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-
-
upheld statute authorizing DOJ to detain mentally ill and sexually
deranged prisoners beyond release date. Upheld because within power of
NPC to enact laws that PROTECT THE PUBLIC
Five Principle Considerations Guiding this Conclusion:
1. Does the law enacted by Congress further governance goals that
are pursuant to constitutionally enumerated powers? If yes = NPC
2. Does the Congressional act fall within historic objectives and
history of regulation in this area through similar laws?
3. Does the Congressional act serve important, compelling
governmental goals?
4. Statute’s accommodation of state interests (do they infringe 10 A?
or powers reserved to Congress?)
5. Is the law narrowly tailored?
Commerce Clause
Analysis: 3 Key Questions
1. Is it commerce? (e.g. commercial or economic activity)
2. Is commerce among the states?
a. Channels
b. instrumentalities/persons/things
c. Substantial effect
3. Does the 10A limit Congress’ commerce power?
-
Meaning: Congress may regulate commerce among the several states (MAIN
THING)
Commerce: All phases of business and commercial intercourse including things
substantially relating, and intrastate commerce with interstate effects.
Affectation Doctrine: So long as an action substantially affects interstate commerce,
then the government can regulate it.
Lopez Test: Established three categories of REGULATORY AUTHORITY
1. The power to regulate the CHANNELS of interstate commerce;
a. EX: Prohibiting interstate shipment of unauthorized/uninspected food
b. Regulation of navigable highways/airspace/waterways
c. Can regulate in a COMPLETE manner (prohibiting transportation entirely)
2. The power to regulate the INSTRUMENTALITIES/PERSONS/THINGS in
interstate commerce; and
a. (even though the threat may come only from intrastate activities) (e.g.,
federal aviation regulations);
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3. The power to regulate LOCAL ACTIVITIES that have a SUBSTANTIAL
ECONOMIC EFFECT on interstate commerce
a. Only where the activity is economic in nature
i.
Domestic violence against women: not economic
ii.
Gun-free school zone act: not economic
b. EXAMPLES:
i.
Congress can regulate collective bargaining at a steel mill because
a strike substantially affects interstate shipment of goods.
ii.
Congress may regulate a “class of activities” if the class as a whole
affects interstate commerce even if not all members of the class
affect interstate commerce
1. Ex: held congress could regulate home-grown marijuana,
even where states approve for medical purposes
iii.
Activities that substantially affect/relate to interstate commerce
(e.g., regulate collective bargaining at a steel mill because a strike
substantially affects interstate shipment of goods)
1. Upheld provision prohibiting discrimination in public
accomodation
Restrictions on the Commerce Power
1. Commerce power CANNOT be used to COMPEL people to engage in commerce
2. Cannot regulate commerce that does not yet exist or inactivity per say
a. Cannot regulate commerce that hasn’t happened yet
3. (local production can be regulated when it has a Substantial Economic Effect on
interstate commerce) is the OUTERMOST LIMIT / FURTHEST EXTENT of the
Commerce Power
10A Limitations on Congress’ Commerce Clause Authority
- Reserves power to the states and to the people
- Anti-Commandeering Doctrine:
- Congress is prohibited from compelling state regulatory or legislative
action/resources under Tenth Amendment
- Two acceptable ways to incentivize states:
1. Monetary incentives
2. Offer states the choice of regulating that same activity according to
federal regulations or having state law preempted by federal
regulations
- “Take Title” incentive was unconstitutional because it was
impermissibly coercive and a threat to state sovereignty
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-
Congress is prohibited from commandeering state officers and state
officials to enforce a federal regulatory program under the 10th
Amendment
Tax and Spend Power
This gives congress authority to impose taxes to be spent on public welfare & military defense
Analysis:
1. Spending for the general welfare
2. Any and all conditions are unambiguously stated
3. Rational relationship between spending and the federal interest in a particular
national project or program
4. No other constitutional provision bars the exercise of the power (like 10A)
5. No coercion of state compliance
-
-
-
US v. Butler: tax and spend power does NOT encompass the imposition of a tax
on agricultural processors for the purposes of remedying the low price of
agricultural products.
- Regulating matters of PURELY STATE CONCERNS exceeds the proper
scope of the federal power (unconstitutional)
- Congress may NOT “declare that LOCAL CONDITIONS throughout the
nation have created a situation of national concerns
- The Tax and Spend power was an ENTIRELY SEPARATE enumerated
power to Congress to tax/spend, and the ONLY LIMIT was that it must
provide for the GENERAL WELFARE
Sabri v. United States: FACTS: Congress had enacted a new act, making it a
federal crime to bribe government officials who receive at least $10,000 in federal
funds, then Sabri bribed a city councilman 3 x to be able to develop different bits
of land
- HOLDINGS: the absence of a nexus between federal funding and a bribe
prohibited by state is NOT dispositive in assessing the Constitutionality of
the statute
- the supreme court said that this act was within congress’s power
and there is no need to show a connection between federal money
and the bribery
- this was proper under the necessary and proper clause, because
there is a rational basis for this act to pass
South Dakota v. Dole: FACTS: SD allows the purchase of beer by people aged
19+, then the US gov said they’d withdraw federal highway funds to any state
that has a lower drinking age than 21
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-
HELD: Congress can withhold federal highway funds if a State fails to
comply with a federal minimum drinking age.
- Congress may use its spending power to INDUCE THE
COOPERATION of the States in areas that it otherwise would not
be able to regulate.
-
(ALLOWS INDIRECT REGULATION of States through the
THREAT OF WITHHOLDING FUNDING) → BUT…CANNOT
COERCE (NFIB)
-
4 Part Test
1. The exercise of the Tax and Spend Power is for “general welfare”
2. The conditions attached are clear (unambiguous)
3. Conditions must be related to federal interests
4. Passes independent constitutional muster
Other Powers of Congress
Impeachment:The Constitution gives the House of Representatives the sole power to
impeach an official, and it makes the Senate the sole court for impeachment trials. The
power of impeachment is limited to removal from office but also provides a means by
which a removed officer may be disqualified from holding future office
Declare War: The Constitution grants Congress the sole power to declare war.
Post Civil War Amendmens:
- 13th Amendment: Slavery
a. Section 1: Illegal now
b. Section 2: Allows Congress to pass laws and enforce that
- Congress may regulate slavery and regulate discrimination
- 14th Amendment: Privileges and Immunities, Due Process and Equal
Protection
- Applies to STATE action rather than private action.
- TEST: Whether the means adopted to prevent or remedy an injury are
congruent and proportional to the injury itself
- BALANCING the benefits of freedom verses the action
- 15th Amendment: Right to Vote
- Section 1: rule
- Section 2: Congress gets to rule on that
The Federal Executive Power
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c. Federal Powers
ANALYSIS:
1. If the president has explicit constitutional authority
- Is president acting within the scope of the granted power and whether the
president is violating some other provision?
2. If there is a statute authorizing the president’s conduct explicit statutory authority?
- The question is whether that law is constitutional.
3. If there is neither constitutional or statutory authority?
- Youngstown Concurrence: Jackson’s Tripartite Scheme.
Commander in Chief Power
[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of
the Militia of the several States, when called into the actual Service of the United States."
The Administrative State
-
-
-
Congress may delegate legislative power to Executive. (“Intelligible principles”
test).
- Remains the governing doctrinal formulation for distinguishing between
legitimate and illegitimate delegations
- If Congress shall lay down by legislative act an intelligible principle to
which the person or body authorized to take regulatory action is directed
to conform, such legislative action is not a forbidden delegation of
legislative power.
The Administrative State & the Constitution
- 1. Congress can give an executive agency the authority to promogulate
through an enabling clause
- 2. nondelegation doctrine: the 3 branches should coordinate with one
another, but one branch can’t give another branch power beyond those
constitutionally granted to the branch
- a. there have to be clear boundaries and instructions how to use
any powers delegated
- b. intelligible principle act: what is the purpose of the enabling
statute & how do you regulate to achieve those goals?
Intelligible Principles Test:
- Necessary
- Defined limits
- Secure the exact effect intended
- Public regulations interpreting a statute
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-
-
-
Immigration Power
We assume without deciding that the case is justiciable. Section 1182(f) of the
Immigration and Nationality Act (INA) affords the President “broad discretion” to
suspend the entry of noncitizens into the US. The Proclamation was the result of
a “worldwide, multi-agency review” that determined that entry by certain
noncitizens “would be detrimental to the interests of the United States”
Proclamation complies with the statutory power of the president.
Appointments Power and Pardon Power
President can appoint “Officers of the United States” who exercise “significant
authority under the laws of the United States.” Buckley v. Valeo, 424 U.S. 1
(1976) (officers involved in policy making, rulemaking and adjudication, and other
broad governmental powers).
PARDON: President may pardon individuals or classes of individuals any time
after offense is committed. Pardon power: precludes conviction and removes or
mitigates penalties from conviction. Congress may not limit pardon power. United
States v. Klein, 80 U.S. 128 (1871).
Other Executive Powers
-
-
-
-
-
President can remove officers and officials whose exercise of discretion is
essential to executive branch functioning. However, Congress can create an
“independent” executive oversight branch whose officials can be removed “for
cause.”
- **UNLESS PROHIBITED BY STATUTE
Military Powers (e.g., The War Powers Act of 1941, 1942): President as
Commander-in-Chief can take some military action without congressional
authorization.
US v. Curtiss-Wright Export Corporation: Distinction between foreign powers
and domestic powers. “The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations.”
Zivotofsky v. Kerry, 135 S.Ct. 2076 (2015): Even where foreign affairs power
may appear to be concurrent between Congress and the President, the authority
to recognize foreign sovereigns is an exclusive, vested power of the Executive.
(Zivotofsky v. Kerry).
Limitations on Executive Privilege: There is no absolute, unqualified executive
privilege power. There is no presidential privilege of immunity from the judicial
process. Absent a claim of need to protect military, diplomatic, or sensitive
national security matters, judicial process can outweigh executive privilege.
United States v. Nixon, 418 U.S. 683 (1974).
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-
Treaty Power (Art. I, § 10): President’s power to make treaties is pursuant to the
advice and consent of Senate (Art. II, § 2).
Limitations on Executive Powers (Youngstown Tripartite Scheme)
-
-
Executive power is limited to the scope of what is permitted under the express
powers of the Constitution and the enforcement of the laws of Congress. There is
no unspecified and limitless “inherent” presidential power that can be inferred
from the aggregate powers set forth in Article II.
THREE-PRONG TEST for determining the scope of executive power:
(Youngstown Tripartite Scheme): can pres do something
- (1) When the President acts with the express or implied authorization of
Congress then the President’s authority is at its greatest.
- (2) In the absence of either a congressional grant or prohibition then the
President acts in a zone of twilight. In this circumstance, Congress and the
President may have concurrent authority. In this zone of twilight, an actual
test on authority will be dependent on the events and the contemporary
theory of law existing at the time.
- DOES SILENCE MEAN CONGRESS IS CONSENTING TO PRES
ACTION OR NOT
- Look at act of congress: is this authorizing him
- (3) When the President takes measures that go against the expressed will
of Congress, his power is at its lowest.
- Classic horizontal sep of powers
- THINK OF NIXON
- Didn’t want to have his tapes leaked
- No absolute presidential immunity besides need for
protecting diplomatic, war, or national security.
B. Federalism? (State Power v. Federal Power)
Limitations on Congressional/Executive Power
Anti-Commandeering Doctrine Under 10A
-
Anti-Commandeering Doctrine
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-
-
Congress prohibited from compelling state regulatory or legislative
action/resources under the Tenth Amendment. New York v. United States,
505 U.S 144 (1992).
Congress is prohibited from commandeering state officers under Tenth
Amendment. Printz v. United States, 521 U.S. 898 (1997).
9th and 10th Amendment
-
-
9A: Tells us that just because the Constitution lists certain important limitations
on federal power, this doesn't mean that the federal government has otherwise
unlimited power
- The enumeration in the Constitution, of certain rights, "shall not be
construed to deny or disparage "others retained by the people."
10A: The Tenth Amendment reserves to the states all powers not specifically
granted to the federal government, including the right to regulate elections.
9 and 10 A: Ensure that every subject not placed under the control of the
national government would remain under the control of the people in the states
and remain there as a matter of right. The Tenth Amendment declares that all
powers not delegated away remain under the control of the people in the states.
General Policing Power/Historic Spheres of Regulation Retained by States
INSERT HERE:
Limitations on State Power
Preemption / Supremacy Clause
-
Preemption Doctrine is Justified by Supremacy Clause (Art. VI, § 2): “Constitution
and the Laws of the United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made under the Authority of the United
States, shall be the Supreme Law of the Land.”
- Because of the Supremacy Clause, where there is a conflict between the
federal law and a state or local law, the state/local law is preempted.
Two kinds of preemption: Express Preemption and Implied Preemption.
-
Express Preemption: Did Congress explicitly include language in the text of the
statute that expresses an intent that state and local laws will be preempted?
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-
-
-
When the text of the law states that the law will be having this preemptive
force over state and local laws.
Implied Preemption:
- “Preemption may be either express or implied, and is compelled whether
Congress’ command is explicitly stated in the statute’s language or
implicitly contained in its structure or purpose.”
Three Types of Implied Preemption
- Conflict Preemption: Where compliance with both federal and state
regulations is a physical impossibility
- When both federal law and state law are on point, federal law
preempts state law if there is a conflict between the two laws such
that compliance with both is impossible.
- Obstacle Preemption: Where state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress
- A federal law may preempt a state or local law, even if the laws are
not mutually exclusive, if the state law is deemed to impede the
achievement of a federal objective.
- Field Preemption: Where the scheme of federal regulation is so
pervasive as to make reasonable the inference that Congress left no room
for the States to supplement it (e.g., field of immigration and alien
registration)
- If the regulatory system is completely occupied by Congress, the
state law is preempted. The federal government exercises broad
regulatory power over the field of immigration law.
- EX: Immigration policy impacts a broad range of interests
that are national and international in scope, including, trade
and investment, national security, diplomatic relations,
reciprocal treatment treaties, etc.
Dormant Commerce Clause (and Exceptions)
ANALYSIS:
1. Does the state or local law discriminate against out-of-staters
a. If the state law IS discriminatory against out-of-staters
i.
Facially Discriminatory Law
1. Whether the statute regulates evenhandedly
2. Whether it serves a legitimate local purpose; and
3. Whether alternative means could promote the local purpose
without discriminating against out-of-staters
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ii.
Facially Neutral Law
1. Is thera a disparate or discriminatory impact, even if the
state law is facially neutral
2. If so, is the state law legitimate and there are no
discriminatory alternatives?
b. If the state law burdens interstate commerce:
i.
Dormant Commerce Clause Balancing Test
1. State regulations must not materially restrict the flow of
interstate commerce;
2. State law may not interfere with interstate commerce in
matters requiring national uniformity
3. Courts must determine the nature and extent of that burden,
and weigh/balance that burden against the benefits and
merits of the state law. (BALANCE BENEFITS OF A STATE
LAW AGAINST THE BURDENS IT IMPOSES ON
INTERSTATE COMMERCE)
ii.
Other Potentially Relevant Factors
1. E.g., state police power v. commerce power; national
concern v. local concern; direct v. indirect impact on
commerce
2. Does an exception to the Dormant Commerce Clause apply?
a. Congress approves the state law
b. Market participant
Dormant Commerce Clause: principle that state and local laws are unconstitutional if
they place an undue burden on interstate commerce
- Even where there is no preemption, laws can be challenged on grounds that they
excessively burden commerce among the states
- TWO FUNCTIONS: authorizes congressional action and limits state and local
regulation
Dormant Commerce Clause
1. Does not require discrimination against out-of-staters in order to apply
2. Requires a burden on interstate commerce (might involve discrimination against
out-of-staters)
3. U.S. citizenship is not a prerequisite. Corporations and aliens can sue under it.
4. Exceptions: Congressional Approval Exception and Market Participant Exception
Modern Balancing Test: the modern approach is based on courts balancing the
benefits of a law against the burdens that it imposes on interstate commerce
Facially Discriminatory Laws:
20
-
Must be necessary and the least restrictive means to achieve non-protectionist
objectives.
- Presumptively invalid
- The court has held that reciprocity requirements – a state allows out-of-staters to
have access to markets or resources only when the out-of-staters are from states
that grant similar benefits – are facially discriminatory
Facially Neutral:
- Use BALANCING TEST: benefits to the government must outweigh the burdens
on interstate commerce
- A court may find that a state law consitutes “exonomic protectionism” on proof
eitehr of discriminatory effect or of discriminatory purpose.
Exceptions to the Dormant Commerce Clause
1. Congressional Approval Exception
a. If congress approves a state law, even a clearly unconstitutional,
discriminatory state law will be allowed if approved by Congress because
Congress has plenary power to regulate commerce among the state
i.
EX: Where congress has adopted federal legislation that allows for
state regulation of alcoholic beverages, the states may restrict the
importation and sale of alcoholic beverages
2. Market Participant Exception
a. A state may favor its own citizens in receiving benefits from government
programs or in dealing with government-owned businesses
i.
EX: The State of Dakota, as a seller of cement, is allowed to charge
less to in-state purchasers of cement and charge more to out-ofstate purchasers of cement.
Privileges and Immunities Clause
Analysis under Privileges and Immunities
1. States must afford nonresidents the same rights as their own residents with
regard to rights and privileges that are “basic to the maintenance or well-being of
the Union.”
a. Engaging in employment and the right to earn a livelihood and conduct
business
b. Owning, possessing, or disposing of property
c. Traveling through and within a state, including changing state residence
(might fall under Privileges or Immunities Clause)
d. Seeking medical care (might fall under Privileges or Immunities Clause)
e. Treatment by courts and criminal justice system
21
Privileges and Immunities Clause of Art. IV
1. Requires discrimination against out-of-staters to apply
2. Discrimination with regard to civil liberties or important economic activitiy
3. U.S. citizenship is a prerequisite: Corporations and aliens can not sue under it.
4. No exceptions.
When a challenge is brought under the Privileges and Immunities Clause, there are two
basic questions
1. Has the state discriminated against out-of-staters with regard to privileges
and immunities that it accords its own citizens?
a. They may be comprehended under the following general heads:
protection by the government, the enjoyment of life and liberty, with
the right to acquire and possess property of every kind, and to
pursue and obtain happiness and safety; subject nevertheless to
such restraints as the government may justly prescribe for the
general good of the whole.
b. Court has also said that the issue is whether the interest is
sufficiently fundamental to the promotion of interstate harmony.
2. If there is such discrimination, is there a sufficient justification for the
discrimination?
The P&I Clause is not absolute, but it creates a strong presumption against state and
local laws that discriminate against out-of-staters with regard to fundamental rights or
important economic activities.
- Yes, the Privileges and Immunities Clause is not absolute, however, states that
discriminate against outsiders must support the discrimination with a substantial
reason in order to justify the discrimination. The inquiry is whether (1) such
substantial reason(s) exist and (2) whether the degree of discrimination is closely
related to the substantial reason(s) provided by the state. Here, a legitimate
reason exists, yet, there is no evidence that the discriminatory fees are justified
(the out-of-staters do not pose a threat).
- Might be difficult to balance these weighing interests
- States may treat nonresidents differently if: (1) state has a substantial reason for
different treatment; (2) there is a close relationship between the substantial
reason and the discrimination (e.g., nonresidents must be more closely regulated
because of the nature of activity regulated, or because out-of-stater may be the
cause of the harm the state is attempting to remedy); and (3) there is not a less
restrictive means. Here, there are less restrictive means for achieving the state’s
goals.
-
Analysis Under the Privileges and Immunities Clause:
22
-
Equal treatment for fundamental interests: States must afford nonresidents the
same rights as their own residents with regard to rights and privileges that are
“basic to the maintenance or well-being of the Union.”
- Engaging in employment and the right to earn a livelihood and conduct
business;
- Owning, possessing, or disposing of property;
- Traveling through and within a state, including changing state residence
(might fall under Privileges or Immunities Clause);
- Seeking medical care (might fall under Privileges or Immunities Clause);
- Treatment by courts and the criminal justice system
C. Individual Rights
Structure of Constitution’s Protection of Rights and
Liberties
Incorporation and Application of Bill of Rights to States
-
“The text of the Constitution, apart from the Bill of Rights, contains few provisions
concerning individual liberties.”
- Originally, Bill of Rights only applied to the federal government.
- Later, the Bill of Rights was “incorporated” via the 14th Amendment Due Process
Clause and applied to states
State Action Doctrine
State Action Doctrine:
- Must have “state action” in order to apply to protections of constitutionallyprotected individual rights and the protections of the Fourteenth Amendment
Exceptions to State Action Doctrine
1. Public Function Exception
a. Government should not be able to avoid constitutional obligations through
private delegation and, conversely, private entities should be held to the
same constitutional obligations if assuming public functions
i.
Administration of municipality is a “public function” whether or not
the municipality or city is government-led or privately-owned
2. Entanglement Exception
23
a. Constitution applies if the government in an affirmative way engages in the
authorization, encouragement, or facilitation of private conduct that is
constitutionally violative.
i.
Courts may not judicially enforce racially restrictive covenants.
3. Thirteenth Amendment
a. Banning slavery/involuntary servitude, applies to private conduct.
Equal Protection
-
“No state shall . . . deny to any person within its jurisdiction the equal protection
of the laws.”
ANALYSIS (Framework for Equal Protection Analysis)
1. Question 2: What is the Classification? (of people alleging harm)
a. Suspect Class (Strict Scrutiny)
i.
Race
ii.
National Origin
iii.
Alienage (Generally Strict Scrutiny)
b. Exceptions:
i.
Regulations that concern self-governance and democratic process
1. Voting, jury service, etc.)
ii.
Congressional discrimination under plenary power to control immigration
iii.
Undocumented children (Intermediate Scrutiny)
c. Quasi-Suspect
i.
Gender, nonmarital children, undocumented children, sexual orientation?)
d. Other Classifications
i.
Socioeconomic class/wealth, age, disability, sexual orientation
2. Question 2: What is the appropriate level of scrutiny?
a. Strict Scrutiny (SUSPECT): law is upheld if it is necessary to achieve a
compelling governmental purpose. Government has the burden to show:
i.
Vital need for law and that the actual purpose is compelling
ii.
The means to achieve the purpose are (1) necessary and (2) no less
restrictive alternative exists
b. Intermediate Scrutiny/Middle-Tier Review (QUASI-SUSPECT): law is upheld if
it is substantially related to an important governmental purpose. Government has
burden to show:
i.
Important actual goal is achieved
ii.
Means are substantially related to an important goal; the government's
action must be substantially related to an important government interest.
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1. Unresolved whether the government must use least restrictive
means to achieve government’s important objectives and goals.
c. Rational Basis Test (OTHER CLASSIFICATION): Law is upheld if it is rationally
related to a legitimate governmental purpose (does not necessarily have to be
actual purpose)
i.
CHALLENGER HAS BURDEN TO SHOW:
ii.
Law has no conceivable rational purpose;
iii.
Law is not a rationally-related means to achieve purpose.
3. Question 3: Does the government action meet the level of scrutiny?
Rational Basis Test
-
Challenger has burden of proof, government given high level of deference.
Presumption of constitutionality.
Decision only has to be reasonable and not arbitrary.
Legitimate Purpose: Public safety, public health, morality, peace and quiet, law and
order . . . any goal that is not forbidden by the Constitution.
- The actual purpose behind a law is irrelevant and the law must be upheld “if any
state of facts reasonably may be conceived to justify” its discrimination.
Level of inclusiveness is a key inquiry for determining whether the means fit the ends;
laws can either be . . .
1. Overinclusive: class, as defined by trait, includes non-targets [New York City
Transit Authority v. Beazer]
2. Underinclusive: class, as defined by trait, doesn’t include all targets [Railway
Express Agency, Inc. v. New York]
Antidiscrimination principle: primary purpose of the statute CANNOT be to target
unpopular groups. [U.S. Dep’t of Agriculture v. Moreno]
- When there are more vulnerable plaintiffs, court may apply RBR “with bite” and
be a little more suspicious (e.g. Food Stamps Act case)
Intermediate Scrutiny
What is the Classification? Gender
- What is the Level of Scrutiny? Middle-Tier Review
- Discrimination on the Basis of Gender: Intermediate Scrutiny
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-
-
Intermediate Scrutiny/Middle-Tier Review: Law is upheld if it is
substantially related to an important governmental purpose.
Government has burden to show:
- Important actual goal is achieved;
- Means are substantially related to an important goal;
government’s action must be substantially related to an
important government interest.
- (Unresolved whether government must use least
restrictive means to achieve government’s important
objectives and goals).
Quasi-Suspect Classification: Gender
- Heightened Scrutiny: Gender-based discrimination must substantiitaly
advance an important governmental interest
- Heightened Scrutiny applies even in “affirmative action” context where the
governmental action serves as a benefit to the gender
- Gender classification based on gender stereotypes justify higher level of
review than rational basis.
Strict Scrutiny
Strict Scrutiny for Discrimination Based on Race and National Origin
- Strict Scrutiny:
- (1) Action must be necessary for compelling purpose.
- (2) Evidentiary burden is on government:
- Government has burden to show:
- Vital need for law and actual purpose is compelling;
- The means to achieve the actual purpose are (1) necessary
and (2) No less restrictive alternative exists.
Race and National Origin Classifications on the Face of the Law: Immediately suspect
Generally, Strict Scruitiny for Discrimination on the Basis of Alienage or Citizenship
Status (Lawful Residents):
- Exception: Regulations that concern self-governance and democratic process
- (e.g., voting, jury service, hiring public officials such as probation officers,
etc.)
- Exception: Congressional discrimination under plenary power to control
immigration.
- Exception: Undocumented children in the providing of public education
(Intermediate Scrutiny)
- (See, e.g., Plyler v. Doe, 457 U.S. 202 (1982))
Strict Scrutiny for Discrimination Based on Race and National Origin
26
-
-
-
Race and National Origin Classifications on the Face of the Law: Immediately
suspect
Facially Neutral Laws with a Discriminatory Impact or with Discriminatory
Administration
- Laws or governmental policies/practices that may have a disparate impact
on the basis of race or national origin?
Disparate Impact/Requirement for Proof of Discriminatory Purpose
- Proof of discriminatory purpose required for law to be treated as race or
national origin classification for Equal Protection analysis.
- Facially neutral laws will receive rational basis review. See, e.g.,
Washington v. Davis, 426 U.S. 229, 242 (1976).
- Disparate impact alone is not enough to establish discriminatory motive or
animus. See, e.g., Washington v. Davis, 426 U.S. 229, 242 (1976).
List of factors courts may consider to determine whether governmental
decisions are motivated by an impermissible factor such as race or
national origin classification:
1. disparate impact is starting point in questioning the official action,
including whether “a clear pattern, unexplainable on grounds other than
race;
2. “the historical background . . . particularly if it reveals a series of official
actions taken for invidious purposes”;
3. suspicious “sequence of events leading up to the challenged decision”;
4. “departures from the normal procedural sequence”;
5. “substantive departures” involving “contrary” decisions; and
6. “the legislative or administrative history.”
Procedural Due Process (Matthews 3-Part Balancing Test)
-
The Due Process Clause is also used to impose procedures on the government
when it takes away a person’s life, liberty or property. (Procedural Due Process)
Procedural Due Process
- Refers to the procedures that the government must follow before it
deprives a person of life, liberty or property.
- EX: What kind of notice and what form of hearing the government must
provide when it takes a particular action.
- CAN BE BROKEN DOWN INTO 3 QUESTIONS:
1. Has there been a “deprivation”
2. Is it of “life, liberty or property”
3. Is it without “due process of law”
Mathews 3-Part Balancing Test:
27
When assessing the procedural due process that is required before the deprivation, the
court should weight the following three factors:
1. Interests of individual at stake and injury threatened by the official action;
2. Risk of erroneous deprivation and probable value of additional or substitute
safeguards;
3. Costs and administrative burden of additional process and interest of government
in efficiency of adjudication process.
Common Examples of Procedural Due Process Requirements
- The Supreme Court has held that parents have a liberty interest in the custody of
their children.
- Procedural Due Process requires that the government provide notice and
a hearing, and that there be clear and convincing evidence of a need to
terminate custody before parental rights are permanently ended.
- Distinction based on remedy sought
- Procedural Due Process Issue: When a person or group is seeking to
have government action declared unconstitutional because of the lack of
adequate safeguards
Substantive Due Process
-
Substantive Due Process: is something so offensive to our rights and liberties
that there is no procedure that can correct it (so restrictive to fundamental rights)
Fundamental Rights Under Due Process and Equal Protection
Substantive Due Process
-
Government cannot regulate certain fundamental rights. (See, e.g., SlaughterHouse Cases, 83 U.S. 36 (1873)).
Substantive due process applies only to specific fundamental rights and is
subject to strict scrutiny review. See, e.g., Roe v. Wade, 410 U.S. 113 (1973).
Particularly due to its link to controversial cases (e.g., Dred Scott v. Sandford, 60
U.S. 393 (1857); Lochner v. New York, 198 U.S. 45 (1905) and Roe v. Wade,
410 U.S. 113 (1973)), substantive due process is highly contested.
Economic substantive due process
-
After post-Lochner cases, economic regulations and laws that involve regulation
of social and economic matters are subject to rational basis review.
Some fundamental rights are not expressly enumerated in the Constitution.
28
-
(See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965)).
The jurisprudence of substantive due process has been challenged. Some
Justices of the Court do not believe that substantive due process jurisprudence
should exist (e.g., violative of originalism and textualism).
The Court has employed several approaches in deciding whether a right is or is not a
fundamental privacy right/fundamental liberty interest under the Due Process Clause
(Substantive Due Process Analysis):
-
(1) History and Tradition/Public Conscience
(2) Personal Dignity and Autonomy
(3) Reasoning by Analogy
1. HISTORY AND TRADITION/PUBLIC CONSCIENCE
a. Court looks to history and tradition to see if a right is deeply rooted in the
national conscience and fabric of American society.
b. In considering history and tradition, key questions arise in
identifying (1) what history and tradition will be considered and (2)
how broadly or narrowly to be interpret and apply the history and
tradition.
2. PERSONAL DIGNITY AND AUTONOMY
a. “These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy,
are central to the liberty protected by the Fourteenth Amendment
b. “The federal statute is invalid, for no legitimate purpose overcomes the
purpose and effect to disparage and injure those whom the State, by its
marriage laws, sought to protect in personhood and dignity.” Id.
c. (“[T]hese liberties extend to certain personal choices central to individual
dignity and autonomy, including intimate choices that define personal
identity and beliefs.”)
d. “Roe [v. Wade] recognized the right of a woman to make certain
fundamental decisions affecting her destiny and confirmed once more that
the protection of liberty under the Due Process Clause has a substantive
dimension of fundamental significance in defining the rights of the person,”
such as autonomous decision making in intimate, consensual
relationships.
3. ANALOGY
29
a. Under this approach, Court may attempt to compare the right at issue to
rights already declared to be fundamental privacy rights or liberty rights
(e.g., marital privacy/right to decide whether to procreate; the right of an
extended family to live together) with those declared to be
nonfundamental liberty rights (e.g., the right of an adulterous father to
visitation rights with his biological child)
Other Fundamental Rights
Framework for Analyzing Fundamental Rights (ON EXAM)
Question 1: Is there a fundamental right?
Question 2: Is the Constitutional right infringed?
Question 3: Is there a sufficient justification for the government’s infringement of a right?
Question 4: Is the means sufficiently related to the purpose?
Framework for Analyzing Fundamental Rights
-
Question 1: Is there a Fundamental Right?
- Rights that require strict scrutiny are commonly understood to include the
following:
- Right to privacy
- Right to marry?
- Right to procreate; right to engage in consensual, intimate
relations
- Right to custody of children; maintain parent-child
relationship
- Right to keep family together; create, maintain, and change
family unit
- Right to control upbringing of children; right to educate and
nurture children
- Right to family planning (e.g., purchase/use contraceptives)
- Right to refuse involuntary medical treatment
- [Undue Burden Test: Right to abortion? (Protected Liberty
Interest?)]
- [Right to informational privacy? (Court has assumed without
deciding)]
30
-
-
Right to travel (Equal Protection; Privileges and Immunities;
Privileges or Immunities; No Fly List: Procedural Due Process?
Substantive Due Process?)
Two-part Balancing Test: Right to vote (Equal Protection)
Rights of First Amendment (e.g., Freedom of speech, religion,
association)
Rights of Second Amendment (e.g., right to bear arms)
Right to access to courts and judicial system
Framework for Analyzing Fundamental Rights
Question 1: Is there a Fundamental Right?
-
Rights that require strict scrutiny are commonly understood to include the
following:
- Right to privacy
- Right to refuse involuntary medical treatment? (But does not
include right to physician-assisted suicide)
- Right to informational privacy?
- Right to travel (Equal Protection; Privileges and Immunities; Privileges or
Immunities)
- Right to same welfare benefits as any state resident (e.g., basic
necessities of life) without durational residency requirements? Strict
scrutiny imposed where newly-arriving state residents face
discrimination in apportionment of welfare benefits?
- Durational residency requirements allowed for state tuition, divorce,
right to vote in primary elections.
Undue Burden Test
-
-
Undue Burden Legal Standard
- Infringement upon abortion access unconstitutional when it places an
“undue burden” if the “‘purpose or effect’ of the provision ‘is to place a
substantial obstacle in the path of the woman seeking an abortion before
the fetus attains viability.’” Planned Parenthood v. Casey
- Courts must weigh “evidence and argument presented in judicial
proceedings.” It is for courts and not legislatures to resolve. Whole
Woman’s Health v. Hellerstedt (admitting privileges requirement and
surgical-center requirement created substantial obstacle).
Undue Burden: Spousal Notification
Undue Burden: Parental Notification
Voting
31
-
-
Two part balancing test when considering whether a state may restrict the right to
vote
- (1) The Court must balance the state’s restriction on voting rights against
the state’s interest in imposing the restriction: Regulation must be
narrowly drawn to advance a compelling government interest if the
effect of the restriction outweighs the state’s interest.
- (2) If the state’s interest outweighs the restriction, regulation will be
upheld if it is reasonable, nondiscriminatory, and the state’s interest
is important.
“[A] State may not burden the right to vote merely by invoking abstract interests,
be they legitimate, or even compelling, but must make a particular, factual
showing that threats to its interests outweigh the particular impediments it has
imposed.” (Souter, J., dissenting, citing Burdick in Crawford v. Marion County
Election Board, 553 U.S. 181 (2008)).
Fundamental Rights?f
-
Access to courts and judicial process (and necessary procedural safeguards)
Non-Fundamental Rights?
-
Rights related to sexual orientation
Right to physician-assisted suicide
Right to education
Professional rights (right to pursue specific vocation/trade/practice/profession)
Right to welfare
First Amendment: Freedom of Expression
ANALYSIS: FREE SPEECH
-
Is the speech Content or Content-Neutral?
Is there an Infringement?
- Is the Infringement Justified or Unjustified?
- Vagueness and Overbreadth
- Prior Restraint
- Restrictions on Compensation for Speech
- Compelled Speech
- Unconstitutional Conditions
- Commercial Speech
32
-
- Obscene Speech/Indecent Speech
Is the Speech Dangerous?
- Incitement to Illegal Activity/Clear and Present Danger Test
- Fighting Words
- Libel
- Defamation
- Invasion of Privacy
General Principles
1. Freedom of Speech Clause of the First Amendment restricts government
regulation of private speech;
2. Government speech is not subject to First Amendment and is not subject to
levels of scrutiny that apply to restrictions on government regulations of
private speech.
3. Generally, government speech and government funding of speech is upheld if
rationally related to legitimate state interest.
Content-Based v. Content-Neutral
Content v. Content-Neutral Regulations of Speech
- Content-BASED Speech: restrictions are reviewed under strict scrutiny in which
courts evaluate the value of the subject matter or the content of the
communication
- Content-NEUTRAL Speech: regulations are reviewed under intermediate
scrutiny; courts evaluate the nature and scope of the speech regarding the time,
place and manner of communication.
- Intermediate scrutiny because this speech is only restricted by the way in
which the information is communicated, not the information itself.
Content-Based Restrictions on Speech Review:
General Principles
1. Strict scrutiny review. Presumptively violative of First Amendment when government
places burdens on speech on the basis of content (e.g., viewpoint restrictions and
subject matter restrictions, however, intended impact of restriction can also be
consideration).
2. Exceptions: Government can place burdens on unprotected or less protected
categories of speech (fighting words, dangerous speech, obscenity, defamation,
false advertising, perjury, etc.)
33
3. Prior restraint on dangerous speech is less likely to be upheld, however (e.g., Court
less likely to uphold regulation prohibiting speech before it occurs compared to
speech that has already occurred).
4. Speech is not unprotected for merely being false.
Content-Neutral Speech Regulations Review:
General Principles:
1. Generally subject to intermediate scrutiny review. Upheld if government can
show restrictions (i) advance important interests unrelated to suppression of
speech; (ii) do not substantially burden speech more than needed; (iii)
narrowly tailored to further important interests.
2. Regulation of conduct (reasonable time, place, manner) restrictions generally
upheld
a. (A) Public Forum (e.g., streets, sidewalks, public parks)
i.
Content neutral;
ii.
Narrowly tailored to serve important government interest;
iii.
Leave open alternative channels of communication.
1. • NOTE: Can be struck down for overbreadth, vagueness,
etc.
b. B) Designated Public Forum (e.g., public university allows for community
organizations to use space for meetings)
i.
Cannot deny organizations use on the basis of content.
c. C) Limited Public Forum (e.g., government property opened for a specific
event such as public school auditorium for public debate); and
d. (D) Nonpublic Forum (e.g., postal sidewalks, airport terminals, military
bases, schools generally)
i.
Government can regulate speech to reserve for intended use;
ii.
Viewpoint neutral;
iii.
Reasonably related to legitimate government purpose
Defamatory Speech Review
If lawsuit involves defamation claim, ask following questions:
- (A) Does challenge involve a public official or public figure?
- (B) Does challenge involve a matter of public concern?
- If so, First Amendment may limit the tort remedy of plaintiff.
- Plaintiff must prove:
- (1) Elements of defamation required by state law;
- (2) Statement was false;
- (3) Public official or public figure, or individual making a statement
about a matter of public concern, was at fault in failing to ascertain
truth.
34
Vagueness and Overbreadth
Vagueness and Overbreadth: government regulations regulating speech that are too
vague or overly broad are generally unconstitutional.
- Vagueness: If it is unclear what speech is prohibited or permitted, the statute is
unconstitutionally vague. Lack of notice (antigang ordinance that required
dispersing of gang members invalidated on due process vagueness grounds)
- Overbreadth: a statute is unconstitutionally overbroad if the law permits both
regulation that the government may constitutionally prescribe and regulation of
speech that it may not constitutionally regulate or proscribe: regulates substance
more than is constitutionally necessary
- Law must be substantially overbroad to be struck for overbreadth
- Even though the law may be constitutionally applied to the challenger, the
challenger must successfully argue that the law is unconstitutional in the
manner in which it applies to others.
Prior Restraint
Prior Restraint: generally unconstitutional for the government to restrain speech before
it occurs.
- EXCEPTIONS
- National Security: publication of particular materials may implicate
important national security interests such that prior restraint of speech is
justified
- Securing Fair Trial: compelling government interest in restraining speech
prior to trial in order to secure a fair trial.
- Seizing the Assets of Business Convicted of Obscenity Violations
Infringement
Government Speech: Free speech clause does not restrict government speech,
however, other constitutional restraints on government speech (e.g., Establishment
Clause).
Commercial Speech: Generally protected if speech is economically motivated; simply
provides information on commercial transaction; or assists consumer by delivering
information on products and services. Exception: Government can regulate deceptive
speech or commercial speech related to unlawful conduct.
Four-part test for whether governmental regulation of commercial speech is
constitutional (commercial speech is less protected):
35
-
-
(1) To be considered protected speech under the First Amendment, commercial
speech must concern lawful activity (not misleading).
- If this step is met and the commercial speech is considered speech, steps
2-4
(2) alleged governmental interest in regulating the commercial speech must be
substantial.
(3) regulation must directly advance the governmental interest asserted.
(4) regulation must not be more extensive than is necessary to serve the
interested expressed in serving governmental interest.
Less Protected and Unprotected Speech
Types of Unprotected and Less Protected Speech
- Incitement of Illegal Activity
- Clear and Present Danger Test
- States may prohibit speech advocating unlawful or subversive
action, for example, language used in a content that would likely
bring about criminal harm.
- Reasonableness Approach
- States may prohibit speech inticing illegal activity, for example,
words that may cause harm by influencing others to take harmful
acts such as urging the overthrow of the government by force, and
including advocacy of doctrine deemed dangerous
- Risk Formula
- States may prohibit speech where the court conducts risk
assessment: the gravity and likelihood of harm must be outweighed
against the invasion of the First Amendment right.
- Brandenburg Test
- States may prohibit speech urging a group to take action:
1. Likely to cause harmful action
2. Speaker intends to incite or produce imminent lawless action
and is likely to do so; and
3. Applies where the speaker urges illegal action in opposition
to the government, government policies, or private parties.
- Fighting Words: government may prohibit direct personal insults likely to incite
violent reactions or immediate retaliation in the average person.
- Fighting Words Statutes
- Can be invalided if not narrowly drawn
- Must be directed at someone and likely to create a violent
result
- Can be invalidated as vague and overbroad
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Can be invalidated as impermissible content-based restrictions
- Assuming that hate crime speech can be prescribed as
“fighting words” the hate crime ordinance under question
cannot prohibit speech on disfavored subjects.
Obscene Speech: obscene speech is not constitutionally protected under the
First Amendment
- EXPRESSION IS HELD TO BE OBSCENE AND NOT PROTECTED IF:
- (1) appeals to prurient interest;
- (2) patently offensive;
- (3) lacks serious literary, artistic, political, or scientific value
- Governments may use zoning ordinances to determine and limit locations
of adult bookstores and theaters
- Governments may seize the assets of businesses convicted of obscenity
law violations.
Indecent and Non-obscene speech: government generally may NOT prohibit
speech that is merely indecent, vulgar, or offensive
- Profane Speech: profane speech IS protected by the 1st Amendment
- EXCEPTIONS:
- Not protected if aired over free broadcast media (TV and
radio)
- A radio or TV station can be punished for
broadcasting profane indecent speech.
- Not protected if spoken in school
- Schools may punish.
First Amendment: Freedom of Religion
Free Exercise
Free Exercise Clause
- The government must permit the belief and practice of religious beliefs without
State interference, and the State may not deny benefits or unduly burden
persons based upon religious beliefs.
Establishment Clause
Establishment Clause:
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Government is prohibited from providing aid and funding that favors one religion
over others.
However, law that offers aid or assistance to religion (e.g., religious org/school)
may be constitutional under the Establishment Clause under specific
circumstances.
Lemon Test: law is constitutional if:
1. Secular Purpose: the intent of the law is not to foster or endorse one
religion over others
2. Secular Effect: the impact or primary effect of the law neither
advances/endorses nor inhibits one religion over others.
3. No Excessive Entanglement: law must not promote excessive
governmental interference or entanglement with religion.
Accommodation theory / model
Strict separation
Neutrality
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