CON LAW CANONS II
CANON
Levels of SDP
Analysis
Incorporation
Doctrine
Fundamental
Rights
Civil War
Amendments
(13th, 14th, 15th)
AUTHORITY
INTERPRETATION/APPLICATION
1. SUBSTANTIVE DUE PROCESS
RATIONAL BASIS TEST
Is there any state of facts either known or which could reasonably be assumed affords support for the law. If so
uphold it.
STRICT SCRUTINY
1) Is there a fundamental right?
a. Textual basis
b. Is there a history and tradition of recognizing the right?
c. Social movt towards recognition
d. National conscience
2) If yes, is it infringed?
3) If so… STRICT SCRUTINY: Does the govt. have a compelling interest for infringing on the right?
4) If so …

Is the law effective?

Is the law narrowly tailored?

Are there less restrictive alternatives?
Twiney v. New Jersey (1908) (inventing incorporation doctrine by holding that the 14th A makes the 1st A freedom of speech
applicable to the states )
Presser v. Illinois (1886) (holding that 2nd A right to bear arms is not incorporated)
D.C. v. Heller (2008): (finds a fundamental right to bear arms making it more likely 2 nd A could be applied to states in the
future (DC Cir. so this is a federal issue))
Mapp v. Ohio (1961) (finds 4th A right against unreasonable search and seizures to be incorporated)
Hutardo v. California (1884) (finding 5th A Right to a Grand Jury in criminal indictments is the only section of 5th A not
incorporated all other sections inc. in different cases)
Duncan v. Louisiana (1968) (6th A right to jury in criminal trial is incorporated) (all other provisions of 6 th A also
incorporated by different cases)
Minn. & St. Louis RR v. Bombolis (1916) (finding 7th A right to civil trial by jury not incorporated.
3rd A Freedom from Quartering of Soldiers: No SCT ruling but presumed to be incorporated
Robinson v. California (1962) (unlike right against excessive bail 8th A right against cruel unusual punishment is inc.)
Calder v. Bull (1798)
Fundamental Rights (derived from the word liberty in DPC
Facts: Subsequent to new leg. CN ct changes ruling
 privacy)
allowing inheritance under a will.
 Marriage
Holding: Does not violate ex-post facto principles
 Procreation
Majority (Chase) (Prevailing View)
 Contraception
 Certain fundamental rights can be read into Const.
 Living with family
courts can imply rights from natural law.
 Custody of ones children
 Const. doesn't cover everything-certain fundamental
 Abortion (only fundamental right that does not get strict
moral principles exist
scrutiny but undue burden test)
 Rights must, however, be found in or have a connection
 Right of consenting adults to engage in consensual sexual
to the text.
activity is not a fundamental right but is a “very important
Criticism  (Strict Constructivist) Justice Iredell says
liberty interest” that receives similar treatment
court cannot start implying rights
Nonfundamental rights (rationality review)
Use Glucksburg/ Michael H. to minimize the right
 Suicide
 define narrowly
 Contract
Use Roe/Lawrence/Griswold to argue the right can be
 DNA
implied then compare it to existing rights
 define broadly
13th Amendment
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
14th Amendment
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. P&I: No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; DPC: nor shall any State deprive any person of life, liberty, or
property, without due process of law; EQP: nor deny to any person within its jurisdiction the equal protection of the laws.
List of Recognized Privileges and Immunities
Habeas corpus; Petition seat of govt; Transact business with govt (1st A); Seek protection; Free access to seaports,
subtreasuries, land offices and courts of justice (Art. 1 Sec.9)
Slaughter-House (1873)
Facts: Monopoly to butchers in New Orleans. Goal is to promote sanitation isolate bloodshed and filth of business.
Butchers argue this violates right to work.
Majority (Miller) (Textual and Formalistic)
1) Civil war amendments not the source of fundamental rights
2) 13th A-Created involuntary servitude does not apply. 14th A EQP irrelevant b/c it was passed to prevent further bad
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treatment of recently freed slaves. 14th A DPC fails b/c procedural hearings occurred.
3) Does the law abridge their 14th A privileges and immunities as citizens?
 P & I protects the rights granted to US citizens not rights granted by the state to state citizens.
 Ctiticism: Remarkable that the word citizen of the state should be left out when it is so carefully used in the very
sentence that precedes it (textual argument)
 14th A P&I is specific to interstate discrim. and interpretation of 5th A P&I cannot be transplanted
Dissent (Fields)
 Redundancy: If 14th A P&I clause only protects textually enumerated privileges it is “vain and idle enactment that affected
nothing” since these rights are already ensured by the 5th A DPC
 (Intra-textual) 14th A P&I should be used in the same way as in Art. 5
Support: Great scholar Michael Ross argues that Miller, a doctor and part of sanitation movt, deferred to a legitimate
sanitation concern. Not a racist attempt to retreat from reconstruction since post-civil war LA leg. had blacks
Criticism: Leg. was captured. This case is about a monopoly obtained by power and money. Academics point to writings of
John Bingham and argue that 14th A P&I was intended to be biggest source of implied rights. Tragic since purpose of 14 th A
was to grant fed. power to control states.
Aftermath: 14th A P&I rendered virtually useless until . . .
Saenz v. Roe (1999) (first and last time 14th A P&I used since Slaughterhouse)
Facts: Edwards v. CA (1941) found a fund. right to travel. Statute limits welfare benefits to newly arrived citizens in CA.
Majority (Stevens)
1) Impermissible infringement on14th A P&I always included right to travel.
 law deters migration
infringes on right to be treated equally in new state (sounds like an EQP analysis)
Analysis: Ct avoids discussion of right to welfare, which would raise federalism, state police power issues. Generally SCT
does not support affirmative socio economic rights b/c it does not like to allocate state resources.
Criticism: CA had a legitimate budgetary concern.
1.1 Economic Rights
SCT rarely recognizes contract or economic related fundamental rights  Lochner found constitution right to K  overturned by
Carolene Products and West Coast Hotel
Lochner v. NY (1905)
Facts: NY law imposes limits on hours a baker can work.
Majority (Peckham)
1) Strikes down law. Big decision  some fundamental rights can be implied by due process clause of 14th amendment
2) Freedom to contract implied from the word liberty in 14 A DPC. This liberty interest is not absolute but it can’t be infringed w/out major
justification. Doesn’t rely on K Clause in Const. Art. I, sect. 10, clause 1  narrowly interpreted and limited to existing Ks.
3) State justifications weak. Tight means/end connection required  bread will still be safe law does not promote public health.
4) Labor justification weak and can only be used to protect vulnerable groups from exploitation. These ppl may need the $.
5) Slippery slope  bad if all professions (especially lawyers) will be subject to state regulation
Criticsim  Peckham recognizes possibility of capture by unions. Ct is lochnerizing  inventing rights. Disfavor of mkt reg demonstrates that
ct. is really just against redistribution of wealth.
Dissent (Holmes): Capital/free markets are not guaranteed by Const. and cannot be implied. Defer to leg. defer to facts do not defer to laissez
faire economic bs. Majority should not impose personal views by reading social Darwinism into const. and prohibiting legit state ends.
Dissent (Harlan): Tight means/end connection standard is too high. Defer to leg. and facts.
Critiques of Lochner
1) Tight Means/ends (need perfect proof that means will promote the ends)
 Harlan: court has mistakenly required a tight means/ends. Many bakers will benefit from the law.
 Proof does not have to be perfect, just reasonably related.
 Not the court's job to introduce economic philosophy
2) Pluralism (Modern Approach: variation of Holmes dissent)
 Let plural groups in the political process make that legislative process play out.
 Court should generally not be allowed to specify prohibited ends (Holmes)
3) Trad’l view of process  procedural due process is enough and SDP does not exist.
4) Trad’lview of liberty  Only contemplates Physical/bodily restraint: slavery, false imprisonment.
5) Privacy-broad notion of liberty (Modern Approach)
 SDP does exist but there is no fundamental right to freedom of contract. Problem not that ct is too substantive but it is in the wrong area.
 Complete disagreement with Holmes
6) Rejection of Free Market Theory (No neutral baseline)
 Based on completely mistaken notion of our govt-that bargaining power is equal between employees and employers.
 No such thing as a truly free market-without govt protections we wouldn't be able to do all sorts of things.
 All elements of free mkt req. govt protection (taxes, corporate regs, patents). Laws protecting the business owner (e.g. trespass, fire, b&e,
theft, police).
 Great dep tends to legitimize this theory. Civil right mvt and feminist movt maybe also played a role.
 Richard Posner wrote The Failure of Capitalism: paradigm shift based on recent economic crisis
Aftermath: 3 Doctrines that still define SDP
1) tight means/ends fit (2) certain leg. ends are illegal and prohibited (3) aggressive role for the cts
Nebbia v. New York (1934)
Facts: NY law reqs minimum milk price.
Majority (Roberts) (Reasonableness Test, Deferential to Leg)
1) Right to K is not absolute. No right to sell milk as cheap as you want.
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2) State has the right to promote general welfare: milk is essential for strong bones and teeth
 milk mkt is failing and price undercuts are putting smaller ops out of biz
3) Law does not violate 14th A SDP
 Not unreasonable or arbitrary (reasonableness test difficult to reconcile with Lochner)
 prevents ruthless competition from destroying price structure/milk industry
Criticism: Helps dairy producers to disadvantage of consumer. Reverse lochnerizing.
West Coast Hotel Co. v. Parrish (1937) (Overturns Lochner)
Facts: state law imposes women's min. wage
Majority (Hughes)
1) No Violation of 14th SDP b/c freedom of K is not a fundamental right
 Liberty contemplates protection from evils which menace the health, safety, morals, and welfare of the people
2) Must not subsidize unconscionable policies of employers
 Must protect vulnerable workers or community (taxpayers, charities) will bear the cost.
3) Defer to leg: Regulation which is reasonable in relation to its subject and is adopted in the interest of the community does not violate SDP
4) More critical of free market than any other opinion
U.S. v. Carolene Products (1938) (Overturns Lochner even more
Facts: Law prohibits filled milk (milk mixed with coconut milk)
Majority
1) Defer to leg. on economic regulations and reserve aggressive judicial review for cases involving fundamental rights
2) Rational basis test- Is there any state of facts either known or which could reasonably be assumed affords support for the law. If so
uphold it.
3) Strict scrutiny requires tight means/end connect but is for fundamental rights listed in const. and will not be applied to economic laws.
4) FAMOUS FOOTNOTE 4: Two kinds of laws get strict scrutiny
Laws that interfere with political process (e.g. voting).

Laws that effect on discrete and insular minorities. Discrete means obvious (skin color), insular=segregated. Deserving of the

most protection  easily identified and harmed.
Since striking down such law protects the political process there is no counter-majoritarian dilemma.

 Criticism: Pure democracy is majority rule
Counter-criticism: playing field is unfair and minorities are prevented from contributing to the political process so their views are not
accounted for.
 Criticism: Bruce Ackerman: “discrete and insular” paradigm is outdated by civil rights legislation. Courts should adopt newer
paradigm to protect “hidden and diffuse” minorities.

Happy Version: Ruling is about health
o Holmes  pluralism is good

Cynical Version: Ruling is about dairy producers who have “captured the political process”
1.2 Reproductive Autonomy
Buck v. Bell (1927)
Facts: State law forces sterilization for mentally infirm
 Eugenics Movement-if you want to prevent spreading of the trait you have to prevent people with that trait from having children
Majority (Holmes: Not his finest moment)
1) Defer to leg (federalism)  police power/public welfare arguments for implementing eugenics
2) General declarations of legislature and findings of the court support the law
3) “One generation of imbeciles is enough”
Skinner v. Oklahoma (1942) (First Time SCT finds fund. right)
Facts: OK law allows sterilization of 3 time offenders if crimes involve moral turpitude. (criminal predilection statute)
Majority (Douglas)
1) Ct finds that right to procreation and marriage are fundamental rights but did not rule on this issue to avoid being accused of
Lochnerizing for finding fundamental right with no textual basis.
2) Ct decides this case on EQP ground b/c white collar crimes are exempted (class based)  strict scrutiny
 No basis for the distinction-inheritability of criminal traits. Even if criminal predilection is heredity how are some crimes more hereditary.
Same fines and imprisonment, just a difference for sterilization
No genetic evidence of criminal predilection
3) WWII era where climate has little toleration for discriminating against “inferior groups”
Chemical Castration Laws Hypo
1) Fundamental right?
 Con: Yes. Right to marry, right to procreate. Body integrity argument (like abortion).
 Pro: Temporary: Does not permanently/completely remove right to procreate or marry
 Pro: Unlike Skinner these laws are not based on reproduction but rather recidivist studies.
2) Compelling govt interest?
Yes.
3) Is it effective and narrowly tailored
 Con: The drug does is not always effective. Many sex offenders are impotent. Drugs can be taken to reverse the effect. ACLU says sex
offenders typically have psychological not hormonal problems. This will increase psychological instability and violence.
 Pro: Balances perfectly with the crime.
4) Less Restrictive Alternatives
 Pro: Consent/release program minimizes restrictiveness
 Con: Consent/release programs are not a real choice. Convict will consent to anything to get released. Doesn’t matter if there are no
alternatives b/c this is cruel and unusual punishment and double jeapordy.
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Griswold v. Connecticut (1965) (Foundation of Right to Privacy)
Facts: CN law heavily restricts use of contraceptives for anyone and provides for accessory/accomplice liability
State: Public morality/Police Power Argument: reduces likelihood affairs, infidelity, and fornication
Majority (Douglas)
1) Ct find fundamental right to privacy based on “penumbras” of privacy not textually mentioned in const.
 Criticism (textualism): SCT is lochnerizing again. Framers left privacy out of const. on purpose.
 Counter-criticism: States that implication is based on various const. provisions not the word liberty.
2) Privacy can be implied from various const. guarantees create zones of privacy
 1st A: Freedom of Association
 3rd A: Prohibits mandatory quartering of soldiers
 4th A: Prohibits unreasonable searches and seizures
 5th A: Prohibits self-incrimination
3) State law is to broad and invades privacy
 Cannot infringe on privacy of marital relationship (unclear whether this right extends beyond marital relationship probably does)
Goldberg Concurrence (living const)
1) Emphasizes the relevance of 9th Amendment in implying rights “retained by the ppl” (few and final use of 9th A)
 "liberty" protected by 5th and 14th Amendments from infringement is not restricted to rights specifically mentioned in first 8 Amendments
 To determine fundamental rights-look to traditions and collective conscience of our people
 Legitimate subject of state concern-discouraging of extra-marital relations-dubious
Harlan Concurrence (criticized by both sides)
1) SDP of 14th A is enough to find a right to privacy
2) Encourages judicial restraint
3) There is no right to privacy outside marital privacy. Unlike Douglas very clear that it does not extend beyond marital relationship to same sex
marriage or adultery.
White Concurrence
1) Poor means/end fit. Ban does not accomplishes supposed state goals.
Allow sale of contraceptives in the state
Black Dissent
1) There is no constitutional right to privacy and it cannot be inferred. The govt has a right to invade privacy unless prohibited by some specific
const’l provision
2) SDP must be based on text, history, and tradition: No real way to determine Nat’l Conscience, not for judges to decide
3) Critical of prenumbras b/c they are not in the text and lead to a slippery slope
4) 9th Amendment is not a license to create fundamental rights and impose personal views of ct.
Stewart Dissent
Uncommonly silly laws will be dealt w/ by democratic process
Eisenstadt v. Baird (1972)
Facts: State law prohibits unmarried couples from obtaining contraceptives.
Majority (Brennan)
1) Right to privacy: freedom from unwanted government intrusion is an individual right
Privacy of married couples in Griswold married couple is made up of individuals who each have their own rights
2) Equal Protection Clause
3) Rights must be the same for the unmarried and married alike
4) Rejects state promiscuity argument  they still have sex
Dissent (Burger)
Nothing says that contraception has to be available on open market, not a flat prohibition
Carey v. Pop. Services Int’l (1977)
Minors have a right to contraception as well. Cannot punish people by forcing a woman to be pregnant. Creates tension over how far right to
privacy really goes.
Roe v. Wade (1973)
Facts: TX law bans abortions
Majority (Blackmun)
1) Fundamental right based on the grounds of women’s choice/autonomy before the fetus is viable (not burden on body)
 Extension of Griswold: Liberty  privacy  abortion
2) Sets up the trimester framework to evaluate the state’s interest
3) Law fails strict scrutiny
 1st –state has no interest in protecting life of fetus
 2nd –state has some legitimate interest to protect the life of fetus and maintain medical standards through persuasion, but cannot prevent
abortions
 3rd –state has absolute interest to ban abortions after viability; must include exceptions for the life and perhaps safety of the mother
 Criticism: instead of Lochnerizing, there are three alternative approaches:
 equal protection, sex discrimination  regulating pregnancy is sexist
 older version of liberty  bodily integrity/autonomy/choice of lifestyle
 secularism  any pro-life decision would have been based on religion (Jeff Stone Theory  groups justices decisions by their religious
affiliation)
 Federalism
 Textualism
 Trimester framework  arbitrary line drawing
 Backlash thesis: political backlash provided ammunition to conservative opponents. Let political process run its course. States were
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trending towards liberalizing and even legalizing laws on abortion.
 Counter: fundamental rights are not dependent on political process
Dissent (Rehnquist)
1) No textual support.
2) Right to privacy cannot be read out of “liberty.” The histories and tradition of state abortion laws reflect the fact that abortion is not a
traditional fundamental right.
3) Exception for life/health of mother
 Criticism: opens the door for other exceptions
Criticism of Dissent
1) Laws are not enforceable
2) Laws only affect poor women who cannot afford to travel to have abortion
3) History and tradition alone do not determine fundamental rights and would freeze us in the past
Planned Parenthood v. Casey (1992)
Modern
Facts: PA law that restricts abortions by requiring informed consent, a 24 hour waiting period, parental consent; it contained
Approach to
an emergency exemption
Abortion
Plurality (O’Connor)
1) Affirms central ruling in Roe b/c Stare decisis should be followed, except in four cases:
 central rule is unworkable (nothing has changed)
 law changes (central rule becomes doctrinal anachronism)
 facts change
 social reliance on the law has eroded (speeding)
2) Throws out the trimester framework and strict scrutiny approach (so much for stare decisis)
3) State interest starts at conception, supposed compromise is made. Promulgates undue burden test  the state can take
actions before viability if there’s no undue burden (substantial obstacle)
Ex. spousal notification—could trigger abuse in the home
Blackmun (Concur & Dissent)
Uphold Roe in its entirety. Female autonomy arguments. Trimester framework is more workable.
Dissent (Rhenquist): History and tradition.
Dissent (Scalia)
1) Federalsim, textualism, democracy
2) Decision is based on silly mysteries of life argument: “At the heart of liberty is the right to define one’s own concept of
existence, of meaning, of the universe, and of the mystery of human life.”
Maher v. Roe (1977); Harris v. McRae (1980)
1) Const. of negative rights  State has no affirmative duty to fund abortions
2) the state cannot prevent abortions, but does not have to oblige to paying for them for indigent women (not a suspect class)
Gonzales v. Carhart (2009)
Facts: Stenberg (2000) (invalidated a NE prohibition of partial-birth abortions, O’Connor writing for majority said “substantial portion” test of
NE law was too vague); 2003 fed. statute outlaws partial-birth abortions; Alito replaces O’Connor
Majority (Kennedy)
1) Upholds the fed law prohibiting intact D&Es; the law includes intent requirement & anatomical landmarks to clarify what constitutes an intact
D&E; not an undue burden b/c alternatives exist (experts argue alternatives are safer for women
2) Defer to Congress
3) Must protect women from psychological impact of brutal abortion procedure
 Criticism: majority opinion concedes other options exist; does not promote life
 Criticism: Not only inconsistent with Stenberg but also Roe and Casey  should be choice of woman and her physician
Dissent (Ginsburg)
1) The majority invokes an “antiabortion shibboleth” for which it concededly has no reliable evidence to justify “pure sexism” depression
approach
2) Law must fail b/c lacks exception is only for life not health of mother.
Davis v. Davis (1992)
Facts: Couple divorces, husband wants frozen embryo destroyed, wife wants someone else to get it
1) Balancing Test: a fundamental right to not be a parent trumps the right to give someone an embryo
Note: IA law  nothing happens until consent, de facto victory for party that wants embryo destroyed
If women wanted to have child  Ruling in favor of father is one step towards giving father parental right to in utero embryo and abortion
decision  Court has said no veto power in abortion (Casey: man not even guaranteed notice).
Loving v. Virginia (1967)
Right to Marry
Facts: VA law did not allow interracial marriages
Majority (Warren)
1) Marriage is a fundamental right
2) Racial classification is discriminatory  state’s interest to not mix the races was religious and not justified
 Rejects: State argument that it was not discrimination b/c it treated both races poorly. Only outlaws whites from
interracial marriage.
Note: Application to Gay Marriage  holds that marriage is one of the basic civil rights of man under the 14th, but the ruling
is based on the tradition of marriage, gay marriage not historical/traditional
Zablocki v. Redhail (1978)
Facts: WI law says that if you are behind on your child-support payments, you can’t get married without making difficult
showing that child will not become ward of the state
Majority (Marshall)
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Right to Custody
of Ones
Children
1) The court uses EQP and applies “critical examination scrutiny” (basically strict scrutiny)
 Apply to all right to marry cases but note that this is not a typical SDP analysis and maybe only works for EQP
right to marry anlaysis
2) the law fails b/c it is not narrowly tailored; it infringes upon the right to marry and other alternatives to promote child
support exist
3) Not effective: Some ppl will always be indigent. Maybe counter-effective: some ppl w/ be able to pay child support with
dual income after marriage.
4) Also implies fundamental right to procreate.
5) Fundamental rights being denied to vulnerable group
Concurrence (Stewart)
Should not be an equal protection case; more analogous to substantive due process; marriage is not absolute—restrictions on
marriage are allowed (age, incest)
Dissent (Rehnquist)
No fundamental to marry at all
 Criticism: like Skinner, discrimination on poor people + infringing a fundamental right
Santosky v. Kramer (1982)
1) Fundamental right to custody
 Must be a substantial reason before parental custody can be terminated
 A “natural parent’s desire for and right to the companionship, care, custody, and management of his or her
children is an interest far more precious than any property right.”
Stanley v. Illinois (1972)
Facts: IL law says that children of unwed fathers become wards of the State upon the death of the mother
Majority (White)
Presumption that fathers are bad parents is questionable but allowable, but the state must provide a hearing to rebut the
presumption
Right of
Extended
Family to Live
Together
Right to Refuse
Medical
Treatment
Right to Assisted
Suicide (or lack
thereof)
Micheal H. v. Gerald D. (1989)
Facts: CA law provided that a child of disputed parentage would reside with the “father” in the marriage, not the biological
Majority (Scalia) (Strict constructivist)
1) Law is upheld: No fundamental right for an adulterer to have a relationship with a natural daughter.
2) No history or tradition for this right. No textual support
3) Scalia footnote 23: analysis must be fact intensive or slippery slope will ensue (avoids judicial subjectivity).
4) Valid state interest in protecting family unit/rights of parent raising child
Dissent (Brennan) (living constitution/evolving: Kende calls this the most left wing analysis)
1) Liberty interest implicates the right to privacy in DPC. From this right to privacy the right of a biological father to have
contact w/ child is implied. Higher level of scrutiny.
2) Hitstory & Tradition Problematic. Very malleable. Notions of family are outdated  “The majority treats the
constitution as stagnant and archaic”
3) Technology has evolved  fathers can be determined conclusively
Moore v. East Cleveland (1977)
Facts: City ordinance restricts the amount of people that could live in a house
Majority (Powell)
1) Fundamental right for family members to live together (even beyond the nuclear family)
2) State interests in relieving congestion in the school system, parking, and overcrowding do not pass strict scrutiny,
 ordinance is not narrowly tailored since alternatives to address these interests exist
3) Nuclear family draws arbitrary boundary
Dissent (Stewart)
1) Ordinance is a valid effort by the city to promote the community’s welfare.
2) Court should not micromanage b/c any definition of family will cause hardship under some circumstance
Belle Terre v. Boraas (1974) (Upholding zoning ordinance in a college town limiting number of unrelated people who could
live together based on exception for related persons)
Cruzan v. Missouri (1990)
Facts: MO law would not allow parents of a vegetable to remove a feeding tube (starving the patient?)
Majority: Liberty  bodily integrity  There is a fundamental right to refuse medical treatment
Washington v. Glucksberg (1997) (Major Victory for Conservative Approach to SDP)
Facts: WA law prohibited assisted suicide
Majority (Rehnquist)
1) No right at all to assisted suicide. The case is a big victory for the conservative interpretation of the due process clause.
2) SDP Tradition Test: Does not find history of narrowly defined right to commit suicide with the help of someone else.
Quite contrarily there is a history and even a present tradition of rejecting all kinds of suicide and protecting life.
3) Rationality Review
 Interested in protecting life
 Interest in protecting vulnerable people
 Slippery Slope to euthanasia
4) Relies on foreign data from the Netherlands  troubling evidence of coercion
Note: Only Oregon has a right to die with dignity. This case does not ban such a law. However, a law that outlaws it is ok.
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 Criticism: difficult to reconcile w/ Roe where the CT went beyond history and tradition to examine the
interests. This is very narrow.
Concurrence (O’Connor)
You can’t assist with suicide, but you can provide palliative care  supposed goal is to alleviate pain even if doc knows
overdose will occur
Concurrence (Stevens with 5 joining)
Creates an exception when this law would be unconstitutional  That would be when the person is terminally ill, mentally
competent, and no medication can help. That would just be too cruel.
Concurrence (Breyer)
Would define liberty interest broadly as “right to die with dignity” and find a fundamental right
Right to Engage
in Homosexual
Activity
Negative Rights
Right to DNA
Testing
Right to Bear
Arms
Vacco v. Quill (1997)
Issue: is it an equal protection violation that paralyzed people cannot get assistance in committing suicide?
No, the state interest in not preventing suicide is valid
Reconcilable?
Pro-Life & For Assisted Suicide
Fetal v. person distinction  fetus doesn’t have a choice, old person does
Pro-Choice & Against Assisted Suicide
Fetus is not a person, so it isn’t the same thing
Bowers v. Hardwick (1986) (ruling that law banning homosexual sodomy is not unconstitutional. Right to privacy does not
protect private consensual homosexual activity)
Lawrence v. Texas (2003) (Overrules Bowers)
Facts: TX criminalizes homosexual sodomy
Majority (Kennedy)
1) Important liberty interest, but not a fundamental right that gets strict scrutiny; finds important liberty interest from the
right to privacy based on “liberty”  heightened scrutiny
2) Definition of Right (Broad)  Personal liberty interest in choosing the relationships engaged in within privacy of home
without being punished as criminals
 cannot demean and stigmatize consensual adult sexual conduct
3) No legitimate state interest
4) Modern trend away from criminalization.
5) Laws based on moral are invalid
 Support: John Stuart Mill (Political Philosopher): gov’t should regulate based on harms, not morals
Criticism: Difficult to reconcile w/ Glucksburg narrow approach to SDP
Concurrence (O’Connor)
Not a substantive due process problem but rather an equal protection issue  unfairly harms homosexuals
Dissent (Scalia)
1) Stare Decisis; Federalism; Democracy; History
2) No fundamental right  passes SDP rationality review. Regulates conduct not persons  passes EQP analysis
3) All laws with a moral component are in trouble if you take Kennedy “no morals” argument seriously
4) Accuses the court of taking sides in the culture wars  “Todays opinion is the product of a court that is a product of a law
professor culture.” (populist democratic argument)
5) Concedes under stare decisis doctrine this opens the door for gay marriage this could be used against the conservatives
when a gay marriage case comes before the SCT
6) Frustration over failure to declare level of scrutiny
Dissent (Thomas): Textualism; Counter-majoritarian dilemma
DeShaney v. Winnebago County Dept. of Social Services
Issue: Whether states failure to act in face of childs abuse and returning him to his father violate his liberty under the DPC.
Whether the Govt. has an affirmative duty to protect abused children.
Holding: No.
Majority (Rhenquist)
DPC does not impose an affirmative duty on the state to provide a minimum level of protect from private actors.
Different obligations arise in public environment (ie prison).
Dissent (Brennan, Blackmun)
This is not a case about a negative constitution not imposing affirmative duties. Govt. got involved and in taking an active
step by involving themselves created the affirmative duty.
District Attorney’s Office v. Osborne (2009)
Facts: A convicted prisoner challenged an Alaska ruling that denied him exculpatory DNA testing
Majority (Roberts)
1) There is no right to DNA testing b/c there’s no history of a right to DNA testing
2) No history of convicted inmate to have a SDP fundamental right to exculpatory evidence
3) Doesn’t fit with Glucksberg
4) Policy argument: Concern that court will end up governing states preservation and use of DNA evidence.
Dissent (Stevens)
Stevens Dissent: Truth and justice. Law an order support making sure you get the right guy.
DC v. Heller (2008)
Majority (Scalia) (Originalism: party due to lack of precedent)
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1) Intra-textualism: look at what the same words mean throughout the document.
2) History and Tradition
3) Does not state the level of scrutiny to be used when this right is infringed
 Appears to employ a balancing test: state interest in regulating vs individual right to bear arms.
Dissent (Breyer)
Pragmatic and looks like a European or Canadian court decision  balancing/proportionality. (Stealth Foreign Law
Approach)
Interpretations of Heller
1) Lochner: dubious reasoning to invent a powerful substantive right in an undemocratic fashion
2) Like Marbury v. Madison Court uses constitutional and legal tools to come to a reasonable apolitical decision.
3) Like Griswold: minimalist decision acknowledgment through legal analysis of something that a national majority already
supports. Especially considering that Scalia allows for restrictions.
Note: Judge Wilkenson  a conservative southern justice does not like this decision
2. PROCEDURAL DUE PROCESS
Procedural Due
14th Amendment Due Process Clause
Given the gov. action infringing on life, liberty or property were
Process
sufficient procedures granted to those effected?
Goldberg v. Kelly (1970)
Issue/Holding
1. Welfare benefits are a property interest.
2. Due process procedures are required before one can be deprived of welfare benefits.
Majority (Brennan)
 Ppl become so reliant on statutory entitlement that these benefits become a property interest (Reich on New Property)
 Explicit wording in statute lends itself towards finding property interest
 Pre-deprivation hearing is required for ppl who lack resources to contest ruling post-deprivation
Dissent (Black)
 Govt. has legitimate interest in conserving fiscal and administrative resources
 No textual support
 More deprivation will occur b/c state will require lengthy proceedings to determine initial eligibility
Procedural Due
Process Test
Mathews v. Eldridge (1976)
3 part test for determining process (right to hearing in
advance)
 Finding no property interest in disability benefits
1. Private interest that is effected
withdrawn without pre-deprivation hearing
a. How big is need to individual
 Distinguishes disability benefit from welfare benefits in
2. Risk of error if you don't have certain procedures
Goldberg which are designed to provide basic
3. Nature of burden on the government
sustenance
Caperton v. Massey Coal (2009)
Facts: A judge is elected with funds from a contributor then overturns a 50 million judgment against him. His non-recusal is challenged.
Majority (Kennedy):
objective test: does not say that the judge has been proven to be biased but probability of actual bias was too high for this to be constitutionally
permissible.
From objective viewpoint too much doubt is cast on the fairness hearing.
Dissent (Roberts): facts may be troubling but the legal test is just a “does this look bad test” with no workability or guidance. Poses problematic
questions.
3. EQUAL PROTECTION
Skinner v. OK (1942) (finding that in practice class based Class Discrimination + Important Liberty Interest
Hybrid
discrimination of eugenics law plus fundamental right to
SDP/EQP
 Used to avoid creating any affirmative rights for the poor.
procreate outweigh state interests)
Analysis
Hybrid Test
Zablocki v. Redhail (1978) (using critical examination
1) Is there a very important Liberty Interest?
scrutiny to find infringement of a fundamental right that
2) Is there a disproportionate impact on the poor.
disproportionately affects poor ppl is impermissible)
a. If yes use some heightened level of scrutiny.
Plyler v. Doe (1982) (finding that state law cannot require
immigrant children to pay for public education)
General EQP
1) What is the classification?
Analysis
2) What is the appropriayte level of scrutiny?
3) Does the govt. action meet the level scrutiny.
Rational Basis
Current State of the Law: Scrutiny Rules
1) Rationality: law must be reasonably related to a legitimate government interest
2) Intermediate scrutiny: law must be substantially related to an important government interest.
3) Strict scrutiny: law must be narrowly tailored to promote a compelling govt. interest.
Fritz v. U.S. Railroad Retirement Bd. (1980) (regular
Is the govt. action rationally related to an important state
rationality)
interest?
USDA v. Moreno (1973)
 Law can stand if the ct. can invent a conveivable purpose
Law denies food stamps to hippies in communes.
 Economic classifications interests
Bare desire to harm hippies cannot meet rationality
 Very deferential to legislature: considers administrative
review.
convenience
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 Burden lies on the plaintiff to show that legislation is
irrational and arbitrary
 Allows Underinclusiveness/Overinclusiveness
Rationality with a bite: Heightened scrutiny under
rationality if the law affects a vulnerable group. Desire to
harm/prejudice.
Romer v. Evans (1996) (rationality with a bite), City of
Cleburne v. Cleburne Living Center, Inc. (1985)
(ordinance exluding home for mentally retarded held
invalid)
3.1 RATIONALITY REVIEW
Romer v. Evans (1996) (Rationality with a Bite)
Issue/Holding: CO referendum withdrawing and forbidding anti-discrimination ordinances in protection of gays cannot meet rationality review
under EQP analysis.
State Interests
1. Protect freedom of association
2. Remove a preference for one group
3. Use of limited resources to enforce other laws
Majority (Kennedy) (follows amicus brief submitted by Lawrence Tribe)
Bare Desire to Harm (animosity) is never allowed even under rationality review
Bowers is disapproval of a conduct not this is a disapproval of a status/group which is more problematic.
Criticism  Ct seems to misallocate the burden onto the state instead of correctly on plaintiff to show that the law is irrational. Approach to SDP
rationality seems irreconcilable with Fritz.
Dissent (Scalia)
Stare Decisis re No mention of Bowers in Majority
One way ratchet
Antidemocratic engagement in the cultural war.
U.S. Railroad Retirement Board v. Fritz (1980)
Facts: Delineation btw who can get windfall benefits: double benefits from rr and ss. The law in a general sense seems to grant a preference to
those who have continuing connection to rr industry.
Majority (Rhenquist)
Invents Conceivable Purpose: Favoring employees that stay in RR industry.
Highly Deferential
Criticism  In reality this law reflects capture of leg. by RR industry
Dissent (Brennan)
Should use actual reasons of congress not just plausible reasons.
Legislation is actually written by railroad management
Tolerance of
RR Express v. NY (1949).
One Step at a Time Approach
Underinclusiveness
Facts: NY law bans ads on trucks to minimize traffic
Realistic approach in the sense that trying to solve the whole
distraction
problem at once may not be feasible and a one step at a time
approach is not a violation of EQP under rationality.
Majority (Douglas):
Institute for Justice: Economic libertarian group (freedom
 Economic classifications receive rationality review.
from unnecessary regulation) that argues for economic
 Reference to Carolene Products “discreet & insular”
classifications getting higher level of scrutiny. Animosity may
minorities
be the leg. intent behind certain economic regulations i.e.
 Deferential to legislature: No req. that all evils of the
cosmetologists. Perhaps motivation for such legislation is
same genus be eradicated or none at all
improper and amts to economic protectionism of cosmetologists
Concurrence (Jackson) (reinvigorates EQP)
in one state. Race may be implicated.
 EQP is often preferable over SDP because it allows the
govt. to imperfectly legislate and improve the statute
later if needed. More flexible and broader doctrine. SDP
forbids any leg.
Tolerance of
Banning Cigarette Smoking on the Job Hypo: extremely
New York City Transit Authority v. Beazer (1979)
Overinclusiveness
Facts: NY law bans methadone users from working in
underinclusive, cigarettes do not impair functioning like
Transit Authority
methadone may (safety concern is undermined), legislation goes
into privacy, arbitrary and would probably fail rationality
Majority (Stevens):
review. State has health costs arguments. State can make one
 No suspect class
step at a time argument for wellness.
 Legitimate but generic state interest is safety.
 Ct does not want to make personnel decisions.
 Administrative convenience: Ct does not want to force
leg. to do detailed rehab analysis
Dissent (White)
 Misallocates burden under rationality by req. govt. to
prove overwhelming administrative inconvenience.
 Vulnerable group
 Counterarg: Vulnerable due to voluntary actions
3.2 STRICT SCRUTINY
Reasons for Application of Strict Scrutiny
(1) History of Discrimination
(2) Minorities are underrepresented
(3) Immutability of Race
Rationality with
a Bite
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(4)
(5)
(6)
(7)
Laws based on Stigma (Stigma Justification)
Racial classifications are useless
Racial Classification are Based on Stereotypes
Principles of color blindness/equality read into constitution
3.2(a) Facially Discriminatory
Race specific laws automatically get strict scrutiny and the presumption is that they are illegal.
Facially
Discriminatory
Strict Scrutiny Test
(1) Does the law discriminate against a suspect class.
(2) Is the discrimination necessary to achieve a compelling government purpose. (state should make police power
argument)
(3) Is the law narrowly tailored (not over/underinclusive)
(4) Is the law/policy the least restrictive means of achieving that interest.
Korematsu v. U.S. (1944)
Facts: Historical situation where Japanese are put in internment camps during WWII after Pearl Harbor including many citizens.
Racial classifications get strict scrutiny (Carolene products theme)
Majority (Black)
Nat’l security interest and close relationship btw relocation and prevention of espionage and sabotage is an effective compelling govt interest.
Not about race because it would be difficult to separate the loyal from disloyal
Narrowly tailored argument: no less restrictive means available.
Policy argument: deference to the military
Dissent (Murphy)
This amounts to plain racism b/c Germans and Italians are not interned. Japanese stereotype and racial distinction.
There is a history of discrimination and mistreatment of this group.
This could have been done in a less restrictive way. Procedures could have been followed to avoid blanket mistreatment i.e. British style tribunals
Danger of invasion is BS no proof of imminent danger.
Dissent (Jackson): The most dangerous thing is ruling in a way that twists the constitution during war time. This sets a dangerous precedent that
can live on.
Loving v. Virginia (1967)
 Motivation of legislation: white supremacy
 Not equal-only involved with white people marrying people of other races
 Strict scrutiny due to racial classification
 State interest are completely illegitimate-purely racist
Plessy v. Ferguson (1896)
Majority (Brown)
Purpose of 14th A is to enforce absolute equality of races but not abolish distinctions based upon color or force social equality or commingling of
races
Social prejudices may not be overcome by legislation or forced commingling
Must be result of natural affinities
Separate but equal is equal
Dissent (Harlan)
Constitution is color blind
Strange decision: majority advocating natural coming together of races but endorses state intervening to keep races separate (prevents natural
interaction)
Brown v. Board of Education (1954)
Majority (Warren)
 Direct negative effect of segregation itself on public education
 Education most important function of local gov. and must be available on equal terms
 Cannot do well in society without education
 Psychological evidence not available at time of Plessy used to show stigma
 Separate educational facilities are inherently unequal
Criticism
 Result was good reasoning was weak
 no level of scrutiny applied
 Stigma-Clark Experiment  Social science studies relied on have proven unsophisticated by modern standards
Follow Up
Brown was subsequently used to strike down several segregation laws showing that the decision stands for equality in a broader context than
education.
Court has not yet acknowledged, intersectionality, a theory which seeks to examine the ways in which various socially and
Intersectionality
culturally constructed categories interact on multiple levels to manifest themselves as inequality in society.
Theory
3.2(b) Facially Neutral Laws with Disparate Impact
Yick Wo v. Hopkins (1886) (if the effect of the law has a
A law that is racially neutral but has a disparate impact on racial
Facially Neutral
clear pattern unexplainable on grounds other than race
minorities is presumptively legal.
with Disparate
then discrim. purpose can be found)
Impact
Test
Village of Arlington Heights v. Metropolitan Housing
(1) Has the plaintiff shown a discriminatory purpose (the
Dev. Corp. (1977) (in finding no gov violation for
law was promulgated out of a “bare desire to harm”
denying zoning request for low income housing held that
 If disparate impact is high enough may allow inference of
circumstantial evidence is used to show discriminatory
discriminatory purpose
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purpose)
 Use circumstantial evidence to show discriminatory
Mt. Healthy City Bd. of Educ. v. Doyle (1977) (finding
purpose.
no constitutional violation: once plaintiff shows
 Did gov. follow normal operating procedures
defendant acted from discriminatory motive in not
 Is there a history of racial bias
rehiring him, burden shifts to defendant to show result
 Testimony in front of committee
would have been same in the absence of that motive;
(2) Burden shifts to gov. to show that result would have been
constitutional violation not established merely by
the same anyway. i.e. incompetence/personality
showing of wrongful motive).
(3) Apply Strict Scrutiny
Gomillion v. Lightfoot (1960) (finding that drawing town
voting boundary to include all whites and exclude all
blacks is disparate impact high enough to allow inference
of discriminatory purpose)
Ashcroft v. Ichball (2009) (top government officials were
not liable for the actions of their subordinates absent
evidence that they ordered the allegedly discriminatory
activity)
Washington v. Davis (1976)
Facts: D.C. has a test for police to test verbal skills that is argued to be discriminatory against blacks since a much higher percentage of blacks
failed.
Majority (White)
Disparate impact not enough must show discriminatory purpose. No sign of maliciousness. These skills are not irrelevant and state should be able
to test for them.
Slippery slope will ensue if laws can be struck down based on disparate impact alone.
Dissent (Brennan)
Can always argue that the law has some legitimate intent or purpose. Too easy a test.
Test is not validated and no evidence test is related to job performance.
Once disparate impact is shown the burden should shift to the gov. to justify the test.
Majority slippery slope argument is like saying too much justice is a bad thing.
 counterarg: too idealistic, cripples gov, gov will have even less money to help ppl get more justice.
Criticism of Majority
Minorities do worse on these exams is due to history of discrimination and lower property taxes to improve schools.
Artificial presumption that gov. has played no role in this when in reality gov. enslaved and imposed segregation on blacks.
If we acknowledge that gov. played a role then they have a responsibility to justify a test like this and dissent is right and burden should be put on
government when there is a sufficient disproportionate impact.
Gov should have affirmative duty due to discriminatory actions in the past and therefore should carry the burden of justifying the
law/policy
Personnel Administrator of Mass. v. Feeney (1979)
Facts: Very strong veteran preference in Mass hiring statute has disparate impact on women. Although 98% of veterans were men, no statistics
about how many men were being hired.
Majority (Stewart)
Holds that the statute is const. b/c of compelling govt. interests.
 Rewards veterans provides incentives to military service and no discriminatory purpose is shown.
Lack of discriminatory Purpose
 Reasonable foresseability not enough “Must show the law was passed because of not merely in spite of”
Dissent
Point system would be a less restrictive alternative.
Selective Indifference: Plaintiff might be able to prevail if they can show state was indifferent to disparate impact.
Batson v. Kentucky (1986) (holding that you cannot
Preemptory
Test
exclude ppl from jury based on race or gender)
Challenges
(1) Lawyer suspects racial discrimination
(2) Raises issue with the judge
 Cannot discriminate even if the stereotype is true.
(3) Mini hearing takes place
 Unclear whether you can remove ppl b/c of religion.
(4) In defense lawyer can give nondiscriminatory reasons
(5) Judge decides whether reasons are just a pretext.
3.2(c) Remedies
Brown v. Board of Ed. II (1954) (remanding to federal
“All Deliberate
All Deliberate Speed
district courts to determine appropriate integration
Preserves federalism: Allows for local expertise/solutions in
Speed”
remedy)
fashioning the remedy
Resistance: Cooper (Alabama noncompliance, Griffen
Preserves courts institutional legitimacy in the case of
(Public schools closed, subsidization of private schools
noncompliance
for whites not allowed)
Criticism of All Deliberate Speed
Self contradictory phrase which allows de facto segregation to
continue
Could have provided detailed directives
Could have kept jurisdiction (rare)
Could have appointed special figure to watch over or help
administer
Unusual to find a const. violation and allow it to continue
Swan v. Charlotte Bd. of Ed. (1971)
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Facts: Ct approves intra-district bussing and race quota remedies. These are facially racially discriminatory.
Majority: Maybe they could survive strict scrutiny since nothing else has worked. Since this is a remedy case where there is already a finding of
illegal unconstitutional action the only remedy is to engage in temporary race based measures. Very important distinction since racial
classifications getting strict scrutiny does not apply in remedies portion of the case.
Criticism  inconsistent with dissent in Plessy. Parents argue that their kids should not have to suffer when they moved to a certain place in
order to get them in good schools.
Sep of powers issue  Fed District Judges are made into school bd supervisors. Must approve integration efforts. Such detailed judicial scrutiny
is too intrusive.
 counterarg: However, ct finds that they have already allowed discretion it did not work and this is the only way.
Milliken v. Bradley (1974)
Facts: Detroit
Majority (Burger)
Inter-district remedy not allowed absent finding of inter-district responsibility for segregation
Administrative Nightmare: Impractical for ct to decide taxes, district lines, school bd restructuring etc
Dissent (White)
Inter-district remedy is Detroits only option to achieve integration.
State of Michigan is not blameless so any districts in Michigan can be involved.
Bowling v. Sharp (1954): Reverse incorporation: 5th amendment due process clause applies 14th A EQP Clause to the federal gov.
Bd. of Ed. of OK City Pub. Schools v. Dowell (1991)
Facts: District had segregation problem that was improved and came close to unitary status but there seemed to still be vestiges of segregation.
Majority (Rhenquist) (current approach): pendulum swings away from ct control of school districts. Question of whether OK has to remain
under supervision of district ct?
(1) the order has been complied with in good faith and (2) the vestiges of past discrimination have been eliminated to the extend
practicable
Huge victory for federalism and huge victory for sep. of powers.
Dissent (Marshall): Terrible decision. Injunction has not been in place long enough and re-segregation is likely to occur. Rights violation and
Sup. Ct. ruling requiring remedies trumps federalism and sep. of powers.
Freeman v. Pitts (1992)
School District by all accounts is not completely unitary. While the ct does not free the district up completely it removes injunction in the parts of
the district that have been remedied and leaves the injunction in areas that are not yet compliant
Counterarg: perhaps the areas that are no longer monitored will revert.
Parents Involved v. Seattle School District #1 (2009)
Facts: Racial classification used to promote diversity in Seattle schools.
Majority (Roberts)
Law fails. Race based classification which amts to proportionality. Students are being singled out based on race does not promote diversity in the
classroom this is just race based quotas.
Strict scrutiny applies  quotas are not a compelling govt. interest  not narrowly tailored.
Only affected 50 students in 3 yrs. This is outrageous b/c the scope is trivial. Main objection about taking race into acct:
(1) Moral argument  cannot use racism to fix racism (2) This violates case law inconsistent with Brats and more importantly Brown.
Quotes from oral arguments in Brown. Context matters. Not sympathetic to School Bds at all.
Concurrence (Thomas)
Social science unpersuasive, must be colorblind, poor evidence of threat of resegregation cites to Harlan dissent in Plessy (must be colorblind).
Dissent is saying that the only way black kids can learn is if whites are around them but some black schools have been successful.
 Counterarg: integration is not designed to benefit only minorities.
Concurrence (Kennedy) (typically considered to be the controlling opinion. This is weird since nobody joins)
Cannot be racial but can be racially conscious.
Agrees with Roberts to some extent however, does feel that diversity is a compelling interest.
Two compelling interest in this type of case. (1) diversity (2) remedying past discrimination.
Cannot do things that are too crude in terms of race, diversity is still important so must use other mechanisms with an impact that promote
diversification without different treatment based on a classification. Must be more sophisticated.
Does not agree with Breyer either. Critiques Breyers use of strict scrutiny and compares it to rationality review.
Breyer (Dissent) (The Courts Pragmatist)
Historical correction of past discrimination and promotion of diversity in education are important compelling interests that can meet strict scrutiny
This is the best case to allow flexibility b/c unlike jobs or law school every kid still gets to go to a relatively equal school. Kennedy’s approach
has not worked and this approach is practical.
Most democratic: protects actions of school boards
Kende’s Dissent
 Now school districts cannot act to preempt segregation and must wait till they get sued.
Counterarg  Since there has been no finding of discrimination school district cannot engage in racial engineering without court
supervision.
School districts have in some cases invited lawsuits so they can act.
3.2(d) Affirmative Action
In General
Typically comes up in admissions and contracting.
Argument for why affirmative action should get intermediate scrutiny (Minority view)
1) White majority is not a protected class. No concerns about need for politic protection.
2) Race is used for a beneficial purpose and not a malicious purpose. To equate affirmative action to segregation is insulting.
3) Selected by majority as a remedy
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4) Laws designed to benefit women get intermediate scrutiny. Greater history of discrim. against minorities.
5) Under Washington v. Davis noble purpose should be considered in ruling on facially neutral laws.
Affirmative Action in Contracting
Fullilove v. Klutznik (1980) (upholding fed law that sets aside 10% of fed pub works monies for minority biz in order to remedy past discrim)
Richmond v. J.A. Croson Co. (1989) (Controls)
Facts: Richmond adopts a plan to give 30% of contracting funds will go to minority businesses. Justification  city is 50% black but only 1% of
contracts go to minority businesses.
Majority (O’Connor)
1) Strict scrutiny must be used b/c Richmond city council is majority black and this may be political patronage. Strict scrutiny must be used to
smoke out illegitimate uses of race.
 Criticism: Turns majoritarianism on its head.
2) City/Ct must make finding of past discrim and only ct can issue a remedy. 30% is arbitrary so law is not narrowly tailored.
Croson Rule for affirmative action in contracting:
(1) not permitted unless the municipality is found by itself or by a court to have engaged in past discrimination, details about nature of
discrimination, remedy imposed is carefully crafted
(2) time limit on the remedy
(3) waiver provision (city not liable as long as they look for a minority contractor)
Dissent (Marshall)
Adarand Constructors, Inc. v. Pena (1995)
Facts: Fed gov. law provides financial incentives for awarding bids to minority biz.
Majority (O’Connor)
1) Congress gets no more leaway that others
2) Strict scrutiny applies for all laws based on racial distinctions
3) Croson requires findings and a narrowly tailored law
 Criticism
1) Socioeconomic status is a problematic distinction
that is difficult to define. Have not suffered the same systemic discrimination as minorities.
2) Feds have extra authority to use affirmative action pursuant to congressional power of enforcement Sec. 5 of 14 th A.
Adarands 3 Principles that must be used to Analyze Af. Action (not just in contracting)
1) Consgruence (Intratextual): 5th or 14th Amendment ie federal/state Af. Action both get strict scrutiny
 Criticism: 14th A reference to Congress means that federal Af. Action should get much more deference
2) Skepticism of all racial distinctions = strict scrutiny
3) Consistency: Black, white or yellow strict scrutiny does not change
 Criticism: inconsistent with Grutter
 Counterarg Grutter was still strict scrutiny and strict scrutiny does not necessarily look the same every time.
Affirmative Action in Admissions
U of CA v. Bakke (1978)
Facts: White guy dsnt get into med school despite scores on MCATS exceeding those of minorities admitted. Set-aside is invalidated.
Plurality: Unsophisticated set-asides/quotas are invalid but unis can use race as a factor in benefitting minorities and enhancing diversity.
Brennan and 4 Justices: Use intermediate scrutiny for laws that benefit minorities.
Stevens and 4 Justices: Completely impermissible. Race should not even be a factor.
Powell: Strict scrutiny for all racial classifications. The problem is the plan is a racial quota. Too crude must be more sophisticated.
Gratz v. Bollinger (2003) (prohibiting crude racial quotas)
Grutter v. Bollinger (2003) (Stict Scrutiny Light)
Facts: University of Michigan Law has a wholistic approach to admissions in which race is considered.
Majority (O’Connor)
1) Diversity Rationale: School has compelling interest in promoting diversity and cross-racial understanding in an evolving society.
 Cannot have role models that are all white
 May actually be pretext for remedying history of institutionalized racism
 Criticism: Analysis is way too deferential to University to be considered strict scrutiny.
 Innocent victim doctrine: people who are hurt by affirmative action were not responsible for racism years ago. Ppl being benefited
never wronged by discrim.
 Grutter is a scam. Talk about factors and considering ppl as individuals but really just amts to a point system.
 Creamy layer problem: (India caste system) does affirmative action continue to benefit the most privileged of the class.
2) Academic freedom and the integrity of the university
3) Free Speech: diversity of ideas comes from a diversity of people
4) Individualized notion of equality  no quotas must have an individualized look at ppl
5) Critical mass concept: Only way to have a critical mass is to take account of race as long as it is not a quota
Criticism just a different name for a quota and often seems not to work.
6) Military filed a brief that says the army cannot function well w/ out affirmative action
7) 25 Year limit on Affirmative Action
Criticsim  Um… arbitrary. Where does this come from.
Dissent (Thomas): The only interest here is for Michigan to have a snooty elitist law school. This cannot be a compelling interest.
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Criticism Perhaps it is a compelling interest for the nation to have a great law school with well trained lawyers/leaders. Not the cts
job to refigure the institutional mission of the law school
Aftermath: After Grutter Michigan had a state-wide referendum to abolish affirmative action in the state. Forbids any institution from engaging
in racial preferences.
There is a pending EQP lawsuit on behalf of proponents of affirmative action with a Romer (discrete and insular minorities) like argument.
Fed Dist Ct ruled in favor of referendum: “to impune the motives of 58% of Michigan’s electives… is not warranted.” This ruling is now on
appeal in the 6th Circuit. Unlikely 6th Circuit will reverse since it is a referendum
Richard Sander of UCLA Study
1) Very controversial study of affirmative action in law schools
2) Detailed Statistical Analysis
3) All preferences cause academic problems regardless of the race involved
4) Increase drop out rates by 40%
 Increase bar failure by 80%
Schools should provide more long term disclosure to applicants
Top schools should reduce preferences to blacks and the mismatch problem would be greatly reduced
 80% of blacks would still get into a law school and would have better records
Counterargs  Lemper of U of Michigan Law
o Eliminating preferences would reduce black attorneys by 25%
o Sander statistics are flawed
o Many would be unwilling or unable to go to lower ranked schools
In class thoughts
o GPA probably does not mean anything after third job but law school may always still be relevant
o Stats may not be inaccurate
BIG QUESTION: What is the correlation btw what the SCT can accomplish through its decisions and actual social change.
The Hollow Hope by Gerald N. Rosenberg  Cts cannot achieve social change. Brown is an icon that doesn’t have very much real effect.
Money spent on cases hoping to implement social change should be spent on grassroots organization. Roe created a backlash and a base in the
Republican party.

Contrary View  although cts cannot do everything Brown and Roe had a big effect. Political process is so cumbersome that it is
difficult for cts to change everything.
o Catalytic Theory  Brown was a catalyst, blunt/blatant discriminatory laws are no longer acceptable
Johnson v. California (2009)
Facts: Earlier decisions defer to prison authorities since running a prison is dangerous. Prison decisions usually get rationality review. Clash
since race standards get strict scrutiny. California department of corrections  evaluates inmates in reception centers for up to 60 days. Classify
them based on mostly race based in order to prevent gang violence.
Majority (O’Connor)
1) Presumption that race classifications get strict scrutiny since they may be based on bad motives
2) Should be deferential to prison authorities: racial concern trumps potential violence
Criticism  Race cannot be a consideration in justice system unless there are exceptional circumstances
3) Separating ppl by race will make the problem worse
4) Remands  does not decide case  tells the state to present good evidence that dangers and violence are real and the approach is narrowly
tailored so that they can meet strict scrutiny
Criticism  Inconsistency: O’Connor is much more deferential in Grutter
Dissent (Stevens Dissent)
Paradoxically liberal Stevens finds this form of racial classification very offensive and over broad by assuming certain races cannot get along. No
evidence that CA authorities considered any alternatives. Fed Prison Authorities have a much more individualized approach. This should not be
remanded b/c it is simply not allowed. Rely on pre-sentence reports for individualized approach.
Dissent (Thomas and Scalia Dissent)
1) Paradoxically these conservative justices do not oppose racial classifications in this case and buy into the general rule of discretion.
 defer to the prison authorities.

Highly racial prison gangs are unique to CA. This is a very reasonable way to deal with these problems

Only a 60 day time period of racial separation.
Aftermath: State implements opt-out for provision (defer to the prisoners). Within a year huge riots.
Affirmative Action in Employment
Ricci v. Destefano (2009)
Facts: Written and oral tests that candidates take for promotion in fire dept. Test has a disparate impact and might be illegal under Title 7 since no
blacks pass for promotion. City will be sued by blacks if they don’t throw out the test. City will be sued by whites and Hispanics if they keep the
results.
(Majority Kennedy)
1) This is a race base decision so that is problematic under title 7.
 Ct acknowledges New Haven has legitimate argument that this decision is not based on race but rather to avoid liability under Title 7 disparate
treatment
2) Strong basis in evidence test  If there is demonstrative evidence that the city will be held liable under disparate impact then it can
engage in race based decision that amounts to disparate treatment
 Evidence of disparate impact must be overwhelming. Ideally we want them to figure this out in advance not midstream.
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3) Reverse Sotomayor on the 7th Circuit
Conccurrence (Alito): Concern that political patronage was at play in New Haven decision  appease black voters
Dissent (Ginsburg):
1) Disparate impact and disparate trtmnt should complement each other. Ct is reading them in conflict which was not the congressional intent.
2) Must consider the business necessity defense  Decision was about avoiding litigation.
3) Good cause standard: Does not put as large a burden on city to show liability of disparate impact. City must only show good cause that they
will be liable under disparate impact.
Scalia  Is disparate impact constitutional?
Aftermath
1) Briscoe: pending litigation in which black fire fighters have field a law suit under Title 7 disparate impact.
 White fire-fighters have a legacy advantage. Test lock in effects of past racism
 Test does not test skills necessary for being a good fire-fighter
 Getting rid of a bad test is not affirmative action. Concern is a valid result.
 Counterarg: Assumes test is invalid. Maybe legacy advantage cannot be remedied.
 Prediction of ruling in Briscoe  probably loses in the SCT. Language in Kennedy opinion.
Gender Discrimination
Bradwell v. Ill. (1872) (presumption that women cannot be lawyers is valid
Explanations
under P&I clause)
1) EQP Clause was viewed as just being about race and former
Reed v. Reed (1971) (presumption of male as estate administrator is arbitrary,
slaves
impermissible gender discrimination under EQP for the first time in 100 yrs)
2) A lot of social change big feminist movement in 1960’s
Geduldig v. Aiello (1974) (majority promulgates sameness theory and dissent
promulgates difference theory)
Four Principles of Gender Discrimination
Orr v. Orr (1979) (Alimony statute that only provides benefits to women is
1) Intermediate scrutiny is used.
impermissible gender discrimination based on stereotypes. Must have
2) Administrative convenience is typically insufficient under
individualized hearings.)
intermediate scrutiny.
Mississippi University for Women v. Hogan (1982)
3) Actual purpose is key and no purpose can be invented.
Majority (O’Conner)
 Actual purpose issue is whether it is based on
1) Law that prohibits men from attending all female nursing school struck
stereotypes or desire to compensate for real
down as impermissible gender discrimination based on stereotypes
differences and help women who have been
2) Births “exceedingly persuasive justification” language
discriminated against.
3) Already male proctors in the classroom
Dissent (Powell)
What does it mean to strive for equality for women under
1) No big deal, diverse education ops like single sex ed. are historical and
EQP?
important, men can still go to nursing school and EQP suits should not be
1) Sameness theory (first generation more tradtl view)
brought on behalf of men. No need to be politically correct.
Since men cannot get pregnant men cant aspire to be like
Michael M. v. Superior Court of Sonoma County (1981)
women and vice versa. In the absence of this ability there is
Facts: CA has gender discriminatory statutory rape law. Majority
no equality issue.
 What women want is to have everything that men have.
(Rhenquist)
1) This approach is constitutional based on legitimate state purpose of
 Women should get all the same benefits as men so the goal is
minimizing pregnancy.
to get women the same opportunities.
2) If women were criminalized they would not report.
2) Difference Theory (second generation more modern view)
 Natural disinclination.
Recognize and accommodate the difference btw men and
 Woman already has an incentive not to have underage
women. Men don’t get pregnant but they have their own
sex b/c she can get pregnant
gender specific diseases and both should be recognized.
Concurrence (Blackmun): facts in this case show that the only way to get this  Critical of sameness approach. Women and men are
guy is to have gender specific race law due to some willingness on the part of
different. Differences should be recognized and celebrated.
the young women. Law contemplates date rape. Men are the natural
 Men are not the baseline paradigm. This approach is to
aggressors.
narrow.
 Criticism: reference to chastity/religion and vulnerability reveals the real
Counterarg  measurability. difficult to measure
purpose/motivation is stereotype
standards that should be accted for. How much do
Dissent (Stevens): Protect the vulnerable.
they acct or play out in the real world.
Dissent (Brennan): CA must show law is more effective than less restrictive
 Kende likes this view but acknowledges that sameness
alternatives exist (gender neutral law)
theory may be more legally workable.
Rostker v. Goldberg (1981) (Good Law)
Facts: Women not req’d to do selective service
Majority (Rhenquist)
1) Deference to military (Administrative Conveniece Exception)
 Use PDP to help validate law
2) Real bio differences not stereotypes
3) Ct punts on the issue of whether statute that does not allow women in
combat is constitutional
4) Administrative pool argument. Although not everyone in military is in
combat it is more administratively convenient if they are all eligible.
Exception to general rule.
Dissent (White)
1) 80,000 non-combat jobs, potential shortage that can be filled by women
defeats admin. conv. argument
2) Defer Pres.
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Califano v. Webster (1977) (facially discriminatory statute that gives women
more benefits than men is upheld b/c of remedial nature)
Frontiero v. Richardson (1973)
Facts: Airforce has a presumption that wives are dependent but women have to prove that husbands are actually dependant.
Govt: Presumption based on a true stereotype.
Plurality (Brennan and 4 Justices) (Does not control)
1) Actual party injured is men
2) Impermissible violation of 5th A. Under Bowling reverse incorporation.
3) Administrative convenience will not justify gender discrimination. (Const. Right Trumps Admin. Conv.)
4) Strict scrutiny applies: laws based on sex, like race, are suspect (skepticism).
 History of discrimination
 Less power in political process
 Criticism: women constitute majority of eligible voters.
 Immutable characteristic (insular)
 Irrelevant to most government classification
Concurrence (Powell)
1) Advocates case-by-case basis no need for a general rule that all gender classifications get strict scrutiny.
2) Sex does not imply a suspect class
3) Finds that the law violates 5th A
Criticsim: Let the legislative, amendment, democratic process be dispositive.
 Counter-criticism: Equal Rights Amendment failed
Craig v. Borden (1976) (Controls)
Facts: Higher age limit for men to buy alcohol than women.  persuasive statistics show that men are 10 times more likely to be the problem.
There are also FBI statistics. Strangely many of early cases on gender discrimination were men and Ginsburg was the lawyer building up the
principles.
Majority (Brennan)
1) Impermissable gender discrimination.
 Road/traffic safety is a legitimate govt. interest but insufficient under heightened scrutiny.
2) Brennan gets a majority for intermediate scrutiny
 Intermediate scrutiny: law must be substantially related to a legitimate government interest.
 Requires analysis of actual purpose.
3) Not narrowly tailored: Discriminates against men who are not causing social problems. Only 2% of men in this group is not enough to justify
banning the other 98% from buying alcohol no matter how much higher a % than women. Social science evidence unreliable (inconsistent with
Brown).
 Males: might be too low b/c of the ones that don’t get caught
 Females: might be too low due to reduced prosecutions against women by primarily male officers
4) Practicality problem: STUPID LAW  does not work since it is unbelievably easy to circumvent by getting women (girlfriends) to buy the
alcohol. This just beer not hard liquor (counterarg: 4/5 of men stated preference for beer)
Dissent (Rhenquist)
 Does not like the use of intermediate scrutiny, which will require all kinds of mushy value judgments. No case law to justify this new
kind of scrutiny.
 Heightened scrutiny should not be used to protect non-suspect class
 Criticism: gender jurisprudence should be gender blind like racial jurisprudence is colorblind.
 10 to 1 ratio is substantial. Defer leg.
 Annoyed about heightened scrutiny about protecting men who have no history of discrimination
United States v. Virginia (1996)
Facts: VMI does not want to admit women. VMI's solution-alternative institution for women, Mary Baldwin College
 Problems: Not similar opportunities for women: inferior resources and professors
US: Argues for strict scrutiny in gender classification cases.
VA
1) Education benefits of single sex education
2) Diverse educational opportunities: others similar opportunities are available for women.
 Criticism: Def. of separate but equal
3) Type of education that is not well suited to women
 Adversative method is not suited to women-yelling at you, make things difficult
 Could not be as harsh
 Criticism: Some women like this and are better suited for it. Not sufficiently related to biological difference btw men and
women.
Majority (Ginsburg)
1) Does not adopt strict scrutiny. Uses intermediate scrutiny. However, “exceedingly persuasive justification” language from Hogan that
resembles strict scrutiny.
 Unlike race there are legitimate biological differences
2) Law is based on stereotypical assumptions
 many women will benefit from VMI as much as men
3) Don't address actual purpose of excluding women
 based on stereotypical treatment of women which does not fit all women
 Self-fulfilling prophecy-cannot assume that if women are brought in it will bring down quality (contaminate) of program
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4) Does not address the real question of whether women can be excluded from combat. VMI does not req. grads to go into military.
Majority (Scalia)
1) Long history of single sex education
2) Disaster Modifications destroy institute as it existed: male composition is essential to VMI's character.
3) Court should not be making social policy-should change through political process
4) Higher level of scrutiny is not consistent with precedent
 Previous courts have acknowledged biological differences exception
5) Institution should have some say in what is necessary for their program
6) Similar to decision in Romer and Lawrence-counter majoritarian preferences of the society's law trained elite
Aftermath
De-facto discrimination intense hazing of women.
Single Sex Education: Single sex classes in public schools

No child left behind left door open to experimentation

Is this constitutional?

Evidentiary Views

Support
o Cunningham School for Excellence such private school in Waterloo HS
o Teacher can employ strategies that don’t work in coed classrooms
o Experimentation has seen dramatic test score improvements

Florida comp. assessment has seen dramatic improvements.
o Particularly improves boys in English and foreign languages and women in science and math
o “non-macho” boys felt less intimidated
o Less social distractions, better discussion on dating and pregnancy
o SAT composite scores 43% higher among women
o Interviewed parents just want more options

Opponents
o Some benefits but tradt’l gender stereotypes are reinforced and perpetuated

Boys more regimented and individualistic

Boys taught to be wage earners and strong for emotionally weaker wives

Women more therapeutic and nurturing

Girls taught to be aware of restrictions on behavior and clothing
o Any statistics that say there isn’t a difference b/c the numbers are as much a reflection as who is in which room. Usually kids
who are struggling are moved and get special attention.
Geduldig v. Aiello (1974)
CA disability program excludes pregnancy. Significant financial exclusion. This case was so controversial that the ACLU was split.
Majority (Stewart)
1) Not illegal gender discrimination.
 Not invidious
Everybody is treated equally
Cannot be illegal discrimination since that is when you have two similarly situated ppl and one is treated differently in regards to
analysis. Since only women get pregnant they are not similarly situated.
2) Cost of covering pregnancy is problematic
 More disabilities will result in destruction of self contained pool: fund will become insolvent and state must pick up tab.
 State has important interest in maintaining self-supporting nature of fund as long a line drawing is legitimate.
3) One-step at a time
Dissent (Brennan)
1) Double standard: since many of the conditions covered predominantly affected men this is unequal.
2) They are similarly situated since both sides have gender specific conditions.
3) What about loser husbands who depend on their wives
Aftermath  Congress passes the pregnancy discrimination act bans this kind of statute.
3.6 Voting Rights
Poll Taxes
15th A bans laws that prohibit ppl from voting based
on race
Harper v. Virginia State Board of Elections (1966)
Facts: State poll tax
Majority (Douglas)
1) Once the right to vote is granted by state leg they cannot discriminate as to the right to vote.
2) Right is not guaranteed until it is guaranteed but once it is they cannot discriminate.
3) Right to vote is fundamental strict scrutiny applies: underpinnings of all the other rights b/c it is critical element of democracy, preservative to
all other rights and a first amendment form of expression.
4) This poll tax is arbitrary and capricious: sounds like rationality review
 Maybe court is just saying this cant even pass rationality review  Reminiscent of Skinner.
City of Mobile v. Bolden (1980)
Facts: City has at large elections as opposed to districts. No African American has ever been elected. Result is disproportionate and the city
knows it. City has a history of discrimination.
Majority (Stewart)
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1) This law is not a violation of EQP. Since the law is facially neutral they require a showing of discriminatory purpose. Disproportionate impact
and history not enough to show discrim. purpose
 Presumption that leg. did not have discrim. purpose in 1911 (bull shit)
2) Black community was not excluded and put forth candidates.
Dissent (J. White)
1) Look at the totality of the facts.
2) Past discrimination is pervasive and continues to undermine black political participation.
3) The extreme disproportionate impact should trigger the idea that discrim. purposes at work.
Rodgers v. Lodge (1982)
Holding: outlaws at-large election scheme on the basis that Georgia has was worse record than Alabama.
Seems irreconcilable with City of Mobile.
Reconciling the two
 In Georgia case the pop. of blacks is statistically higher.
 GA had poll taxes, literacy tests, white primaries, little evidence of active black political slate and participation in process
Austin v. Holder (2009)
Facts: Classic provision in voting rights act is Sec. 5.
If state meets the formula of: history of of election discrimination and they have low numbers of minorities voting then they are a covered
jurisdiction and in order to make any election related changes they need clearance from DOJ or go to court.
TX
1) statistics are 40 years old
2) federalism
3) This provision is not congruent and proportional b/c findings bear no relationship to the current problem.
Majority (Roberts)
1) Court uses a bail out provision to allow for pre-clearance.
2) However, this is a utility district that does not register voters. This rare bail out provision was presumed to only be allowed to be used by
districts that register voters.
Bush v. Gore (2000)
7-2 vote on equality (EQP) violation
5-4 on rejecting FL remedy: not enough time to implement a remedy
1) Inanimate object (piece of paper) cannot discern intent of the voter. Therefore, there will be no objective criteria. Fl Sup Ct failed to provide
adequate guidance.
2) Insufficient time to implement a remedy.
Education
San Antonio School District v. Rodriguez (1973) (Big Deal Case)
Facts: San An litigation over education funding and property taxes  Leads to inequity
The Poor: SDP and if not then EQP b/c the poor minorities are disenfranchised.
Majority (Powell)
1) No fundamental right to education.
2) Education is preservative of other rights but this is not dispositive.
 Criticism: Tension with Harper b/c court says that education is important and preservative of other rights. Problematic to reconcile
with Brown since that case said that quality of education was dispositive. However, this is not a race case.
Kende Criticism: says this is a weak argument the stronger argument is that this is not that serious a problem since this is a quality
issue since everybody does get some education so it is not deprivation of a fundamental right and this is not even a fundamental right.
3) Slippery slope  if ct starts to find fundamental rights anytime a right is preservative. Ct does not want to tell the govt. how to manage the
budget.
4) No fundamental right  Rationality review is used  Federalism wins out
5) EQP issue  While this divides TX into different districts wealthy districts have poor ppl and poor districts have wealthy ppl so it is not a clear
delineation btw rich and poor. And even if it were poor ppl would not be a suspect class (see Skinner). Even with a disparate impact on
minorities not enough. Need discrim purpose.
Dissent (Marshall and Brennan)
Part 1
Divide and conquer  cannot separate education and discrimination issues.
Serious discrimination as a result of one scheme that deals with something close to a fundamental right. Rigidness should be abandoned
heightened scrutiny should be used to find the law arbitrary. Law has disrim impact and impinges on liberty.
Part 2
Marshall’s Sliding Scale
Should be many types of scrutiny. should not be 3 types of scrutiny. Kind of like strict scrutiny light in Grutter and rationality with a bite in
Romer. Kende says this is what the Ct really does so in that case I think they should just admit it.
Counterarg  too discretionary
Plier v. Doe (1982)
New mathematics where 0+0=1: No right to education + No suspect class = violation
Ct says that it is illegal to req illegal immigrants to pay to go to school. Law is arbitrary b/c if you don’t educate children at all you are setting up
our society for a complete mess with permanent underclass of ppl who have no opportunity. Not children’s fault they should not pay for their
parents mistake.
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Support  illegal immigrants not a drag on economy, they are scared to show up for services and they pay taxes
4. FIRST AMENDMENT
Freedom of
Expression
Justification
1) Politcal Ends (Robert Bourke)
 Political speech should be protected more than other kinds of speech. 1 st A is really about political speech.
 Comes from desire to outlaw British prior restraint system.
 Maybe also designed to limit seditious libel laws.
 Criticism: Problematic scholarship since shortly after const. passed Congress enacted sedition laws.
Counterarg  what qualifies as political speech, what about artistic speech, advertising etc. No textual basis.
2) Marketplace of Ideas
 Through debate discussion bad stupid ideas will be proven to be bad and stupid and the truth will win out.
Govt. interfernce bad.
Counterarg  takes a long time. Marketplace is not even it is disproportionate and the power have the
ability to influence the media
3) Self Fulfillment Theory
 If you limit speech ppl cannot express themselves
Counterarg  what goes too far
4) Toleration
 Free speech is to teach the population tolerance and restraint.
5) Safety Valve Theory
 w/o free speech ppl would act out in damaging and even violent ways
BIG PRINCIPLE: If govt. tries to ban speech that does not fall into one of the unprotected categories that amounts to
content discrimination and strict scrutiny will be used.
Many different laws involved must meet tests. Different test must apply to different type of laws and laws restrict the
speech. Question is the statute constitutional. Vague (unclear) and overbroad (regulates beyond area intended and allowed
to regulate) statutes will almost never be upheld: ie R.A.V. or “nobody can treat the flag contemptuously.”
Incitement &
Threats
Expression Mini-Outline
If the law burdens speech
1. What does it regulate
a. Pure speech or conduct.
2. If conduct
a. If it has an element of speech then use Obrien analysis  is this within power of govt. is their a
substantial interest, is govt. motivated by something other than hostility to ideas, are there less
restrictive alternatives
3. If it is pure speech
a. Is it vague or overbroad (poorly drafted and covers protected things R.A.V. could have probably
ended here)?
b. Is it a prior restraint (laws that req submission of speech in advance of publication or ct injunction
on publication before it can be uttered. Prepub licensing)
i. Presumed unconstitutional (strict scrutiny)
1. Under Pentagon can only get around this if it infringes on Nat Security in a
major way
c. Is the law banning or channeling speech.
i. Channeling (time, place, manner restriction)
1. Intermediate scrutiny that looks like Obrien test
a. What is state interest
b. Is it substantial
c. Is it content based discrimination (no) or based on secondary effects
(maybe ok)
d. This law must still allow the speech to occur in some place. There is a
case where a community restricted adult theatres to a place that did
not exist. This is a fraudulent façade that will fail here.
2. Law bans speech
a. Is the banned speech unprotected
i. Libel, fighting words, obscenity, incitement (Brandenburg),
threats
ii. Does the law meet const. reqs for that category of
unprotected speech
Schenk v. US (1919)
Facts: Espionage Act forbid attempt to cause insubordination in the military. Ppl protesting the draft encourage
insubordination and resistance of draft.
Majority
1) There are limitations on free speech. Incitement is not protected and prosecutions are allowed here.
2) Clear and present danger test: Cannot restrict speech that encourages illegal conduct as long as it does not create a
19
clear and present danger of what congress was worried about.
 Danger contemplated by Cong. is undermining of war effort.
3) Holmes famous analogy: cannot falsely yell fire in a crowded theater
 Counterarg: How can you so easily restrict speech
 This example is not relevant. No proximate cause. Weak relation. No immediate danger or chaos.
 This was a political argument and should get the most protection.
Dennis v. US (1951)
Facts: Communists advocate the overthrow of U.S. govt. It is illegal to advocate or conspire to overthrow of U.S. govt.
Majority (Vinson)
1) Ct upholds conviction.
2) Judge Learned Hand Gravity of evil test is added to clear and present danger and analysis.
 Ct must “ask whether the gravity of the evil discounted by its improbability justifies such invasion of free
speech as is necessary to avoid the danger.”
3) Even though it is not very probably that the govt. will be overthrown this can be justified by super duper evil.
4) Gov. does not have to wait until the danger is imminent.
Dissent (Douglas) (Prevailing view)
These ppl were actually just reading Marx and Lenin not ppl in combat uniforms using dangerous books. Cannot convict ppl
for just talking about the possibility of doing bad things. This view ultimately wins out.
Note: Douglas and especially Black were nearly free speech absolutists
Prior restraints
Fighting Words
Obscenity
Brandenberg v. OH (1969) (Modenr Approach)
Facts: Worlds most pathetic rally (KKK rally). Can they be prosecuted for inciting a crime. There is advocacy of illegal
actions.
Per Curiam
1) Does not overturn Dennis but cites it
2) Statutes designed to restrict incitement must meet these constitutional reqs.
Modern current test for incitement, threats:
i. express advocacy
a. statute must only regulate explicit advocacy of illegal conduct
1. problematic  codes can be used so there is no explicit advocacy
2. too speech protective
ii. intent
iii. something that is likely to occur
Note: Case from 7th circuit. Three federal judges are listed as ppl who deserve to be killed. Posted names photos and work
addresses and posted a map with arrows pointing to truck bomb barriers.
 Explicitness not met does not say “kill them”
 Hard to show imminence
Definition: Must be licensed by govt. or get court approval to speak/publish on a certain issue.
New York Times Co. v. United States (1971)
Facts: Gov seeks to require approval to publish any part of pentagon papers that show lies about Vietnam. Gov. argues nat’l
security threat.
Holding
1) SCT refuses to enjoin publication. Core purpose of this was to ban licensing schemes. Prior restraints are heavily
presumed to be unconstitutional (like strict scrutiny).
 “any system of prior restraints of expression comes to this court bearing a heavy presumption against
constitutional validity”
2) Restraint cannot pass strict scrutiny like analysis
Brennan opinion best reflects courts reasoning.
1) Provides exceptions: ie nat’l security
2) Gov must show liklihood of nat’l security threat
3) Under these circumstances no liklihood  absolutely unconstitutional
Note: Internet makes thing happen so fast that prior restraints become somewhat irrelevant. Movie licensing systems
sometimes involve prior restraints.
Defintion: Words that would make a reasonable person want to haul off and hit you. Words when directed at someone are
likely to cause the other person to retaliate. Person that does the hitting might get prosecuted for assault and fighting words
are not a defense. Person who said the fighting words may be prosecuted for breaching the peace.
Chaplinsky v. New Hampshire (1942)
Majority
If the statute is crafted in such a way to meet this test it is constitutional
1) Is the statute narrowly tailored
2) Does the judge believe those words would are likely to cause the reasonable person to retaliate.
Obscenity is protected: Early case law did not have legal standards except certain speech is so sexually explicit that it is
offensive. When they could not agree they would have movie day and watch the evidence and vote up or down. Old test
said if a movie has any social value the whole thing must be allowed.
Millet v. CA (1973) Current law for obscenity including the internet
1) Does it offend the contemporary community standard: jury is impaneled to decide this point.
a. Problematic for the internet since it is world wide. If they can get person into conservative forum they are
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prosecuted there.
What is the applicable community standards  some justices have argued that this test does not make sense
for the internet
c. States have tried to regulate internet porn and they have been defeated by dormant commerce clause.
2) Specificity
3) If the work taken as a whole has serious literary artistic political or scientific (SLAPS) value it cannot be banned.
This is a nat’l standard.
Stanley v. Georgia (1969) once obscene material gets into your home you cannot be prosecuted
b.
Child porn is never protected.
Note: Some critics including Justice Brennan have said that these laws should be done away altogether since standards are
vague and outdated.
Cohen v. CA (1971) (Seminole Victory for Free Speech)
Facts: Man wears fuck the draft jacket into ct. house. Is this breach of the peace?
Majority
1) This is not incitement, this is not fighting words (not directed to any person, maybe if he had walked into the local VFW
hall), not obscenity b/c no sexual context.
2) Just being really offensive does not mean it is not protected.
3) Freedom of speech includes freedom of emotion not just rational discussions.
4) Slippery slope: One mans vulgarity is another’s lyric.
5) Profanity can be protected depending on context this part reverses Chapinsky.
R.A.V. v. City of St. Paul MN (1992)
Facts: Racists burn a cross on a black persons lawn. Charged with hate crime ordinance.
MN argues that if they can ban all fighting words then they should be able to ban racist fighting words (smaller subset of most dangerous fighting
words)
Majority Scalia
1) Law does not regulate speech in one of the unprotected categories so strict scrutiny applies
2) Even if the category regulated is not protected when you single out a certain subset within that category the principle of content discrimination
applies.
3) Cannot give extra punishment to racist fighting words.
Problematic  Statute bans threats against pres. and singles them out for more punishment
 Scalia argues that these are the worst kind of threats that puts the whole nation at risk.
4) Amts to a req. that state must regulate more speech. Inconsistent with free speech principles. First amendment reqs MN to ban more speech???
Indecent speech: Material is considered inappropriate for
Time, Place, and FCC v. Pacifica on pg 1237 (still good law)
Facts: George Carlin 7 famous words monologue offends children  if not obscene but still inappropriate for children
Manner
man driving home with son. Radio station is fined for
this is indecent speech. ie Strip clubs.
Restrictions on
indecent speech.
Obscene speech: sexually explicit
Obscene and
Indecent Speech
Majority (Stevens)
1) Given limited nature of penalty, exposure to children,
Time, place and manner restrictions on speech.
1) Typically handled by zoning
and potentially dangerous/invasive nature of this
medium (no advanced warning), speech can be restricted. 2) Do not get strict scrutiny but rather something more akin to
2) Other times where media can be shown, scarcity of
intermediate scrutiny. Restriction cannot be cannot be content
stations so govt. has more discretion to regulate since
based and must be well tailored to meet a govt. interest.
they must dole them out.
Test:
 Criticism: Arguably a political satirist.
1) Why is this content being zoned.
Afermath: What does this mean for other tech.
2) Is there still avenue for expression of this speech.
(internet)
a) As long as speech can still be expressed the mere
1) Obscene speech on internet can be regulated
fact that it is moved somewhere is not comment
2) Congress has tried to regulate indecent speech on
discriminatory
internet. Under the reasons that adults cannot be banned
i. Neighborhood concerns
from indecent speech but if it is available to children then
ii. Secondary effects ie more
it should be regulated.
crime
o These laws have been consistently struck down.
Newspapers and internet get the most protection (SCT
o No govt. of tradition of regulating internet
highly skeptical of TPM restrictions)
o Internet is less invasive b/c of nannyware and
Cable television goes in the middle.
blocking technology
Television and Radio get the least protection.
o Internet gets highest level of protection
 Criticism: internet is more private and secret.
Nannyware blocks good programs and can be
overridden. Internet frequency of use is
infinite. Interactivity on internet is present.
 Counterarg  it is very difficult to precisely
regulate the material on the internet w/ out
making it difficult for adults to access the
material.
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Communicative
Conduct
US v. Obrien (1968)
Facts: Man arrested for burning draft card in protest of
Vietnam war.
Argument in favor of affording protection  highly
political conduct that sends an unambiguous message
Majority (Warren)
1) Conduct that contains reasonably coherent message
can be protected as speech.
2) Conduct is easier to regulated more easily than
pure speech even if it has a communicative dimension
3) Law is upheld based on administrative convenience
and danger of fire.
4) Deference to military.
Test (not strict scrutiny more like intermediate)
1. Does conduct contain reasonably coherent
message.
2. Govt can regulate conduct if…
3. Important interest
4. Interest is unrelated to the form of
expression/message (not content based)
5. Restriction is no greater than is essential
Defacing federal property may have a message but free speech
will not protect this.
Flag burning cases
Govt argues
1) Fire is dangerous
2) Flag has symbolic nature
3) SCT rejects this: flag burning restrictions struck down
 This is about hostility to the message
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