CONSTITUTIONAL LAW OUTLINE1
DAN WILSON'S OUTLINES
My outlines are not intended to be definitive, comprehensive treatments of the various subjects. They are
offered to show the thought processes of a successful bar study process. I ignore large swaths of material that is
rarely or never tested. I focus on core concepts that are consistently tested and areas years of experience have
shown are particularly challenging to students. The outlines are not intended as a substitute for commercial
outlines.
For example, commercial Property outlines explain in mind-numbing detail The Rule in Shelly's Case, The
Doctrine of Worthier Title, and The Destructibility of Contingent Reminders. These rules are impossible for the
modern mind to understand without extensive study of the Common Law. AND THEY ARE NEVER
TESTED. So my Property outline addresses material which is always tested, such as present possessory
interests and future interests.
My outlines are not pretty. They have grown incrementally over the years. But if you master the material you
will be well on your way to passing the bar.
The outlines are offered free of charge. May they aid you in your endeavor!
SUMMARY OF OUTLINE
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JUSTICIABILITY
ORIGINAL AND APPELLATE JURISDICTION OF FEDERAL COURTS
ELEVENTH AMENDMENT
ENFORCEMENT CLAUSE OF THE 14TH AMENDMENT
POWERS OF CONGRESS
TENTH AMENDMENT
PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV
DORMANT COMMERCE CLAUSE
PREEMPTION
LEGISLATIVE VETO
EXECUTIVE POWERS
SUBSTANTIVE DUE PROCESS
PROCEDURAL DUE PROCESS
MISCELLANOUS: TAKINGS, FULL FAITH AND CREDIT CLAUSE, CONTRACTS
CLAUSE, EX POST FACTO, BILLS OF ATTAINDER
EQUAL PROTECTION CLAUSE
SPEECH
RELIGION
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Copyright Dan Wilson 2010. Permission is freely given to use this outline to prepare for the Colorado bar
exam. Updated 2012. Thanks are given to Professor Jan laitos University of Denver Sturm College of Law
for allowing me to attend his Constitutional law lectures; to Professor Thomas Sowell of the Hoover
Institute at Stanford Univeristy; to Cheif Justice William Rhenquist.
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1. JUSTICIABILITY
a. Introduction. Justiciability doctrines determine whether a federal court
can hear a case. Remember that federal courts are courts of limited
jurisdiction. They may only hear cases and controversies. Some justiciability
doctrines are required by Article III; some are jurisprudential, that is the SC
thinks it's a good idea.
b. POLITICAL QUESTION
i. Political question is partly required by Article III and partly
jurisprudential.
ii. Different strands of political question
1. "Textually demonstrable constitutional commitment of
the issue to a coordinate political department."
2. "Lack of judicially discoverable and manageable
standards for resolving an issue."
3. Issues that are too controversial or might create
enforcement problems.
iii. Cases
1. Colgrove v. Green. Reapportionment of state voting
districts for state legislature. USSC very reluctant to
interfere with state government. Responsibility is with
Congress. Held political question.
2. Baker v. Carr.
a. Reapportionment of state voting districts for
state legislature held not political question.
b. Tennessee had not reapportioned for sixty
years, resulting in districts with greatly differing
numbers of voters. Demographic shifts
resulted in votes of blacks in urban centers
diluted, rural white voters gained
disproportionate strength.
c. This case involves application of federal EPC;
no other branch of federal government
involved; no risk of foreign embarrassment.
Judicial standards under 14th A are well
developed.
3. Luther v. Borden
a. 1849. Competing state governments in Rhode
Island, each claiming to be "republican form of
government." Court declined to hear case.
b. Decision seems to hinge on two grounds: the
question relates to the laws and constitution of
Rhode Island; and the Guaranty Clause gives
no judicial standards to apply to decide which,
2
c.
if either, of the competing governments is a
republican form of government.
c. Political question--no jurisdiction.
4. Pacific States Telephone & Telegraph. Issue is
whether referendum and initiative violates Guaranty
Clause. Court refused to hear case. No judicially
manageable standards. Political question.
5. Coleman v. Miller. How long is a proposed
Constitutional amendment open for ratification is a
political question. Up to Congress. Political question.
6. Powell v Mccormack. House refused to seat Adam
Clayton Powell2 on basis he had misused some of his
House budget. Held: Justiciable. The case involved
an interpretation of Constitution's requirements to be
a member of the House, and it is USSC's job to
interpret the Constitution. Marbury.
7. Goldwater v. Carter. President Carter terminated
treaty without consulting Congress. Rehnquist writing
for plurality said it is a political question because it
involves foreign policy.
8. Nixon v. United States. Nixon was a federal judge
impeached for corruption. He claimed that the Senate
was not following procedure mandated by
Constitution. Article I says "Senate shall have sole
power to impeach." Nixon complained that Senate
rule allowed a committee to consider evidence before
making impeachment recommendation to full Senate
violated this mandate. Rehnquist writing for majority
said political question because structure of Con
placed sole power to impeach with Senate.
9. Bush v. Gore. 2000 presidential election. USSC
halted Florida recount on EPC grounds.3 Case
criticized on grounds that it is up to Congress and the
state legislatures to work out which slate of electoral
college voters is qualified to cast state's electoral
votes.4
Advisory Opinions
Sometimes Congress or the Executive Branch would like to
know if a law or regulation being contemplated is con or
2
Powell was a controversial black activist with a seat in Harlem, repeatedly accused of corruption and
connections with organized crime.
3
Classification that burdens fundamental right.
4
The President is not elected by majority vote but rather by the electoral college. Electoral college voters
are selected by a state by state vote, but it is possible, and has happened, that the Presidential candidate
with fewer votes receives the most electoral college votes and thus is elected President. Indeed to this day
Gore supporters claim that he received more votes nationwide than Bush.
3
d.
uncon. But without a real case or controversy the court cannot
hear case.
Standing
1.
Mixture of constitutionally required and jurisprudential.
2.
Constitutionally required:
a. P has suffered some real or threatened injury
as the result of the illegal actions of the D;
b. Injury can be traced to the complained action;
and
c. injury is likely to be redressed by a favorable
decision.
3.
Jurisprudential:
d. No third party standing;
e. Court will not consider questions of widespread
impact that should be considered by executive
and/or legislative branches; and
f. complaint must fall within the zone of interests
to be protected or regulated by the statute or
con guarantee in question.
4.
Cases
a. Warth v. Seldin
i.
Ps complained that zoning of town
prevented construction of low income housing.
Their argument was that the restrictive zoning
discriminated against poor persons, many poor
persons are racial minorities, so the restrictive
zoning violates equal protection.
ii.
Actual injury: The Ps did not present
any evidence THEY had been denied the
opportunity to live in village, as opposed to
some hypothetical member of a racial minority;
iii.
Causation. Ps allege that the restrictive
zoning prevents third party builders from
building low income housing. Ps present no
evidence that absent the zoning the builders
would have constructed low income housing.
iv.
Redressability. No evidence that if
zoning restriction were lifted builders would
build low income housing.
v.
Ps assert taxpayer standing alleging
that they pay higher taxes in adjacent town
because failure of D town does not provide low
income housing. But this is really an assertion
of third party standing.
b. Lujan v Defenders of Wildlife
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i.
Story: DOW brought suit against
Secretary of the Interior to enjoin Agency for
International Development (AID) from funding
two international water development projects.
Ps allege that the projects threaten
endangered species and critical habitat in
Egypt (crocodiles) and Sri Lanka (miniature
hippos.) Based complaint on ESA which
prohibits federal agencies from taking actions
that endanger species or habitat. ESA gives
standing to "any person" to bring an action
under the statute.
ii.
The specific agency action complained
of: Secretaries of Interior and Commerce
promulgated regulation that ESA does not
apply in foreign nations.
iii.
P must have suffered an injury in fact,
an invasion of a legally-protected interest that
is concrete and particularized, not hypothetical
or conjectural. Here, the Ps said that they
planned someday to visit Egypt and Sri Lanka
to visit the crocodiles and baby hippos. This is
too conjectural.
iv.
Ps also fail the redressability prong.
The Ds are the Secretaries of the Interior and
Commerce. Funding is through AID. The
Secretaries have no power to enjoin AID from
funding the projects. In addition, if AID
removes its funding there is no assurance the
projects will not be built.5
v.
Finally, the citizen suit provision. "[Any
person may commence a civil suit on his own
behalf" to enforce the ESA. This is the
equivalent of taxpayer standing, would usurp
the role of the executive in enforcing the laws,
and is not within Congress' power.
c. Friends of the Earth v. Laidlaw --injury
Clean Water Act action P had standing by
alleging that discharge of pollutants into a river
deterred them from swimming, fishing, etc
d. Arlington Heights v. Metropolitan Housing
Corp--injury
5
As a result of one of the Arab-Israeli wars Egypt rejected US funding and the water project in question,
the Aswan Dam was built with Soviet funds.
5
Racial discrimination zoning case. Builder had
standing even though his project was contingent
on funding and federal subsidies.
e. Allen v. Wright--redressability
Parents of black children complained that IRS did
not deny tax exempt status to private whites only
schools. Court said that even if IRS denied tax
exempt status entirely speculative that schools
would change policies.
f. Craig v. Boren--third party standing
i.
No 3rd party standing rule is
jurisprudential not required by case and
controversy.
ii.
Seller of beer allowed to bring sex
discrimination claim on behalf of boys who
could not buy beer until 21 while girls could buy
beer at age 18.
g. Taxpayer standing--Frothingham v. Mellon
i.
Question is can a citizen or taxpayer
challenge governmental actions that affect
millions of others. Generally no.
ii.
Court did not hear action brought to
enjoin Treasury Secretary from giving block
grants to state programs to reduce infant
mortality. The interest of a federal taxpayer...is
shared with millions of others; is comparatively
minute and indeterminable; and the effect on
future taxation too remote, fluctuating and
uncertain.
h. Taxpayer standing--Flast v. Cohen
Only case to give taxpayer standing to
challenge Congress' use of its spending power
in violation of the Establishment Clause.
i. But in Valley Forge Christian College v.
Americans United court denied taxpayer
standing limiting Flast to exercise of spending
power. In Valley Forge the transfer was in kind
not cash.
j. US v. Richardson--taxpayer citizen standing
No standing to claim that secret CIA budget
violated Constitutional provision requiring
regular accounting.
k. Schlesinger v. Reservists Committee to
Stop the War
No standing for reservists to challenge
Reserve membership of Congressional
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members as violating the Incompatibility
Clause, which prohibits active duty military
from serving in Congress.
l. Bennett v. Spear--zone of interests
Government objected to suit brought under
ESA by ranchers objecting that government
failed to take into account economic impact in
determining that two species on their property
were in jeopardy. USSC said ranchers had
standing to protest overenforcement, even
though citizen suit provision was probably
intended for persons protesting
underenforcement.
m. Elk Grove Unified School District v.
Newdow--prudential limits on standing
Establishment clause challenge of Pledge of
Allegiance in public school. Challenge brought
by atheist father, daughter lived with Christian
mother who had sole legal custody. USSC
denied standing.
e.
Mootness and Ripeness
i.
Mootness means that the parties had standing at one
time but subsequent events deprive them of the necessary
stake in the outcome of the litigation. Ripeness means the
dispute is insufficiently developed and is too remote and
hypothetical.
ii.
Mootness exceptions
1. Roe v. Wade. Cases that are capable of repetition
yet evading review.
2. Friends of the Earth v. Laidlaw. Challenge to
landfill as violation of Clean Water Act. Laidlaw
voluntarily ceased using landfill and argued mootness.
USSC: A case is moot only if subsequent events made it
absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.
2. Original and appellate jurisdiction of the federal courts
a.
We are not talking about subject matter jurisdiction here, but rather
where a case can begin, where it can be appealed, and the sources of
these powers. We assume the case meets the case and controversy
requirements of Article III. Subject matter jurisdiction in federal courts is
limited, for our purposes, to federal question and diversity, and is fully
examined in my federal procedure outline.
i. The original jurisdiction of the USSC is defined in Article III
and cannot be enlarged or lessened by Congress through
legislation, but only by Constitutional amendment. Marbury
v. Madison.
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3.
ii. "In all cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the
Supreme Court shall have original jurisdiction."
iii. However, Congress does have authority to give concurrent
original jurisdiction to the USSC and lower federal courts.
iv. Appellate jurisdiction of the USSC is not defined by the
Constitution. Article III gives Congress the power to control
appellate jurisdiction of the Supremes.
v. "In all other Cases before mentioned, the supreme Court
shall have appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such Regulations as the
Congress shall make."
vi. Congress exercised that power when it enacted the Judiciary
Act of 1789. Congress also in that Act tried to give the
USSC original jurisdiction to issue writs of mandamus. That
was the main issue in Marbury.
vii. Can Congress strip the USSC of appellate jurisdiction? Yes.
Ex Parte McCardle.
1. In McCardle the USSC considered imprisonment of a
newspaper editor in Reconstruction Mississippi.
McCardle was imprisoned under military rule and
brought a habeas corpus action under a statute which
gave federal courts jurisdiction to grant habeas
corpus to anyone restrained in violation of the
Constitution. Statute authorized appeal to the USSC.
McCardle lost at lower court, appealed to USSC.
After USSC had heard arguments but before issuing a
decision, Congress amended statute to remove
appellate jurisdiction of USSC. Held: Congress has
that power.
2. Theoretical arguments are made that the Due
Process Clause somehow limits the power of
Congress to strip USSC of appellate jurisdiction in
cases involving important Constitutional rights.
Several attempts to strip USSC of appellate
jurisdiction in highly politicized contexts have been
made. None passed Congress so the idea has not
been tested. In my opinion the text is clear.
viii. Congress controls the existence and jurisdiction of lower
federal courts. "The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish."
Eleventh Amendment Limitation on federal court jurisdiction
a.
Context. Constitution gave federal courts subject matter
jurisdiction to hear diversity cases. When the Constitution was
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ratified proponents of states rights were fearful that the federal
government had too much power. In Chisholm v Georgia the
USSC took original jurisdiction over a case by a South Carolina
citizen against state of Georgia. The resulting uproar by states
rights supporters led to the 11th Amendment. "The judicial power
of the United States shall not be construed to extend to any suit
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or subjects of any Foreign
States."
b.
Interpreted to also prohibit suits against a state by its own
citizens in federal court.
i. Exception. Suits against state which ask for injunctive relief
is permissible. Suit is brought against a named state official.
Ex Parte Young.
4.
The 14th Amendment enforcement clause and the 11th
Amendment.
i.
The 14th Amendment is one of the Civil War
Amendments, passed during Reconstruction. We will look at
the 14th Amendment in some detail when we study the Equal
Protection Clause, the Due Process Clause and the Privileges
& Immunities Clause of the 14th A.
ii.
The Civil War Amendments are often called the
second American Revolution. The body of the Constitution
mostly establishes the structure of government. The Bill of
Rights imposes limitations on the federal government. The
Constitution imposes few limits on state powers. Examples
are the Contracts Clause, the Takings Clause and Privileges &
Immunities Clause of Article IV.
iii.
The 14th Amendment expands Congress' express
powers. The enforcement clause gives Congress power to
legislate to enforce the EPC and DPC.
iv.
Since the 14th Amendment amends the 11th
Amendment Congress has the power to abrogate state
immunity in federal court, but only to enforce the EPC and
DPC.
v.
Historically the EPC was intended to protect the newly
freed slaves from abuses by states. Congress' 14th
Amendment power to abrogate state immunity is limited to
suspect or quasi-suspect classifications.
vi.
Examples of statutes that have been partially struck
down are ADA and ADEA. Congress attempted to use its 14th
A power to allow suits against states for damages in federal
courts for discrimination on the basis of disability and age,
respectively. USSC struck down.
5.
Express Powers of Congress
a.
Commerce Clause
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1. Much of the legislation passed by Congress is done
under its Commerce Clause power. Congress has
the power "To regulate Commerce with foreign
Nations, and among the Several States, and with the
Indian Tribes."
2. In your Constitutional Law class you probably spent a
lot of time on Commerce Clause cases. The USSC
during the 20th century consistently upheld a very
expansive reading of Congress' Commerce Clause
power, to the extent that it was generally regarded as
giving Congress the police power.
3. Police power means the power of a legislative body to
regulate to promote and protect the health, safety and
welfare of its citizens. State legislatures have the
police power. That means they have plenary power
to pass legislation. State legislative powers are
circumscribed to the extent that states gave up some
of their sovereign powers when they joined the union,
and also by Constitutional limitations such as the
enumerated fundamental rights found in the Bill of
Rights and the EPC and DPC of the 14th
Amendment.
4. Congress does not have the police power and cannot
legislate to promote and protect health, safety and
welfare of US citizens, Congress can legislate using
one of the enumerated powers granted it in Article I
section 8.
5. Cases
a. Wickard V Filburn. New Deal legislation put
production limits on agricultural products.
Fillburn was a farmer who exceeded his wheat
quota. He did not sell the wheat but rather fed
it to his cattle and his family. He sued the
Secretary of Agriculture, arguing that the
legislation exceeded Congress' Commerce
Clause power. USSC upheld the statute.
Congress may regulate activity that is purely
local and not commerce if it exerts a
substantial economic effect on interstate
commerce. Regulation of Wickard under this
statute was within Congress' power because
the aggregate effect of many farmers
exceeding their quotas would undermine the
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b.
c.
d.
e.
f.
regulatory scheme. Farthest extend of
Commerce Clause power.6
Hodel. Statute regulating strip mining upheld
as "substantially effecting interstate commerce.
Heart of Atlanta. Civil Rights Act of 1964
prohibited discrimination on the basis of race
and sex in public accommodations such as
restaurants and motels. USSC upheld. Purely
local activities that have a substantial effect on
interstate commerce. Heart of Atlanta was on
an interstate highway and advertised across
state lines.
Katzenbach v McClung Ollie's Barbecue was
a local restaurant with very few, if any, nonlocal patrons. They served blacks take out
only. Application of the Civil Rights Act upheld
because Ollie's bought paper products over
state lines.
Perez v United States Statute making loan
sharking a federal crime upheld.
United States v Lopez The modern rule.
i. Federal criminal statute outlawing
possession of a handgun at a school.
Government argued that gun violence at
schools affected interstate commerce
because it made it more difficult to get
an education, resulting in lower lifetime
income.
ii. Opinion by RHENQUIST reviewed the
history of Commerce Clause cases.
Congress may regulate the channels of
interstate commerce. Heart of Atlanta.
Congress may regulate instrumentalities
of interstate commerce or persons or
things in interstate commerce, even
though the threat comes only from
purely local activities. Shreveport Rate
Cases. Third, Congress may regulate
activities having a substantial effect on
interstate commerce. Jones &
Laughlin. But this statute regulates
activity that is not commercial, it does
not affect instrumentalities of interstate
commerce, and while guns at school
6
For an excellent revisionist history of the New Deal and FDR's economic policies see Amity Shales The
Forgotten Man.
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.b.
may have some effect on interstate
commerce it is not substantial.
iii. Standard of review in Lopez seems to
be more searching than rational basis.
g. United States v Morrison
i. Violence Against Women Act provides a
civil remedy for gender-motivated
violence.
ii. After Lopez Congress made extensive
findings that gender motivated violence
affects interstate commerce.
iii. RHENQUIST opinion applied Lopez
and struck down statute
Taxing and Spending Powers
1. .
"The Congress shall have the Power to lay and
collect Taxes...to pay the Debts and provide for the
common Defense and general welfare of the United
States..." Article I sec. 8.
2. Congress has the power to tax and spend for the
general welfare.
3. Taxing power has no practical limitations. Tax is not
supposed to regulate but Congress does so frequently.
Rule is the tax cannot be a penalty. But in Kahriger
federal statute required bookies to register with the IRS
was upheld.
4. Tax will be upheld if it bears some reasonable
relationship to revenue production or if Congress has the
power to regulate the taxed activity. Excise tax levied on
dealers in illegal narcotics is valid because it raises
revenue. US v Doremus
5. Congress has broad spending powers. Issue is
whether Congress can use its spending powers to coerce
states to take actions.
6. In South Dakota v Dole the US withheld highway
funds until South Dakota passed legislation raising the
drinking age from 19 to 21. USSC said it is OK to
condition spending in this manner if
a. Condition is unambiguous
b. The financial inducements must not be so
coercive as to pass the point where pressure turns
into compulsion
c. Condition must not be violate other part of the
Constitution, for example EPC
d. Maybe there must be a relation between the
condition and the spending program. In Dole the
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federal program was interstate highways and the
drinking age rise is meant to make highways safer.
6.
Tenth Amendment
A.
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the
States respectively, or to the people.
B.
The Tenth Amendment concerns division of power between
the federal government and the various states. To what extent can
the federal government interfere with state power?
C.
In the mid-20th century there was a line of cases that may
have relevance to the bar exam.
i. National League of Cities v. Usery. Court in opinion
by Rehnquist held that Congress could not impose labor
standards such as minimum wage and maximum hours
worked on local governments because that would
interfere with essential government functions.
ii. Overruled by Garcia v. San Antonio Transit
Authority, which applied Fair Labor Standards Act to city
bus system. A tax or regulation that applies both to
public sector and governments is OK. A tax or regulation
that applies only to state(s) violates 10th Amendment.
iii. After Garcia the 10th Amendment was regarded as a
dead letter until
D.
New York v. United States
i. Congress passed statute to address problem of
disposal of low level radioactive waste. States were
required to make arrangements for safe disposal, and if
they failed to do that, take title to the waste.
ii. USSC, in opinion by O'Conner held this was a
violation of 10th Amendment. "We conclude that while
Congress has substantial power under the Constitution to
encourage the States to provide for the disposal of the
radioactive waste generated within their borders, The
Constitution does not confer upon Congress the ability
simply to compel the States to do so."
a. Rule: Congress may not Commander the
legislative processes of the state by directly
compelling them to enact and enforce a federal
regulatory program.
E.
Printz v. United States
i. Congress enacted the Gun Control Act of 1968
which required local law enforcement officers to
conduct background checks on purchasers of
hand guns.
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7.
ii. USSC in opinion by Scalia said that Congress
could not dragoon local executive branch officials
to enforce a regulatory scheme.
F.
But Congress does have the power to directly regulate
states when it is using its power to enforce the Equal
Protection Clause and the Due Process Clause of the 14th
Amendment.
G.
And note that Congress can use its spending power to bribe
states to pass specific legislation.
H.
States cannot tax the property or operations of the federal
government without Congressional consent. However
nondiscriminatory indirect taxes are OK.
i. Private contractors acting as purchasing
agents for federal government cannot be taxed by
state, but state can tax cost plus contracts.
I.
States cannot regulate the federal government without
approval of Congress.
Privileges and Immunities Clause of Article IV
A.
The Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.
B.
The original Constitution, before the addition of the first ten
amendments as the Bill of Rights, mostly set up the structure
of the federal government and had little to say about
restrictions on state power.
C.
The Bill of Rights also did not state any restrictions on state
power. The Bill of Rights did not apply to states until they
were piece mail applied to states by a process called
incorporation by the Due Process Clause of the 14th
Amendment.
D.
The Constitution's restrictions on state power are: the P&I
Clause of Article IV; the Supremacy Clause; the Republican
Form of Government Clause; and the Full Faith & Credit
Clause.
E.
P&I Clause cases:
i. United Building & Construction Trades Council v.
Mayor and Council of Camden (Camden). Camden
had city construction projects intended to revitalize
downtown. Ordinance required that 40% of construction
workers be residents of Camden. Held: The right to
seek employment on a public works project is a
fundamental right protected by the P&I Clause.
Rehnquist opinion applied a two-step test.
a. Does the ordinance burden a privilege or
immunity protected by the Clause. "Is an interest
in employment on public works
contracts...sufficiently fundamental to the
14
8.
promotion of interstate harmony so as to fall within
the purview of the Clause."
b. Is there a substantial reason for the difference
in treatment.
ii. Piper. State rule barring out of state lawyers
admission to the bar violates the P&I Clause.
iii. Toomer. Charging out of state residents 100 times
more for commercial fishing license violates P&I
Clause.
iv. Austin. State income tax only on non-residents who
earn money within the state violates.
F.
Cases that are difficult to classify but might as well be P&I
Clause cases.
i. Crandell v Nevada. Struck down tax on passengers
leaving the state.
ii. Shapiro v Thompson. Residency requirements for
welfare benefits. Cali imposed two tier welfare benefits.
New residents received benefits they would have if they
stayed in their previous state while Cali residents
received higher Cali benefits. Struck down.
iii. Dunn v Blumstein. Struck down one year residency
requirement for voting.
iv. Memorial Hospital v Maricopa County. Struck
down residency requirement for indigent health care.
v. Sosna v Iowa. Upheld one year residency
requirement for divorce.
vi. Out of state tuition OK. Higher license fee for
recreational hunting OK.
G.
Miscellaneous
i. Only protects citizens, not corporations or aliens.
ii. Since it is a Constitutional provision cannot be waived
by Congress.
iii. Generally applies to non-commercial activities.
iv. Must be considered in conjunction with dormant
commerce clause.
v. In my opinion, the P&I Clause of the 14th Amendment
is always the wrong answer.
DORMANT COMMERCE CLAUSE
A.
This is also known as the negative implications of the
Commerce Clause. Since the Congress has plenary power to
regulate commerce between the states the question arises whether
the states have any power to enact regulations that effect interstate
commerce. The answer is yes, so long as the regulation does not
discriminate against out of state economic interests and does not
unduly burden interstate commerce.
B.
Test is a balancing test
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C.
D.
E.
F.
i. Has Congress regulated in this area? If so, state is
preempted from regulating in this area.
ii. If Congress has not preempted there is room for state
regulation. Does the regulation discriminate against out
of state economic interests in favor of in state economic
regulation? If so, regulation is virtually per se invalid.
Cases
i.
Maine v Taylor. Maine prohibited importation of bait
fish because they are infected with parasites. Maine
convinced Supremes that there was no other way to
protect Maine bait fish.
ii.
Hughes v Oklahoma. Oklahoma prohibited nonresidents from fishing for OK minnows. Struck down.
iii.
Carbone. Law requiring waste to be processed at a
local facility (not incidentally owned by the city) struck down
because it discriminates against out of state processors.
iv.
Pike Church. Local processing requirements. AZ
required large cantaloupe grower to box cantaloupes in AZ
instead of Cali. Struck down, but gave rise to the three part
Pike Church test below.
v.
Philadelphia v New Jersey. State cannot ban
importation of out of state waste.
vi.
Dean Milk. Another local processing requirement.
Milk sold in Madison had to be processed within a few miles
of Madison.
vii.
Baldwin. Limiting access to local markets to local
producers. Regulation requiring milk distributors to pay a set
minimum price.
viii.
Hunt v Washington State Apple etc. North Carolina
law required imported apples no grade other than US
grading. Supremes held that this was a barrier to entry
because Washington state had invested so much into
developing its own grading system.
If regulation does not discriminate apply three part
balancing test
i. What is the strength of the state interest?
ii. How big a burden on interstate commerce?
iii. Is there a less burdensome alternative?
Many cases you read in Con Law class were about facially
neutral regulation of trains and trucks. This area is now
preempted by federal regulation.
Market participant exception. If state is acting as a
participant in the market rather than regulating DCC does
not apply.
i. Hughes v Alexandria Scrap Corp. State
paid more for scrap cars collected in state limits
16
G.
H.
9.
10.
than those collected outside the state. Supremes
upheld.
ii. Reeves v Stake. South Dakota owned a
cement plant during cement shortage and limited
sales to residents. OK.
iii. South-Central Timber Development. Alaska
owns lots of trees. Proposed timber sale with a
local processing requirement. Supremes struck
down because the state is now regulating.
Since Congress has plenary power to regulate commerce
Congress can give permission to state regulation that would
otherwise be impermissible.
DCC protects corporations as well as people. Cases usually
involve business.
Preemption
A.
This Constitution, and the laws of the United States which
shall be made in pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land;...Article VI.
B.
If Congress legislates using one of its enumerated or implied
powers, and state or local regulation which conflicts with the federal
measure is preempted.
C.
There are two kinds of preemption
i. Conflict preemption. When it is impossible to follow
both federal and local regulation, the local regulation is
preempted.
ii. Field preemption. Where Congress has so
pervasively regulated a particular area that there is
nothing left for the states to regulate.
iii. A good example of field preemption is Pacific Gas &
Elec. Co. v State Energy Resources Conservation &
Development Comm'n Congress enacted the Atomic
Energy Act of 1954. The statute completely preempted
the field of constructing nuclear reactors and determining
if they met safety standards. California attempted to
prevent construction of a nuclear power plant on the
basis of state law which gave state authority to deny
building permit if a particular power development would
result in too high energy prices. USSC said state law
was not preempted because state was not attempting to
deny permit on safety reasons.
iv. Crosby v National Foreign Trade Council.
Massachusetts law that prohibited trade with Myanmar
stricken down as preempted by national government's
monopoly on foreign relation.
Legislative Veto.
17
11.
A.
In order to legislate Congress must pass a bill through both
houses and present the bill to the POTUS. Congress has at times
attempted to legislate while retaining some power over the bill after
it has left their hands. Relevant Constitutional provisions are in
Article I Section 7.
B.
INS v Chadha. Congress passed a statute which gave the
head of INS (now ICE) power to determine if an alien is deportable.
Head of INS has the power to not deport a deportable alien.
Congress attempted to retain the power to overturn the Head of the
INS by a vote of one house. This violated the bi-cameral clause
and the presentment clause.
C.
Related doctrines
i. Clinton v New York. USSC struck down line item
veto.
ii. Buckley v Valeo. Congress established Federal
Election Commission giving the FEC significant executive
powers. (Executive Powers means the power to enforce
the laws that Congress enacts.) USSC held that
members of the Commission must be appointed
according to the Appointments Clause. "[A]ny appointee
exercising significant pursuant to the laws of the United
States is an Officer of the United States and must be
appointed in the manner prescribed by the Appointments
Clause."
iii. Executive Privilege.
a. United States v Nixon As part of the
Watergate investigation a Special Investigator was
appointed. He subpoenaed some tapes and
documents relating to the case. Nixon claimed
absolute executive privilege. USSC held that the
material was not privileged.
b. Clinton v Jones Jones sued Clinton for
alleged sexual assault before he entered office.
Clinton claimed that a sitting president could not
be sued. USSC held that Clinton was not immune
from process.
Executive Powers.
A.
The President has the duty and power to enforce the laws of
the
United States. Article II.
B.
Youngstown Steel & Tube Co v Sawyer. During Korean
War President Truman ordered Sec. of Commerce to take over
operation of a steel mill after workers went on strike. Truman
argued that this was within his executive powers because we were
in a war in Korea and steel was needed for the war effort. USSC
said he was acting beyond his power.
18
12.
7
C.
President's powers are at their strongest in foreign policy
and war.
D.
Congress attempted to limit president's ability to wage war in
War powers Act. President may send in troops for two months
without Congressional consent, but after must get Congressional
support. Probably unconstitutional.
Substantive Due Process
A.
Introduction
i.
The theory behind substantive due process is
complicated. The basic idea is that due process
encompasses more rights than those enumerated in the
Constitution.7 Enumerated rights include freedom of speech,
freedom of religion, freedom from religion, protection against
unreasonable searches and seizures, and so on. The
enumerated rights are found in the Bill of Rights, the first ten
amendments of the Constitution.
ii.
Government interference with enumerated and
implied fundamental rights is subject to strict scrutiny.
a. Strict scrutiny is an ends means test. The
government must show that its ends are
compelling and that its means are necessary and
narrowly tailored to achieve that compelling
interest.
b. Other standards of review are intermediate and
rational basis. I will discuss these standards in
Equal Protection.
B.
Substantive due process finds implied fundamental rights
inherent in the Due Process Clause of the 14th Amendment.
i.
For bar purposes that means the right to privacy.
Right to privacy includes right of access to abortions.
ii.
Abortion
a.
Seminal cases are Griswald, Eisenstadt and
Roe v Wade. Griswold established the right to
privacy and that it included the right of married
couples to buy contraceptive devices. Eisenstadt
extended that to the right of individuals to buy
contraceptive devices. Roe established the right to
an abortion.
b.
Roe established the trimester test. USSC
analyzed the various interests and how they changed
from trimester to trimester.
i. In the first trimester the interests of the state
are the health of the mother. The interest of the
woman is in her health and bodily autonomy. The
interests of the mother trump those of the state
See Wikopedia Natural Law.
19
and the government has very little power to
prohibit abortions.
ii. In the second trimester the interests of the
state in the health of the mother become important
enough that the state may regulate but not prohibit
abortions.
iii. In the third trimester the state's interest in
potential life becomes compelling and the state
may prohibit abortions unless necessary to protect
the health of the woman.
c.
Maher v Roe. Access to abortion does not
include public funding.
d.
Rust v Sullivan. Upheld regulations
prohibiting abortion counseling at federally funded
clinics.
e.
Modern rule for bar exam is Planned
Parenthood v Casey
i. Trimester analysis is replaced by viability test.
At any time before the fetus can live outside the
womb a woman has the right to terminate
pregnancy.
ii. After viability the test is undue burden. The
state cannot place an undue burden on access to
abortion.
iii. For test purposes, there are five restrictions on
abortion that can be tested.
a.
Parental consent. OK if there is a
judicial bypass mechanism.
b.
Spousal notification. Uncon.
c.
Informed consent. OK
d.
Waiting period. OK
e.
burdensome reporting
requirements. OK.
iii.
Final note on Griswold. Court discussed three old
cases and retroactively made them about substantive due
process. For our purposes they establish the substantive
due process right to:
a. Meyer v Nebraska stuck down state law
prohibiting teaching of German language.
b. Pierce v Society of Sisters truck down state
law prohibiting religious schools.
c. Skinner v Oklahoma struck down law
punishing third crime of moral turpitude by
castration.
20
13.
d. Together they stand for the rights to raise your
children as you wish (within acceptable cultural
standards of course) and the right to procreate.
iii.
Zablocki v Redhail. Statute that prohibited marriage
to person who has minor children that do not live with him
and he is not paying his support obligation. Struck down.
iv.
Turner v Safley. Right of prison inmate to marry.
v.
Moore v East Cleveland. Zoning ordinance that
prohibits occupancy other than a "family' so defined that a
grandmother living with two grandsons who were cousins not
siblings. Struck down.
vi.
Belle Terre v Boras. Zoning that prohibited
unrelated groups is OK.
vii.
Troxel Granville. No substantive due process rights
of grandparent to visitation over objections of mother.
viii.
Michael v Hodari D. No right of natural father to
visitation, particularly where child is in a two person family,
one of which is child's mother.
ix.
Cruzan. No DP right to die. Cruzan was in a coma
and there was no definitive evidence whether she would
have preferred life support to be turned off.
x.
Glucksberg. No SDP right to assisted suicide.
xi.
Vacco v Quill. Patients have right to refuse
treatment.
xii.
Lawrence v Texas. Overturned Bowers v Hardwick
which held there was no Constitutional right to engage in
homosexual sex. Basis of Lawrence is unclear.
Procedural Due Process
A.
Substantive Due Process analysis is focused on fair
outcome. Procedural Due Process is concerned with fair process.
B.
PDP analysis is triggered when a government deprives a
person of a liberty or property interest. In general the person is
entitled to a pre-deprivation hearing, after sufficient notice, unless
there is an emergency, in which case the person is entitled to a
post-deprivation hearing.
C.
Liberty/property interests include:
i. Adults are entitled to an adversary hearing before
commitment to a mental institution.
ii. Children are entitled to a screening by a neutral fact
finder before commitment to a mental institution.
iii. Students in public education have a property interest
in attending school. Notice and opportunity to respond.
iv. Welfare clients have a property interest in benefits if
they meet statutory standards. Notice and a predeprivation hearing.
21
14.
8
v. Public employment. If a public employee has a
reasonable expectation in continued employment except
for cause, the employee is entitled to respond and a posttermination hearing. Unless the expectation of continued
employment is explicit, the employee has the burden of
showing he has a property interest.
vi. Disability benefits may be terminated after notice with
no pre-deprivation hearing, an opportunity to respond in
writing and a post-deprivation hearing.
vii. Drivers license. Pre-deprivation hearing.
viii. Termination of parental rights requires state to show
unfitness by clear and convincing evidence.
ix. Civil forfeiture of real property requires notice and preseizure hearing, but not seizure of personal property.8
D.
Matthews v Eldridge test
i. This case held that a pre-deprivation hearing on
disability benefits was not necessary.
ii. Three factors:
a.
The nature of the private interest
b.
The risk of an erroneous deprivation with the
current procedures and probable value of additional
safeguards.
c.
Government's interest, both financial and
administrative.
Some miscellaneous stuff before enumerated fundamental rights
such as speech equal protection and religion.
A.
Takings. [N]or shall private property be taken for public use,
without just compensation. Amendment V.
i. If the government takes private land the owner must
be compensated.
ii. Key issue is public use requirement. This
requirement is read very broadly.
a. Berman v Parker. City can condemn blighted
neighborhoods and sell or lease land to private
developers.
b. Hawaii Housing Authority. Most of the land
in Hawaii was owned by a small number of
families. Most people owned their home on
leased land. Statute lets state condemn land and
sell it to tenants. OK.
c. Keilo. Residential neighborhood condemned
and land sold to developer. Public use is greater
tax proceeds. OK
B.
Regulatory taking. The government would always prefer to
accomplish its aims re land use by regulation rather than
See City of Denver's civil nuisance law, which allows seizure of cars used in drug or prostitution crimes.
22
C.
D.
condemnation and paying just compensation. The issue
becomes: when does regulation go too far in restricting
owner's use of his land so as to become a taking. An
example is zoning. When zoning was just becoming popular
land owners whose expectations as to use of their land were
frustrated by zoning classification argued this was a taking.
USSC said no.
i. Penn Central v New York City. Test # 1.
Investment based expectations. Penn Central
owns Grand Central Station. Penn wanted to sell
air rights for a quadzillion dollars, but Historical
district Commission vetoed it. USSC said no
taking because when Penn Central built station it
was for purpose of being a train station and they
still had that use.
ii. Lucas v South Carolina Coastal
Commission. Test # 2. Lucas bought beachfront
lot to develop. South Carolina enacted regulations
to protect coast line. Owner is deprived all
economic use of his land and therefore a taking
unless principles of nuisance or property law
would have allowed state to prohibit use without
regulation.
iii. Nolan v California Coastal Commission.
Test # 3.This case involves conditions on building
permits. Owner wanted to modernize beach front
shack. Commission conditioned permit on owner
allow a right of way on his beach between two
public beaches, one on each side of his beach.
USSC said taking. State said purpose of condition
was to preserve sight lines to the beach. Scalia
found an insufficient nexus between the condition
and the state purpose. Probably applied
intermediate scrutiny.
iv. Dolan v City of Tigard. Test # 4. City
conditioned permit to expand hardware store and
pave parking lot on landowner dedicate land for a
bike path and a flood plain. Rhenquist opinion
applied rough proportionality test and found
condition a taking.
Full Faith and Credit Clause. Full Faith and Credit shall be
given in each State to the public Acts, Records, and judicial
proceedings of every other state. State court in State A
must recognize court orders by state court in State B.
Contracts Clause. Always the wrong answer.
23
E.
15.
Privileges & Immunities Clause of the 14th A. Always the
wrong answer.
F.
Ex post Facto Clause. Congress cannot retroactively make
legal conduct illegal. Does not apply to civil legislation.
G.
Bills of Attainder. A legislative act which punishes without
judicial process an individual.
Equal Protection Clause. No State shall make or enforce any law
which shall...deny any person within its jurisdiction the equal protection of
the laws. 14th Amendment Section 1.
A.
Introduction. The 14th Amendment is one of what we call
the Civil War Amendments. They were enacted after the Civil War
before the rebellious Confederate states had been readmitted into
the Union. Their purpose was to protect the rights of the recently
freed slaves against the power of the state governments. I will not
address the 13th Amendment, except to say that it prohibits
involuntary servitude, i.e., slavery. I will not address the 15th
Amendment except to say that it guarantees the former slaves the
right to vote, a right which was systematically violated for another
century.9 However, the 15th Amendment reinforces the idea that
participation in the political process is a fundamental right, and laws
that burden access to the fundamental process will be subject to
strict scrutiny.
B.
The 14th Amendment and its Enablement Clause expanded
enumerated powers of Congress. For the first time Congress can
exert direct control of the states in certain areas. See my
discussion of how the 11th Amendment was amended by the 14th
Amendment above.
C.
Through the process of reverse incorporation the EPC
applies to the federal government.
D.
EPC analysis is triggered when a state regulates so as to
create classifications. Example: In most states a person has to be
21 years old to legally consume alcohol. This is a classification
based on age.
i.
Standards of review
a.
A law that creates a suspect classification is
subject to strict scrutiny. The strict scrutiny test is an
ends means test. The state must show that it has a
compelling interest that and the measure is necessary
and narrowly tailored to achieve that compelling
interest.
b.
A law that creates a quasi-suspect
classification is subject to intermediate scrutiny. The
state must show that it has an important
9
See trilogy by Taylor Branch on America in the King Years, At Cannon's Edge, Piller of Fire and Parting
the Waters for an excellent and exhaustive history of the Civil Rights Movement.
24
E.
governmental interest and the measure is
substantially related to achieving that interest.
c.
A law that does not create suspect or quasisuspect classifications is subject to rational basis
review. The challenger must show that the measure
does not have some rational relation to a legitimate
state interest.
d.
Classifications based on race or ethnicity are
suspect.
e.
Classifications based on gender are quasisuspect.
f.
Classifications based on alienage are subject
to mere rationality when made by the national
government and what looks like intermediate scrutiny
when made by state governments.
ii.
When the state is validly exercising its police power,
i.e., legislating to promote the health, safety and welfare of
its citizens, the measure will be subject to rational basis
review.
iii.
Measures subject to strict scrutiny almost never pass
review; measures subject to rational basis test almost
always are valid.
Cases
i.
Korematsu. The Japanese internment cases.
During WW II the army suspected first, second and third
generation Japanese-Americans of sympathizing with the
Japanese and convinced Congress to pass laws at first
restricting their freedom of movement and eventually
interning many of them in remote inland areas. There were
a few camps in Colorado, one just northeast of Lamar in
southeastern Colorado. Korematsu violated curfew
regulations. The USSC upheld his punishment and the law.
I think this is the first articulation of the strict scrutiny test.
The government did have a compelling government interest-national security. National security is always a compelling
interest; Korematsu was wrong because the means used to
achieve the compelling ends of national security were not
sufficiently narrowly drawn.
ii.
Intentional discrimination
a. Strauder v West Virginia. Statute that
prohibited anyone but white males over age of 21
from serving on a jury. (Note this is an 1880 case-the statute would also fail the intermediate
scrutiny test for classification on basis of gender
after about 1968.)
25
F.
b. Yick Wo. Ordinance that prohibited laundries
in wood buildings without a variance. Almost all
laundries with a variance were owned by white
men. Facially race neutral but discriminatory in
application.
c. Batson v Kentucky. Use of preemptory strike
to remove jurors used to exclude black jurors.
Uncon.
d. Washington v Davis. Huge case.
Established that disparate impact is not enough to
establish violation of EPC
i. Facts: Washington DC police force
used a basic qualifying exam for police
academy cadets. Test had disparate
impact on blacks.
ii.Holding. Disparate impact can be a
factor in determining discriminatory intent,
but is never conclusive. Here, the police
chief was black, city council was black,
mayor was black, police force active in
finding and recruiting qualified black
applicants.
e. Palmore v Sidoti. State could not deny
custody of a child from previous marriage to white
mother whose second husband was black.
f. Loving v. Virginia. Virginia law prohibited
mixed race marriage. State argued it did not
discriminate on basis of race because white
people were barred from marrying black people
and vice versa. USSC said not so much.
Affirmative action
i.
Issue: We decided that discrimination on the basis of
race is bad when it is used to oppress minority for benefit of
majority. But what about good intentioned discrimination?
Discriminate against white majority to benefit some members
of black minority. Is this a permissible means of ameliorating
effects of slavery and racial discrimination?
ii.
Turns out no.
iii.
Cases.10
a.
Adarand. Federal set-aside
program for government contracts.
Violates EPC
b.
Crosand City of Richmond had
set-aside program for government
10
Please note I do not address school integration or busing, as these seem to be dead topics today, largely
perceived as policy failures.
26
G.
contracts. Statute identified six eligible
minorities: Blacks, Spanish-speaking,
Orientals, Indians, Eskimos or Aleuts.
O'Conner: "There is absolutely no
evidence of past discrimination against
Spanish-speaking, Oriental, Indian,
Eskimo or Aleut persons in any aspect of
the Richmond construction industry. It
may well be that Richmond has never had
an Aleut or Eskimo citizen." Uncon.
c.
Bakke. Quotas in higher
education. University of Cali Davis had
100 seats in its medical school entering
class. Twenty are set aside for minority
applicants, other eighty are filled by
academic qualification. USSC applied
strict scrutiny. USSC agreed that diversity
in student body was a compelling
government interest but quota system
was not sufficiently narrowly tailored.
d.
Grutter v Bollinger. University
of Michigan law school used race as a
factor in admissions. OK.
e.
Gratz v Bollinger. University of
Michigan gave points for being a racial
minority such that race was a determining
factor in admission. Uncon.
f.
Shaw v Reno. Racial
gerrymandering of election districts is
uncon. Goal of creating majority-minority
districts conflicts with EPC.
Classification on basis of alienage revisited.
1.
Introduction. Alienage means not a citizen. Outlines
are confusing on what is the appropriate standard of review,
strict scrutiny or intermediate review. IN MY OPINION the
proper standard of review when the US government
classifies on the basis of alienage is rational basis. My
opinion is based on Congress' plenary power to control
immigration and naturalization. IN MY OPINION the proper
standard when a state classifies on the basis of alienage is
intermediate scrutiny. It cannot be strict scrutiny, as proven
by a thought experiment: Can a state require its state police
officers be citizens? Yes. Can a state require its state patrol
officers to be white? No. Conclusion: No matter what an
outline, a treatise or a casebook says we are not applying
strict scrutiny.
27
H.
11
2.
For the exam: States can require elected officials,
teachers, police officers and probation officers be citizens.
Cannot require less important employees be citizens.
3.
Classification based on status as illegal alien.
a. Not a suspect classification so probably
rational basis.
b. Plyler v Doe. USSC said that denial of
primary and secondary education to children of
illegal aliens violates EPC. Does not create a
fundamental right to education.
Classification on basis of gender
1.
Subject to intermediate review. State must show that
a measure is substantially related to an important
governmental interest.
2.
Cases.
i.
Craig v. Boren.11 Oklahoma law prohibited
sale of 3.2 beer to young men under age of 21 while
allowing sale of 3.2 beer to young women when they
reached age of 18. Established intermediate scrutiny
test.
ii.
Mississippi University for Women v Hogan.
State school of nursing did not admit men. State
argued that it had an important purpose because
nursing was one profession open to women. Benign
discrimination is a violation of EPC. "Benign
classification requires searching analysis."
iii.
J.E.B. v Alabama. Gender-based peremptory
challenges violates EPC.
iv.
U.S. Virginia. VMI case. The Virginia Military
Institute is a state school. Very demanding course,
more like a military academy. Most prominent players
in Virginia went to VMI. VMI did not accept women.
State argued two justifications. 1) Single-sex
education contributes to educational diversity; 2)
School's adversative approach would have to be
softened for women. USSC applied "exceedingly
persuasive" test and held single sex policy violates
EPC.
v.
Geduldig v Aiello. California's disability
benefits program said pregnancy is not a disability.
USSC upheld statute saying it did not classify on
basis of sex but rather pregnant/non-pregnant.
vi.
Michael M v Superior Court. Statutory rape
law punished male but not female. Upheld because
statute is intended to protect girls, not punish them.
Plaintiffs were represented by future Supreme Court Justice Ruth Bader Ginsberg.
28
H.
vii.
Rostker v Goldberg. Selective Service Act
(draft) applies only to men. Supremes upheld. State
interest is in providing for swift, efficient troops for
combat. Women are not used in combat.
viii.
Nguyen v US. Statute treated illegitimate
children with one parent a citizen and one non-citizen
differently depending on whether non-citizen is father
or mother. Children of non-citizen fathers have
greater burden of proving citizenship.
ix.
Personnel Administer of Mass. v Feeney.
Giving veterans hiring preference is not sex
discrimination even though most veterans are male.
Classification is not based on sex but rather
veteran/non-veteran.
x.
Orr v Orr. State law awarding alimony to
women but not men violates EPC.
xi.
Califano v Webster. Sometimes benign sex
discrimination is permissible, particularly in situations
involving lower earning potential of women. Apply
different formulas to calculate Social Security
benefits.
Application of mere rationality
i.
Introduction. When a state is validly exercising its
police power the Court will be extremely differential, but the
Court will apply mere rationality to strike down a measure
that is motivated by an invidious purpose.
ii.
Romer v. Evans. Colorado citizens enacted
constitutional amendment prohibiting local governments from
enacting measures banning discrimination in employment
and housing on basis of sexual orientation. USSC applied
rational basis analysis and held that animus toward an
unpopular discrete minority was never a valid state interest.
iii.
Cleburne v Cleburne Living Center. Group home
for retarded children prohibited by zoning. Mental
retardation is not a quasi-suspect classification. Zoning
scheme allowed other types of group living such as
fraternities and sororities, boarding houses, apartments and
the like. USSC applied mere rationality standard and struck
measure down. "Requiring the permit in this case appears
to rest on an irrational prejudice against the mentally
retarded."
iv.
Mass. Bd of Retirement v Murgia. Law that
mandated retirement at 50 for state police officers upheld on
rational basis.
v.
Wealth is not a suspect classification, but state must
waive marriage/divorce fees and court filing fees for
29
indigents because marriage, divorce and access to justice
are fundamental rights.
vi.
Military classification on basis of sexual orientation is
OK.
16.
SPEECH
A.
Speech is an enumerated fundamental right. Congress shall
make no law...abridging the freedom of speech. 1st Amendment.
This freedom is not without restriction. I suggest that the best way
to approach speech is by multiple tracks
B.
Content based/content neutral.
1. A content or viewpoint based restriction is subject to
strict scrutiny. The state must show that the restriction is
necessary and narrowly tailored to achieve a compelling
state interest.
2. Content neutral restrictions will be upheld if they are
reasonable time, place and manner restrictions. The
standard of review is called intermediate but it is closer to
strict. State must show the restriction is narrowly tailored
to achieve a significant government interest and
alternative channels of communication are open.
3. There does not appear to be a rational basis category
except content neutral restriction on speech in a nonpublic forum.
C.
Unprotected speech. Certain categories of speech are not
protected, either the state has a compelling interest in punishing the
category of speech or the communicative content of the speech is
so low that it does not merit protection.
1. Advocacy of illegal conduct.
a. Forget the entire line of cases analyzing clear
and present danger. Test is: Is the speech
directed to inciting or producing imminent lawless
conduct and is it likely to incite such action.
Brandenberg.
b. Cases
i.
NAACP v Claiborne. Boycott of
white owned businesses by blacks.
James Evers, one of the boycott leaders,
said in a speech that violators of the
boycott would be punished. Protected
speech.
ii.
Bond v Floyd. Julian Bond, an
elected member of Georgia House,
supported draft resisters. Georgia House
refused to seat him. Protected speech
because Bond did not call for resistance
30
but rather was an abstract statement of
opposition to the war.
iii.
Watts v US. Black anti-war
activist in a speech said that if the
government made him carry a gun he
would shoot L.B.J. (the then president of
the United States.) Protected speech.
iv.
Hess v Indiana. During an antiwar demonstration police cleared a street.
Hess said "We will take the fucking street
again." Protected speech. Advocacy of
illegal conduct at some future time.
2. Defamation.
a. Defamation had no Constitutional protection at
all until New York Times v Sullivan.
i.
In C/L defamation was a strict
liability tort. Absence of negligence on the
part of the defendant was not a defense.
Truth of the statement was an affirmative
defense that the defendant had to raise
and prove.
ii.
After Sullivan plaintiff must show
at least negligence.
iii.
If the statement is false and
defames a public official in connection
with his official conduct the plaintiff must
show statement was made with malice.
Malice means knowledge of falsity or
reckless disregard of falsity. that means
not checking sources.
iv.
Curtis Publishing Co v Butts
and Associated Press v Walker
extended protection to public figures.
Public figures narrowly defined as:
1. general fame and notoriety in the
community are public figures for
all purposes
2. voluntarily injected themselves
into a public controversy are
public figures in regard to that
issue
b. Sullivan extended to intentional infliction of
emotional distress.
3. Obscenity.
i. Whether to the average person, applying
contemporary community standards, the dominant
31
theme of the materials, taken as a whole, appeals
to the prurient interest.
ii. The work depicts or describes, in a patently
offensive way, sexual conduct specifically defined
by statute.
iii. The work, taken as a whole, lacks serious
literary, artistic, political or scientific value.
iv. However, a content or viewpoint based
restriction on obscenity is not permissible.
v. Private possession of obscene material may
not be punished.
vi. Child pornography may be punished even if is
not obscene.
vii. But state may not punish virtual child porn.
4. Fighting Words. Chaplinsky.
i. Chaplinsky has never been overturned but is
probably dead.
ii. Typical statute: "No person shall address any
offensive, derisive, or annoying word to any other
person who is lawfully in any street or other public
place." Other statutes are disturbing the peace
and disorderly conduct.
iii. Chaplinsky called city officials goddamned
racketeer and damned fascist.
iv. Fighting words are those that are likely to
cause a violent reaction or inflict injury.
v. Cases
a.
Cox I. Civil rights protesters
picketed courthouse. Police separated 75
demonstrators from a crowd of 300
rednecks. Leader of demonstration
convicted of breach of the peace.
Reversed. Police have a duty to control
the angry crowd.
b.
Garner v Louisiana. Breach of
peace convictions of black lunch counter
desegregation demonstrators reversed.
c.
Feiner v New York. Last fighting
words conviction that was upheld. Feiner
made a speech calling President Truman
a bum and the American Legion a Nazi
Gestapo.
vi. Words that cause injury branch of Chaplinsky
a.
Cohen v California. Cohen
wore a jacket with "Fuck the Draft" written
on it in a courthouse. Conviction for
32
disturbing the peace reversed. Offensive
speech not punishable.
b.
RAV v St Paul. hate speech.
Ordinance punished "whoever places on
public or private property a symbol,
object,...graffiti including but not limited to
a burning cross or swastika which one
knows...arouses anger, alarm or
resentment...on the basis of race, color,
creed, religion or gender..."
i. State supreme court limited
statute to fighting words.
ii. Scalia's opinion held that this
ordinance impermissibly punished
fighting words on basis of content
and viewpoint.
c.
Penalty enhancement on basis of
motive is permissible.
d.
Virginia v Black.
i. Virginia statute made it a crime to
burn a cross in a public place or on
the property of another with the
intent of intimidation any person or
group of persons.
ii. State may permissibly prohibit
cross burning.
iii. Statute had a prima facie clause.
"Any such burning of a cross shall be
prima facie evidence of intent to
intimidate." Uncon. State must prove
intent.
D.
Fora
1.
Public forum. Traditional places of speech such as
sidewalks, public parks, courthouse steps. Speech enjoys
the greatest level of protection.
a. Content neutral time, place and manner
restrictions are permissible if they are reasonable.
Reasonable means measure must be narrowly
tailored to serve a significant government interest
and leave open alternative channels of
communication.
b. Cases
i.
Mosely. Ordinance allowing
labor picketing but not other types of
demonstrations is invalid because it is not
content neutral.
33
E.
ii.
Boos v Barry. Law banning bill
boards criticizing foreign governments
within 500 feet of that government's
embassy is invalid because it is not
content neutral.
iii.
Ward v Rock Against Racism.
Law requiring music performances at a
demonstration be subject to decibel levels
and city sound man is OK because
reasonable and content neutral.
iv.
Watchtower Bible Society v
Village of Stratton. Ordinance
prohibiting all door to door solicitation
invalid because not sufficiently narrowly
tailored.
v.
Hill v Colorado. Bubble law
prohibiting anti-abortion protesters coming
closer than eight feet to abortion clinic
visitors is OK because it is content neutral
(?) and a reasonable means of achieving
important interest of access to clinics.
vi.
Frisby v Schultz. Ordinance
prohibiting targeted picketing OK because
it is content neutral, narrowly tailored and
served important interest.
vii.
Watchtower. State may not
require door to door canvassers to get a
permit.
viii.
Forsyth County v Nationalist
Movement. Government can require a
permit for demonstrations, parades,
picketing and the like, but must not give
officials unfettered discretion. Example is
requiring neo-Nazi skinheads to get
$1000000 in insurance and the Boy
Scouts $1000.
ix.
Kovacs v Cooper. City can ban
excessively loud sound trucks.
2.
Designated public forum. Publicly owned property
that the government has opened up to speech. Same rules.
Example: Municipal theatre.
3.
Non-Public forum. prisons, military bases, internal
mailbox system, inside of post office, airport. Rational basis
even if content based, but strict scrutiny if viewpoint based.
Secondary Effects
34
F.
G.
1.
Idea is that state is not regulating conduct of speech,
merely the secondary effects.
2.
Renton v Playtime Theatres. City may impose
zoning that either 1) disperses adult book stores, or 2)
concentrates adult book stores. City is addressing
secondary effects such as drugs, drunks, perverts, etc.
3.
Erie v. Pap's A.M. Nude dancing is speech, but city
can ban nude dancing. City is not regulating on basis of
content but rather is addressing secondary effects such as
violence, prostitution, etc
Symbolic speech.
1.
Conduct can be speech.
2.
U.S. v O'Brian. O'Brian burned his draft card12 on
the steps of the U.S. courthouse in Boston. He was
prosecuted for violating the statutory requirement that he
carry his draft card at all times. His conviction was upheld
by the USSC. They said O'Brian was not being punished for
his speech and formulated the O'Brian test. Supremes
analyzed as a content neutral time, place and manner
restriction.
a. The regulation is within the Constitutional
power of Congress.
b. The regulation furthers a substantial or
important government interest.
c. The regulation is unrelated to the suppression
of speech.
d. The incidental restriction on speech is no
greater than essential.
3.
Tinker v. Des Moines School District. High school
students suspended for wearing black armbands to protest
(what else) the Vietnam War pursuant to a regulation
enacted two days earlier in anticipation of the demonstration.
USSC held that this was an invalid content based restriction
on pure political speech. The students were not disrupting
school.
4.
Clark v Community for Creative Nonviolence.
Sleeping in the park is not speech.
5.
Texas v Johnson. Johnson stole an American flag
and burned it. He was convicted of desecrating a venerated
object. USSC overturned saying Johnson was being
punished for his speech.
Commercial Speech
12
Until about 1972 every young man in the United States was required to register for the Selective Service
system and was subject to the military draft, i.e., conscription into the Army. This greatly contributed to
the unpopularity of the Vietnam War. Resistance to the draft was widespread, some of it no doubt a
principled stand against the war.
35
17.
1.
Until Virginia Pharmacy commercial speech was
unprotected.
2.
Central Hudson is current test.
a. The speech must be not misleading or
advocate illegal activity.
b. The state must have a substantial interest.
c. The measure must directly advance the
interest.
d. The regulation is not more extensive than
necessary (narrowly tailored.)
3.
44 Liquormart v Rhode Island. USSC struck down
statute banning advertisement of liquor prices.
4.
Bates v State Bar of Arizona. and other cases.
State bar cannot ban lawyer advertising.
H.
Prior restraint. Even speech which can be punished cannot
be restrained before hand. Possible exception--Near. US District
Court issued injunction against publishing plans for an atomic
bomb. Pentagon Papers. Injunction preventing New York times
from publishing stolen report on Vietnam War struck down. Case
reached Supremes in three days.
I.
Vagueness and overbreadth.
1.
A restriction on speech can be invalid if it is vague.
Vague means that a person cannot be sure what speech is
permitted and what speech is prohibited.
2.
Overbreadth means that a measure which permissibly
punishes one form of speech might also be used to punish
protected speech. A form of third party standing.
First Amendment religion clauses
A.
Freedom of religion. Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof...
i
Employment Division, Dept. of Human Resources
v Smith.
a.
Smith was a drug abuse counselor. He was also a
member off the Native American Church, which uses peyote
as a sacrament. Peyote is a schedule I illegal drug. Smith
was fired for using peyote and his application for
unemployment benefits was denied.
b.
A criminal statute of general applicability is not invalid
because if its incidental burden of exercise of religion.
c.
This rule would probably apply to civil restrictions as
well.
d.
Abolishes strict scrutiny standard applied in earlier
cases where the burden on exercise is incidental.
ii.
Church of the Lukumi Babalu Aye v Hialeah.
36
a. But if the purpose of the measure is to forbid or
interfere with exercise strict scrutiny will be applied.
b. City of Hialeah passed an ordinance making it
unlawful to sacrifice animals in the city limits.
Practitioners of Santeria religion involves the sacrifice of
chickens and pigeons. The ordinance had the effect of
banning the religious practices of the religion, while
carefully excluding other similar practices such as Kosher
butchers.
c. Court applied strict scrutiny to determine if ordinance
was neutral and of general applicability and struck down
ordinance.
B.
The Religious Freedom Restoration Act of 1993.
Congress attempted to reverse Smith by statute, directing that the
court apply strict scrutiny to measures of general applicability that
burden free exercise of religion.
i.
City of Boerne v Flores. USSC invalidated RFRA.
C.
Other cases
ii.
Locke v Davey. State scholarship program that
specifically excluded students studying "devotional theology"
is OK.
iii.
Reynolds v U.S. Ban on polygamy, practiced at the
time by Mormons, OK.
iv.
West Virginia Board of Ed v Barnette. Compulsory
flag salute challenged by Jehovah's Witnesses struck down,
mostly on free speech grounds.
v.
Wooley v Maynard. "Live Free or Die" license plate
struck down, mostly on speech.
vi.
Sherbert v Verner. Seventh Day Adventist refused
to work on Saturday, was fired, and refused unemployment
benefits. Court applied strict scrutiny to overturn denial of
benefits. Probably reversed by Smith.
vii.
Braunfeld v Smith. Sunday closing laws OK.
viii.
Wisconsin v Yoder. Amish can withdraw children
from public school in violation of compulsory education laws.
ix.
U.S. v Lee. Amish employer cannot refuse to collect
social security taxes from employees.
x.
Bob Jones University v U.S. University prohibited
interracial dating and IRS denied tax exempt status. OK.
xi.
Goldman v Weinberger. Military can ban wearing
yarmulke.
xii.
O'Lone v Shabazz. Prison regulations that interfered
with Friday afternoon religious services OK.
xiii.
Lyng v Northwest Indian Cemetery Protective
Ass's. Federal government can build a road and cut timber
37
D.
on federal land even though this would prevent certain
Native American religious practices.
Establishment Clause
1.
Introduction. The Establishment Clause is intended to
prevent government from establishing an official state
church. There is a test, but it is not very useful.
2.
Lemon test. A government action challenged on
Establishment Clause grounds will be OK if
a.
It has a secular legislative purpose.
b.
Its primary effect must neither advance nor
inhibit religion.
c.
It must not foster excessive entanglement with
religion.
3.
Board of Education v Grumet. Public school district
boundaries drawn so to coincide with village of Orthodox
Hassidic Jews so the village's special needs students could
go to their own school. This is a measure that favors one
sect. Strict scrutiny. Stuck down.
4.
Larkin v Grendel's Den. City cannot give church
veto power over liquor license.
5.
Marsh v Chambers. State legislature can employ a
chaplain.
6.
County of Allegheny v ACLU. Christmas display
OK if you have Santa Claus along with Baby Jesus. The
Santa Clause.
7.
Estate of Thornton v Caldor. State cannot require
employer to honor right to not work on Sabbath.
8.
LDS v Amos. Church can require employees to
belong to religion when non-religious organization would be
barred from doing so by federal antidiscrimination laws.
9.
Witters v Washington Department of Services.
Direct state aid to student attending religious college to
become a pastor OK.
10.
Zobrest v Catalina Foothills School District.
Paying for sign language interpreter OK.
11.
Zelman v Simmons-Harris. School voucher
program OK even though most of them used to attend
religious school.
12.
Norwood v Harrison. State program to provide
textbooks to all students OK even though some of the
students attend religious school.
13.
Mitchell v Helms. Lending books and computers to
schools OK even though some of the schools are religious.
14.
Everson v Board of Education. Provide
transportation to schools.
38
15.
Regan. Reimbursing religious schools for required
state testing OK.
16.
Wolman v Walter. Diagnostic testing OK.
17.
Agostini v Felton. Remedial teachers going to
religious schools OK.
18.
Lemon v Kurtzman. Paying teachers' salaries at
religious school to teach secular classes not OK.
19.
Walz v Tax Commissioner. Property tax exemption
OK.
20.
Texas Monthly v Bullock. Sales tax exemption for
religious publications not OK.
21.
Engel v Vitale. Prayer and bible reading in school
not OK.
22.
Wallace v Jaffree. Moment of silent meditation not
OK.
23.
Lee v Weisman. Prayer at graduation ceremonies by
cleric not OK.
24.
Santa Fe Independent School District. Student
prayer at graduation not OK.
25.
Stone v Graham. Posting Ten Commandments in
classroom not OK.
26.
McCollum v Board of Education. Early release to
attend religious classes in public school not OK.
27.
Zorach v Clauson. Early release to attend religious
classes elsewhere OK.
28.
Epperson v Arkansas. Statute prohibiting evolution
not OK.
29.
Good News Club v Milford Central School. Equal
access to school space after hours to religious groups OK
and required by speech or free exercise clause.
30.
Neutral funding of school clubs, some of them
religious OK.
31.
Academic study of bible OK.
32.
Sunday closing laws OK.
39