Constitutional Law Outline

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Judicial Review A. Origins of Constitution and Judicial Review: 1. Origins of the Constitution a. The Framers: Some see the framers as intellectual giants, others as compromisers, others as aristocratic conservatives who feared the power of the people and sought to limit it where they could. b. Articles of Confederation: Government lacked the power to tax, regulate commerce, had neither a national judicial authority nor an executive branch. Madison wrote in April 1787 of the problems of the Articles: multiplicity of laws, states’ jealous actions c. Constitutional Convention: only authorized to make changes to the Articles, not scrap them entirely and draft a new constitution. Framers agreed to meet in secret: no official notes from the Philadelphia convention. d. Arguments over the New Constitution: i. Federalists: Civic education not enough and would carry a tyranny of its own. Direct democracy is especially susceptible to faction and tyranny. Favored the presidency, Senate and less favorably, the House. Wanted large election districts. No branch would be able to speak authoritatively for "the people." Desire for interstate commerce was a threat to the principles underlying the Revolution ii. Anti-Federalists: Republican Theory relied on civic virtue: founded upon dialogue and discussion among the citizenry. Hostile to a dramatic expansion in the powers of the national government, distrusted the idea of representatives elected by the people to serve in the far-off national capital. iii. Federalist Papers: Propaganda pieces written and published to sway undecided citizens. i. Federalist No. 10: Majorities were running rougshod over treaties, property rights, creditors' rights. A well-constructed national government will break and control faction by controlling the effects of faction upon the government. Causes of faction cannot be eliminated. In a republic, the delegation of government is given to a small number of citizens elected by the rest and government may be extended over a far greater number of citizens. ii. Federalist No. 51: Separate powers and prevent extreme factions from taking power. Presidential candidates move toward the middle and compromise to win. 2. Marbury v. Madison (1803): a. Facts: Marbury was appointed by Adams and confirmed by the Senate to serve as a Justice of the Peace in DC in the final days before Jefferson was sworn in. Jefferson refused to deliver the commissions of the justices appointed by Adams. Marbury sought a writ of mandamus to compel Secretary of State Madison to deliver the commissions. b. Holding: The Supreme Court is without power to direct the President to deliver Marbury's commission

2 c. Rationale: Marbury had a legal right to the office and he was deprived of that right by a technicality. The Supreme Court can order any official around if they have broken the law, but the Court does not have jurisdiction over the issue because Congress unconstitutionally gave original jurisdiction to the Supreme Court. "It is emphatically the province and duty of the judicial department to say what the law is... a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument." d. Justifications for Judicial Review: i. Written constitution: Constitution was written and ratified by the people, a more extraordinary form than a mere statute. ii. Notions of the judicial role iii. Supremacy clause of the constitution iv. Grant of jurisdiction v. Judges' oath vi. Framers and ratifiers commonly discussed that they believed unconstitutional legislative acts were invalid, though others suggested that courts could not violate the "will of the people" as indicated by passed legislation (Federalist 78, written by Hamilton). e. Notes about the opinion: No citations. Perhaps Marshall wanted to convince the elite that he was correct or didn't want to be overturned, Constitution doesn't mention judicial review so it had to be "made up," something bigger than mere court cases. B. Judicial Exclusivity and Interpretive Approaches to the Constitution 1. Cooper v. Allen (1958): Judicial branch's interpretation is the only authoritative interpretation. Conflicts with a reasonable inference that members of the Legislative and Executive branches must interpret the Constitution on their own, in order to make and execute the laws that the court has not spoken to. States must follow federal laws even if they disagree 2. McCulloch v. Maryland (1819): a. Facts: Congress had created the 2nd BUS, which some states (like MD) proceeded to levy taxes upon. MD brought suit against the bank for refusing to pay the state's taxes. Marshall was a strong Federalist, a strong nationalist. b. Rationale: The Constitution derives its whole authority from the people (their representatives) who proposed and ratified it. Every detail of government need not be expressly or minutely described. A narrow interpretation of "necessary and proper" as advocated by the State of Maryland where "necessary" means "absolutely necessary/essential," is not warranted. The Constitution has implied powers and must be allowed to adapt. Statutes are temporary, designed to address a particular problem and which can be changed or repealed if it is deemed relevant. Even without a necessary and proper clause, Congress would still have the implied power to create a national bank based upon the other enumerated powers. State Legislatures cannot act over people whom they do not represent.

3 c. Holding: Congress does not have the explicit power to create a bank, but has other enumerated and implied powers to create a national bank; MD’s act was unconstitutional. d. Critique: Problems with Marshall's view that if the ends are legitimate, then the means used to achieve that are legitimate as well. What then constrains judges from applying value judgments to current debates with a "living constitution?" C. Standing 1. Case or Controversy Requirements of Article III: Power of the courts is substantial, and the court has had to develop mechanisms to temper that power by limiting jurisdiction. a. Article III Rationale: (1) Serve the end of judicial restraint: limit occasions for intervention into legislative or executive processes; (2) Ensure that constitutional issues will be resolved only in concrete issues rather than hypothetical or abstract problems (3) Ensure that decisions are rendered at the behest of those actually injured rather than bystanders b. Standing Doctrine Requirements: in order to bring a federal action, the plaintiffs must be asserting a live case or controversy. i. Actual, personal (not general and widely shared), concrete injury: must be suffering an ongoing, imminent, or threatened injury. Lyons case: Must show that LA police officers always use a chokehold or that the City authorized officers to do that. ii. Causation: injury fairly traceable to defendant's conduct iii. Redressability: injury can be remedied by court order 2. Allen v. Wright (1984) a. Facts: Parents of black children brought a nationwide class action suit because the IRS had not carried out its obligation to deny tax exempt status to discriminatory schools, contending they were (1) Harmed by the mere existence of Government aid to discriminatory private schools (stigmatized) and (2) Those policies impede their ability to attend integrated public schools. b. Holding: Plaintiffs do not have standing to litigate their claim based on the "stigmatizing injury" alleged. The second claimed injury is not fairly traceable to the government (causation). c. Rationale: It is speculative whether withdrawal of a tax exemption would lead a school to change its policies, or whether desegregation is impeded by the presence of segregated private schools. Price increase in tuition as a result of removing the tax break will not necessarily "cause" diversity to increase. d. Dissent: Justice Brennan: elimination of tax-exempt status would lessen the impact those schools have in defeating efforts to desegregate public schools. Justice Stevens and Justice Blackmun: If tax-exemption encourages charitable activities, then withdrawal of that treatment would discourage them and promote desegregation. The Supreme Court has the power to say "what the law is" and would not be infringing upon Executive branch's administration. The higher the price, the fewer people will attend the school. 3. Massachusetts v. EPA (2007)

4 a. Facts: A group of states, local governments, and private organizations alleged that the EPA had abdicated its responsibility to regulate greenhouse gases under the Clean Air Act. b. Holding: MA does have standing, acting to protect its sovereign territory, risk of harm is both actual and imminent, and there is substantial likelihood that the courts can provide relief through a decision. c. Rationale: Just because climate change risks are "widely shared" does not mean that MA will not be harmed individually: injury to its coastlines. The EPA's refusal to address the emissions contributes, however slightly (a little difference is enough). Even though the EPA may not have the power to stop greenhouse gas emissions, that does not mean that its actions will not slow or reduce the harm to MA. Seems to contradict Allen (a little difference is not enough). d. Dissent: There is no substantial evidence to prove how much of the MA coastline has been or will be lost due to global warming as the sea level increases. Petitioners note the potential sea level increases by 2100, which is not "imminent" enough to warrant a remedy. Causation is speculative— no evidence that the EPA's actions are contributing to MA's rising sea levels. Courts should not be a forum for policy debates. 4. District of Columbia v. Heller (2008) a. Justice Scalia, majority: Hates the "living constitution" metaphor. Focuses on grammatical/textual basis for the interpretive foundation of the 2nd amendment, cites authorities including old dictionaries, historical treatises and older laws, State Constitutions. b. Justice Stevens and Breyer, dissenting: Cites to Miller (1939) and Lewis (1980) and criticizes majority opinion for not presenting any new information/evidence. Focuses on purposes/intent rather than text and notes several hypotheticals which it claims were not within the intended scope of the amendment. Notes "inconclusive research." How can we balance the 2nd Amendment with the rights of others to life? The gun control issue was not debatable until recently: reigning interpretation was that the 2nd amendment only applied to militia. D. Political Questions 1. Jurisdictional Doctrines Which Avoid Judicial Review a. Advisory Opinions: No case or controversy. Washington asked Supremes to issue an advisory opinion, which the Justices declined because they believed it to be unconstitutional. OLC now serves this advisory function for the executive branch. b. Standing: Plaintiff does not have concrete interest who can sue c. Mootness (issue has been remedied)/Ripeness (will happen in the future but hasn't happened yet): Timing (when you can sue) d. Political Question: Issue raised is not appropriate for judicial review 2. Baker v. Carr (1962) a. Facts: TN voters brought suit challenging the state's 1901 apportionment law, which because of population growth in the ensuing 60 years, meant that some individual votes (in population-declining rural areas) carried more weight than others. Guaranty Clause (Article IV §4) gives Congress the power to guarantee each state a republican form of government. b. Holding: No nonjusticiable political question presented here.

5 c. Rationale: Justice Brennan: Other branches will not be able to work out this issue. The doctrine is not also one of "political cases." If one of these formulations is present, the case should be dismissed because of the nonjusticiability of a political question: i. Textually demonstrable commitment to another branch ii. Lack of manageable standards iii. Need for policy determination iv. Impossibility of undertaking independent resolution without expressing lack of respect due coordinate branches of government v. Unusual need for unquestioning adherence to a political decision already made vi. Potential for embarrassment from multiple pronouncements by various departments on one question d. Dissent: Justice Frankfurter: The court must be detached from political entanglements and abstain from putting itself into political disputes. There is a class of controversies which the Courts have found they will not enter into…structure and organization of political institutions in the states 3. Nixon v. United States (1993): Impeached and convicted former federal judge Nixon sought judicial review of his removal, claiming that the Senate failed to "try" him according to the process normally used by criminal courts. Rehnquist's opinion stated that the word "try" in the Constitution has a considerably broad meaning (lack of manageable standards), and the Senate has sole discretion on how to use it (a textually demonstrable commitment to another branch). Cannot expose political life of the country through review of impeachment proceedings (need for finality: new judge had been appointed and confirmed). The Court did not find that Nixon's treatment was constitutional or that his rights weren't violated— decided not to hear the case because it is a political question. 4. Bush v. Gore (2000) a. Facts: FL Supremes ordered a manual recount of undervotes in all counties that had not yet completed a recount (determine the intent of the voter) and ordered that the results of prior but untimely manual recounts be included in the vote totals. Each county used different standards for determining the intent of the voter. b. Holding: Reverses judgment of the FL Supreme Court ordering a recount to proceed. c. Rationale: Recount mechanisms do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right of the Due Process Clause. Minimal procedural safeguards specified by the FL Supremes (connection to equal protection), and no evidence that a recount can take place before the statutory selection of electors required by December 12. Rehnquist, Scalia, Thomas, concurring: Election of the President is unique: defer to the FL Legislature's decision on the deadline. FL Supreme's remedy departed from the statutory framework in place on November 7, and the remedy outlined would have been inconsistent with the statutory requirement to meet the December 12 deadline. d. Dissent: i. Stevens, Ginsburg, Breyer: The Supreme Court has long deferred to highest state courts on the interpretation of state laws. FL Supreme



Court's jurisdiction was wholly consistent with the Article II grant of authority. Jeopardizes the public's confidence in the impartiality of the judge ii. Ginsburg, Stevens, Souter, Breyer: Article II does not call for the Supreme Court's scrutiny of the selection of electors. iii. Breyer, Stevens, Ginsburg, and Souter: Congress could have resolved the electoral dispute, as a political body, rather than deferring the issue to the Supreme Court. Court failed to check its own power and exercise self-restraint. 5. Zivotofsky v. Clinton (2012) a. Facts: A boy was born in Jerusalem as a US citizen, and his parents requested that his place of birth be listed as "Israel," consistent with federal law. The State Department denied the request, and listed "Jerusalem" as his place of birth on his passport. b. Holding: Reversed lower court's ruling that this case involved a political question (the political status of Jerusalem), but rather requires examination of the constitutionality of the statute in question. Remanded to the lower courts for determination of whether the statute impermissibly intrudes upon Presidential powers. Justice Breyer dissented, noting that plaintiff was not claiming violation of any constitutional right or interest which can be protected by the courts. Federal/State Power A. Commerce Clause 1. New Deal Raised Two Questions: a. What is the relationship between federal power and state power? b. How do courts and judges look at the law? Reigning interpretation had been that judges would come up with some formula or principle which would assist in the decision of a case. In the 1930s, a new theory of law became prominent: legal realism, which stated that law did not develop through formal rules or logical principles, but through reality and confrontations with it. 2. Gibbons v. Ogden (1824) a. Facts: NY Legislature granted an exclusive franchise to operate a steamboat in NY waters to Fulton and Livingstone, who licensed that right to Ogden, who would operate a ferry between NY and NJ. Gibbons also had a ferry system, licensed under a Congressional statute, to operate between NJ and NY. b. Holding: 1793 Congressional statute authorized Gibbons' ferry into NY waters, NY monopoly is invalid under the supremacy clause. A type of case present throughout the first century of the US. c. Rationale: Congress's power to regulate interstate commerce "concerns more states than one.” Internal limits: protects federalism, Congress can only regulate interstate commerce. External limits: Congress can regulate anything reasonably regarded as interstate or foreign commerce. 3. A. L.A. Schechter Poultry v. United States (1935) a. Facts: NIRA authorized the President to approve "codes of fair competition" developed by boards from various industries, established minimum wage and maximum workweek standards. b. Holding: NIRA is unconstitutional

7 c. Rationale: When the birds reached Schechter, the interstate commerce ended, and plaintiff was involved in primarily local transactions. If the commerce clause reached all transactions with an indirect effect on interstate commerce, federal power would embrace all aspects of the lives of the people. Activities local in their immediacy do not become interstate and national because of distant repercussions (production vs. commerce). 4. Carter v. Carter Coal Co. (1936) a. Facts: Bituminous Coal Conservation Act of 1935 set up local coal boards to set minimum prices and allowed them to administer a code allowing employees to bargain collectively. b. Holding: BCCA price fixing provisions struck down. c. Rationale: Coal production does not cross the threshold into interstate commerce because of the multiplication of local coal production activities (aggregation principle). d. Dissent: But Justices Cardozo, Stone, and Brandeis (legal realists) would have upheld the price-fixing provisions, noting that local price and wage disputes can threaten the "steady and uniform" supply of a fuel vital to the national economy. 5. NLRB v. Jones and Laughlin Steel Corp (1937) a. Facts: NLRA established a system for regulating union/ management relationships, allowed union organizing and collective bargaining, supervised by local boards. J&L controls and owns its operations from mining to transportation and sales. NLRB charged J&L with unfair practice of firing employees for organizing a union. 75% of J&L products are shipped out of PA. b. Holding: NLRA is constitutional: court of appeals' decision is reversed. Justice Roberts changes his vote to decide the case for the government: disliked the court-packing scheme and was fearful about the effects of striking down NLRA. c. Rationale: Acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power. Burdens arising from labor/management disputes can obstruct the flow of interstate and foreign commerce. Rights to union organizing are often the "essential condition of industrial peace." 6. Wickard v. Fillburn (1942) a. Facts: AAA allowed the Ag Secy to set quotas for wheat production. Fillburn exceeded his quota, and was fined $117, even though he did not sell the extra wheat, he ate it and fed it to his livestock. Roosevelt had made numerous pro-New Deal, legal realist justices to the court since 1937: Douglas, Frankfurter, Black, Jackson (writes this opinion). b. Rationale: Though the actions of Fillburn are small, similar actions of similar small farmers nationwide have a significant effect on the national wheat market. Aggregation principle. c. Holding: Reversed: Congress may properly have considered that wheat consumed on the farm where grown, if outside the scope of regulation, would have a substantial effect in defeating its purpose to stimulate trade therein at increased prices. B. Recent Commerce Interpretation 1. Heart of Atlanta Motel v. United States (1964)

8 a. Facts: Congress passed the public accommodation provision in the 1964 Civil Rights Act. The motel advertised in national magazines and on billboards, and 75% of its registered guests were from out of state. Congress could not simply prohibit segregation by the 14th Amendment because no state passed a law saying restaurants couldn't serve blacks— private individuals and business just self-segregated. b. Holding: Statute upheld as a valid exercise of the power to regulate interstate commerce c. Rationale: Racial discrimination has a significant effect on commercial intercourse. Congress has the power to regulate local incidents and local activities which affect that commerce. 2. Katzenbach v. McClung (1964) a. Facts: Involved Ollie's Barbecue, of Birmingham, AL, which is located 11 blocks from an interstate and somewhat greater distance from railroad and bus stations. Half of the food purchased comes from out of state. Ollie's claimed they were a local restaurant who served local clientele. b. Holding: Congress had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce. Under the Commerce and Necessary and Proper clauses, Congress has the power to protect interstate commerce from these discriminatory practices. Reverses Schechter. c. Rationale: Racial discrimination has a significant effect on commercial intercourse. There is a possibility that a remote lunchroom which sells only to local people and buys all of its supplies locally may be outside the regulation of Congress. Theory is that restaurants who serve blacks will generate more business, thereby generating an increase in interstate commerce. Test is whether Congress had a rational basis to conclude that it affected interstate commerce. 3.United States v. Lopez (1995) a. Facts: Congress passed the Gun Free School Zones Act of 1990, making it a federal offense for any individual to possess a firearm in a school zone. b. Holding: Act exceeds the authority of Congress under the commerce clause. Struck down a Congressional statute for the first time since the New Deal using commerce clause. c. Rationale: Justice Rehnquist: Congress may regulate (1) Channels of interstate commerce, (2) Instrumentalities of interstate commerce, or persons or things in interstate commerce, or (3) Local activities which have a substantial relation to interstate commerce. Government's argument opens the door to regulation of virtually any activity. Determination of whether an intrastate activity is commercial or noncommercial may result in legal uncertainty. i. Justice Kennedy and Justice O'Connor, concurring: An attempt to develop an argument based on federal/state power. Education is outside of the meaning of commerce in an ordinary sense. ii. Justice Thomas, concurring: Whole "substantial effect" doctrine/test ought to be invalidated. Founders never intended for Congress to regulate local matters. d. Dissent:

9 i.

Justice Stevens, dissenting: Guns are articles of commerce and articles which can be used to restrain commerce. ii. Justice Souter, dissenting: Some respect should be given to Congress in dealing with matters open to a wide range of possible choices. This opinion is a return to the old dichotomous choices of the pre-New Deal era. iii. Justice Breyer, Stevens, Souter, Ginsburg, dissenting: Creates three legal problems: (1) Runs contrary to the upholding of some actions with limited connection to foreign/interstate commerce, (2) Wrong to think that there can be distinctions made between commercial and non-commercial, (3) Threatens uncertainty in an area which seemed settled until now. 4. Wickard/Katzenbach "Rational Basis Test" a. No distinction between production/trade; direct/indirect effect b. Aggregate effects of many individuals c. Congress need only have a rational basis for concluding that regulated activity substantially affects interstate commerce 5. Lopez/Morrison "Economic/Non-Economic" Test: a. First determine if the nature of the activity is economic or non-economic. If it is economic, use the Rational Basis Test. If it is not economic, generally can't aggregate effect and need much more than a rational basis for the law. b. If non-economic activity, see if there is a jurisdictional nexus—a specific link between intrastate activity and interstate commerce. The court has not resolved how strong the nexus has to be. c. Balancing? In Lopez, Kennedy and O'Connor suggest balancing State and Federal interest, but Morrison makes it clear that economic/non-economic is the key distinction. 6. United States v. Morrison (2000): Civil remedy portion of the Violence Against Women Act unconstitutional. Rehnquist: gender-motivated crimes of violence are not economic activity—states handle crime. Souter: national power is to be limited in favor of preserving a clear separation of powers between states and the federal government. 7. Gonzales v. Raich (2005): CA law allows people to use marijuana for medical purposes, in violation of federal law. Plaintiff argues that the commerce clause does not allow Congress to regulate local growing not for sale. (1) Government: in order to prevent marijuana being sold on the interstate market, we must prevent its use and growth. (2) If you have something plausible under the commerce clause, the necessary and proper clause may provide authorization. Dissenters (O’Connor) note that there is limited evidence that homegrown medicinal marijuana users constitute a sizable enough class to have a discernible impact on the illicit drug market. C. Challenge to Federal Health Care Law, National Federation of Independent Business v. Sebelius (2012) 1. Holding: a. Individual Mandate: Individual mandate is unconstitutional under the commerce clause and under the necessary and proper clause. However, the mandate is constitutional under Congress's power to lay and collect taxes (Roberts+ liberals).

10 b. Medicaid Expansion: The mandatory expansion of Medicaid coverage is unconstitutional (by a 7-2 holding), but the entire ACA can be upheld without this expansion. c. Canon of Constitutional Avoidance Violated (Marbury v. Madison): court should operate in a way to avoid difficult constitutional questions—judicial review used only when necessary. Based on the decision in the tax matter, the commerce clause discussion was unnecessary. 2. Rationale: a. Commerce Clause: Congress does not have the power to create a sphere over which it can exercise its power to regulate and cannot reach beyond its scope and compel those outside of it to enter that sphere of regulation. Congress can regulate activity, not inactivity: (1) Structural: Constitution sets out enumerated powers; (2) Textual: Constitution gives Congress the power to "coin money" and to "regulate the value thereof," regulating is different from creating, otherwise many enumerated powers would be superfluous; (3) Case precedent; (4) Intent: framers understood the difference between telling people to do something and regulating what they already do; (5) Need some limits. b. Tax Clause: The penalty is not assessed upon those who purchase health insurance, and the individual mandate is not a command to purchase insurance, but rather makes going without insurance just another thing the government taxes. Congress intended a tax. c. Medicaid Expansion: Crosses the line from persuasion to coercion—states really have no choice but to expand coverage or lose all of their Medicaid funds. Congress cannot penalize states that choose not to participate in the program. Just because the Medicaid expansion is no longer required does not mean that states will refuse to participate—Congress would not have wanted the whole act to fail simply because some states chose not to participate. Congress can get what it wants by (1) Commerce clause, (2) Taxing, (3) Offering money to states with conditions. d. Dissent: i. Commerce Clause: Justice Ginsburg: (1) Everybody will need health care at some point, will enter the market. Difficult to make a distinction between those who are and are not engaged "actively" in the health care market. (2) Congress is not "creating" a market for healthcare--it already exists, (3) "Parade of horribles" does not work: see broccoli, (4) What Congress is really regulating is the decision to self-insure or buy insurance later, (5) Courts have tried and failed to come up with limits before—doesn’t work. Rely on the political process to limit the powers of the federal government. ii. Tax Clause: Justice Scalia: Congress did not intend for the "penalty" to be a tax. D. State Powers over Commerce 1. State Regulation of Interstate Commerce (Negative/Dormant Commerce Clause: Constitution gives Congress the power to regulate commerce among the states and with foreign nations, which implies that States cannot regulate interstate commerce) a. Discriminatory: per se invalid: strong presumption of unconstitutionality.

11 b. Neutral: not geared to discriminating against interstate commerce, but may address local/interstate commerce, requires balancing test i. Burden on interstate commerce ii. Health and safety justification 2. Preemption: Congress may have acted upon the issue in question, preempting any state's statute in conflict with federal law. Field preemption: Congress has regulated on a particular subject matter. Implied preemption: Congress has passed a statute which impliedly preempts state action on those issues. 3. City of Philadelphia v. New Jersey (1978) a. Facts: A NJ law prohibits the importation of waste which originated out of state. Private landfill operators challenged the statute on preemption and constitutional grounds. New Jersey argued that it wasn't commerce—just garbage. b. Holding: Reversed: Law is not preempted by federal legislation, but the statute violates the principle of nondiscrimination. c. Rationale: Waste is a commodity. Per se invalidity when simple economic protectionism is effected by state legislation. NJ may not accomplish its ultimate purpose by discriminating against articles from other states, regardless of their value. NJ concedes that there is no basis to distinguish out of state waste from domestic waste (NJ Supremes found a legitimate health purpose). Problems: (1) Upholding the statute may induce other states to enact similar protectionist statutes, which would increase retaliatory acts, (2) One state's legislature cannot act over others whom it does not represent (McCulloch v. Maryland). 4. Maine v. Taylor (1986): ME statute banning the importation of live baitfish is upheld, for two reasons: (1) Statute shows a legitimate local purpose which (2) Cannot be served by available nondiscriminatory means. ME's fish populations might be damaged by nonnative species, and there is no way to inspect imported baitfish for parasites and commingled species. 5. Exxon Corp v. Governor of Maryland (1978) a. Facts: MD statute prohibits producers/refiners of petroleum products from operating retail service stations within the state. But, no petroleum products are refined in MD and only 5% of stations are operated by a refiner or affiliate. b. Holding: Affirmed: MD statute does not discriminate against interstate goods, nor does it favor local producers and refiners c. Rationale: Statute does not create barriers to interstate independent dealers nor prohibit the flow of interstate goods, place added costs upon them, or distinguish between in state/out of state companies in the retail market. Won’t question the wisdom of the statute. d. Dissent: Justice Blackmun: In state retail stations are protected from competition of out of state businesses. Statute inflicts significant hardship upon major brand companies, all of which are out of state firms. The commerce clause is partly designed to prevent unfair burdens on out of state concerns and disruptions of the national economy. 6. Kassel v. Consolidated Freightways Corp. (1981) a. Facts: IA statute prohibits the use of 65-foot double tractor trailers within the borders of the state, restricting most trucks to 55 feet, with some



exemptions. Consolidated has incurred $2 million in extra costs because of the statute. b. Holding: Affirmed: statute unconstitutionally burdens interstate commerce without any legitimate safety concerns, violating the commerce clause. c. Rationale (plurality opinion): i. Justices Powell, White, Blackmun, Stevens: This is a neutral statute, which requires a balancing test. High burden on interstate commerce with low health and safety justification. IA law is out of step with all other western and mid-western states. Law provides benefits of large trucks to Iowans but shifts costs of their operation to other states. Origin of the "border cities exemption" shows that the judgment was made primarily upon deflection of traffic rather than safety. ii. Justices Brennan and Marshall: The state's purpose was protectionist in nature and is therefore unconstitutional under the commerce clause. d. Dissent: The safety regulation should bear the strongest presumption of validity against commerce clause challenges. Consolidated made a voluntary decision to use 65 foot doubles which required IA to yield to the policy choices of other neighboring states. Dubious to strike down legislation on the basis of asserted legislative motives. Separation of Powers A. General Framework 1. Youngstown Sheet and Tube Co. v. Sawyer (1952) a. Facts: Steelworkers union announced a nationwide strike to begin in April 1952 and Truman issued an executive order directing the Secretary of Commerce to take possession of the steel mills and keep them running, then notified Congress of his action, giving it an opportunity to approve or disapprove of his action. b. Holding: The Executive Order cannot be sustained as an exercise of the President's military power as Commander in Chief. c. Rationale: i. Justice Black, opinion: There might be emergencies, but there is a clear separation of powers: formalism. Each branch should be cabined to prevent dictatorship. Law is some policy incorporated into a statute which tells the President/judiciary what to do. ii. Justice Frankfurter, concurrence: Saw Black's approach as too simplistic and formalistic. Current seizure taken under presidential power at its lowest ebb, without the expressed or implied will of Congress. Represents an exercise of authority without law. Legal realism can give meaning to the text. "It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them." If there were a long history of the executive seizure of private industry, there might be a "gloss" on executive power. iii. Justice Jackson, concurrence: The art of governing is not based upon the simple formula of separation of powers. Presidential powers are not fixed, but fluctuate from time to time in relation to

13 Congress's actions. Three scenarios: (1) President acts pursuant to express or implied Congressional consent, (2) Congressional silence, (3) Acts against the implied or express consent (the case here). No statute authorizes this exercise of Presidential authority, nor does the constitution grant him powers to do so. The legislative powers are vested in the Congress. Congress rejected an emergency seizure position in passing the Taft-Hartley Act. d. Dissent: Justice Vinson: The nation's entire steel production industry would have shut down completely without the seizure. Founders did not create an "automaton" impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake. 2. Dames & Moore v. Regan (1981) a. Facts: US/Iran agreed that all pending claims against Iran would be submitted to an international tribunal. President Reagan issued an EO ratifying the agreement and suspending all claims in court. b. Holding: Affirmed: We are not prepared to say that the President lacks the power to settle such claims. c. Rationale: The "Hostage Act" indicates congressional willingness that the President has broad discretion when responding to the hostile acts of foreign sovereigns. Congress has implicitly approved the practice of claim settlement by executive agreement in the International Emergency Economic Powers Act. Congress has not in some way resisted the exercise of Presidential authority. Justice Rehnquist cites Jackson's opinion (“gloss of life”) because (1) He believed it and (2) Helped write it as Jackson's clerk. There was a 200-year history of the Presidential settling of claims with Congressional acquiescence through executive agreements. 3. U.S. v. Curtiss-Wright Corp. (1936) a. Facts: FDR, acting upon Congressional authorization, prohibited the sale of arms to any South American nation engaged in the Chaco War. Defendant violated the prohibition, and brought suit challenging the constitutionality of the president's action. Supporters of presidential power almost always cite this case. b. Rationale: The president alone has the power to speak or listen as a representative of the nation. Congressional legislation must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible where domestic affairs alone involved. Principles find support in the unbroken legislative process that has prevailed since the inception of national government. Distinguish from Youngstown: (1) Foreign/domestic affairs and (2) Absence /presence of Congressional authorization to the President. Delegation of powers is an essential issue: Congress in the 1930s began delegating extensively to the executive branch. B. Foreign Policy, War Powers, and the War on Terrorism 1. War Powers: a. Who has the power to initiate hostilities? i. Broad Congressional Argument: Congress has the power to initiate all hostilities involving US armed forces pursuant to its declare war and marque/reprisal power, with the important exception that the President, as commander in chief, can use force

14 only to repel sudden attacks on US territory, troops and possibly citizens. ii. Broad Presidential Argument: Congress has the power to declare war, but the change in the wording of Congressional power from "make war" (the original wording) to “declare war” gives the President as commander in chief power to make/initiate warfare prior to a Congressional declaration or authorization of war. iii. Possible Middle Position: Congress has the sole power to authorize major warfare, but minor warfare has been historically initiated by the President as commander in chief (and Congress has not objected--see Frankfurter or Jackson in Youngstown) and therefore there is a gloss of history on the constitution allowing the President to initiate minor (however one defines that) warfare. iv. War Powers Resolution: Permits the President to initiate minor uses of force for up to 60 days without Congressional approval, but after 60 days must withdraw troops if no explicit Congressional authorization. b. What are respective powers and authority of President, Congress and courts in prosecuting warfare? i. Broad Presidential Argument: The President, as commander in chief, has the sole exclusive power to determine the conduct of warfare including troop movements, battlefield tactics, interrogation and surveillance tactics, troop numbers and placement etc.--Bush argument. Under this theory, both Congress and the judiciary's role is very limited--for example, the President argued that courts had only a limited power to review detentions of American citizens as combatants to determine whether the Executive had some evidence to hold them. ii. Broad Congressional Argument: Congress has Article I power to: make rules and regulations for the military, regulate captures, and initiate hostilities and therefore can control the conduct of war by determining the weapons, tactics, scope of the war, etc. Congress has often done this throughout American history. iii. Judicial Argument: President has broad commander in chief powers, but it is not exclusive power. Judiciary has a role to play in determining whether detainees are properly detained and ensuring that they get some due process. Hamdi, Boumediene. War does not give a blank check to the president. 2. Libya: President Obama notified Congress before the US began conducting air strikes with NATO in Libya, after which the OLC released a memo giving the President constitutional authority to act without Congressional approval. 60-day WPA period expired on May 20, 2011, without Congressional approval authorizing US involvement. 3. Prize Cases (1863): Upheld Lincoln's blockade of the southern states because Congress could not declare war against any state or states. 4. Hamdi v. Rumsfeld (2004) a. Facts: US Citizen Hamdi was detained in Afghanistan for allegedly assisting Al-Qaeda, after which he was transported to a military brig in

15 Charleston. His father brought a habeas corpus petition, claiming that an innocent US citizen is being held incommunicado indefinitely. b. Issue: (1) Does the President have the power to detain a US citizen without a warrant, circumventing the normal criminal process? The President points to his powers as (a) Commander in Chief powers and (b) Those from the Joint Resolution of Congress Authorizing the Use of Force (2) Does the President have the power to circumvent the criminal process? c. Holding: Vacated (Fourth Circuit decision) and remanded. While Congress authorized the detention of combatants in the narrow circumstances of Hamdi's case, due process requires that US citizens be permitted to contest the factual basis for their detention. Enemy combatants are "individuals who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan who engaged in armed conflict against the United States" there. Hamdi does not govern in Padilla case because he was not captured in Afghanistan. A separation of powers and due process case. d. Rationale: i. O'Connor, Rehnquist, Kennedy, Breyer: The AUMF provides explicit congressional authorization for the detention of individuals in Hamdi's category. No bar to the Nation's holding of one of its own citizens as an enemy combatant. But, indefinite detention for the purpose of interrogation is not authorized. Rejects the government's assertion that separation of powers requires a "heavily circumscribed role for the courts in such circumstances." A state of war is not a blank check for the President when it comes to the rights of citizens. Hamdi has right to counsel. ii. Souter, Ginsburg: Government failed to demonstrate that the AUMF resolution authorized the detention complained of here. No moment of genuine emergency with Hamdi--he has been detained for two years. e. Dissent: i. Scalia and Stevens: This opinion should only apply to a very narrow category of detainees--only two known. Congress can determine when interrogation may be used to secure intelligence. ii. Thomas: No reason to remand the case. The Constitution provides only two circumstances under which Congress can suspend the writ of habeas corpus. Taking and holding enemy combatants is a quintessential aspect of the prosecution of war. Even if Congress suspends the writ, the President is still under an obligation to obey constitutional commands. 5. Hamdan v. Rumsfeld (2006): Military commission system is illegal because it violates the UCMJ and the Geneva Convention for procedural reason, the presence of ordinary courts-martial. Congress responded to Hamdan and Hamdi with the Detainee Treatment Act, which was struck down because it unconstitutionally restricted the writ of habeas corpus and provided only limited review potential. 6. Torture: Bush OLC found that the President could order interrogations of enemy combatants if a statute infringed upon the President's powers as commander in chief. President Bush signed onto the memo, but disavowed his support for it after the memo became public. McCain amendment prohibited torture, but Bush signing statement indicated that the act would be assessed in light of constitutional powers.

16 C. Domestic Policy, Nixon, Chadha and the Independent Counsel 1. U.S. v. Nixon (1974) a. Facts: In February 1973, A Senate select committee on Watergate was established to investigate the alleged illegal break in. John Dean implicated the President in hearings before the Senate in June. In February 1974 the House authorized the Judiciary Committee to begin impeachment hearings. Special Prosecutor Archibald Cox was fired for pursuing the tapes. Four Nixon appointees on the Supreme Court. b. Procedural History: District Court issued a subpoena to the President to produce certain tapes, memoranda, papers, transcripts, or other writings relating to certain meetings between the President and others. President's Counsel issued a motion to quash the subpoena, which the Court denied. c. Holding: The subpoena met the requirements of the FRCP: subpoenaed materials must be transmitted to the district court. d. Rationale: The Court has never defined the scope of judicial power relating to the subpoena of confidential Presidential communications. Neither the doctrine of separation of powers nor the need for confidentiality of highlevel communications sustains an absolute unqualified Presidential privilege of immunity. No military, diplomatic, or sensitive national security secrets at stake here, areas where the courts have shown great deference to the President. Right to the production of all evidence has 5th and 6th amendment constitutional dimensions. 2. Politics of Impeachment: a. During the Clinton impeachment lead-up, the Supreme Court denied that the Jones lawsuit would occupy a substantial amount of the President's time. The Framers considered putting in "maladministration" into the constitution, but removed it after Madison likened that phrase to the President "serving during the pleasure of the Senate." b. Impeachment ("High crimes and misdemeanors"): Four Definitions: i. Crime: any felony or misdemeanor ii. Substantial offenses: serious misconduct iii. Offenses against system of government: Professor Tribe and other law professors argued that offenses were those such as treason and bribery iv. Whatever House thinks: Rep. Gerald Ford in 1970, legal standard devolves into a political standard. 3. INS v. Chadha (1983) a. Facts: Chadha was an East Indian who was born in Kenya and held a British passport, lawfully admitted to the US in 1966, whose visa expired on June 30, 1972. The INS ordered his deportation suspended in October 1973, which the Attorney General approved and reported to Congress pursuant to the enabling legislation. The House passed a resolution opposing Chadha's (and 5 others) deportation suspensions, and the INS ordered him deported. Congress has delegated broad power to administrative agencies--but how can Congress control them? Administrative Procedure Act provides for judicial review of agency actions. Legislative vetoes were put into 500 different statutes: legislature able to override a statutory right without going through both houses and the President. b. Holding: Affirmed: Congressional veto provision is unconstitutional.

17 c. Rationale: When the framers wanted one House to act alone, they narrowly and precisely defined the procedure for such action: impeachment, trials of impeached officials, confirmation of presidential appointees and ratification of treaties. Lawmaking process might be cumbersome, but there is no better way to preserve freedom. Formalistic, similar to Justice Black's opinion in Youngstown. Justice Powell, concurrence: House action raises the danger of unchecked power. Congress acts almost as a court, performing a judicial function and violating the separation of powers. "I would not reach the broader question of whether legislative vetoes are invalid under the presentment clauses." d. Dissent: Justice White: Legislative veto allows the President and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and preserves Congress' control over lawmaking. Constitution neither authorizes nor prohibits the legislative veto: not the power to write new law without bicameral approval or presidential consideration. Legislative authority is routinely delegated to the Executive Branch, regulatory agencies and private individuals. 4. Myers v. United States (1926): President Wilson's removal of a postmaster appointed for a four year term was constitutional because removal is executive in nature and the restriction was unconstitutional under article II. 5. Humphrey's Executor v. United States (1935): FDR's removal of Humphrey as an FTC member was unconstitutional because the FTC was an administrative body created by Congress to carry out legislative policies and other judicial or legislative functions. 6. Morrison v. Olson (1988) a. Facts: Ethics of Government Act (post-Watergate) allowed for creation of an independent counsel, initiated by the Attorney General and appointed by a panel of three judges, who can be removed by impeachment or personal action of the Attorney General. b. Holding: Reversed: Ethics of Government Act does not violate appointment clause or the limitations of article III nor do they interfere with the President's authority under Article II in violation of separation of powers. c. Rationale: Special prosecutor could be removed by the Attorney General and authorized to perform only certain limited duties, limited in jurisdiction and tenure. More analogous to Humphrey's Executor than to Myers. Standard is whether the nature of the position is so central to the functioning of the executive branch as to require that it be terminable at will by the President. No requirement that the three branches operate with absolute independence. Congress is not trying to increase its powers at the expense of the Executive Branch. No judicial usurpation of properly executive functions. Court finds that the special prosecutor was an inferior officer because he or she was only appointed for one case. d. Dissent: Justice Scalia (the only dissenter--shows the power of a single individual to object to the overwhelming majority to be right in the end): Shows Scalia's judicial philosophy in contrast to the majority's: textual, formalistic. Constitution delegates all of the executive power to the president, not some of it. Judicial branch has complete control over judicial power. Primary check against prosecutorial abuse is political power. Balancing test is not really a test at all. One of the strong points of the

18 Constitution is the ability to encourage dissenting opinions and dissenting views. Final paragraph a clear and concise explanation of Scalia's legal philosophy. IV.

Equal Protection A. History of the Equal Protection Clause 1. Equal Protection: Rang large in the Declaration of Independence, while Constitution left out any mention of equality, possibly for two reasons: (1) Slavery and (2) Notion of rights among the founders was not about equal protection, but due process of law. Framers wanted to prevent friction over slavery between states and sections. Abolitionist lawyers in the 1830s and 1840s began to argue for equal protection: Constitution should be interpreted consistently with the Declaration of Independence. 2. State v. Post (NJ Supreme, 1845): NJ Legislature adopted a plan for the gradual abolition of slavery, new state constitution in 1844 declared that all men are by nature free and independent. Court found that if slavery were to be abolished, the constitution would have made that clear and not leave it up to the judiciary to interpret it. A test case brought in the form of a habeas corpus action demanding release of three individuals. Judges frequently overturned political decisions intended to limit slavery in the pre-Civil War period. 3. Dred Scott v. Sandford (1857) a. Facts: Scott's former owner took him from MO to IL, where they resided for two years before moving to MN. Several northern states took the position that if your owner took you into a free state, you were free. Slavery was legal in MO but prohibited in IL by the Missouri Compromise. Essentially a motion to dismiss. b. Holding: (1) Blacks are not citizens and cannot claim the rights provided to actual citizens under the Constitution; (2) Missouri Compromise is unconstitutional: Dred Scott never became free by being carried into IL because Congress can't prohibit slavery in any state c. Rationale: Blacks are "a subordinate and inferior class of beings, who had been subjugated by the dominant race." Courts should not decide the justice or injustice of these laws. Right to property is affirmed in the Constitution, and the right to traffic in it was guaranteed to the citizens. Congress does not have greater power over slavery than any other kind of property. Scalia later comments that this court had no business deciding the slavery question (canon of constitutional avoidance). 4. Reconstruction: "United States" became a singular noun after the Civil War. Some people came to see constitutional rights as a basis for the assertion of federal power to protect individuals against state interference rather than protection from federal power. 5. Slaughterhouse Cases: Two-tiered approach to 14th amendment: (1) When rights of newly freed slaves were at stake, the amendment must be read expansively to provide comprehensive federal protection and (2) When racial discrimination is not an issue, federal protections are narrower, and recourse should be to state government. Privileges and immunities mentioned in first section of 14th Amendment refer to privileges and immunities of state citizenship, not federal citizenship. 6. State Action and Federalism, The Civil Rights Cases: Public accommodations provision of the 1875 CRA invalidated because the 14th Amendment did not grant

19 power to declare the acts of individuals unconstitutional unless the behavior was in some way sanctioned by the state or done under state authority. 13th Amendment cannot be invoked to provide justification because it only authorized legislation to stop slavery. Denial of access to public accommodations not a badge of slavery. Justice Harlan dissents: 13th Amendment is not stated in a negative way like the 14th amendment, discrimination is a badge of slavery and should be prohibited by the 13th amendment, 1875 CRA was for the benefit of all races, 14th Amendment should be interpreted to grant citizens the affirmative rights of citizenship. 7. Plessy v. Ferguson (1896) a. Facts: LA passed a statute requiring railroads to provide separate but equal accommodations for blacks and whites. Plessy (7/8 white) was prosecuted under the statute when he failed to leave the coach reserved for whites. Another African-American had successfully challenged the law under interference with interstate commerce. Pick test-case plaintiffs that challenge the facts of law in the most extreme ways: show the arbitrariness of racial classifications. b. Holding: A law which authorizes or even requires the separation of the two races in public conveyances is not unreasonable. c. Rationale: Object of the 14th Amendment was not to abolish distinctions based upon color or race, not designed to achieve social equality. LA made a reasonable regulation and should be afforded discretion in legislating according to the wishes and social customs of the public. If blacks were to get power and do the same thing, that would be legal. Legislation is powerless to eradicate "racial instincts, or to abolish distinctions based upon physical differences." d. Dissent: Justice Harlan (could be seen as the foundation of modern civil rights law): The Constitution does not permit any public authority to "know the race of those entitled to be protected in the enjoyment of such rights." In order for whites to hold onto their position of racial superiority, there must be a colorblind constitution that doesn't take into account racial differences. Purpose of the statute was to exclude blacks from white coaches, not the other way around. There is no superior, dominant, ruling class of citizens. There is no caste system here. B. Brown v. Board of Education and Aftermath 1. NAACP Legal Strategy: Rich philanthropist creates a fund for the NAACP, which is used in large part for a litigation campaign. Howard Law School Dean wanted to create African-American lawyers who will be able to challenge segregation. Did not pursue any single strategy to end discrimination, but attacked "targets of opportunity." Change at the graduate school level would have very minimal effects. More difficult to make graduate school education equal: inequalities were more apparent. Show that areas of American life were not equal, starting with the most glaring. 2. Road to Brown a. First NAACP victory in 1938, where the Supreme Court struck down MO's practice of maintaining an all-white state law school and paying for blacks to attend law school out of state in Missouri ex. Re. Gaines v. Canada. b. Reaffirmed Gaines in Sipuel v. Board of Regents (1948) by striking down OK's establishment of a separate black law school.

20 c. Supremes ordered admission of a black student to the University of Texas Law School in Sweatt v. Painter (1950), stating that no person with free choice would ever pick the black law school even if certain facilities were equal. d. In McLaurin v. Oklahoma State Regents (1950), Court struck down OK Education Graduate School's admission of a 68-year old Professor who was forced to sit in a separate section of classrooms and cafeterias. Victories in these cases, but progress was too slow. 3. Brown v. Board of Education of Topeka (1954, Brown I) a. Holding: Doctrine of separate but equal has no place in public education, and plaintiffs were deprived of equal protection under the 14th amendment. b. Rationale: i. 14th Amendment Original Intent: Avid proponents of the post-war amendments wanted them to be applied as liberally as possible while opponents wanted them applied as narrowly as possible. In the south at the time of those amendments, education of white children was by private groups and blacks were almost all illiterate. Can't turn back the clock to Plessy or 1868: logically, segregation is permissible or impermissible, regardless of the status of education in 1868 or 1954. Analogize to McCulloch: Provisions in the constitution are to be adapted to the "various crises of human affairs," looked at flexibly. No question that the drafters of the 14th amendment didn't write it to abolish segregation in schools, but the intent was arguably that the amendment should allow society flexibility to address future problems. Counter argument: can't make moral decisions about the law, must start with the text of the framers. ii. On states having made physical/tangible qualities equal: Intangible factors are important in an education: Kenneth Clark's "doll" study on children and other sociological data were questionable foundations for a legal argument, said many of the NAACP lawyers. Why not just focus on one of the points of Justice Harlan's dissent in Plessy: the point of school segregation is to make blacks inferior to whites, and everybody knows it. Warren was not a great lawyer, but he was a great politician: we need a unanimous opinion, we're not going to bash or antagonize the South, must appeal to the country to change. iii. Relief to Plaintiffs: Unusually, Brown I does not give any relief to the plaintiffs—not going to antagonize the South c. Brown v. Board of Education of Topeka (1955, Brown II) i. Holding: Lower court judgments on the process of desegregation are remanded to the District Courts to "take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. ii. Rationale: Full implementation of these constitutional principles may require solution of varied local school problems. Defendants must prove that time is necessary in the public interest to comply at

21 the earliest possible date. Gives relief to the plaintiffs that Brown I did not. d. Initial Response to Brown: Most Southern resistance was rhetorical: Southern Manifesto. By 1964, only 2.3% of black children in the south were attending desegregated schools. Some states abolished public education, others established "freedom of choice" plans—but very few black students chose to attend white schools because of the threat of violence and stigmatization. C. Desegregation in the 1960s and 1970s 1. Cooper v. Aaron (1958): Supreme Court affirmed court of appeals and ordered desegregation to proceed, denying school board's request to terminate the desegregation program because of public hostility. Judicial branch's interpretation of the constitution is the supreme interpretation. 2. Green v. County School Board (1968): Court invalidated a "freedom of choice" plan which divided the county in two and therefore create integrated schools, allowing pupils to choose which school to attend on entering first and eighth grade. But, 85% of black children and none of the white children were attending the previously all-black school. Justice Brennan's opinion emphasizes the school board's "affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" where there has been an affirmative decision to segregate based on race. Freedom of choice not an effective means of achieving a unitary school system. 3. Swann v. Charlotte-Mecklenburg Board of Education (1971): District Court had adopted a new plan that took race into account in drawing school zones and bused students between inner city and suburban schools to achieve integration, which the court endorsed. Articulated three principles: (1) Constitutional violation stems from purposeful state manipulation of schools' racial composition, (2) Scope of judicial power was limited by the scope of the constitutional violation, (3) Once a school had achieved unitary status, judicial intervention should cease. The last major desegregation decision that was entirely southern in its orientation. "Absent a constitutional violation (imposed deliberately by the state) there would be no basis for judicially ordering assignment of students on a racial basis…" 4. Keyes v. School District No. 1 (1973): No state-imposed school segregation. District court had found that the Denver School Board had deliberately segregated schools by gerrymandering attendance zones and ordered desegregation in one neighborhood but not in others. Racially inspired school board actions have an impact beyond the particular schools affected by those actions. No need to show that state law has imposed discrimination, just that a school administrator or other official has consciously instituted segregation. 5. Milliken v. Bradley a. Milliken I (1974): Supremes found that federal courts lacked the power to impose interdistrict remedies for school segregation absent an interdistrict violation or interdistrict effects. Strong interest in local control of schools. Students in white suburbs close to Detroit would be bused into the city to achieve integration. b. Milliken II (1977): On remand, district court confronted the task of attempting to desegregate a school system in Detroit that was 70% black. Court ordered a plan providing black students with a number of years in a racially integrated school and required educational reform, such as remedial

22 education, counseling and career guidance. Supremes affirmed: desegregation remedies not limited to pupil assignment. Limited power of district courts to impose these types of remedies in Jenkins II (1995). D. Equal Protection Methodology 1. Rational Basis Review and Strict Scrutiny: Almost every statute on the books contains some sort of discriminatory classification, such as prohibiting 15 year olds to apply for driver's licenses. If you said every law that discriminates is unconstitutional, then every law would be unconstitutional. Ordinary Social/Economic Classifications

Racial/Ethnic/Religious Classifications

Sex Classifications

Sexual Orientation

Standard: Rational Scrutiny

Standard: Strict scrutiny

Standard: Intermediate scrutiny

Unclear standard

1. Legitimate government interest 2. Means used: Rationally related to the government interest *Government usually wins

1. Compelling government interest 2. Means used: Narrowly tailored to the government interest *Government usually loses

1. Important government interest 2. Means used: Substantially related to the government interest

Supreme Court has not yet decided

2. Three 14th Amendment Interpretation Doctrines: a. State Action: the only discrimination that is prohibited under the 14th Amendment is discrimination under state law or pursuant to a state regulation or practice, sets up a dichotomy between state and private action. Could see this is a debate between liberty and equality. Declaration of Independence focuses on equality, Constitution on liberty until the 14th Amendment, then equality. b. Intent/Effect: Affirmative action would be unnecessary if we changed the doctrine of intent/effect, which could redefine discrimination based on effect rather than intent. Effect test shows that there is a problem in our society causing this problem. c. Affirmative Action: Another dichotomy between race-based vs. color-blind or affirmative action vs. neutral remedies. Generally, race-based remedies are heavily scrutinized. 3.New York City Transit Authority v. Beazer (1979) a. Facts: NYCTA refused to employ persons who use methodone, which blocks the effect of heroin and is widely used in the treatment of heroin. b. Holding: Reversed: question is whether the classification is rational. c. Rationale: Justice Stevens: Exclusionary line is not one directed against any individual or category of persons, but rather represents a policy choice. Does not circumscribe a class of persons characterized by some unpopular trait or affiliation, does not create or reflect any special likelihood of bias on the part of the ruling majority. Might be unwise to refuse employment simply because they are receiving methodone treatment, but Constitution does not authorize a federal court to interfere in that policy decision. d. Dissent: Justice White: Rationality should be reasonable. TA presented no arguments to distinguish successfully maintained methodone users from

23 those who were unsuccessful. Even where successfully maintained persons less employable than average applicant, the blanket exclusion of only these people is arbitrary and unconstitutional. 4. Railway Express Agency v. New York (1949): NY traffic regulation prohibited the operation of advertising vehicles for traffic safety reasons, but permitted business delivery vehicles to advertise their businesses. Justice Douglas's opinion upheld the statute, because the local authorities concluded that those who advertised their own wares do not present the same traffic problem in view of the nature or extent of the advertising which they use. Justice Jackson concurred: heavy burden on one who would persuade us to use the due process clause to strike down a substantive law or ordinance. There is a real difference between advertising for self-interest and advertising for hire. Rationality standard is very broad. 5. Williamson v. Lee Optical (1955): OK Statute made it unlawful for any person not a licensed eye doctor to fit lenses to a face or duplicate/replace lenses into frames except on written prescription from an eye doctor, specifically exempting sellers of ready-to-wear glasses. Statute wants to force people to have eye exams every few years when they need new glasses. Supremes reversed: prohibition of the Equal Protection clause "goes no further than the invidious discrimination. We cannot say the point has been reached here." Very hard for plaintiffs to win under this standard. 6. City of Cleburne v. Cleburne Living Center (1985): City ordinance prohibited the building of homes for the insane or feeble-minded or alcoholics or drug addicts: council feared that students from the school across the street would harass the residents, site was on a flood plain, and concerns of neighboring property owners. Defendant wanted to open a home for the mentally retarded. Supremes held that the ordinance violated the equal protection clause: irrational basis for the ordinance. Ordinance based on irrational prejudice against the mentally retarded. Justice White rejects plaintiff's call to look at special-needs people with strict scrutiny. Suggests that in some group of cases, the rationality standard is going to be higher, such as where the court thinks that prejudice is at work even if it can't be proven. Justice Stevens: No legitimate purpose that transcends the harm to members of the disadvantaged class. 7. U.S. Department of Agriculture v. Moreno (1973): Food Stamp Act denies benefits to unrelated individuals residing in a house where related individuals receive benefits. One plaintiff had a daughter who lived with another woman on public assistance while she attended a school for the deaf. Court found that the challenged statutory classification is irrelevant to the purposes of raising nutrition among low income household and strengthening the agricultural economy. Congress feared that hippies would take advantage of food stamps. Means used not related to the government’s interest. 8. Strauder v. West Virginia (1880): WV Statute prohibited non-whites from serving on a jury; Strauder, a black man, was convicted of murder before an allwhite jury. 14th Amendment designed to secure to newly freed slaves the civil rights that the superior race enjoys. Words contain a right to exemption from unfriendly legislation against them distinctively as colored. Open, overt racial classification: violates 14th Amendment. 9. Loving v. Virginia (1967)

24 a. Facts: Interracial VA couple challenged the state's statute preventing interracial marriages under the 14th Amendment's due process and equal protection clauses b. Holding: Statute is unconstitutional. c. Rationale: Mere "equal application" of a statute containing racial classification is not enough to permit it under the 14th Amendment. The statute rests on distinctions drawn according to race. No legitimate overriding purpose independent of racial discrimination. 10. Korematsu v. United States (1944) a. Facts: FDR issued Executive Order No. 9066, which authorized military to prescribe areas from which persons may be excluded, which Congress approved of through legislation. Same commander issued an exclusion order of persons of Japanese descent from their homes on the West Coast and their evacuation to "Assembly Centers." This court is one of the most liberal in history. Korematsu was later exonerated on a petition quorum notice, designed to correct the historical record. b. Holding: Unable to conclude that it was beyond the war powers of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. Exclusion order upheld. Said to mark the last occasion on which the Supreme Court upheld a race-specific statute disadvantaging a racial minority. Racial classification must be supported by a "pressing public necessity." Winning WWII was a "pressing public necessity," compelling government interest but does that justify racial classification that contributed only marginally to that end? c. Rationale: Exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, "most of whom we have no doubt are loyal to this country." War is an aggregation of hardships. Power to protect must be commensurate with the threatened danger. Due process and equal protection case. d. Dissent: i. Justice Murphy: "Falls into the ugly abyss of racism." Military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. Misinformation, half-truths, and insinuations against Japanese Americans by those with racial and economic prejudices. ii. Justice Jackson: "Judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself." No requirement that civil courts examine this as to whether it was a "reasonable military necessity." A political question. E. Discriminatory Impact vs. Intent 1. Problematic Nature of Racial Classifications: a. Normative Justifications i. Original intent of 14th amendment was to protect AfricanAmericans from discrimination on the basis of race: from an original intent perspective, race should be viewed differently ii. Equal protection clause involves preventing the subordination of groups rather than the mistreatment of individuals. iii. Race is rarely relevant to a legitimate governmental purpose

25 iv. Racial classifications violate a fundamental moral norm b. Process justification: i. Racial classifications may be permitted by defects in the political process which allow hostility or inaccurate stereotypes (Footnote 4 in Carolene Products (1938), where the court says: if there were some classification directed at discrete minorities, there might be a stringent standard of review) 2. Washington v. Davis (1976) a. Facts: Plaintiffs/respondents were unsuccessful black applicants for positions on the police force who claimed that the test measuring verbal ability, vocabulary, and reading comprehension unconstitutionally discriminated against them. Plaintiffs argue that more blacks than whites fail the test. b. Holding: No inference that the Department discriminated on the basis of race or that "a police officer qualifies on the color of his skin rather than his ability." Courts should apply strict scrutiny to a facially nonracial government action only if the plaintiff can show that the action was taken for a discriminatory purpose. Court has never held that such facially discriminatory statutes can be saved from strict scrutiny by a showing that the same classification would have been used in the absence of racial animus. c. Rationale: Must prove that test was designed with an intentionally discriminatory purpose. Cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. Neutral laws serving ends otherwise within the power of government to pursue are not unconstitutional simply because they affect a greater proportion of one race than of another. Invalidation of this statute would perhaps invalidate other tax, welfare, public service, regulatory, and licensing statutes. Justice Stevens: Not such a bright line between discriminatory purpose and discriminatory impact as the Court's opinion might infer. Sometimes there will be strong evidence or disproportionate impact is so significant supporting an inference that a law intentionally discriminates. 3. McCleskey v. Kemp (1987) a. Facts: McCleskey was convicted in GA state court of murdering a white police officer and sentenced to death, argued that the death penalty was administered more to blacks convicted of killing whites. Baldus study showed that more blacks who murder whites are sentenced to death than whites that murder whites or blacks that murder blacks: defendants charged with killing whites were 4.3x more likely to receive a death sentence than defendants charged with killing blacks. b. Holding: Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting GA sentencing process. c. Rationale: Powell says you must show that the jury that convicted McCleskey purposely/intentionally discriminated. State had no practical opportunity to rebut the Baldus study, and McCleskey committed an act that can be legally punished with the death penalty. Not enough that the legislature acted knowing this would be the result: must be evidence that

26 statute was enacted to further a racially discriminatory purpose. Throws into question the principles (prosecutor/jury discretion) that underlie the criminal justice system, and arguments such as this should be presented to legislative bodies. Not going to assume that what is unexplained is invidious: no way to prove that juries are applying the sentences in a racist fashion. To what extent is getting rid of racial discrimination more important than other values? d. Dissent: Justices Brenan, Marshall, Blackmun, Stevens: Unrealistic to ignore the influence of history in asserting the plausible implications of McCleskey's evidence. Majority seems to indicate a fear of too much justice. 4. U.S. v. Armstrong (1996): Defendant failed to make a threshold showing that prosecution of other races for crack cocaine possession was discriminatory. Must show different treatment of similarly situated persons of different races. No indication that Congress intended to discriminate against black defendants. F. Affirmative Action 1. Test a. Level of Scrutiny: strict scrutiny, therefore, you need a: b. Compelling Government Interest (in descending order): i. Remedying proven intentional discrimination: For example, I sue the city of Richmond and they find that intentional discrimination occurred and order a remedy. Many cities don't want to remedy this and demand suit. ii. Prima Facie showing of discrimination (Richmond case): No need for a court order or finding to the matter iii. Diversity in higher education: still disputed (Powell in Bakke, accepted by O'Connor in Grutter) iv. Integration: Possible based on Parents Involved c. Narrowly Tailored (how compelling the government interest is related to how narrowly tailored the means might be: a nuanced view which is not discussed) i. Quotas are not narrowly tailored, except where the government is remedying proven intentional discrimination ii. Must have individualized treatment: can't use race as a dispositive factor in a student's assignment to schools (Kennedy in Parents Involved) iii. Limited use of race in policy questions, but not individual assignment 2. Regents of the University of California v. Bakke (1978): UC Davis medical school reserved 16/100 seats for members of specified minority groups. Bakke didn't get into the medical school. No state law prohibited discrimination based on age—all the state needed was a compelling interest. Question was what standard of review to be used? Justice Powell joined with Burger, Stewart, Rehnquist, and Stevens to hold that Bakke had been unconstitutionally denied admission under the existing plan, but joined Brennan, Marshall, White, and Blackmun in refusing to enjoin all use of race in the future: race could only be a "plus" in the applicant's file. Because racial classifications are so problematic, they should be given strict scrutiny. Overcoming societal discrimination is not a compelling government interest. Quotas are not narrowly tailored.

27 3. Fullilove v. Klutznick (1980): Federal statute required 10% of funds granted for projects used to build public facilities for state and local government had to be supplied from minority business enterprises. Program was upheld, but under the most stringent level of review. 4. City of Richmond v. J.A. Croson Co. (1989): Majority held (for Croson) that state and local affirmative action programs should be subject to strict scrutiny. Richmond City Council had adopted a similar MBE program for contractor bidding. Court rejected the argument that Fullilove required deference to the city's conclusion that race-conscious affirmative action was required. Congress, not the city council, has a specific constitutional mandate to enforce the 14th Amendment. Justice O'Connor rejected the idea that remedying past societal discrimination could serve as a compelling state interest. No prima facie case of intentional discrimination: could have shown that there was a gross disparity between the number of black contractors and contracts given to blacks, not contracts to black population. Justices Brennan, Marshall, and Blackmun dissented: City's first interest is eradicating effects of past racial discrimination, second is preventing city's spending decisions from reinforcing exclusionary effects of past discrimination. 5. Grutter v. Bollinger (2003): a. Facts: Michigan Law school had a policy of emphasizing diversity in admissions for educational purposes. Grutter was denied admission and sued claiming he had not been admitted because race was used in the admissions process. b. Holding: Endorses Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions. Higher education system has unique qualities that give it a special place in the constitutional tradition. c. Rationale: Remedying past discrimination is not the only governmental use of race that can survive strict scrutiny. Outright racial balancing is patently unconstitutional. Universities, especially law schools, represent a training ground for our Nation's leaders. Quota systems are impermissible, and the law school does not automatically admit or reject based on any single "soft" variable. Law School sufficiently considered workable race-neutral alternatives, which the law school claims would be accepted over the current admissions criteria. d. Dissent: i. Rehnquist, Scalia, Kennedy, and Thomas: Why aren't the numbers of Hispanics and Native Americans as high as African-Americans? The correlation between three minority groups and admitted applications who are members of the same race is too precise to be merely the result of "paying some attention to the numbers." ii. Kennedy: Faculties and administrators should devise new and fairer ways to ensure individual consideration. iii. Scalia: "Educational benefit" is never tested, because it is a lesson in life rather than in law. iv. Thomas: Cites Douglass's call for whites to "Do nothing with us! [African-Americans]" Blacks can achieve in every avenue of American life without the meddling of university administrators. No pressing public necessity to maintain an elite public law school.

28 Constitution forbids "faddish racial discrimination." No evidence that students who benefit from these admissions policies are better off than if they had gone to less elite schools for which they were better prepared. 6. Gratz v. Bollinger (2003): Challenges University of Michigan's undergraduate admissions policy of giving minority applicants 20 points on a 150-point scale, with applicants receiving 100+ points being admitted and those under 75 being denied or rejected. Court rejected the challenged policy because it does not provide individualized consideration of race, which could easily override other compelling admissions factors. Justices Souter and Ginsburg, dissenting: Non-minority applicants can readily garner an index exceeding that of minority candidates. G. School Desegregation and Affirmative Action: Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) 1. Facts: a. Seattle: Seattle School District operates 10 public high schools, and developed a plan in 1998 that allowed incoming 9th graders to choose from among those high schools, ranking them in order of preference. If too many students list the same school as a first choice, the district employs a number of tiebreakers, the first of which is whether there is another sibling, the second is racial composition. If certain schools are not within the district's overall racial balance, the district assigns students whose race will bring the school into balance b. Louisville: Jefferson County Schools had been under a federal district court desegregation order until 2000, at which time they also developed an assignment plan similar to that used in Seattle. All non-magnet schools were required to maintain a minimum 15% black enrollment, maxed out at 50%. If a school had reached its "limits," students who would contribute to racial imbalance would not be assigned there. 2. Holding: Reversed: the student assignment plans violate the 14th Amendment 3. Rationale: a. Roberts, Scalia, Thomas, Alito: Strict Scrutiny the basis for review: must serve a compelling interest and be narrowly tailored. Only two interests that qualify as compelling: remedying effects of past intentional discrimination, which cannot be the case in Seattle because those schools were never segregated, and can't be the case in Louisville because those schools had already remedied past segregation. Grutter does not govern present cases because it only applied to higher education. The plans are only directed to racial balance, which is illegitimate. Government must treat citizens as individuals, not as components of a racial, religious, sexual, or national class. Not narrowly tailored--only 307 students in Seattle affected by racial tiebreaker in 2000-01 and only 3% of assignments in Louisville. Equal Protection clause protects persons, not groups b. Thomas, concurring: Neither Seattle nor Louisville had established or reestablished a dual school system that separates students on the basis of race. Neither plan serves a compelling state interest. Differing opinions on whether racial mixing has any educational benefits. Seattle even operates a K-8 "African-American Academy," which rebuts that argument. Not up to local school boards to decide what interests qualify as compelling under the 14th Amendment. Segregations also called for local control.

29 c. Kennedy: There are some circumstances where race might be taken into account. A "profoundly mistaken" view that the Constitution mandates schools to accept the status quo of racial isolation. These schools could have used other race-neutral means to achieve their stated ends. Government is not permitted to classify every student on the basis of race and to assign them accordingly. School districts should not be prevented from bringing together students of different racial, ethnic, and economic backgrounds. 4. Dissent: a. Stevens, dissenting: Rigid adherence to tiers of scrutiny obscures Brown's clear message. MA statute mandating racial integration was upheld in 1968. b. Breyer, Stevens, Souter, Ginsburg: After falling during the 1970s, school segregation reversed in the 1980s and 1990s. Seattle and Louisville both began with highly segregated local schools. Swann allowed for broad discretionary powers to school authorities. Countless federal and state statutes use racial classification. i. Legal Standard: Drafters of the 14th Amendment understood the legal and practical difference between the use of race-conscious criteria to keep the races apart and race-conscious criteria used to bring the races together. ii. Applying the Legal Standard: Three interests: (1) Historical and remedial element, (2) Educational element, (3) Democratic element. Democratically elected school boards should be able to decide how best to include people of all races in one America. iii. Narrow-Tailoring: These plans emphasized student choice, and are less race-conscious than the plans approved in Grutter. iv. Consequences: The problem is difficult to solve. Judges should not be dictating solutions to these problems. Post-Civil War amendments were designed to make citizens of slaves. H. Gender Discrimination/Gender Equality: Many prominent women's rights advocates, including Susan B. Anthony, opposed the 14th Amendment because it allowed discrimination based on gender, and included gender terms for the first time in the Constitution. Anthony and other women successfully voted in NY after convincing election officials to let them do so, with the goal of being prosecuted for voting illegally, which they were. 1. Bradwell v. Illinois (1873): Court upheld (with five justices) an IL law prohibiting women from obtaining law licenses, with Justice Bradley noting in his concurring opinion the "paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother" and that voting was not a "privilege or immunity" of U.S. citizenship. This view reigned for the next 100 years. Bradwell was an IL law graduate and editor of the IL Bar Journal, but couldn't be admitted to the bar because she was a married woman. Other early claims based upon equal protection were dismissed by the Supremes. 2.Muller v. Oregon (1908): Court upheld an OR statute prohibiting the employment of women in factories for more than ten hours per day, noting the inherent difference between the sexes. 3. Reed v. Reed (1971): ID Law provided that men should be preferred where there are multiple parties claiming they are entitled to administrate an estate where

30 someone has died intestate. Unanimous court struck down the law as a violation of the Equal Protection clause because it was an arbitrary legislative choice. 4. Frontiero v. Richardson (1973): Male soldiers automatically received housing allowances and higher medical benefits once they were married. Female service members could only claim such benefits if they could demonstrate that her spouse was dependent on her for over half his support. Eight members of the Court agreed that this distinction violated the equal protection component. Justice Brennan, writing for four justices, argued for close scrutiny rather than rationality, noting the Congressional approval of gender equality in Title VII of the 1964 CRA and the ERA. There is a history of discrimination of women. Administrative convenience is not a valid Constitutional justification for gender differences, though it is rational. 5.Stanley v. Illinois (1972): Court struck down an IL statute which automatically made children of unwed fathers wards of the state upon the death of their mothers but not for children of unwed mothers upon the death of their fathers. 6. Geduldig v. Aiello (1974): Supremes upheld CA insurance limitation excluding pregnancy-related disabilities, justified because the state had a legitimate interest in maintaining the self-supporting nature of its insurance system. Only rational basis standard because it isn't gender-based, just removes one physical condition from the list of compensable disabilities. Justice Brennan dissented, noting that pregnancy-related disabilities were suffered only by women, and were therefore discriminatory. 7.Craig v. Boren (1976): a. Facts: OK Statute prohibits sale of non-intoxicating 3.2% beer to males under 21 and to females under 18. b. Holding: Differences between males and females with respect to the purchase of 3.2% beer does not warrant the differential in age drawn by the OK statute. c. Rationale: Brennan struggled, but finally succeeded, in getting a fifth vote for intermediate scrutiny: government must assert an "important" reason (usually not the critical factor--easy to come up with an "important" reason) and policy must be substantially related to that reason. The disparity in DWI arrests between men and women cannot form the basis for employment of a gender line as a classifying device. Statistics do not show that there is a strong relationship between the classification and the important government interest. Preventing DWI is definitely an important government interest. i. Justice Powell: Age classification is easily circumvented and is virtually meaningless, does not relate to the object of the legislation. ii. Justice Stevens: Two-tiered analysis is actually one standard: is the classification unreasonable? In gender classifications, there are real differences that might allow Congress or the state to justify different classifications. This classification is not totally irrational, but is based only upon an "accident of birth." Only has a minimal effect on access to a not very intoxicating beverage and does not prohibit its consumption. Imposes a restraint on 100% of men for the actions of 2% of them. d. Dissent: Justice Rehnquist: Shouldn't be a more stringent standard than other types of classifications, and no way of deciding what is an "important"

31 government interest. Intermediate scrutiny is just going to be vague and uncertain. Legislatures are not held to rules of evidence and can draw factual conclusions on the basis of probable cause. Statistics are not perfect. Males drink and drive at a higher rate, and a statutory bar should not create a due process problem. Seems to be a contradiction between his opinion in the affirmative action cases and his opinion in this case: might respond that race is inherently an odious classification. 8.United States v. Virginia (1996) a. Facts: VMI was founded in 1939 and is the sole single-sex VA public university, stresses an "adversative" program designed to produce "citizensoldiers." The parallel VWIL had lower SAT scores, faculty received lower salaries, lower endowment figures, smaller alumni network. VA offers two compelling government reasons: (1) Provide diversity among higher public educational institutions to VA residents and (2) Adversative method of training cannot be made available to women. b. Holding: Affirmed Court of Appeals' original decision finding VMI’s exclusion of women unconstitutional, but reversed the second decision affirming the remedy. c. Rationale: i. Justice Ginsburg: Justification that the discriminatory means employed are substantially related must be genuine, not hypothesized or invented in response to litigation. VA showed no persuasive justification for excluding all women from the citizensoldier training afforded by VMI. VMI has never been maintained with the goal of diversity in mind. VMI methodology could be used to educate women, and it is also true that many men wouldn't choose an education at VMI: adversative method is not important enough, can't prove it’s the only method of educating "citizen-soldiers." Women already admitted to U.S. military academies. Sweatt court held that educational institutions are based upon intangible qualities which are difficult, if not impossible, to replicate. Ginsburg convinced the court to start off by saying that gender-based classifications should be rooted in an "exceedingly persuasive justification," which seems closer to strict scrutiny than to intermediate scrutiny. ii. Chief Justice Rehnquist: Neither of VMI's goals is sufficient. The goal of single-sex education is an important goal, and if VA came up with a women's equivalent to VMI, that would be ok. d. Dissent: Justice Scalia: The "old" Constitution of the U.S. takes no position in this educational debate, and therefore the majority's opinion is inappropriate. 9. J.E.B. v. Alabama (1994): Court held that gender-based peremptory challenges to jurors were unconstitutional, because gender alone is not a predictor of juror's attitudes and relies upon stereotypes. Justice Kennedy added that jurors are individual citizens, not representatives of racial or sexual groups. 10. Rostker v. Goldberg (1981): Court upheld a statute requiring men, not women, to register for the draft. Women are not eligible for combat. Court was really using a rationality test, perhaps because it was a military decision. Rehnquist never agreed with stricter scrutiny for gender classifications, slipped down to a

32 rationality standard. What is the important purpose that the combat exclusion supposedly supports? The important purpose is to have the best fighting force that we can during wartime: unit cohesion (sexual tension OR that men will react differently to a woman's injury than they would to a man's, both will harm the fighting ability of the unit). Military's trump card is "We know the military and you don't: defer to our judgment." 11. Michael M. v. Sonoma County Superior Court (1981): Court upheld a statute defining statutory rape as sexual intercourse with a female not the wife of the perpetrator where the female is under age 18. If a 17 year old man has sex with a 21 year old woman, the woman is not guilty of anything. Same in this case where both were under 18, but male was prosecuted for statutory rape. Purpose was to prevent illegitimate children and the state had a strong interest in doing so: the consequences of teenage pregnancy fall on the young female. Women have a natural deterrence not to have sex but men don't. Questioning the legitimacy of the governmental interest is the weakest grounds for an argument--not difficult for judges to believe that an interest is legitimate. 12. Nguyen v. INS (2001): Petitioner was born in Vietnam to unmarried parents, his father a U.S. citizen and his mother a citizen of Vietnam. He became a lawful permanent resident of the U.S. at age 6, committed a felony at age 22, with deportation proceedings initiated thereafter. Father obtained an order of parentage in an effort to keep his son in the U.S. Federal statute says that if you are born in another country and your parents are not married: (1) If the mother is a U.S. citizen and resided in the U.S. for a year, you are a citizen, but (2) If the father is a U.S. citizen, you are not automatically a U.S. citizen; a children can be naturalized if the blood relationship is established by clear and convincing evidence before the child turns 18. INS rejected petitioner's claim to citizenship because it did not occur before the child turned 18, and his father appealed. Supremes upheld the statute: mother is always present at birth, but father need not be. Important reasons: (1) government has an important purpose in ensuring that a biological parent-child relationship exists. (2) Statute designed to ensure that child and citizen parent have some demonstrated opportunity to develop a relationship. Justices O'Connor, Souter, Ginsburg, and Breyer dissented: Sex-based statutes even if accurate reflections of the way men and women behave, deny individuals opportunity. Difficult to see that it is an important interest of providing an opportunity for a relationship. Who cares if there is an "opportunity?" I. Equal Protection Claims Based on Poverty: 1. Groups Discriminated vs. Interest Affected: Equal protection requires analysis as to the groups that are being discriminated upon, while one piece of equal protection looks at the nature of the interest affected. Why are poll taxes unconstitutional but driving license fees are constitutional? No constitutional right to vote for President: electoral college members have that right, and they are appointed at the discretion of the state legislatures. Bush v. Gore: unless and until the state legislature grants citizens the right to vote for President, no right to do so. If the state legislature wants, it can pick the electors without a popular vote. Voting is fundamental because of the nexus between voting and other constitutional rights: it governs the whole way our government operates and is tied closely to the constitution. Driving might be more important to an individual, but not to the Constitution. 2. Harper v. Virginia State Board of Elections (1966)

33 a. Facts: VA charges a poll tax not to exceed $1.50 as a precondition to voting. b. Holding: A state violates the Equal Protection Clause whenever it makes the affluence of the voter or payment of any fee an electoral standard. c. Rationale: Once the franchise is granted, lines may not be drawn inconsistent with the 14th Amendment. The state's interest in voting is limited to the power to fix qualifications. Wealth is not germane to one's ability to participate in the electoral process. d. Dissent: i. Justice Black: State poll tax legislation can be found to reasonably and rationally rest without an evil purpose on a number of state policies: collect revenue (poll tax is no different than a license or administrative fee), voters with poll tax are interested in the state's welfare. Tied to his formalistic, line-drawing view as demonstrated in Youngstown. ii. Justices Harlan, Stewart: Property qualifications and poll taxes have been a traditional part of our political structure 3. Kramer v. Union Free School District (1969) a. Facts: NY had a statute which grants the franchise in school district elections only if they own or lease taxable real property in the district or have children enrolled in the public schools. Plaintiff/appellant was a bachelor who claimed that the statute deprived him equal protection b. Holding: Statute is not sufficiently tailored to limiting the franchise to justify the denial to appellant and members of his class. c. Rationale: Such legislation can lead to unfair representation. Classification is not narrowly tailored to accomplish the purpose of limiting the franchise to those "primarily interested" or "primarily affected." d. Dissent: Justice Stewart: The statute is rational: residents who are better informed regarding state affairs are more likely to be responsible voters. Case does not involve racial classifications and does not impinge upon a constitutionally protected right. 4. Griffin v. Illinois (1956): Court held that a state must furnish an indigent criminal defendant with a free trial transcript if such a transcript is necessary for adequate and effective appellate review. The poor cannot be denied the means of challenging unjust convictions which appellate courts would set aside. No constitutional or fundamental right to an appeal, or to a lawyer or transcript upon appeal, but poor people need both to appeal. 5. Douglas v. California (1963): CA rule requiring state appellate courts, on request of an indigent criminal defendant for counsel on appeal, to investigate the record and appoint counsel only if it would be helpful to the defendant. Indigent forced through a gauntlet of preliminary showing of merit, right to appeal does not offer due process. Justices Harlan and Stewart dissented: No state is required under the equal protection clause to "give to some whatever others can afford." Attempts to define other fundamental rights besides voting and criminal defense, such as food and housing, failed. 6. San Antonio Independent School District v. Rodriguez (1973) a. Facts: TX used a school financing system (assessment of property taxes) that produced substantial interdistrict discrepancies in per pupil spending based on discrepancies in available taxable real property.

34 b. Holding: Reversed c. Rationale: Justice Powell:Test is rational basis, not strict scrutiny. No constitutional right to an education, nor can one be implied. Citizens might be guaranteed the right to free speech, but not to the most effective free speech or the most informed electoral choice. Education is a matter traditionally deferred to state legislatures. The state had a rational basis for permitting and encouraging local control over local school districts. But, the state could just as easily give local schools the money and allow them to decide how to use it. Powell's view of the law is decided on the narrowest grounds possible: not decided on the basis of poor students, but poor districts; there might be poor students who live in a wealthy district and vice versa. Plaintiffs argue that a fundamental right to vote or speak freely is dependent upon education (nexus). "Not the province of the court to create substantive fundamental rights in the name of guaranteeing equal protection of the laws." Court does not go further because (1) Worried about determining what is fundamental (judicial role) and (2) There is a distinction between legal, political rights and social, economic rights. Justices White and Stevens equate rationality with reasonability. Justice Powell only requires some rational means between the purpose and the goal: there might be a better way, but not using it is not irrational. d. Dissent: i. Justice White, Douglas, and Brennan: TX system fails to provide a choice to parents because of the property tax levels which are practically and legally unavailable. Justice White says its irrational-doesn't give poor districts local control that the state asserts as its real goal. Two-tiered (fundamental vs. non-fundamental) system doesn't describe what we're really doing: we are engaged in a balancing test between the importance of the interest and the means used. Possible exam question: What's the relationship between Powell's opinion in McCleskey and in Rodriguez? In McCleskey: a lot of things would become suspect if we allow this interpretation. In Rodriguez: the impact of a different decision would be problematic. ii. Justice Marshall and Douglas: Equal protection cases do not merely fall into two categories of analysis: strict and rational. No Constitutional guarantees to procreate, right to vote in state elections, or to appeal a criminal conviction, yet this court has protected those. They are interrelated with constitutional guarantees. Local voters have no control over the amount of taxable property in their district. 7. Plyler v. Doe (1982) a. Holding: TX statute authorizing local schools to deny free public education to children who were not legally admitted into the US is unconstitutional. Illegal children would have to pay tuition to attend public schools. Statute is not facially discriminatory: must show intent to discriminate. b. Rationale: Justice Brennan: Not going to use the rational basis test. The test they use sounds more like intermediate scrutiny. States must demonstrate that a classification is precisely tailored to serve a compelling governmental interest. Combination of "a little suspect" because of whom



you're discriminating against and comparison to illegitimate children (Trimble v. Gordon) calls for higher scrutiny. Children of illegals cannot affect their or their parents' conduct: never decided, as three year olds, to come here illegally. However, undocumented aliens are not a suspect class and there is no fundamental right to an education. Statute imposes a lifetime hardship upon a discrete class of children not accountable for their disabling status. States have no power with respect to the classification of aliens, committed to the Federal government. No evidence in the record that illegal entrants impose any significant burden on the state's economy. No evidence that exclusion of undocumented children will improve the overall quality of education in the state. No guarantee that any child educated within the state will employ their education within the state. c. Dissent: Chief Justice Burger, Justices White, Rehnquist, O'Connor: EPC does not preclude legislators from classifying among persons on the basis of factors over which individuals may be said to lack control. Appellee's status is predicated upon the circumstances of their concededly illegal presence in this country. Federal government excludes illegal aliens from food stamps, old age assistance, aid to the blind, etc. TX statute is rational. Fundamental Rights & Substantive Due Process: Two aspects/components (1) Procedural and, more controversially, (2) Substantive: can't take away life, liberty, and property without a good reason. Question is: what is a good reason for government action? A. Fundamental Rights and Substantive Due Process 1. Road to Lochner: Other intermittent intimations of economic substantive due process did not seriously challenge the prevailing view that the due process guarantee was essentially procedural in nature. Ownership of private property became increasingly concentrated, and inequalities grew sharper. Post-Civil War, businesses increasingly challenged state and federal statutes and regulations. 2. Lochner v. New York (1905) a. Holding: NY statute providing that no employee in a bakery could work more than 60 hours in any one week or more than 10 hours in any day is unconstitutional. Bakery owners challenge as a deprivation of liberty: freedom to contract on whatever terms the parties agree to. NY asserts two reasons (1) Health and safety of the worker and the consumer and (2) Equalize power between workers and bakery owners. b. Rationale: General right to make a contract in relation to his business is part of the liberty protected under the 14th amendment. Unreasonable, unnecessary, and arbitrary to interfere with an individual's right to enter into a contract that may seem appropriate to him for the support of his family. A remote connection to public health does not render the statute valid: many jobs like baking which involve some danger. Purpose of a statute is less important than the statute's administration or execution. c. Dissent: i. Justices Harlan, White, and Day: Labor in excess of 60 hours a week may endanger the health of those who do such labor. Unless statutes are plainly and without question inconsistent with the Constitution, they should be accorded deference. Even assuming that the bargaining power goal is not rational, they still have a rational, reasonable justification for limiting daily and weekly hours.

36 ii.

Justice Holmes: The majority has a right to embody their opinions in law. 14th Amendment does not enact social Darwinism into law: not a legitimate government interest. Constitutions are not intended to embody a particular economic theory. Judiciary should not incorporate ideological theories into the due process clause. 3. Vices of Lochner: (1) Liberty of contract not in the constitution, yet the court makes it a fundamental right, (2) Due process should just be procedural, (3) Incorporates one economic theory (laissez faire) into the Constitution, (4) Scrutinized the relationship between minimum wages and legislation and objective too closely, (5) Judges don't usually have the fact-finding competence to engage in policy making inquiries and are unelected and unaccountable. NY statute might have actually increased workers' freedom of contract, because they could not be forced into contracts they would rather decline. As a result, Court invalidated 200 economic regulations under due process clause, often inconsistently. 4. Muller v. Oregon (1908): Upheld OR statute prohibiting employment of women in laundries for more than 10 hours a day, because of differences between women and men. 5.West Coast Hotel Co. v. Parrish (1937): Court explicitly overturned Adkins v. Children's Hospital (which invalidated a minimum wage for women because of diminishing differences between women and men) and upheld a state law establishing a minimum wage for women. Constitution does not speak of freedom of contract. Legislature was entitled to consider the situation of women in employment, the fact that they receive the least pay, and have weak bargaining power. Community "may direct its law-making power to correct the abuse which springs from their selfish disregard of the public interest. Came in a troubled economic climate with declining wages, skyrocketing unemployment, questioning of democracy. Decisively rejects Lochner: all you need is a rational relationship. 6.United States v. Carolene Products (1938): Congress enacted the Filled Milk Act of 1923, which declared that "filled milk" (milk where vegetable oil has been substituted for natural milk compounds, allowing the milk to be sold at a lower price) is an adulterated article of food injurious to public health and constitutes fraud upon the public. Subjected to the rational basis test: statute is Constitutional according to a policy judgment by Congress. 7.Williamson v. Lee Optical of Oklahoma (1955): Supreme Court reversed district's holding that the statute violated the due process clause. Statute made it unlawful for an optician to fit or duplicate lenses without a prescription from an ophthalmologist or an optometrist. Legislatures are charged with balancing the advantages and disadvantages of the new requirement. Law need not be logically consistent to be constitutional. Decisively rejects Lochner. Equal protection challenge was also rejected. Under Douglas's formulation here, virtually impossible to successfully challenge a state's economic regulation. B. Fundamental Right to Privacy and Reproductive Autonomy 1. Griswold v. Connecticut (1965) a. Facts: Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut and professor at Yale Medical School, who gave information, instruction and medical advice to married couples as a means of preventing contraception. Found guilty of assisting with the violation of a state statute prohibiting the use of contraceptives. A case cooked up by

37 Yale University. CT says that a ban on contraceptives prevents adultery: the risk of having a child out of wedlock will prevent having an affair. b. Holding: Statute is unconstitutional. c. Rationale: i. Justice Douglas: Appellants do have standing to raise the constitutional rights of married people with whom they had a professional relationship. Association of people is not specifically mentioned in the First Amendment, but its existence is necessary in making the express guarantees fully meaningful. Privacy per se is not in the constitution, but there are penumbras contained within some amendments. Governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. AL tried to force NAACP to hand over membership lists and the Court ruled with them in NAACP v. Alabama. ii. Justices Goldberg, Brennan, and Chief Justice Warren: 9th Amendment lends strong support to the view that the liberty protected by the 5th and 14th Amendments from infringement by the federal government or states is not restricted to rights specifically mentioned in the first eight amendments. Is something fundamental in our tradition or values and history? State interest in safeguarding marital fidelity can be served by a more discriminately tailored statute. Questions among scholars about the purpose of the 9th amendment, which does not by its terms create rights. iii. Justice Harlan: Most favored opinion today. Question (test) is whether the statute infringes on the due process clause because it violates basic values implicit in the concept of ordered liberty. Balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. Secular state must operate in the realm of behavior. Right to privacy is not absolute, rationality is not enough. Disagrees with Justice Black's view on incorporation. iv. Justice White: Ban on contraceptives does not seem to reinforce the state's ban on illicit sexual relationships. Why would a man or woman choose to violate the adultery law but not the contraception law? d. Dissent: i. Justices Black and Stewart: No constitutional provision granting a right to privacy. Government has the right to invade unless prohibited by some specific constitutional provision. 9th Amendment passed to assure people that the constitution limited federal powers granted expressly or by necessary implication. ii. Justices Stewart and Black: Court does not say which Amendment is infringed by the CT statute. 2. Roe v. Wade (1973): Justifications: (1) Privacy (Griswold), (2) Bodily Integrity, (3) Reproductive Freedom, (4) Equality. Trimester system: (1st) Women and physicians make the decision; (2nd) States can make regulations for women's

38 health: who can do abortions, where they can be done; (3rd) States can prohibit abortions except for preservation of life or health of the mother. a. Facts: TX statute banned the procuring of abortion except by medical advice for the purpose of saving the life of the mother. At common law, women had greater leeway to terminate a pregnancy than in most States in 1973. Common law and Catholic theology were in step until the 1870s: abortion was permitted until "quickening." As women pushed for greater rights, men pushed back to restrict access to abortion and contraception to prevent women's participation as full citizens in society. A more philosophical argument is that women are being forced to "save" a child, which requires women to undergo possible physical harm in order to do so. b. Holding: Statute is unconstitutional. Legalizes abortion before the end of the first trimester, but state may regulate the abortion procedure as it relates to maternal health, states may regulate or even proscribe abortion after viability. c. Rationale: i. Justice Blackmun: No explicit right to privacy, but could be found in the 14th or 9th Amendment, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. A woman's right, however, is not absolute. No indication that the word "person" has any pre-natal application. Viability usually placed at 24-28 weeks: end of the first trimester. Might raise an equal protection argument: differences between women and men. Test is whether the statute infringes on the due process clause because it violates basic values implicit (collective history, tradition, and values) in the concept of ordered liberty. Some women's rights advocates would critique this decision under privacy grounds and insist that it be made on equality grounds. ii. Justice Stewart: Right of an individual includes a woman's right to decide whether or not to terminate her pregnancy. iii. Justice Douglas: 9th Amendment does not create enforceable rights, but the traditional, time-honored individual rights include a freedom to care for one's health and person and a freedom from bodily restraint or compulsion. d. Dissent: i. Justice White: People of the 50 states are disentitled to weigh the relative importance of the continued existence and development of the fetus ii. Justice Rehnquist: Should have been decided by legislatures, not the court. We should not give higher scrutiny to this matter than to economic regulation: use a rationality test. Not like Griswold because there, the state would have a difficult time finding out whether a couple is using contraception. Griswold was a Planned Parenthood official, not one of the couples charged. Abortion is a decision made in a public facility with medical records. C. Abortion Rights 1. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) a. Facts: PA Statute requires that a woman seeking an abortion wait 24 hours before the abortion is performed, married women must sign a statement that

39 she notified her husband, imposes reporting requirements on facilities performing abortions. b. Holding: The essential holding of Roe should be retained and once again reaffirmed, but scrapped the rigid trimester system. States may take measures to ensure an informed choice, but only so long as they do not persuade the woman to choose childbirth over abortion. Medical emergency definition imposes no undue burden on a woman's right. Physician disclosure requirement is constitutional. Waiting period is not particularly burdensome and constitutional. Disclosure to husband is unconstitutional, but is constitutional for minors. Facility reporting requirements are constitutional and not a substantial obstacle to a woman's choice. c. Rationale: i. Justices O'Connor, Kennedy, Souter: Before viability, state's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. State has the power to restrict abortions after viability and has a legitimate interest in protecting the health of the woman and the life of the fetus that may become a child. Roe has not proven to be unworkable: women have an ability to participate equally in the economic and social life of the Nation, facilitated by their ability to control their reproductive lives. Advances in maternal care allow for safe abortions later in pregnancy than was true in 1973. When the court has overturned prior decisions (Lochner in West Coast Hotel and Plessy in Brown), it does so because of changes that necessitated overturning those prior decisions. Lochner was wrong and we corrected it. A terrible price would be paid for overruling Roe. States do have the interest of protecting potential life. New Undue burden test: "An undue burden exists and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. Constitution is a transgenerational covenant. ii. Justice Blackmun: Preserve all of Roe, not just the essential holding. Compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity, and implicates constitutional guarantees of gender equality. 24 hour waiting period is clearly unconstitutional. State's interest must be secular. Informing the woman of the gestational age is irrelevant to her decision. d. Dissent: i. Chief Justice Rehnquist, Justice White, Scalia, and Thomas: Uphold the PA statute in its entirety. No fundamental right to an abortion. No principle of stare decisis requires adherence to the reasoning in Roe. When the Court overruled Plessy and Lochner, it enhanced its stature by doing so. At least the Roe test was clear--this test is even less clear.

40 ii.

Justice Scalia, Chief Justice Rehnquist, Justices White and Thomas: Right to an abortion is not protected by the Constitution. Roe ushered in an era plagued by national abortion protests. Court has no right to be deciding anything about abortion rights. 2. Maher v. Roe (1977): Justice Powell: Court upheld a state regulation granting Medicaid benefits for childbirth but denying such benefits for nontherapeutic abortions. An indigent woman desiring an abortion does not come within the limited category of suspect classes. No unequivocal right to an abortion, merely protection from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy (basically the undue burden test). This regulation places no obstacles in the pregnant woman's path to an abortion. No retreat from Roe. Dissent: Indigency makes access to an abortion or licensed physicians not merely difficult, but impossible. State has advanced no compelling interest to justify its interference in that choice. Imposes a moral viewpoint that no State may constitutionally enforce. Justice Marshall: "Condemns some women to a 'bare existence in utter misery.'" 3. Harris v. McRae (1980): Dwindled to a 5-4 majority: draws a formalistic distinction between a right to an abortion, which women don't have, and a right to be free from being prevented from having an abortion. Upheld Hyde Amendment prohibiting the use of federal Medicaid funds to perform abortions except where the life of the mother would be endangered if the fetus were carried to term or in cases of rape or incest. No constitutional entitlement to the financial resources to avail herself of the full range of protected choices flowing from Roe. Provides indigent women with at least some range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. Dissent (Brennan): Roe clearly held that state interference is unreasonable if it attaches a greater importance to the interest in potential life than to the interest in protecting the mother's health. Distinguishes a religious freedom case where unemployment benefits were denied to a man who had turned down a job in order to practice his religion on Saturday. Seems similar to intermediate scrutiny/balancing test. What about a tax on abortions? The poll tax was minor, yet it was struck down because it was a burden that infringed on a fundamental interest/right. 4. City of Akron v. Akron Center for Reproductive Health (1983): Court invalidated several provisions in a state statute requiring second trimester abortions to be performed in a hospital, women be informed of the status of her pregnancy, and that women be informed of the risks of abortion. 5. Planned Parenthood of Central Missouri v. Danforth (1976): Court invalidated a state statute that required prior written consent of the spouse of a woman seeking an abortion unless the abortion was necessary to protect the life of the mother. Statute prohibited unmarried women under 18 from obtaining an abortion without parental consent. 6. Webster v. Reproductive Health Services (1989): Statute regulating the performance of abortions in the second trimester in the interest not of maternal health, but of protecting human life conflicted with the trimester system in Roe, in a plurality opinion. O'Connor provided the fifth vote to prevent a reexamination of Roe. Justices Blackmun, Brennan, and Marshall dissented with strong fears of an erosion of the freedoms elaborated upon in Roe and noting the "chill wind" that blows.

41 D. Sexual Orientation 1. Romer v. Evans (1996) a. Holding: Equal protection clause requires invalidation of the CO Constitution's provision. b. Facts: Some CO municipalities had passed laws prohibiting discrimination on the basis of sexual orientation, and in 1992, "Amendment 2" prohibited the granting of protected status based upon sexual orientation. c. Rationale: Amendment withdraws special legal protection from homosexuals, but from no other class. Other groups can just go to their city council and present a case for anti-discrimination measures, but homosexuals can't do that anymore. CO municipalities set forth a list of traits which cannot be the basis for discrimination. Amendment imposes a special disability upon those persons alone. Forbids homosexuals the safeguards that others enjoy or may seek without constraint. It is both too broad and too narrow. Raises an inevitable inference that the disadvantaged is born of animosity toward the class of persons affected. Court avoids the issue of a level of scrutiny, purports to use rationality, albeit a higher level of rationality. So broad as to seem irrational: real reason is that people disapprove of homosexuality (Cleburne). d. Dissent: Justices Scalia, Thomas, and CJ Rehnquist: A modest attempt by CO to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of laws. But in Bowers, the Court said moral disapproval of sodomy WAS a rational basis. Coloradoans are entitled to be hostile toward homosexual conduct. Homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. Statutes currently prohibit bigamy, polygamy, prostitution, masturbation, etc.--why are they not unconstitutional too? Not discriminating against homosexuals, just saying that they can't receive special treatment. 2. Roberts v. U.S. Jaycees (1984): Court upheld a MN statute prohibiting discrimination on the basis of sex in places of public accommodation. Bill of Rights is designed to secure individual liberty, must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. 3. Bowers v. Hardwick (1986): Court upheld GA's sodomy statute. Prohibitions on such conduct have no roots in the language or design of the Constitution. To hold that homosexual sodomy is protected would be to "cast aside millenia of moral teaching." Nothing in precedent, no support from public opinion. Case is more like Griswold than Roe: police have to spy on people in private to convict them. Powell changed his mind and found that since there was no jail sentence for violating the statute, it was ok. Blackmun (one of the greatest dissents in history) and Stevens dissent. 4. Lawrence v. Texas (2003) a. Facts: On a police call, officers observed Lawrence and another man engaging in a sexual act, after which they were arrested, charged, and convicted of sodomy. Unlike the GA statute, the TX statute only prohibited sodomy between members of the same sex. b. Holding: Statute is unconstitutional: Bowers is explicitly overruled.

42 c. Rationale: Not just a question of a sex act: it's about choosing what kind of relationship you want to be involved in. Kennedy: (1) Takes the right out of the narrow definition used in Bowers and (2) Shows that the history is inconclusive or murky (like the NAACP did in Brown), (3) History and tradition are important, but not the ending point. Ending point is a modern emerging tradition. This regards a personal relationship that is within the liberty of persons to choose without being punished as criminals. The sodomy convictions were usually for predatory acts against those who could not or did not consent. Moral and ethical considerations are not a valid basis for sustaining this law. Casey reaffirmed substantive due process component, and Romer struck down class-based legislation at homosexuals as a violation of Equal Protection Clause. Present case does not involve minors or persons who might be injured, are in public relationships, or public conduct. What about freedom of association (Roberts v. Jaycees)? Freedom of intimate association? First part of the opinion implies it’s a fundamental right, but the second part treats it as irrational. Once you've determined that a right is fundamental, the test is strict scrutiny: compelling government interest and narrow tailoring. i. Justice O'Connor: Concurs only in the judgment (but only three dissenters so doesn't matter). Would not overrule Bowers, but TX statute is unconstitutional based on equal protection clause, because heterosexual sodomy is permitted, but not homosexual sodomy. Moral disapproval of homosexual sodomy is not a legitimate state interest to justify the statute. Actually a statement of dislike and disapproval of homosexuality. d. Dissent: Justice Scalia, Thomas, and CJ Rehnquist: Roe and Casey have also been eroded, and are subjected to criticism. When you look specifically at the tradition regarding homosexual sex, it is prohibited (Casey p. 865). Moral belief should be a rational basis for such a statute. Court's use of foreign views is "meaningless dicta." This opinion is the product of the "homosexual agenda." This opinion opens the door to formal recognition of any other relationship that homosexuals seek to enter. With this opinion, no valid reason to deny marriage benefits to same sex couples: pro-creation not a reason for justifying denial of marriage to homosexuals, because the elderly and sterile are allowed to marry. 5. Sodomy Laws: The Lawrence Court recognized that Romer cast Bowers into doubt but declined to rely on Romer in striking down the TX statute. Justice O'Connor concluded that TX law failed to serve a legitimate state interest: morality not a valid grounds for surviving rational basis scrutiny. 6. Don't Ask Don't Tell: Upheld because of the government's interest in service members' morale and unit cohesion, under a rational standard. 7. Same-Sex Marriage: Cases brought challenging bans on gay marriage in states to keep it away from the federal courts. CA Supremes held that discrimination on the basis of sexual orientation triggers strict scrutiny, which it also uses for classifications based on gender. NY Court of Appeals found in 2006 that limiting marriage to same sex couples was a rational decision for the legislature to make, based on interests of the child. MA Supremes found that there was not a rational relationship between the marriage statute and the goal of protecting the optimal



child rearing unit. What about states that provide the same benefits under civil unions? DOMA amended full faith and credit act so that states wouldn't be required to recognize same sex marriages recognized in other states. Some note that homosexuals are not lacking in political power or are an economically marginalized group because of their sexual orientation. Does it matter why gay people are gay? Formally, prohibitions on gay marriage and previously interracial marriage are the same, but there are distinctions between the two. 8. Prop. 8 Case: Major gay rights groups opposed filing challenging Prop. 8 because they thought the Supreme Court would invalidate all gay marriage laws: better to wait for a better time. a. Cooper: Mr. Cooper's prime argument against gay marriage is that there is a good faith debate about whether the traditional notion of marriage should be changed to include same-sex couples, and whether the Supremes can stop that debate and answer the question for all 50 states, by finding that no rational person of good faith could disagree. Two issues: (1) Does this violate equal protection (men cannot do what women can do: marry a man, and vice versa, similar to miscegenation statutes, where whites cannot do what blacks can do: marry blacks, and vice versa: creates classifications based on race and sex) and (2) Does it violate due process? Justice Sotomayor notes that it would be irrational to discriminate against homosexuals in any other context aside from marriage. Three common reasons for prohibiting gay marriage: morality, child-rearing, and procreation. Probably doesn’t focus on child-rearing because CA already permits gay couples to adopt. Cooper talks about "responsible procreation" to note that unmarried couples can and do procreate. Cooper says he doesn't have to prove there isn't harm to children raised by gay couples, just that it's rational to decide it is. Justice Kagan boxed him in on his procreation argument, but Cooper goes back to responsible procreation and the marital norm imposing fidelity and monogamy. b. Olson: Classifies a group of Californians based on their status. CJ Roberts say that marriage simply developed to include purposes that by nature excluded homosexuals. Olson responds by noting that the state of CA made the decision to exclude homosexuals from marriage, not the institution itself. 9th Circuit found that once the state recognizes that marriage includes homosexuals, it can't exclude them. But, CA only permitted gay marriage for 140 days. Scalia asks when it became constitutional to permit gay marriage, to which Olson asks when it became constitutional to prohibit school segregation. Olson notes that homosexuality is a trait people are born with, similar to race--argue for creation of a protected class. CA had already granted all of the substantive rights of marriage, but would not call it marriage: no basis for saying you can't get married. Olson says that in the context of CA, it is irrational for CA to deny gay couples the right to marry. Olson: laws prohibiting polygamy prohibit conduct, not based upon an inborn status. Procedural Due Process A. Procedural Due Process 1. Substantive v. Procedural Due Process a. Substantive Due Process: State cannot arbitrarily take away fundamental or substantive rights.

44 b.

Procedural Due Process: State cannot take away life, liberty, or property without due process, much more rooted in the actual language of the constitution. Two issues: (1) When do you have an interest that comes under the due process clause? and (2) What process is due where there is such a liberty interest? When the government decides to make a substantive change to entitlement programs/benefits, you might have a substantive due process claim. Procedural argument is that a group of individuals or some group of individuals is not being given the rights that Congress has given them (goes to the individual claim). 2. Goldberg v. Kelly (1970): A welfare recipient's interest in continued receipt of welfare benefits was a "statutory entitlement" that amounted to "property" within the meaning of the due process clause. Before that, the due process clause was inapplicable if government denied an individual some public benefit: employment, welfare, or other advantageous opportunity. 3. Board of Regents of State Colleges v. Roth (1972): Roth was hired for a one year term as assistant professor at WI State, but did not have tenure and was informed he would not be rehired without a hearing. Court upheld the decision not to grant him a hearing. While the meaning of liberty must be broad, the individual claiming to be harmed must have a legitimate claim of entitlement to it. Employer specifically provided that his employment would terminate on June 30, which secured absolutely no interest in re-employment for the next year. Must be more than an abstract need or desire for it. 4. Perry v. Sindermann (1972): Companion case to Roth: Sindermann was a professor at Odessa Junior College whose contract was not renewed, claiming the college had a de facto tenure program. Absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a property interest in re-employment. 5.Cleveland Board of Education v. Loudermill (1985): Loudermill was hired as a security guard, lying on his job application that he had never been convicted of a felony. After his employer discovered that, he was fired despite his classification as a civil servant under OH state law. Supremes upheld the lower court's decision to require a hearing because the statute granted Loudermill a property right in continued employment. Justice Rehnquist dissented, noting that the statutorily defined right is not a guarantee against removal without cause in the abstract. 6. Paul v. Davis (1976): Reputation is not a constitutionally protected interest, but might be if infringed upon by some other injury (in the context of employment, etc.). 7. Goss v. Lopez (1975): There is both a liberty and property interest in freedom from arbitrary suspension from a public school. 8. Maeachum v. Fano (1976): No constitutionally protected interest in a transfer of prisoners from a medium-security prison to a maximum security prison on the basis of prisoner's alleged responsibility for committing arson. 9. Sandin v. Connor (1995): Even where the state says you cannot be imprisoned or confined for something wrong, there is no liberty interest and no requirement for a hearing. The only time you have a liberty interest is when the prison officials do something that is a dramatic departure from previous treatment. 10. Wilkinson v. Austin (2005): Before you put people into solitary confinement in "Supermax" facilities for years, you must give a hearing.

45 11. Town of Castle Rock, Colorado v. Gonzales (2005): CO law does not make enforcement of restraining orders mandatory: there is a well-established tradition of police discretion. 12. Matthews v. Eldridge (1976): Matthews's disability benefits were revoked after a state agency's determination that he did not need them, despite the fact that he disputed the decision. Due process is flexible and calls for such procedural protections as the particular situation demands. Here, the worker bears the continuing burden of showing that he suffers from a medically determinable physical or mental impairment. There are other private and governmental interests at stake here: governments have an interest in conserving scarce fiscal and administrative resources. Substantial weight must be given to the good-faith judgments of the individuals charged by Congress with the administration of social welfare programs. Justices Brennan and Marshall dissented, noting that the Court has no function to denigrate a right granted by Congress. Justice Powell develops a three part test: (1) Private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value of any additional or substitute procedural safeguards and (3) the government's interest. Check out Hamdi. B. State Action: Raises two sets of inquiries: (1) When does the state act? When is the state doing something that becomes state action? (2) What institutions, entities, agencies, organizations are considered "the state?" 1. CBS v. DNC (1973): No requirement that broadcasters accept such editorial advertisements, decisions which are not attributed to the government. Private discrimination may still be regulated by civil rights statutes. 2. Deshaney v. Winnebago County Department of Social Services (1989): Father granted custody of his son, but beat him. The mother called social services to report it, but the department didn't take any action. The father eventually beat the child so severely that the child was confined to an institution for life. Mother claimed that the state had deprived her son of his liberty in violation of due process. Supremes said that there is no requirement by the state to protect the life liberty and property of its citizens against invasion by private actors. If the state had taken the person into his custody and held him there against his will, that would be different. Court doesn't want to turn all tort law into constitutional law. Justices Brennan, Marshall, and Blackmun dissent, noting the problems of distinction between action and inaction. Raises a broad question of whether emotion/compassion should be incorporated into the law? But, the state did do something: create a social services department, sent social workers out to the home on several occasions. 3. Shelley v. Kraemer (US Supreme, 1948) a. Facts: In 1911, 30/39 owners of property fronting Labadie Avenue in St. Louis signed an agreement that their properties were restricted to occupation (not ownership) by white owners for the next 50 years. In 1945, petitioners Shelley, who were African-American, purchased one of the lots without knowledge of the restrictive agreement. Supremes took two similar cases together. b. Holding: MO Supremes oust the Shelleys and divest them of their title. MI Supremes ousted but did not divest of title. Restrictive agreements standing alone cannot violate 14th Amendment if between private citizens. But, the State, through its judicial officers, has acted to enforce those covenants, which does violate the 14th Amendment. Always possible to find some



state actor implicated. Result of this case is correct, but reasoning seems problematic. What about when police remove a trespasser? c. Rationale: 14th Amendment framers regarded equality in enjoyment of property rights as essential. If the covenant were created by state or local ordinance, it would clearly be unconstitutional. Actions of state courts and judicial officers in their official capacities has long been included within the meaning of "no state" in the 14th Amendment. Property ownership is a basic civil right which had been denied by the state. 4. Rendell-Baker v. Kohn (1982): The mere fact of public funding does not something a state institution. There are entities that look private, but might actually be the state operating as something else. 5. Burton v. Wilmington Parking Authority (1961) a. Facts: Burton was denied service in the Eagle Coffee Shop, which leases a parking space from the city, because of his race. The restaurant had leased the space for 20 years and spent some of its own money making the space suitable to its purposes. b. Holding: Exclusion of appellant under the circumstances shown to be present here was discriminatory state action. When a state leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the 14th Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself. c. Rationale: The state financed the parking garage, maintains it, affording guests of participating businesses a place to park. All state activities can be added together. Parking authority did not require or encourage its participants to discriminate in serving customers. "The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity..." d. Dissent: If the statute is offensive to the 14th Amendment, then it should be struck down without reference to state action/inaction. 6. Norwood v. Harrison (1973): MS program gave textbooks to public and private schools without regard to the discriminatory practices at private schools, which the court struck down. 7. Gilmore v. City of Montgomery (1983): Supremes affirmed the portion of the appeals court decision prohibiting exclusive use of city facilities by segregated private schools, emphasizing the city's affirmative duty to desegregate its public schools. But, provision of generalized government services such as electricity, water, zoos, parks, do not constitute state involvement in invidious discrimination because those services are offered to all. First Amendment A. General Doctrine, Content Neutrality, and the Clear and Present Danger Test 1. First Amendment: Without the right to speak freely, all other rights are meaningless. For most of American history, the first amendment was very important, but not enforced (i.e., Alien and Sedition Acts) or invoked until WWI. 2. Shaffer v. United States (9th Cir. 1919): Congress passed the Espionage Act of 1917, which made it a crime to interfere with the military success of the U.S. or promote the success of its enemies, or encourage insubordination, mutiny, etc. Congress also passed the Sedition Act of 1918, which made it criminal to interfere with the sale of war bonds or print any disloyal language to the U.S. Shaffer was

47 convicted of violating the EA after mailing a book criticizing the war. Court affirmed his conviction: cannot be said that the reasonable and natural effect of the publication (test) was not to obstruct the enlistment of the armed forces. 3. Masses Publishing Co. v. Patten (US DC SD NY 1917): Postmaster of NY, acting on the direction of the Postmaster General, advised the plaintiff that its pamphlet could not be distributed through the mail under the EA. Plaintiff applied for an injunction to stop the postmaster from doing that. Postmaster's position not supported by the language of the statute. Agitation is not the same as direct incitement: key is whether you are counseling or advising someone to act, a more subjective test than clear and present danger. Language in the pamphlet cannot be thought to directly counsel or advise insubordination or mutiny in an ordinary sense. Not clear that those opinions advise others to do the same. Plaintiffs are entitled to the injunction. Focuses on the content of the speech rather than on the intent of the speaker, distinguishes between the speaker who intends to incite but who is clever enough to avoid use of such language. Judge Learned Hand, a famous and prominent district judge and friend to Holmes. 4. Schenck v. United States (1919): Defendants were convicted of violating the EA by circulating to men accepted for military service a draft to obstruct the recruiting efforts and criticizing conscription. In ordinary times, the defendants' conduct would be permissible under the Constitution. Question is "whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Convictions affirmed. 5. Frohewerk v. United States (1919): Defendant was convicted under the EA for conspiring to cause disloyalty, mutiny, and refusal of duty in the military and naval forces and sentenced to a fine and ten years in prison. Court rejected his contention that his conviction violated the first amendment. Founders never intended to give immunity for every possible use of language. 6.Debs v. United States (1919): Eugene V. Debs was also convicted under the EA for attempting to obstruct enlistment of soldiers. Supremes rejected his claim that it violated the first amendment. Debs had specifically praised those who had been convicted of aiding or inciting to avoid conscription. 7.Abrams v. United States (1919): a. Facts: Defendants were a group of Russian immigrants who called for a general strike and distributed pamphlets in response to the U.S. sending marines to Russian ports after the Russian Revolution, convicted under the EA and sentenced to prison terms ranging from 3-20 years. b. Holding: Supremes affirmed convictions on two counts and rejected a first amendment argument. c. Dissent: Justice Holmes: the defendants did not intend to cripple or hinder the U.S. in prosecution of the war because the U.S. was not at war with Russia. "We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Holmes moved from a narrow first amendment construction in Schenck to a more civil libertarian position in Abrams: tremendous pressure from below to change. Proposes adjustment the clear and present danger test to mean an immediate danger, an objective test.

48 Holmes' dissent (along with Justice Brandeis) was the first change in the interpretation of the first amendment and the emersion of modern first amendment law. Similar to his dissent in Lochner: choices of economic policies are for Congress and legislatures. Holmes is skeptical of absolute truths: truth comes from the marketplace of ideas. 8. Brandeis Concurrence and Road to Dennis: Justice Brandeis emphasized that if the danger is not imminent, the remedy to be applied is more speech, not less speech. Whitney was the sixth consecutive decision in which the majority either ignored the clear and present danger test or found it inapplicable. Post-WWII, fears over national security generated federal and state restrictions on radical activity. 9. Dennis v. United States (1951) a. Facts: Petitioners were indicted for violation of the conspiracy provisions of the Smith Act, and convicted by a jury. They had organized a Communist Party in the U.S., which teaches and advocates overthrow of the government, and were conspiring to teach from communist works that advocated overthrowing the government. b. Holding: Convictions affirmed. In time of crisis, the court often accepts what the government is doing. c. Rationale: Preventing the overthrow of the government is a substantial enough interest for the government to limit speech. The requisite danger existed in the existence of the conspiracy. In accordance with Judge Hand, "in each case courts 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. Frankfurter and Jackson often concurred--see Youngstown. i. Justice Frankfurter: Not every type of speech occupies the same position on the scale of values. A balancing between security interest and free speech interest. But in sustaining these convictions, we can hardly escape restriction on the interchange of ideas. Problem with the clear and present danger test is that it requires us to evaluate the immediacy of the speech, which is a decision for Congress. ii. Justice Jackson: Even an individual cannot claim that the Constitution protects him in advocating or teaching overthrow of the government by force or violence. That speech is too inherently harmful and not part of the political process the amendment was designed to protect. d. Dissent: i. Justice Black: Court restricts the protections afforded by the First Amendment, and hopefully a later court will return those liberties to the high preferred place where they belong in a free society ii. Justice Douglas: If the books used are not outlawed, what reasoning allows their use to become a crime? Communists are "miserable merchants of unwanted ideas...the fact that their ideas are abhorrent does not make them powerful." 10. Yates v. United States (1957): 120 individuals prosecuted under the Smith Act following Dennis, but Dennis reasoning restricted in Yates to constitutionality of mere advocacy of overthrow as an abstract principle. Justice Harlan's opinion recognized a distinction between express advocacy of unlawful action and

49 advocacy of abstract doctrine or general discussion of policies and ideas on the other. Adopts Judge Hand's test: believing in overthrowing the government is not enough. 11. Bond v. Floyd (1966): Court held that the GA House could not restrict seating of duly-elected Julian Bond just because he had criticized the Vietnam War. 12. Scales v. United States (1961): Membership in a subversive organization was not a real danger, might restrict right to free association. B. Conduct/Speech and Public Forums 1. Tests a. Brandenburg: (1) Incitement, (2) Context where violence or law violence or law violation likely to occur. Strict scrutiny/compelling government interest. b. Public Forum: The state can impose reasonable restriction on time, place, or manner. 1) Is the place a public forum or part of a public forum? If not, use a rationality/reasonable test. 2) Are the restrictions content neutral? If not, use Brandenburg formulation. 3) If it is content neutral, do the restrictions serve a significant government interest? 4) Are the restrictions narrowly tailored? 5) Do the restrictions leave open ample means of alternative communication? c. Symbolic Speech: 1) Is regulation unrelated to suppression of speech? If not, use Brandenburg. 2) If yes, does it further an important government interest. 3) Is it narrowly tailored? 2. Brandenburg v. Ohio (1969): a. Facts: Appellant was a KKK leader who was convicted under an OH statute for advocating the use of crime, sabotage, violence, or unlawful means of terrorism of accomplishing industrial or political reform. Film footage showed him making derogatory statements against Jews and blacks, and warned of revenge measures to be taken against public officials. b. Holding: Whitney is overruled and the OH statute cannot be sustained. Court adhered to this decision in Hess v. IN and NAACP v. Claiborne Hardware Co. New test is: whether the incitement or urging of producing imminent lawless action and is likely to incite or produce such action. Probably a per curium opinion because it was such a controversial opinion. c. Rationale: Mere abstract teaching of resorting to force and violence is not the same as preparing a group for violent action. Cannot punish mere advocacy and forbid assembly with others. Test is (1) express advocacy of law violations, (2) advocacy must call for immediate law violation, and (3) immediate law violation must be likely to occur. Court learned the difficulties of chilling speech, and crisis effect. i. Justice Black: Clear and present danger doctrine should be discarded. Speech should be virtually, totally protected unless it is part of the crime itself. An absolutist view. ii. Justice Douglas: Clear and present danger test should be discarded: it has been misapplied and misinterpreted. Distinction should be between acts and words. 3.Planned Parenthood v. American Coalition of Life Activists (9th Cir. 2002): Defendant established a website listing "abortionists" and indicating threats of violence toward them. Court held that the operators of the website could be held liable in damages and enjoined because the site constituted an unprotected threat.

50 Posters used on the site are a true threat, and threatening a person with violence is not protected. Dissenters noted that there wasn't any statement by defendants that they intended to inflict bodily harm on plaintiffs. 4.Terminiello v. Chicago (1949): Plaintiff was convicted of disorderly conduct based on a speech delivered before a crowd that became agitated and threw stink bombs, goaded on by the plaintiff. Court held that jury's instruction to convict if the speech incited the public to anger was unconstitutional. Speech may not be restricted because the ideas expressed offend the audience. The fact that it provokes a reaction is not seen as sufficient to prohibit the speech. Basic rule is that you can't be arrested for inciting onlookers--police have to protect the speaker. 5.Cantwell v. Connecticut (1940): Cantwell was a Jehovah's Witness who played a record critical of Catholics to persons on the street. Court reversed his conviction because there was no assault or threatening of bodily harm, no intentional discourtesy, no personal abuse. Listeners listened to the record only after being asked to do so. No clear and present menace to public peace. 6.Feiner v. New York (1951): Petitioner was convicted of disorderly conduct after he delivered a speech criticizing public officials and the American Legion, after which the police arrested him for arousing the crowd. Conviction affirmed because the speaker passes the bounds of argument or persuasion and undertakes incitement to riot. Justice Black dissented, noting that the facts did not show any imminent threat of riot or uncontrollable disorder. Justice Vinson's opinion. 7. Kunz v. New York (1951): Court held that permit scheme for public demonstrations was invalid on its face because it failed to provide clear stands to guide its enforcement. 8.Forsythe County, Georgia v. Nationalist Movement (1992): Court invalidated another permit scheme, which charged fees based upon the potential incitement to the public and the costs of security to accommodate it. 9.Edwards v. South Carolina (1963): Black high school and college students peacefully demonstrated on the grounds of the SC capital, but were convicted of breach of the peace. Court held that convictions violated the First Amendment. 10. Cox v. Louisiana (1965): Cox, a minister led a demonstration of 2,000 black students who picketed stores that maintained segregated lunch counters. Sheriff dispersed the demonstrators, and the Court overturned Cox's conviction. Fear of violence was based upon the group of white citizens across the street. 11. Gregory v. City of Chicago (1969): Protestors of Mayor Daley's house were convicted for disorderly conduct, after which the court overturned their convictions because he was not inciting to riot or violence, but the onlookers were causing the problems. 12. Chaplinsky v. New Hampshire (1942): Appellant was a Jehovah's Witness, who was convicted for violation of addressing offensive word to a policeman on the street, after he denounced all religion and was beaten up by the crowd. Court upheld the conviction was to preserve the public peace, and doesn't infringe on the right to free speech or the 14th Amendment. Court described a two tier analysis of protected and unprotected speech. Fighting words are unprotected because they are intended to inflict harm rather than communicate ideas and thus are not really speech at all. Exception to the basic rule. 13. Gooding v. Wilson (1972): Gooding used obscene language to a police officer and was convicted, which the Supremes overturned because the statute was

51 overbroad and not limited to words that have a direct tendency to cause violence (which are not protected), as the statute in Chaplinsky was. 14. Skokie Controversy: Nazi Leader Collin planned to hold a public assembly with Swastikas and Nazi uniforms, in the overwhelmingly Jewish village, 5,000 of whom were Nazi concentration camp survivors. Village sought an injunction to stop the marchers from wearing uniforms or displaying Swastikas, which the trial court granted, but which the appellate and IL Supreme courts refused to grant. U.S. Supremes reversed the state court's denial of the stay. Cannot ban the Nazis, Klan from assembling peacefully, so long as they're not inciting to riot. Skokie later tried to enact three ordinances ($300,000 liability insurance, prohibiting dissemination of material promoting and inciting hatred, and prohibiting the wearing of any military-style uniform) in an attempt to stop the march, which the Supremes invalidated. Courts have generally acknowledged that free speech trumps the rights of minorities. But, would there be a constitutional claim against police who failed to protect those exercising First Amendment rights? 15. Holder v. Humanitarian Law Project (2010): Plaintiffs wanted to provide political and humanitarian support on using international law to resolve difficulties to designated terrorist organizations, asserting that the statute violates the First Amendment. Government (led by Solicitor General Elena Kagan) argued that it wasn't speech, but material support. Court upheld the material support provision of the statute, because Congress had decided that any support to such organizations is harmful to national security and strains relationships with allies. Roberts notes that the decision should not be construed to suggest that independent speech would pass constitutional muster. Dissenters distinguished the type of actions engaged in by plaintiffs. 16. Beauharnais v. Illinois (1952): a. Facts: Plaintiff was convicted under an IL statute prohibiting the distribution of leaflets which portray other racial or ethnic groups in a negative light. b. Holding: Supremes affirmed the conviction. Has never been reversed, but no longer good law. c. Rationale: IL legislature could have concluded that utterances of this type were typical to the types of public disturbances experienced by that state. Courts cannot deny the legislature the right to make that choice. Notes that such a power may be abused to prohibit libel of a particular political party. No need to consider clear and present danger because libelous utterances are not within the area of constitutionally protected speech. d. Dissent: Justices Black and Douglas: Libel doesn't apply to huge groups. Leaflet was designed to enlist support for legislative efforts to enact such views. 17. Schneider v. State (1939): Appellants distributed leaflets on a public street in violation of an ordinance, which the Supremes struck down. Municipal authorities have a duty to keep their community's streets open and available for movement and expression of people and property, the primary purpose to which the streets are dedicated. There are other ways to prevent littering than this statute. 18. Martin v. City of Struthers (1943): Appellant was a Jehovah's Witness, who violated a municipal ordinance by ringing doorbells to solicit leaflets advertising a religious meeting, which the Supremes struck down. Door to door distributions of literature may be used by members of society interested in

52 disseminating ideas in accordance with free discussion. Discretion of whether to admit such individuals lies with the discretion of the homeowner. 19. Kovacs v. Cooper (1949): Court upheld a city ordinance prohibiting any person to use any sound truck or other instrument that emits loud and raucous notices. A permissible exercise of legislative power. Justices Black, Douglas, and Rutledge dissented, noting that some people may not have enough money to disseminate their ideas through printing, radio, etc. Such ordinances can be drawn in a more narrow fashion. 20. Metromedia v. San Diego (1981): A San Diego ordinance prohibited virtually all billboards, which the Supremes struck down. City has not shown that the billboards impair traffic safety or that an interest in aesthetics is sufficiently substantial in the commercial and industrial areas of San Diego. Justice Stevens dissented, noting that communities should have the right to decide such policies. 21. Commonwealth of MA v. Davis (1897): MA Supremes, under Justice Holmes, affirmed Davis's conviction for preaching on Boston Common. The legislature may and does exercise control over the use which the public may make of such places. The U.S. Supremes, unanimously embraced Justice Holmes' position. 22. Hague v. CIO (1939): A municipal ordinance forbid all public meetings on the streets and other places without a permit, in which Justice Roberts noted that the use of streets and public places has been a part of the privileges, immunities, and liberties of citizens. A "First Amendment" easement. 23. United States v. Grace (1983): Court invalidated a federal statute prohibiting any person to display flags, banners, or devices advertising a party or organization in front of the Supreme Court building. Total ban was not narrowly tailored. 24. Grayned v. Rockford (1972): Court affirmed convictions of high school students for violating an ordinance prohibiting any person from making noise in front of a school. 25. Frisby v. Shultz (1988): Court upheld and ordinance which prohibited residential picketing in front of a specific residence, which was narrowly tailored. Privacy of the home should not be trumped by free speech. 26. Clark v. CCNV (1983): NPS had prohibited protestors from sleeping on the National Mall, and the Supremes upheld the regulation. Camping is action, but it was done to convey a message. 27. Ward v. Rock against Racism (1989): Court upheld an NYC ordinance (narrowly tailored) requiring use of city-provided sounds systems and technicians for concerts in the Bandshell in Central Park, because of a desire to control noise and avoid intrusion into other areas of the park. 28. Madsen v. Women's Health Center (1994): Court upheld a lower court's 36 foot buffer zone as a reasonable way to protect access to the clinic without interference by protestors, but invalidated a ban on images observable to patients within the clinic because the clinic could close its curtains. In Schenck v. ProChoice Network of Western New York (1997), court invalidated floating buffer zones, but again upheld fixed buffer zones. Supremes also upheld a CO statute which made it unlawful to approach a person without that person's consent, to distribute a leaflet, in Hill v. Colorado (2000). 29. Cox v. New Hampshire (1941): Court affirmed convictions under a state statute prohibiting any parade or procession upon a public street without a permit

53 because of the need for safe regulation of the use of streets. Licensing board had not been vested with any arbitrary power. 30. Murdock v. Pennsylvania (1943): Court held that a state may not impose a flat license tax as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. 31. McIntyre v. Ohio Elections Commission (1995): Invalidated a statute prohibiting the distribution of campaign literature that does not contain the name and address of the person issuing the literature. 32. Adderly v. Florida (1966): a. Facts: 200 FL A&M Students protested the arrest of several schoolmates at the county jail, and were arrested after refusing to stop blocking the prison's driveway. b. Holding: Affirmed convictions c. Rationale: Sheriff had power to direct that this large crowd of people get off the grounds. No evidence that similarly large groups of the public had been permitted to gather on the jail grounds for any purpose. Constitution does not forbid states from controlling the use of its own property for its own lawful nondiscriminatory purpose. d. Dissent: Justices Douglas, CJ Warren, Brennan, and Fortas: County jails are obvious centers for protest. This assembly was peaceful. There are certain places that are off limits. 33. Greer v. Spock (1976): Court upheld a Fort Dix regulation prohibiting campaigning, because the business was not to provide a public forum, but to train soldiers. Justice Brenna and Marshall dissented, noting that whether the locale is a public forum has never been an absolute prerequisite for first amendment activity. 34. Heffron v. International Society for Krishna Consciousness (1981): Court upheld a MN state fair regulation limiting distribution of merchandise and printed material to groups who rented a booth. 35. U.S. Postal Service v. Council of Greenburg Civic Association (1981): Court upheld a federal statute prohibiting the deposit of unstamped mailable material in a latter box approved by the USPS, as applied to appellee, which routinely delivered its messages through such a method. 36. City Council of Los Angeles v. Taxpayers for Vincent (1984): Court upheld ordinance prohibiting the posting of signs on public property as applied to individuals who posed political campaign signs to public utility poles. 37. United States v. Kokinda (1990): Courts upheld respondents' conviction for violating a federal regulation prohibiting any person from soliciting contributions on postal premises. 38. International Society for Krishna Consciousness v. Lee (1992): NY/NJ Port Authority prohibited solicitation of money and distribution of flyers and other written material at the three NYC airports. CJ Rehnquish said the ban on solicitation was acceptable because airport terminals are not principally for public forum. Reasonable because sidewalks outside the terminals were permitted. Justice Kennedy dissented, noting that the terminals were indeed public fora. Justice Kennedy, Blackmun, Stevens, and Souter concluded the ban on distribution of literature violated the first amendment in a plurality opinion, unreasonable restriction. Kennedy argued that we have to look at the airport as the modern version of the train station. 39. Police Department of Chicago v. Mosley (1972)

54 a. Facts: Mosley sought declaratory relief stating that his protests in front of a school were permissible, even though a city ordinance prohibiting such protests except for labor purposes b. Holding: Ordinance is unconstitutional. c. Rationale: Using a 14th Amendment analysis, it discriminates between protesting based upon subject matter. Government cannot grant use of a forum to people whose views it agrees with, but not to others. Selective exclusions must be carefully scrutinized. 40. Carey v. Brown (1980): Supremes struck down a similar ordinance that exempted labor related protests from violation of the ordinance. 41. Widmar v. Vincent (1981): Supremes invalidated a University of Missouri Kansas City regulation prohibiting religious groups from using campus facilities for meetings, because doing so does not violate the separation of church and state so long as those groups can use the facilities alongside other groups. 42. Lehman v. City of Shaker Heights (1974) a. Facts: Petitioner wanted to purchase a car card space on the public transit system for his campaign, but was barred from doing so even though other businesses could purchase such space b. Holding: No first or fourteenth amendment violation. Bus is not a public forum. c. Rationale: City is engaged in commerce, and the system has the discretion to develop and make reasonable choices concerning the material displayed in its vehicles. Justice Douglas: A streetcar or bus is not a place for discussion, not a forum. d. Dissent: Justices Brennan, Stewart, Marshall, and Powell: The city voluntarily established a forum when it installed physical facilities for advertising. Certain commercial messages may be just as offensive as political advertising. 43. United States v. O'Brien (1968) a. Facts: O'Brien and three companions publicly burned their draft cards, in violation of a federal statute, hoping to influence others in their anti-war beliefs. b. Procedural History: District Court rejected O'Brien's claim, but the Court of Appeals reversed and found that the 1965 Amendment was unconstitutional. c. Holding: 1965 Amendment is constitutional both as enacted and as applied. The court says this is speech, albeit in a primitive form. Test for symbolic speech is whether government regulation or law is (1) Unrelated to suppression of free expression, (2) Important government interest, (3) Narrowly tailored. Key trigger for stricter scrutiny: is the government regulating based on what you're saying, or what you're doing? d. Rationale: No more infringes upon free speech than a prohibition on destroying driver's licenses. Not all conduct can be labeled speech whenever the person is engaged in conduct to express an idea. Government regulation is sufficiently justified: Congress can raise an army and ensure that young men can easily demonstrate their compliance with the law, simplify the system, and ensure that young men notify their local draft boards of any changes in address. An appropriately narrow means of

55 protecting that interest. Legislative motive or purpose is not enough to invalidate this statute, which passed the House 393 to 1. 44. Stromberg v. California: Court invalidated a statute prohibiting any person from displaying a red flag as a symbol of opposition to organized government. 45. Tinker v. Des Moines School District (1969): Court overturned the suspensions of three students who violated school policy by wearing black armbands 46. Schacht v. United States (1970): Court reversed conviction of a man charged with violating federal statute prohibiting the improper wearing of a military uniform. 47. Wisconsin v. Mitchell: Court upheld a state statute enhancing maximum penalty for defendants who intentionally selected the person against whom their crime was committed. Such crimes are more likely to inflict distinct emotional harms on the victims and community. 48. NAACP v. Alabama: Court invalidated an AL statute requiring disclosure of NAACP membership lists because it exposed such people to discrimination and violence. 49. Smith v. Goguen (1974): Court overturned conviction of a man charged with mistreating a flag he had sewn on the seat of his trousers. 50. Spence v. Washington (1974): Court overturned conviction of a man charged with placing a peace symbol over the American flag, in violation of a state statute, which the court said infringed free expression. 51. Texas v. Johnson (1989): Johnson was arrested for burning a flag in violation of a TX statute, which the court overturned because the conduct was sufficiently imbued with elements of communication as to implicate the first amendment. CJ Rehnquist and Justice O'Connor noted that his act conveyed nothing that he couldn't have conveyed in several other ways. It is only a crime because other people will get offended: clearly related to the suppression of speech-Brandenburg. 52. United States v. Eichman (1990): Court invalidated the Flag Protection Act of 1989, which made it a crime to knowingly mutilate or deface a flag. Government's asserted interest is related to the suppression of free expression. The terms used: "deface, physically defiles" unmistakable connote disrespectful treatment. C. Regulations of Speech Purporting to Promote Democratic Values—Citizens United and Media Access 1.Miami Herald Publishing Co. v. Tornillo (1974): Court struck down a FL statute requiring that a newspaper publish a candidate's response to an attack, if that attack is published in the same newspaper. While freedom of the press is increasingly concentrated in the hands of a few individuals, the FL statute imposes a penalty based on the content of a newspaper. Editors might be inclined to ignore such controversy by not publishing such attacks. 2.Red Lion Broadcasting Co. v. FCC (1969): FCC had a fairness doctrine (abolished in 1987), that required TV and radio broadcasters to provide both sides of an issue fair coverage, and broadcasters were required to give opponents of endorsed candidates time to respond. Although broadcasting is a medium affected by the First Amendment, it is different enough to justify different standards. First Amendment does not prevent the government from requiring a licensee to share his

56 frequency with others and to conduct himself in a way to represent the community. Fairness doctrine has not had the effect of reducing the quality of coverage. 3. FCC v. National Citizens Committee for Broadcasting (1978): Court sustained regulations prohibiting common ownership of radio and television stations. 4. Citizens United v. Federal Election Commission (2010) a. Facts: Federal law prohibits corporations and unions from making independent expenditures for speech as electioneering communications under McCain-Feingold. Citizens United created a film about Hillary Clinton, and the FCC held that it was an electioneering communication which could be prohibited. b. Holding: Violates the first amendment to restrict speech coming from corporations and unions c. Rationale: Political speech must prevail against laws that would suppress it and are subject to strict scrutiny. Cannot distinguish among different speakers. Political speech does not lose First Amendment protection simply because its source is a corporation. Congress can make a policy judgment, but only so long as it is constitutional. Austin is overruled. i. Justice Alito and CJ Roberts: First Amendment rights are not confined to individuals, which would subvert the public discourse. Austin was an aberration from earlier precedent and has been subject of consistent dispute among members of the court. ii. Justice Scalia, Alito, and Thomas: In 1791 and today, corporations could only pursue the objectives set forth in their charters. The corporation was a common entity by the end of the 18th century. First Amendment written in terms of speech, not speakers. iii. Dissent: Justice Stevens, Ginsburg, Breyer, and Sotomayor: Distinction between corporate and human speakers is significant. Court cannot reject Austin and McConnell just because it disagrees with their results. McCain Feingold provided exemptions for PACs. Legislatures have authority to enact viewpoint-neutral regulations based on content and identify. Corporations were assumed to be legally privileged organizations that had to be closely scrutinized. Preventing corruption is a key rational for this statute by Congress. Congress's judgment in that area should receive deference. This statute prevents distortion of political views and the political system (vast amounts of wealth would drown out the first amendment rights of individuals), protects shareholders who would disagree with the corporation's political spending.

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