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I.

II.

Introduction a. Constitution distributes power three ways i. Between the branches of the federal government ii. Between federal and state governments: preference for local control is reflected, but there is also a recognition of the need for a federal government; Supremacy Clause renders federal supreme but only in spheres in which it is empowered to act iii. Between government and the individual Scott v. Sanford (1854) a. Scott sues owner, Sanford, for rights as a free man as a citizen of Missouri; claims he was made free after trips into Illinois (free state) and Louisiana b. Court rules that slaves are property and that it cannot deprive people of property without due process according to the 5th Amendment i. First appearance of substantive due processnot only lack of procedure, but unfair procedure c. Issue 1: Did the court have jurisdiction? i. Complicated: issues of African American citizenship; Constitutionality of Missouri Compromise; Effect of Missouri law on removal (Who decides what the effect of going into a free area is?) ii. Court might have decided issue on only last questionthe rest is in response to a dissent; Court might also have only discussed the first question (i.e. jurisdiction is not an issue because Scott is not a citizen); Cant just resolve second questionstill have question of his entering Illinois iii. Citizenship of African Americans 1. Who were citizens at the time of the Constitution? a. Language and history show no intention of inclusion and white superiority was a fixed position b. British-influenced authors similarly constructed Declaration of Independence c. Consistent with state legislation of the time, except for Maine (exception proves lack of uniformity and if not voting means not being a citizen, then women and children are not citizens) iv. Constitutionality of Missouri Compromise 1. Compromise Law of Congress that provided making the territories of upper-Louisiana free 2. What phrase might be violated by the Compromise?

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III.

a. 5th Amendment: Cant be deprived of life, liberty or propertysubstantive v. procedural due process b. Substantive: No law can appropriate property without notice and review. d. Gives us several sources for interpreting Constitution: i. Language ii. Specific intent of framers iii. Precedent iv. Implications from other clauses of the Constitution v. Structure of the Constitution e. When do you decide something contrary to framers intentions? (Traditional sources dont seem to resolve the issue) i. Some would say never. ii. Conflict in constitutional norms? Go with the stronger one. iii. **Broaden the policy in order to carry out the underlying principleover time you see it needs to be broadened even though framers didnt. iv. If no answer in Constitution or history Traditional Values Judicial Review and its Scope a. The Supreme Court has the final say in interpreting the Constitution. Marbury v. Madison (1803): 1. Marbury has right to commission because signed by President and sealed by Secretary of State; also has a right to a remedy under the law: specifies difference between political acts (not reviewable) and acts specifically required by law (are reviewable), BUT 2. Examines phrase of Judiciary Act 13: Congress adds on to original jurisdiction, which it cannot do (Art. III, 2) a. Court has power to declare statute unconstitutional and refuse to enforce it if it conflicts with the Constitution i. Purpose of a written constitution is to establish fundamental law; follows that anything repugnant to it must be void (Supremacy Clause-- 1, Clause 2) ii. Job of the legislature to determine Constitutionality iii. Oaths: judges swear to support the Constitution 3. Problems with Judicial Review: non-elected group deciding? BUT, protects insular minorities; courts slower, able to decide more carefully

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4. Irreducible Minimum view of Art III, 2, Cl. 2 (other cases belong to appellate division unless Congress decides they should be original), easiest way to read it, but Marshall does not because he fears decision will not be enforced 5. Establishment of judicial review amidst political controversy and strained constructions of statutes and constitution 6. In defense of Marshall, if Congress could expand original jurisdiction, SC loses power in appellate because docket would be clogged and slow ii. At the very least judicial review includes: 1. Acts of Congress (Marbury) 2. Cases from a state court if a federal issue is involved (Martin v. Hunters Lessee) 3. Cases in which a state is a party or if a federal issue is involved (Cohens) b. Ratchet Theory of Constitutional Rights: No one can violate law laid down by SC; When it is clear that this is how we are going to decide this, you cant come back again. Cooper v. Aaron (1958) i. Arkansas school board contended that because it was not itself a party to Brown, it was not bound by the decision ii. State legislators and officers bound to support Constitution which Court enforces according to Marbury iii. Alternative: If reason to think that SC might change its mind (i.e. change in facts or personnel), try again iv. As long as there is not a violation of another provision, State legislature and governor can act on view that Constitution requires MORE than SC says it requires; more complicated when we come to the courts. Elected officials voted in and out. v. If a law is invalidated as unconstitutional, it is not like it never existed: 1. Basis for a good faith defense, among other things. c. Justification of nine justices reviewing constitutionality: Carolene Footnote (1983, Justice Stone) i. Usually the majority has the right, but the problem is that minorities must also have their rights preserved. ii. More searching judicial inquiry required to protect minorities. d. The Supreme Court can review the constitutionality of a decision by a states highest court (Martin v. Hunters Lessee, 1816) i. Virginia statute potentially in conflict with a federal treaty over who owned a plot of land; the descendant of Fairfax 3

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(the initial owner) or the legal claimant under Hunter who got it from the state ii. In 1813, the SC reversed Vas ruling and told the judge to enter judgment for Martin iii. Va refuses to do it: if litigation starts in state court, then up to the state to say whether state action violated federal constitution and SC had no right to review whatever conclusion state court reached iv. Supreme court rejects Virginias argument: 1. Lack of uniformity 2. federl Constitution cuts back on state sovereignty in many ways 3. Doesnt matter what court the case comes from, just the case. Must be a FEDERAL QUESTION (arising from laws, treaties or constitution of U.S.). Cant adjudicate exclusive matters of state. e. SC can review criminal cases, cases where state is a party: In a conflict of state and federal law, the federal law comes out on top (Cohens v. Virginia) i. Court has original jurisdiction in cases where a state is a party ii. Appellants found guilty in Va court of selling lottery tickets in violation of state law although Congress authorized the lottery ticketts iii. Not just Supremacy Clausemust decide jurisdiction, already set up by Martin iv. Federal jurisdiction because claim arises under US Constitutionagain substance over all other concerns!! v. WHAT COUNTS AS A FEDERAL ISSUE? 1. Supremacy Clause issue 2. Law or treaty 3. Substantive unconstitutionality 4. Procedural unconstitutionality f. Limits on Judicial Review i. Justiciability (The Political Question Doctrine) 1. TDCTAB (Textually Demonstrable Commitment to Another Branch) a. Dont decide efficacy of procedural amendments by states b. Training of national guard c. Foreign relation matters 2. Lack of judicially manageable standard a. Luker v. Borden i. Conflict over legitimate government of Rhode Island; claim that charter govt not

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a republican form which is promised by Art. 4 4 ii. No standard to judge by 3. Need for respect to coordinate branch 4. Need for finality/difficulty of fashioning relief 5. Need for policy determination 6. Need to avoid multifarious pronouncements ii. Powell v. McCormack 1. Powell is an elected representative accused of bribery and corruption; when he is reelected the house refuses to seat him. SC must determine whether Houses decision not to seat a member of the House is justiciable. 2. Is it TDCTAB? See Art. 1 5 Cl.1 a. NO: Congress cannot impose additional requirements in addition to separate requirements. Could seat him and then remove him, but must at least seat him. b. No: court can review larger question of constraining voting rights of people who want them as their reperesentative and then the politicking can constrain abuses that are really pretext iii. Nixon v. United StatesLack of Judicially Manageable Standard (try); TDCTAB; also need for finality weighing in although not explicit 1. Does the word try in Art. 1 3 Cl. 6 impose an additional requirement on Senate in proceedings? 2. No: multiple meanings of word, nothing in history so indicates 3. Concurrences worried about senate taking too much encouragement from finding of non-justiciability 4. Any of these stipulations alone seem not to hold up a. If TDCTAB or lack of judicially manageable standards, tacked on as arguments against justiciablity b. Need for finality similarespecially in impeachment of President iv. Vietnam hypothetical? 1. Judicially manageable standard for what is a war? g. Exceptions Clause Limits i. Includes: Hostile Stripping, Essential Stripping 1. Ex Parte McCardle (1869): Congress has power to limit appellate jurisdiction of Supreme Court.

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a. McCardle believed himself wrongly imprisoned and appealed to supreme court under 1867 for petition of habeas corpus b. Congress revokes the Supreme Courts right to review habeas corpus on appeal from Circuit Court- Supreme Court rules this is constitutional, falling under the exceptions clause c. Note limited revocation of rightcan still hear habeas cases d. Includes hostile and essential stripping; only when they take away essential jurisdiction is there a problem? Opinion doesnt read that wayreads as though does not matter that they are hostile and whether or not there was another way to move up to the SC ii. Excludes: Jurisdiction stripping based on facts 1. U.S. v. Klein (1872): Jurisdictional limitation must be neutral: Congress may not decide the merits of a case under the guise of limiting jurisdiction. a. Klein sued for property compensation under federal statute that allowed citizens who gave land up in Civil War to get it if they could satisfy a loyalty requirement, including Presidential pardon. Congress passed legislation removing jurisdiction from cases involving landholders using pardons to prove loyalty b. SC ruled that statute violated separation of powers and invaded judicial functionmerely a means to an end to deny pardons granted by President the effects the Court think they should have. c. Not making an exception as to whether can hear case excepting only certain kinds of proof (no ta lesser power of exceptions) d. Limit: fact that there might be an exceptions clause limit does not exclude it from other constitutional constraints iii. Does not exempt for other constitutional constants 1. fact that there is an authority to act does not immunize action from other constitutional acts h. Case and Controversies i. Cant issue advisory opinions 1. Anti Terrorism and Effective Death Penalty Act (1996) 6

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IV.

a. Provides SC cannot change any ruling of State Court unless ruling was contrary or unreasonable application of federal law as established already by SC b. Unless State Court was clearly wrong and unreasonable, cannot reverse decision i. Questions about hostile jurisdiction strippingan entire class of cases is lost 2. Stream-lined Procedure Act of 2005 a. SC (no fed cts) have jurisdiction over cases where state court found that constitutional error was harmless b. If state court said yes, no jurisdiction Due Process Clause a. General Introduction i. 14th amendment clause applies to the states what the 5th amendment does to the federal government ii. Obvious meaning: a person cannot be deprived of life, liberty, or property without a particular kind of process Procedural meaning iii. Also a substantive meaningcan some kinds of deprivations be permitted at all? Are there rights in the Constitution that have substantive protection? 1. Roots in natural law traditionthe belief that there are pre-existing natural rights, fundamental right that Constitutions affirm but do not create b. Non-Fundamental Rights i. 1873Due Process only Procedural, Slaughterhouse Cases 1. Whether Louisiana could give monopoly on New Orleans slaughterhouses to one company. 2. Court decided that monopoly didnt violate due process because did not take substantive aspect into account: Ignored Privileges and Immunities clause and says that 14th amendment only applies to freed slaves ii. 1905- Court finds arbitrary interference with liberty to contract unconstitutional, Lochner v. New York 1. Found unconstitutional a NY law limiting hours when a bakery employee could work to 10 per day and 60 per week 2. State interests considered impermissible grounds for violating freedom of contract: must infringe upon public interests

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a. Harlan Dissents: not the courts job to find a perfect fit between pubic interest and govt means, the legislatures job b. Holmes Dissents: Court cant impose its own views about correct economic theory on legislaturescant enact Social Darwinism 3. Basically, minimalist view of substantive due process and a narrow definition of public interest 4. Lochner Test: a. Close fit between statute and objectives (bakers could have been protected by less restrictive measures) b. Limited objectives: only certain legislative objectives were acceptable (i.e. health and safety were ok but evening out the bakers bargaining power was not) 5. Other Lochner era cases a. Muller v. Oregon (1908): Court sustained law which set maximum working hours for women in factories or laundries at ten hours per day; saw women as part of a weaker class in need of special protection; Brandeis brief; preserve reproductive ability of women (HEALTH) iii. 1934- Modern approach begins with Nebbia v. New York when the Court determined not to impose its economic views upon the legislature 1. Court sustained New York regulatory legislation for fixing milk prices 2. Majority and dissent reversed from Lochner expanded definition of public welfare 3. Too-intense Lochner scrutiny replaced by almost non-existent scrutiny in Nebbiano more knocking down economic or welfare legislation 4. NON-FUNDAMENTAL RIGHTS RATIONAL MEANS a. State must pursue legitimate governmental objective with a means that is rationally related to that objective 5. Further cases? a. West Coast Hotel Co. v. Parrish (1937): upheld Washington State minimum wage law for women; overruled one of major Lochner-era precedents: Redressing womens inferior bargaining powerviewed it as a legitimate limitation on the freedom of contract

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b. Williamson v. Lee Optical Co. (1955): Oklahoma statute restricted ability of opticians from fitting eyeglasses without a prescription; Court showed willing to conceive of possible reasons for the enactment that would furnish a rational basis for the law; Court will not only presume that a legislature had a reasonable basis for enacting an economic measure, but will also hypothesize reasons for the laws enactment if legislature fails to explicitly state reasons behind judgment c. Carolene Products Footnote i. Presumption of constitutionality of economic legislationupheld if possible rationale behind it ii. Need for more searching judicial inquiry in cases of discrete and insular minorities 6. Basically: assuming objective pursued by legislature falls within states police power (this objective can be broadly defined to include almost any health, safety, or general welfare goal), all that is required is a minimal rational relation between means chosen and end pursued c. Fundamental Rights i. STRICT SCRUTINY = compelling state interest + necessary means ii. Fundamental right embedded in nations history and implicit in ordered liberty 1. Meyer v. Nebraska (1923): Supreme Court struck down a state law forbidding the teaching of foreign languages to students finding that the term liberty in the 14th Amendment included many non-economic but important rights; right to acquire knowledge among; used mere rationality test 2. Pierce v. Society of Sisters (1925): Court struck down statute requiring children to attend public schools and preventing them from attending private and parochial; liberty of parents to direct the upbringing of their children iii. The Right to Bear or Beget a Child 1. Griswold v. Connecticut (1965): fundamental right of procreation; right of privacy enables married couples to use birth control a. Connecitcut law forbid use and counseling of contraceptives for married people 9

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b. Penumbra of 1st, 3rd, 4th, 5th amendments create zone of privacy: personal right to choose how many kids you want to have c. 3 Concurrences i. Goldberg: 9th Amendment supports protection of all fundamental rights not listed in the Constitution; 14th amendment should extend this protection to the states; marital privacy is one of these rights ii. Harlan: No need for penumbra; Due Process Clause protects values implicit in ordered libertylook to tradition to determine what is there and not there iii. White: means-end relationship; must be reasonably necessary for effectuation of legitimate state interest 2. Eisenstadt v. Baird (1972): Invalidated statute permitting contraceptives distributed to only married people discriminatory against the unmarried a. Right must be the same for the married or the unmarried; if right to privacy means anything it is the right of the individual to be free from unwarranted government intrustion into the right to bear or beget a child 3. Roe v. Wade (1973): a womans right to privacy is a fundamental right so legislature has only a limited right to regulate abortions. a. Privacy is a fundamental right that encompasses at least contraception and abortion b. Fetus is not a 14th Amendment person c. 2 Compelling State Interests: Protecting the health of the mother and the fetus after the point of viability. i. Viability = the fetuss ability to survive outside of the womans body ii. Dispute over this point; Douglas says quickening, others say conception, etc. d. Trimester Rule Systemregulation must be necessary to further compelling interest of the State i. First Trimester: State cannot ban or closely regulate abortionsdecision to have an abortion should be left to 10

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physician; state has no compelling interest in protecting mothers health by banning or regulating abortions in this period; ii. Second Trimester: State may protect interest in mothers health by regulating abortion in ways reasonably related to her health (i.e. procedure must be done in hospital instead of clinic) iii. Third Trimester: After fetus becomes viable, state has a compelling interest to protect the fetus; may therefore regulate or proscribe abortion although abortion must be permitted when it is necessary to preserve the life or health of the mother e. Dissents i. White: objects to courts imposition of its own value scheme; relative weights of fetus life and mother life should be left to people and the political process. ii. Rehnquist: only a mere rationality test not a strict scrutiny one should be applied; some abortion provisions could meet that standard; criticized three part rule as judicial legislation f. Problems with decision i. Roe does not explain why these rights are the ones protected or how the court decided when the State interest was compelling g. Alternative Rationales i. Bad Samaritan: Denying the right to abortion is forcing woman to render assistance to another being ii. Sex Discrimination: no law forces men to sacrifice bodies and restructure lives in even tragic situations to ensure the survival of their children 4. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992): Abortion no longer a fundamental right and overturns trimester framework. a. At issue a Pennsylvania statute putting a number of restrictions on abortion, including 24

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hour waiting period, spousal notification, parental consent, record keeping i. 24 hr. period not undue burdennot a substantial obstacle ii. Spousal notification undue burden potential sexual abuse and old-fashioned view of women iii. Parental consent not an undue burden allows for judicial bypass; not mature; other decisions b. Reaffirmed central three part holding of Roe i. Recognition of womans right to choose abortion before viability without undue state interference ii. Confirmation of States power to restrict abortions after fetal viability iii. Recognition of states legitimate interests from beginning of pregnancy in protecting health of woman and life of fetus c. Rationale behind upholding of Roe/ i. Reliancewomen have come to rely on this in family planning; unusual ii. Stare decisiswell leave it unless there is a good reason not tomajor controversial issue iii. Shouldnt overrule under fire d. Abortion no longer a fundamental right because unlike contraception there is something else big weighing on the other side (i.e. the life of the fetus) e. Undue burden test replaces trimester scheme liberty interest with tightened protection i. state regulation has purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus 5. Stenberg v. Carhart (2000): if a particular abortion method may be safer for the mother, state cannot flatly ban the method and must allow a maternalhealth exception to the ban a. Nebraska legislature made it a felony to perform partial birth abortion unless necessary to save life of mother

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i. Principle procedure against which designed was D&X = vacuum skull partially out of uterus ii. D&E = fetus dismembered outside of uterus and drawn out b. Two faults with statute i. Lack of health exception- some cases where this method is safer ii. Might also cover D&E method: creates undue burden because some practitioners may not perform this procedure although it is constitutional iv. Gay Rights 1. Bowers v. Hardwick (1986): No type of due process protection for homosexual sodomynot deeply rooted in history or implicit in concept of ordered liberty 2. Lawrence v. Texas (2003): overrules Bowers a. Finds Texas statute forbidding sexual intercourse with another individual of the same sex in violation of substantive due process rights b. Entitled to respect for private lives private sexual conduct cannot be considered a crime. No legitimate state interest through intrusion into personal and private life of individual. c. Seems to treat it more like a fundamental right but is not explicitly; somewhere between fundamental and rational relationship test v. Marriage 1. Zablock v. Redhail (1978); right to marry is fundamentalmore than rational a. Court struck statute that said parent who was under court order to support a minor child not in his custody must meet two requirements before being allowed to remarry: pay all support and show not likely to become public charge b. Unnecessary interference with fundamental right to marriageless restrictive collection devices c. Big buden: strict scrutiny; if notrational relationship 2. Michael H. v. Gerald D.: Right for adulterous partner to have relationship with child

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a. Although unwed fathers biological link to his child does not, in and of itself guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. vi. Appearance 1. Kelley v. JohnsonRegulation of personal appearance of policeman can be justified as long as rational connection between regulation and promotion of safety a. Is this a fundamental right? Language in Casey sounds closer to fundamental rights than this. We dont know what the test is here. Murky areaneither fundamental nor not fundamental vii. Committed Mentally Retarded 1. Youngberg v. Romero: mentally retarded who have been involuntarily committed have substantive right to be kept in safe environment and not be subjected to undue bodily restraint a. Because State runs situation, greater duty; Safety is a negative right when person in question is in confinements viii. Right to Die 1. To determine fundamental rights we look to the nations traditions, but some rights framers cannot have imagined protectingtechnology, etc. 2. Cruzan v. Director, Missouri Department of Health (1990)right to refuse life-saving medical treatment a. Crurzan suffered severe brain damage and was in vegetative state with almost no chance of recovering; family wanted to end artificial nutrition b. Liberty interest in refusing unwanted medical treatment when clear and convincing evidence that that is what the person would have wanted (this standard was not met in Cruzan) c. Establishes that can refuse unwanted medical procedures and where incompetent near clear and convincing evidence 3. Washington v. Glucksberg (1997)no right to commit suicide or enlist others to assist in committing suicide

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a. Rehnquist rejects fundamental right to commit suicide and upholds Washington statute prohibiting suicide i. No historical righttraditionally and contemporarily a crime ii. Cruzan distinguishedright to refuse medicine not the same iii. Ban was rationally related to legitimate state interest: preserving life, protecting medical integrity, protecting vulnerable, preventing slippery slope to voluntary and involuntary euthanasia b. Several Concurrencs: i. OConnor: no general right, but no reason to address the right of whether suffering patients have to suffer because they can apply for palliative care which can hasten death ii. Stevens: situations where hastening death is legitimate and entitled to constitutional protection; person has the right to choose manner of death; must be on the threshold of death iii. Souter: advocates sliding scale; wants to stall decision because the facts here are not clear enough iv. Ginsbergis with OConnor v. Breyer: agrees with OConnor; asserts right to die with dignity so maybe a right to physician assisted suicide if cannot achieve such a goal; right exists either in extreme pain or when personal autonomy significantly infringed c. Everyone aggress that there is not an overall right to physician assisted suicide but maybe a very specific rule that there is a right to; Mystery man is Souter d. Not binding precedent but must consider everyones views V. EQUAL PROTECTION - No longer the last resort of constitutional arguments a. Introduction: The 14th Amendment EPC basically guarantees that people who are situated similarly will be treated in a similar manner. The EPC has to do with classification. The difference in the method of analysis between the Due Process clause and the 15

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b.

c.

d.

e.

EPC relates only to whether or not the government act classifies persons. Rational Relationship test: when the government act relates only to matters of economics or general social welfare. i. The act/ classification is rationally related to a permissible governmental objective. Strict Scrutiny: Compelling state interest that is narrowly tailored. i. When the government act classifies people in terms of their ability to exercise a fundamental right ii. When the government classification distinguishes between persons, in terms of any right upon some suspect class. (see Carolene Products Footnote: discrete and insular minorities) 1. Race 2. National Origin Intermediate test: Will not uphold a classification unless the classification has a substantial relationship to an important governmental interest. i. Gender ii. Illegitimacy iii. some alienage cases: i.e illegal alien children being barred from school in Texas Over-inclusive v. Under-inclusive: 5 Scenarios: i. Scenario 1: Everyone who has the trait and causes the problem is prosecuted (and everyone who commits the problem has the trait) this is basically ideal and impossible ii. Scenario 2: We could imagine a law in that no one who was causing the trouble was being regulated iii. Scenario 3: We have a lot of mischief is being caused and we regulate some of the people who cause this trouble: under inclusive (i.e Railway Agency v. NY) If we only regulate some of the people who put up signs that distract people, isnt that under inclusive? 1. This assumes the legislature has one motive and one motive alone and maybe it wants to balance small businesses while tackling the traffic problem. The Court just says: it might be any number things, they can start where they want. iv. Scenario 4: We have some mischief and we regulate everyone because it is too hard to be precise: over inclusive: Mandatory retirement age v. Scenario 5: Some people who are causing the mischief is causing the trouble and as well as people who are not

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causing the trouble, and then are some people who are causing the trouble and are not regulated. f. Race is the prototype for suspect class because the founders were thinking about the rights of former slaved when drafting the fourteenth amendment: i. Characteristics to consider when looking as classes different than race: 1. immutable or not 2. stereotyping 3. history of discrimination 4. Carolene products ft note: discrete and insular minority 5. lack of economic power 6. real differences? g. Rational Relationship: The Traditional Approach i. Economic Classifications ii. The State can regulate some categories and not others: it is no requirement of equal protection that all evils of the same genus be eradicated or none at all. 1. Railway Express Agency v. New York (1949) p. 1139 a. Court upheld a NY statute that banned advertising on vehicles unless the vehicles were used mainly for advertising iii. Unless a classification affects a fundamental right or is drawn upon an inherently suspect distinction such as race, religion or national origin: then the only requirement of the statute is that it be rationally related to a legitimate state interest. 1. New Orleans v. Dukes (1976) p. 1140 a. Court upheld a New Orleans ordinance that banned pushcart vendors in the French quarter unless they had been operating there for at least 8 years iv. States rationale must be something more than the exercise of a strained imagination; the connection between the ends and the means must have an objective basis. 1. Logan v. Zimmerman Brush Co. (1982) a. Court struck down a statute that barred claimants from getting a hearing through no fault of their own v. State can impose differing tax burdens of classifications of property do long as the divisions and burdens ate reasonable. 17

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1. Alleghany Pittburgh Coal Co. v County Commission (1989) a. Court struck down a county tax scheme that valued the petitioners land on the basis of its recent purchase price but did not assess property that had not been recently sold so that the petitioners property was assessed at roughly 8 to 35 times everyone else. h. RACE CLASSIFICATION i. The Race Stories: 1. Swedish Singer: has to do with nature: government should not go about remedying the issue 2. Footrace story: People have started out in different places in the race: privilege is passed on through generations by wealth 3. Bull Connor/ Ricky Drayton Story: racism is motivated by hostility and hatred 4. IAT: somewhere between the footrace and Bull Connor: there are issus but not that much hostility 5. Smokescreen: the backlash story ii. Korematsu v. United States (1944) p. 1162 1. Court upheld an Executive Order that gave military officials the legal authority to exclude any or all persons from designated areas on the west coast in order to insure against sabotage or espionage. Under this order, the War Relocation Authority subjected all persons of Japanese ancestry on the west coast to curfews, detained them from their homes and placed them in relocation centers. 2. Justice Black: Majority a. All legal restrictions that curtail the civil rights of a single racial group are immediately suspect. The Court must apply strict scrutiny. b. Pressing Public Necessity can sometimes justify such restrictions. c. Congress does have a compelling state interest in times of war and pressing public necessity and the order to exclude those people of Japanese ancestry has a definite and close relationship to the prevention of espionage and sabotage (narrowly tailored) i. Passes strict scrutiny

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ii. This is not about racial antagonism, this is about national security. 3. Frankfurter concurring: a. Military matters should be left to the other branches 4. Murphy dissenting a. The exclusion of all people of Japanese ancestry is based on the premise that all people of Japanese ancestry may have a dangerous tendency to commit espionage and it is difficult to believe that reason or logic could support that assumption. i. Not a single person of Japanese ancestry was accused or convicted of espionage 5. Jackson Dissenting a. Korematsu is an American citizen: this is terrible precedent to set for later Courts. b. I understand that it is hard for the judiciary to rule on a military order and understandably military necessity may be important but the Court should not sustain the constitutionality of the order after the fact: that is a serious blow to liberty c. It is like a loaded weapon then who can point to this case as authority to do what they want iii. Plessy v. Ferguson (1896) p. 1158 1. Justice Brown: Majority: a. Court upholds a Louisiana law that required that passenger cars have separate but equal accommodations for white and colored races. b. Separate but equal is fine: one of the side of the street is as good as another, if the colored race think that the enforced separation of the two races stamps them with a badge of inferiority then it does so because the colored race chooses to put that construction upon the act. 2. Justice Harlan dissenting: a. Constitution is color blind. The purpose of the statute is to exclude colored people from the white railway cars: it interferes with the personal freedom of citizens. iv. Brown v. Board of Education (1954) p. 1167 1. Separate but equal doctrine has no place in Education.

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2. Does the segregation of children in public schools solely on the basis of race even though tangible factors may be equal: deprive children of educational opportunities. a. Court stated yes it did: based on social science data (doll studies) 3. Brown set the stage for the EPC: no governmental entity may segregate or burden people because of their race or national origin 4. Note: Classification based on race is suspect if the classified group is treated differently. v. Brown v. Board of Ed 2(1955) p. 1175 1. Start to de-segregate now. The burden rests upon the defendants to establish that extra time is necessary to carry out the ruling in an effective manner. 2. federal district courts will supervise 3. directs the district courts to use general equitable principles 4. to use all deliberate speed i. Remedying Segregation: i. Minority to Majority transfers are invalid because they inevitably lead toward segregation of the students by race. 1. Goss v. Board of Education (1963) a. Court invalidate attempts to allow students who were a minority in their schools to transfer to schools where they would be in the majority after schools had been desegregated ii. A County can under some circumstances close its schools but cannot do so to avoid desegregation. 1. Griffin v. County School Board (1964) a. A county tried to close its public schools to avoid desegregating and was going to use state taxes to fund white only private schools iii. Desegregation efforts must have an effect; good intentions are not enough to be sufficient to remedying segregation. 1. Green v. County School Board (1968) a. The School Board had implemented a freedom of choice plan to remedy segregation court ruled that there were more effective ways to remedy segregation such as rezoning iv. Swann v. Charlotte Mecklenburg (1971) p. 1198 1. Case concerns the desegregation of Charlotte, NC 20

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2. Every school in the district does not have to reflect the white:black ratio of students but it is a good starting point in remedying 3. Single race schools does not mean that desegregation has not been accomplished: school board must show that the racial concentration in these schools is not due to official segregation but to other causes (residential patterns) 4. Rezoning and Busing may be used 5. Later unintentional balances are allowed: a. That once the effects of official segregation has been temporarily remedied, later imbalances caused by changing residential patterns or other non-official conduct may not be cured by federal order (the school board at its discretion may do so but is not required by federal order) v. The affirmative duty to desegregate has no application to school clubs (like 4-H) Bazemore v. Friday (1986) vi. The State must dismantle a once de jure racially segregated dual university system as it would primary and secondary schools. 1. United States v. Fordice (1992) p. 1201 vii. Keyes v. School District # 1 (1973) p. 1202 1. De Jure segregation is still required 2. Intentional segregation in a substantial part of the district is presumptive of segregation in the rest of the district 3. we can put Hispanics and Blacks together in measuring the disproportionality b/c of historical discrimination viii. Affirmative duty is not limited to a set number of years; it has to continue until schools are desegregated. 1. Columbus Board of Ed. v. Penick (1979) p. 1204 ix. The scope of the remedy is determined by the nature and extent of the constitutional violation. Thus, there could be a cross-district remedy only I f there had been a cross-district wrong (i.e. segregation) that caused an effect in the suburbs, or vice versa. 1. Milliken v. Bradley: a. Detroit school district predominantly African American. Detroit suburbs, consisting of

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numerous towns each having its own school district, are predominantly white. b. Constitutional right of black students in Detroit was only to attend a unitary school system in that district. States role in segregation irrelevant. j. Racial Classification continued i. A state law that bans non-whites from marrying whites violates the EPC because they fail the strict scrutiny test and it also violates the due process clause because the right to marry is a fundamental right. 1. it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. J. Stewart 2. Loving v. Virginia (1967) p. 1176 a. Court struck down an anti-miscegenation statute that banned inter-racial marriages between whites and non-whites: b. Rejected the state interest of having pure races: court notes that different minorities could marry one another c. Court also rejected the equal application defense that both whites and non-whites who broke the statute were punished: the Fourteenth Amendment has a proscription of all invidious racial discrimination by the State ii. A Florida law that denied custody to a white mother because her new husband was black violated EPC 1. Palmore v. Sidoti (1984) p. 1179 a. Note: How about an adoption Agency sends a black child to a black family over a white family or interracial family?. Is this racial discrimination? iii. The state cannot put a candidates race on the ballot. 1. Anderson v. Martin (1964) p. 1179 iv. State cannot use race (in this case Mexican) as the single factor in border patrol stops but may base stops on characteristic appearance of people who live in Mexico. 1. United States v. Brignoni- Ponce (1975) p. 1179 k. DE JURE v. DE FACTO DISCRIMINATION Race/ National Origin 22

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i. If a law on its face does not classify but is applied unequally so as to practically make unjust and illegal discriminations between persons in similar circumstances, then the law violates the EPC. 1. Yick Wo v. Hopkins (1886) p. 1180 a. San Francisco Ordinance concerning the proper use of Laundromats was only applied to Laundromats operated by Chinese Aliens ( De Facto discrimination) ii. While a law that has a racially disproportionate impact should be examined closely, if must also have a purpose or intent to discriminate in order for it to violate the EPC. 1. Washington v. Davis (1976) p. 1180 a. Washington DCs police entrance exam tested verbal ability and reading comprehension: disproportionately more blacks than whites failed the exam b. Court rejected the EPC argument: it is designed to differentiate between qualified and unqualified persons (for example: there are whites who fail and blacks who pass) There is no intent to discriminate even if there is de facto discrimination. So no EPC violation. c. Needs to pass the RR Test and it does d. Note: Title VII of the Civil Rights Act of 1964 that says if there is disproportionate disqualification of blacks in hiring practices, discriminatory purpose need not be shown: that is fine because there the criteria is subjective. iii. Closing down a highway in a white neighborhood used by mostly black motorists is not unconstitutional b/c the intent is in protecting the safety and tranquility of the neighborhood and not to racially discriminate. 1. Memphis v. Greeene (1981) p. 1187 a. Just because the closing of the highway inconveniences disproportionately more black motorists that white motorists does not mean it is unconstitutional iv. Although Washington v. Davis rejected the disparate impact theory and held that facially neutral statute violates the EPC only if motivated by discriminatory purpose, the court did not discuss what counts as discriminatory purpose: 23

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1. The leading case addressing this is about gender but seems to apply to race as well: 2. Personnel Administrator v. Feeney (1979) p. 1187 a. Court upheld absolute lifetime preference to veterans for state civil service positions even though it overwhelmingly preferred males b. On face, the statute is neutral: so we ask whether the adverse effect reflects invidious discrimination c. The Majority argues: i. No, b/c significant number of men are non-veterans ii. This is not done to disadvantage women but to advantage veterans d. Marshall Dissents: i. Since less than 2 percent of Veterans are women, this preference formula practically only helps men ii. This veteran preference until 1971 exempted from operation of the preference any job especially calling for women v. Davis does not require a P to prove that the challenged action rested solely on racially discriminatory purposes: it just has to be one of the motivating factors. 1. Arlington Heights v. Metropolitan Housing Dev. Corp (1977) p. 1190 a. Held that petitioner Villages refusal to rezone land from single family to multi-family so as to permit respondents construction of racially integrated housing did not violate equal protection b. Court found that the rezoning denial was not racially motivated 2. Note: if the State had found that race discrimination was one of the motivating factors: should they have, would they remand the case and see if the legislature would have passed the statute w/o the race factor? l. Differences Real and Imagined i. Pregnancy is not a classification based on gender even though only women can become pregnant unless it is a pretext for discrimination against women. 1. Geduldig v. Aiello (1974) p. 1275 24

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a. Court upheld a statute that allowed pregnancy and childbirth to be excluded from Californias disability insurance system because while pregnant persons could only be women, non pregnant persons could be men or women. ii. It was justifiable for the state to ban women from serving as prison guards in all male prisons. 1. Dothard v. Rawlinson (1977) p. 1276 a. There was a reasonable basis that male prisoners would possibly assault women prison guards. m. Death Penalty: Racial Discrimination i. The constitution does not require a state eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system. ii. McClesky v. Kemp (1987) p. 529 1. A black man convicted of armed robbery and the murder of a white police officer in Georgia was sentenced to death. He sought federal habeus corpus relief contending that the GA capital sentencing process was administered racially discriminatory and therefore violated the 8th and 14th Amendments.. He offered a study as evidence 2. There are two requirements of the Death penalty: a. Threshold b. Cannot limit considerations that would cause the state to decline the Penalty 3. He cannot show that other people who were in similar circumstances did not receive the death penalty a. Statistics at most show only a likelihood that a particular factor entered into some decisions b. The study indicates a discrepancy that correlates with race 4. Because of the safeguards used to minimize racial bias, the study does not demonstrate constitutionally significant risk of a racial bias. n. Remedying Discrimination Benign discrimination i. Even if there has been discrimination in the past, preferential layoffs attempting to remedy past discrimination impose the burden of achieving racial equality on particular individuals, which is not permissible. 1. Note: Benign Discrimination must pass Strict Scrutiny 25

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2. Wygant v. Jackson Board of Ed. (1986) p. 1239 a. During a budget crisis, a school board decided to cut more senior white teachers in order to retain less senior white teachers b. OConnor: i. A government agencys interest in remedying societal discrimination cannot be considered a compelling state interest. There must be an identified discrimination and the law must be narrowly tailored to serve the purpose of remedying it c. Stevens Dissent: i. EPC permits inclusionary discrimination not exclusionary ii. When there is identified past discrimination, then the government has a compelling interest in using racial preferences as long as the act in question is narrowly tailored to serve that interest. (strict scrutiny) 1. Richmond v. J.A Croson Co. (1989) p. a. Richmond City Council adopted the Minority Business Utilization Plan that set aside at least 30 percent of city awarded construction contracts to MBEs. Plan said it was remedial and was there to promote a wider participation of minorities in the construction of projects b. Majority: i. Congress has a constitutional power to enact remedial legislation concerning the equal protection of its citizens 5 of the 14th Amendment while the State and local governments do not ii. None of the evidence points to identified past discrimination in the Richmond area, therefore there is no compelling state interest to have racial preferences. It is impossible to see if the Richmond plan is narrowly tailored since there is no identified discrimination c. Stevens concurs i. We should look at its impact on the future ii. The legislation casts too wide a net in burdening a disparate class d. Scalia concurrs 26

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i. Only one instance where state may act by race: where that is necessary to eliminate their own maintenance of a system of unlawful racial classification ii. Or Richmond can afford contracts to those who have been hurt by discrimination (race-neutral) e. Dissent: Marshall, Brennan, Blackmun i. Race conscious classification for remedial goals must serve important governmental objectives and must be substantially related to achievement of those objectives 1. City has interest in eradicating the effects of past discrimination 2. The government has an interest in not reinforcing private discrimination iii. Affirmative Action in higher education 1. Background: Powells opinion in University of California v. Bakke (1978) a. UC-Davis Med school reserved 16 seats out of a 100 to disadvantaged minority groups b. A Public university is allowed to take into account an applicants membership in a racial minority in the admissions process as long as it is only one factor in many and is done to further the interest of having a diverse student body. c. Powell: You must apply strict scrutiny b;/c race is a suspect class d. Compelling State Interest? i. Attaining a minimum number of minority students: No ii. Eliminating past discrimination: No, it must be identifiable discrimination (see Croson) iii. Improving health care in minority communities: No, there is not proof that minority doctors necessarily go and work in minority communities iv. Diversity of student body; Yes 1. this relates to academic freedom, which in turn relates to the first amendment: diversity does lead to different ideas and interests and 27

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has value in a educational setting: Compelling State Interest v. Rejection of quotas or goals vi. look to Harvard: 1. no quotas or mechanical application, but does take into account race as a factor in admissions 2. Grutter v. Bollinger (2003) p. 195 (S) a. OConnor for the Majority: i. Diverse Student Body is a CSI: 1. Law School pushed to enroll a critical mass of minority students 2. Societal benefits: exposure to widely diverse people, culture, ideas ii. Narrowly tailored 1. Not a quota system 2. They had minimum goals but no set number 3. The process was holistic 4. Narrow tailoring does not require the exhaustion of every raceneutral alternative only those who serve the government interests about as well 5. But these policies should end in about 25 years b. Ginsburg, Breyer concur: i. Racism is institutional, no need for a 25 year sunset c. Rehnquist Dissent: i. The pursuit of critical mass is a veil and is in actuality an effort to achieve racial balancing: which is impermissible ii. Because the law school was extending offers of admission tied closely to their statistical representation in the applicant pool, it was racially balancing d. Kennedy Dissent: i. The Law Schools plan of daily reports at the end of its admission cycle sounds like they are discrimination based on race in order to achieve critical mass to the detriment of individual consideration e. Scalia Dissent: 28

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i. There is no compelling state interest for a Law School to have a diverse student body ii. We should just hold that racial preferences in state education are impermissible f. Thomas Dissent: i. Aff Action policies place a stigma on black students at universities iv. A Public University may not use racial classifications as determinative of an applicants admission solely on the basis of their race w/o examining the individual applicant 1. Gratz v. Bollinger (2003) p. 205 (s) a. Rehnquist, Majority: i. The University has a point system of 150 points. 100 points gains one admission, by being a member of an underrepresented minority, you are automatically given 20 points ii. This system discounts Powells race as one of many elements in classifying applicants in order to get a diverse student body b. Souter and Ginsburg Dissent: c. We know have two lines in this whole Affirmative Action game: i. Grutter reaffirms the permissibility of individualized consideration of race to achieve a diversity of students, or at least where race is not assigned a preordained value ii. Powell rejects the use of quota in Bakke iii. I think its closer to Grutter here than Bakke 1. Its not a quota system and a nonminority applicant has plenty of outlets to score points and gain admission other than the one for race d. There is still racism in this country and we cannot ignore that reality when we decide how to view race classifications e. Anyway, if we dont allow this method, the University will just use another way of getting to race and in this case isnt better to have a 29

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system that is fully disclosed then one that is cloaked in winks and nods o. GENDER DISCRIMINATION i. Theoretical Approach: 1. Race is the prototype for the EPC b/c the framers were thinking about former slaves when it adopted the fourteenth amendment. So one way to examine what level scrutiny gender classification should get is to apply it to race: a. It is like race in that it is immutable, stereotyping, history of discrimination but it is different than race in that: majority of the population, there are real differences, more paternalism than hostility, not an insular minority (Carolene products) ii. Introduction: before 1971, the Court used the deferential traditional approach to gender classification: in Muller v. Oregon (1908), they upheld a work restriction of 10 hours a day for women and in Hoyt v. Florida (1961), they upheld a state statute denying bartender licenses to women. iii. The first few cases: In Reed v. Reed (1971) p. 1261 1. Court applied the RR test to a law preferring males to females in the administration of estates. The Court struck down the reason: which was to make it less of an administrative burden by taking out one class of persons a. Note: this seems like higher scrutiny than usual RR 2. Reed was followed by Frontiero v. Richardson (1973) p. 1262 a. Court struck down a statute that only gave male armed service members a dependency allowance for their spouses: the Court held that classification based on gender is inherently suspect and therefore be subjected to close judicial scrutiny. iv. Classification by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. 1. Craig v. Boren (1976) p. 1265 a. Statute allows women to buy a certain alcohol at 18 but men cannot purchase it till 21. i. State objective: reduce drunk driving, and men drive drunk more than women.

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b. Court says that since only 2 percent of men drive while intoxicated: not enough of a factor to have such a classification i. Also, the women can just buy the alcohol for the men ii. Therefore, no substantial relation to the objective c. Rehnquist Dissent: i. Where is this new standard coming from? ii. I would apply the RR test and under the RR test, there are clear differences between the drinking and driving habits of men and women. v. Michael M. v. Superior Court (1981) p. 1276 1. Court upheld a statutory rape law that punished the male but not the female when the female was under 18 a. Court usually upholds statutes where the gender classification is not invidious but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. b. Important governmental objective: prevention of illegitimate teenage pregnancy c. Since pregnancy affects women, it is a deterrent from engaging in sexual conduct: the law is then a deterrent for men. 2. Dissent: a. A gender neutral statute would be more effective and have a greater deterrent on sexual activity 3. Note: Is there a substantial relationship between the important objective and this statute. What about the idea that men are aggressors and that is why we have this instead of giving a fake substantial relationship. We are anxious about the fact that this is close to actual differences: they really dont apply intermediate scrutiny vi. Rostker v. Goldberg (1981) p. 1281 1. Has to do with the Military Selective Service Act authorizing the registration of males and not females 2. Rehnquist: a. Women are statutorily barred from combat, so draft not needed for them, so registration not needed in consequence. b. The idea of drafting for non-combat positions was struck down b/c Congress did not consider 31

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that to be important enough and so worth the burden of including women in draft and registration laws 3. Congress can exclude on the basis of gender where it has an important governmental objective which is the raising and supporting of armies and where the exclusion is substantially related, that is women are not involved in combat positions and so a draft for them is unnecessary. 4. Dissent Marshall: a. This is about registration: in no way does excluding women in preparing for the draft help the unobstruction of a governmental interest 5. Note: Again, is this closer to Michael M. (real differences) or Craig: a. No one on the Court disputes that we should exclude women from combat vii. United States v. Virginia (1996) p. 1269 1. Does Virginias exclusion of women from the co-ed opportunities provided by Virginia Military Institute deny to women capable of all the individual activities required of VMI cadets the EPC of the 14th. 2. If it does violate the EPC, what is the remedial requirement? 3. Court holds that it does violate the EPC and the separate womens VWIL dos not sufficiently address the problem. 4. While single sex education does afford pedagogical benefits to some students, VA has failed to show that VMI was established and/or maintained with a view to diversifying by its categorical exclusion of women educational opportunities within the state . 5. As for the remedial plan that was adopted: VWIL a. Not a parallel program b. Does not stress rigorous military training c. Instead has cooperative method of education which reinforces self-esteem 6. Court (Ginsburg quoting OConnor) says we need a exceedingly persuasive justification (does this replace substantially related to an important governmental objective- no, it just makes it stronger ) 7. Rehnquist concurring: a. Even if diversity was the states objective: it only benefits one sex: men 32

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b. There is evidence that the adversative method is pedagogically beneficial c. It is not the exclusion of women that violates the EPC but the maintenance of an all-men school w/o providing a comparable school for women 8. Scalia dissents: a. Let the democratic process in VA resolve this situation b. VWIL is comparable c. Va has an important state objective in having an effective college education and single sex ed is substantially related to that objective so the Craig test is satisfied. viii. Gender based classifications require an exceedingly persuasive justification in order to survive constitutional scrutiny 1. J.E.B. V. Alabama Ex Rel T.B. (1994) a. In a child support suit, Petitioner objected to the States peremptory challenges by gender on the ground that they were exercised in violation of the Equal Protection clause gender discrimination b. Court held that State peremptory challenged by gender do violate the EPC i. This does not mean you may not PC a group or class of individuals subject to rational basis review just not races or gender ( nurses or veterans are ok) c. Scalia Dissents: i. The Court is so concerned with paying its respect to equality, it undermines Peremptory Challenges a big part of the common law ix. Remedial Measures concerning Gender Discrimination: 1. Schlesinger (1975) a. Ok to give women a longer period for the up and out promotional requirement in the military 2. Califano v. Webster (1977) p.1286 a. Court upheld a Social Security provision that benefited a female worker slightly more than a male worker when calculating average monthly wage benefits i. This is redressing past discrimination: passes the intermediate scrutiny test 33

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b. So the reduction of economic disparity because of past discrimination is an important governmental objective: i. Note: this seems like more like the societal discrimination that was not allowed when race was a suspect class in Croson ii. We have to have identified past discrimination by the State for remedial race based measures but just past/ societal discrimination for gender? iii. In other words the CSI/ SS test cuts both ways. This case would not have passed SS but does pass intermediate scrutiny. c. Scalia v. OConnor i. But b/c in gender there are real differences, so we can treat differently where different treatment is important/ appropriate 3. Mississippi University for Women v. Hogan (1982) p. 1288 a. Court struck down the women only policy of the nursing school b. The remedy in this case was in an area where women had not been disadvantaged in the past. c. Powell and Rehnquist Dissent: i. Discrimination against men should only have to pass RR test and not the intermediate test 4. Broader Picture: comparing Race with Gender a. Liberals on the Court are saying that there should be 2 standards for race (Strict scrutiny for non-remedial and lower scrutiny for remedial) and one standard for gender (Intermediate) b. Conservatives want 1 standard for race (SS) and 2 standards for women (Intermediate when it discriminates against women and RR test when it discriminates against men) p. ALIENAGE i. Early Cases: In Takahashi, the Court invalidated a California law that denied fishing licenses to aliens lawfully residing in the state. In Graham v. Richardson, the Court held that aliens were a discrete and insular minority and that classifications based on alienage were inherently 34

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ii.

iii.

iv.

v.

vi.

suspect and state laws denying welfare to legal aliens violated the EPC. The Court then concluded that the state could require citizenship for activities where there is direct participation in the formulation, execution, or review of broad public policy functions. (governmental function exception) 1. Sugarman v. Dougal (1973) a. A Statute that bars aliens from working in positions of public employment subject to competitive exam has a valid state interest: limiting participation in government to those who are members of the political community but is overbroad because it bars aliens from public work such as typists and sanitation workers. In Re Griffiths, the Court invalidated a law barring aliens from practicing law. 1. The Court held that practicing law does make one a formulator of government policy. There is a governmental functions exception to the Alienage classification, so in cases where the governmental function exception holds, we apply the rational relationship test. 1. Ambach v. Norwick (1979) p. 1294 a. Court upheld a statute barring aliens who are eligible for citizenship but refuse to naturalize, from working as teachers because teachers perform government functions that are crucial to democracy. b. Dissent: i. Lawyers are not tied to government functions but teachers are? Political government function exception must be narrowly construed. 1. Bernal v. Fainter (1984) p. 1297 a. Court invalidated a Texas law that banned aliens from being notary publics. Illegal Aliens 1. The discrimination can hardly be considered rational unless it further a substantial goal of the state (the Real Rational Relationship test) a. Plyler v. Doe (1982) p. 1298 i. Court holds that a Texas statute denying free public education to illegal alien children is unconstitutional 35

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ii. Illegal aliens are not a suspect class and pubic education is not a fundamental right iii. Education is a quasi-important right so we apply a test higher than mere rational relationship 1. we should not punish the children for the mistake of their parents b. Federal legislation over aliens is not so plenary that they may arbitrarily subject all resident aliens to different substantive rules than those applied to citizens: they must have a legitimate basis. i. Hampton v. Mow Sun Wong (1976) p. 1300 q. Illegitimacy i. Mathews v. Lucas (1976) p. 1301 1. Social Security Act provides survivor benefits to children who are dependent upon the deceased at time of death. Legitimate children and some illegitimate children are statutorily presumed to be dependent a. Some illegitimate children have to prove i. That the deceased was the claimants parent ii. Living with the child or supporting the child b. Illegitimacy is not as suspect class because there is no history of discrimination, as well as not obvious badge like gender or race. ii. Illegitimacy generally gets intermediate scrutiny 1. Clark v. Jeter (1988) p. 1304 Court invalidated a statute that applying for child support for out of wedlock children must be done before the child turns six. iii. State cannot deny welfare benefits to illegitimate children when benefits are given to legitimate children. New Jersey v. Cahill 1. See Califano v. Bowles and Miller v. Albright for when the Court upheld distinctions between legitimacy and illegitimacy p. 1305 r. Sexual Orientation i. Romer v. Evans (1996) p. 1312 1. Court invalidated an amendment to the Colorado Constitution that banned any State agency, council or legislature from adopting any statute where gay 36

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sexual orientation, conduct, or practice would be the basis of a claim of minority status, discrimination etc. 2. Does not maintain the status quo: effectively overturn any legislation that prohibits discrimination based on sexual orientation. 3. Court: we cannot accept that the amendment does no more than deprive homosexuals of special rights, it actually imposes a special disability. 4. This is not a suspect class so we apply the RR test: a. Must have a rational relationship to a legitimate state objective: i. This is born out of animosity and a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. ii. It is also not rationally related to any freedom of association interest the state may have. b. Note: This sounds like Rational Relationship plus. 5. Scalia Dissent: a. If we can make homosexual conduct criminal, why cant we disfavor homosexual conduct? (see Bowers) b. Court is taking sides in the culture wars c. There is a legitimate interest: prevent the deterioration of sexual morality. s. Mental Retardation i. Cleburne v. Cleburne Living Center Inc. 1. Court struck down Texas denial of a permit for the operation of a mentally challenged group home. a. Court said that the mentally retarded were not a quasi-suspect class but applied a stronger version of RR than usual. b. Rejected the one step at a time approach: The home was going to have too many people in it (well: a nursing home would too but nursing homes did not require a special permit) t. Fundamental Rights i. Background: Tension between the FR and the classification ii. Examples: 1. In criminal prosecutions, the defendant had counsel at trial but no guaranteed appeal so that no right to assistance in the appellate proceeding. 2. The only way to get divorced is through the Court and so if you cannot filing fees, you can get divorced 37

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so that you can get divorced if you cannot afford them iii. General Rule: If the classification involves a fundamental right, then the classification must be raised to strict scrutiny review. iv. The Right to Vote: Voting is a FR and so any classification invokes Strict Scrutiny. 1. Bush v. Gore (2000) a. After a machine count and recount of ballots in 200 Florida election, Gore trailed Bush by less than 1000 votes. Florida would determine next President. Florida Supreme Ct. Ordered manual recount of undervotes where earlier machines failed to record any choice. Election officials and lower court judges should follow standard of discerning the will of the voter b. Court holds that the Recount mechanism implemented in response to decisions does not satisfy minimum requirement for non-arbitrary treatment of voters necessary to secure fundamental right i. Non-uniform ii. Disparate treatment of overvotes more than one candidate 1. Someone whose mark not read gets counted, but too many doesnt iii. Did not specify who will recount ballots; judges with no previous training in handling and interpreting ballots c. Stevens Dissents: i. Other vague standards used every day never before called into question substantive standard by which a State determines that a vote has been legally cast d. Souter Dissents: i. Remand case to Florida with instructions to establish uniform standards e. GInsbug Dissents: i. Cannot agree that Florida recount would yield less fair result than certification preceding f. Breyer Dissent: i. Ensuring that uncounted votes will not be counted, Court crafts a remedy out of proportion to asserted harm 38

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v. The Right to Travel 1. Shapiro v. Thompson (1969) p. 1374 a. Court held that States could not deny welfare benefits residents who have not resided within their jurisdictions for at least one year because it would create two classes of people: b. The right to travel from state to state is a fundamental right c. Appellants argue that permissible state attempt to discourage indigents who enter solely to obtain benefits i. Court argues that this is indiscriminate (overbroad) d. Appellants: classifications may be sustained as attempt to distinguish new and old residents on basis of contribution through taxes i. The problem is that this would permit the State to bar new residents from all benefits and public services e. Warren Dissent: i. Here travel itself is not even prohibited just loss of welfare benefit for limited period of time f. Harlan Dissent; i. We should just use Due Process 2. Saenz v. Roe (199) p. 1382 a. Court invalidated a statute that limits amount payable to a family that has resided in State for less than 12 months to amount payable by State of familys prior residence. b. Congress cannot ask the States to violate the 14th Amendment. c. Constitutional right to travel has three components: i. protects right of citizen of one State to enter and leave another ii. right to be treated as welcome visitor iii. right to be treated as other citizens if become a permanent resident ( this is the one at issue here and is protected by the privileges and immunities clause of the 14th Amendment) d. Statute advances entirely fiscal justification for schemesaves $10.9 million/year i. Evenhanded reduction would produce same result 39

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ii. Negative answer rests on fact that Citizenship Clause expressly equates citizenship with residence iii. Reject any contributory rationale for denial of benefits to new residents e. Rehnquist Dissent: i. Privileges and Immunities Clause? (see Slaughterhouse cases) ii. How is this affecting the right to travel, this only affects people once they have stopped traveling. f. Thomas Dissent: i. Privileges and Immunities Clause: historically meant the fundamental rights and liberties specifically enjoyed by English citizens vi. The Right to Education and Wealth as a class. 1. San Antonio Ind. School Dist. V. Rodriguez (1973) (p.1395-1404) a. Suit initiated by Mexican-American parents as a class action on behalf of school children throughout the State who are members of minority groups or who are poor and reside in school districts with low property tax base. b. Wealth is not an issue here: Poor and rich people live in districts, this is classifying by district not wealth. Wealth is not a suspect class. c. Education is not a fundamental right. d. Thrust of Texas system is affirmative and reformatory and has a rational relationship sensitive to States efforts and rights i. Not necessary to use least restrictive means b/c no FR or suspect class e. Brennan Dissents: i. Fundamentality is in large measure a function of rights importance in terms of effectuation of those rights which are constitutionally guaranteed f. Marshall Dissents: i. Actually a spectrum of standardsnot only rational relationship v. strict scrutiny ii. Discrimination on basis of group wealth in this case calls for careful judicial scrutiny 40

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1. Bears no relationship to interest of Texas School children in educational opportunity 2. Discrimination does not reflect individual characteristics or abilities

VI.

FREEDOM OF EXPRESSION a. Introduction: The First Amendment does not protect all speech: the following categories are not protected and need only pass the rational relationship test i. Obscenity ii. Fighting Words iii. Child Pornography iv. Defamation; libel 1. Note: Under RAV, restrictions within unprotected categories may not be content based b. However, state statutes that are overbroad and vague may be struck down if they encompass protected speech chilling effect c. Speech that may otherwise be protected but may incite imminent lawless action or pose a clear and present danger may also be restricted if the government can show a significant (Brandenburg) or substantial (Dennis) governmental interest d. If the speech does not fall within those categories and will not incite or present danger, then the State can channel it using time, place and manner restrictions as long as those restrictions are content-neutral, further an important governmental interest and leave other opportunities for the speech to be expressed e. Speech can also be restricted under the Secondary Effects doctrine: i. If the State can show that the speech has secondary effects that are not based on the reaction of people to the speech (if it is unpopular) then the government can channel such speech (see Renton) f. The State may also regulate conduct part of speech plus as long as it is content neutral (unrelated to the expression), narrowly tailored and furthers an important governmental interest: you cant burn flags in public because it is a fire hazard as opposed to you cant burn American flags (see Johnson, OBrien) g. If all else fails, there is always Strict Scrutiny h. Overbreadth and Vagueness: i. The Overbreadth Doctrine 41

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i. An overbroad statute is a statute that is written too broadly or more broadly than necessary one that is designed to burden activities not protected by the first amendment but its flaw is that it also includes activities protected by the first amendment. ii. A court will strike down an overbroad statute because it might apply to others not before the court that may engage in protected speech. iii. An overbroad statute has a chilling effect on speech. iv. As a general rule: those who would otherwise not be protected if the statute was not overbroad can raise the overbroad issue, but those who are protected under the statute cannot raise the issue. (Brockett) 1. An example of overbreadth: a. A statute that prohibits the use of the word kill and president in the same sentence is overbroad even though some sentences would not be protected. 2. Usually the issues of vagueness and overbreadth are closely related: a. An airport resolution banning all first amendment activities was declared overbroad b/c literally read it would have prevented anyone in the airport from reading a book see Board of Airport Commissioner v. Jews for Jesus (1987) p. 667 b. However an attack based on vagueness or overbreadth will be unsuccessful in federal court if the statute in question is readily subject to narrowing construction by the state courts i. For the purposes of interpreting the statute: it should be interpreted as the highest state court has: see Wainwright v. Stone (1973) p. 668 j. Vagueness Doctrine i. Procedural Due Process: There is the idea that a law should place persons on notice as to precisely what activity is prohibited when the activity relates to speech 1. it might have the negative consequence of deterring people from engaging in protected speech ii. Another reason: there be clear guidelines to govern law enforcement iii. Paris Adult theater: Brennan dissents on the ground that the obscenity statute is unconstitutionally vague

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1. It would be less vague if the statute was tailored to combat distribution to un consenting adults iv. Why discuss this under 1st Amendment law? 1. It has bite in this area 2. And it is connected to overbreadth a. The Ct. has struck down many vague statutes b. Sometimes the language of the statute is clear but the reason is that it is vague b/c we know that it cant be taken literally i. Usually the terms are not precise such as near contemptuously k. Unprotected Speech: l. Advocacy of Violence or other Illegal conduct i. Revision of the Clear and Present Danger test ii. In the early 1950s amidst the paranoia of the red scare and the communist witch hunt the Supreme Court reexamined the validity of Holmes clear and present danger test iii. Dennis v. United States (1951) The federal government convicted the defendants of violating the Smith act by conspiring to organize the Communist party of the United States. The partys goal was allegedly to overthrow the government. 1. This has to do with advocacy not discussion 2. Issue: Whether the means Congress employed in suppressing free expression conflicted with First Amendment guarantees. 3. Vinson applied the clear and present danger test a. His reformulation contained two steps: i. Government had to show an interest in limiting the speech 1. Congress, the Court held did have a substantial interest in preventing overthrow of the government. ii. Second, the words or actions restricted in the legislation must be shown to constitute a clear and present danger 1. the Court stated that this did not mean that the Government had to wait till a putsch was about to executed: if the government is aware of that a group is aiming to overthrow, then the government can act 2. That the overthrow is doomed b/c of insufficient numbers is irrelevant 43

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b. So basically: Speech that advocates a higher evil can be prohibited even if the danger is more remote: in some way you can think of a diagonal line that runs along: where as the evil gets higher, the remoteness of the danger gets lower c. Probability of success should not be the basis of whether or not there is clear and present danger 4. The Court quotes Hand: a. 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 danger 5. Frankfurter concurs but thinks the clear and present danger is too inflexible: a. He believed that free speech and national security is better served by balancing the interests 6. Black Dissents a. First Amendment restrictions cannot be placed on speech on the basis of what the Court thinks is reasonable b. People are hysterical about Communism right now: in calmer times, people will realize that we need to restore liberties 7. Douglas Dissenting a. These guys are a bunch of losers, dorks i. If they were teaching armed tactics or plotting the assassination of the president, that would be different ii. But they are not charged with conspiracy to overthrow the government: they are changed with conspiracy to form groups who teach and advocate the overthrow of government b. Question of clear and present danger should be a jury question. m. Brandenburg Test i. Brandenburg v. Ohio reversed the conviction of a KKK leader for violating Ohios criminal syndicalism statute. The appellant had been charged with advocating political reform through violence and for assembling with a group formed to teach criminal syndicalism.

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ii. Advocacy of violence is protected by the First Amendment as long as the speech did not incite people to imminent action. iii. The state has a significant interest in and no other means of preventing the resulting lawless conduct iv. Brandenburg test 1. the speaker subjectively intended incitement 2. words are likely to produce imminent, lawless action v. The state may not forbid or proscribe advocacy or the use of force except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Mere teaching of abstract doctrine is not the same as leading a group in a violent action. vi. The Ohio criminal syndicalism statute could not pass the Brandenburg test: the statute forbade teaching of violent political revolution with the intent of spreading such doctrine. Any law punishing mere advocacy of KKK doctrine and assembly of Klan members to advocate their beliefs was unconstitutional. vii. Justice Douglas concurred: 1. no place for clear and present danger test in any cases involving First Amendment rights. He believed that this test could be easily manipulated, as it was in Dennis and other cases to deny constitutional protection to any speech critical of existing government. viii. Brandenburg affords more protection for advocacy ix. The Brandenburg test was used to reverse a conviction in Hess v. Indiana (1973) antiwar demonstrators had blocked the street and the police moved them: the appellant said well take the fucking street later 1. Court held that he was advocating but there was no evidence that his words were or likely to produce imminent disorder n. Fighting Words and hostile audiences, and the problems of vagueness and overbreadth i. Chaplinsky v. New Hampshire (1942) Chaplinksy called a city marshall a god damned fascist as a policeman was leading him away because of the fear that his religious pamphleteering was causing a public disturbance. He was convicted under a NH statute that prohibited face to face words plainly likely to cause a breach of the peace by the addressee. ii. Court argued that the speech had little communicative value and that they were deemed fighting words those 45

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by which their very utterance inflict injury or tend to incite an immediate breach of the peace are not constitutionally protected because of little social value as a step to truth and are outweighed in the interest for social order iii. Chaplinskys test; 1. whether or not men of common intelligence would understand the words as likely to cause the average addressee to fight, words and expressions that by general consent were fighting words when said without a disarming smile iv. Chaplinsy Redux: Subsequent modifications: Hostile Audiences 1. Terminiello v. Chicago (1949) - overturned a municipal ordinance prohibiting breaches of the peace a. Terminiellos address was a denunciation of jews and blacks i. Outside their was a hostile audience gathered to protest and he denounced them as well b. Douglas: i. Free speech invites dispute and is often provocative and challenging ii. the statute is vague and broad b/c the language that it invites dispute is too broad 2. Feiner v. New York Issue of hostile audiences is first brought up: Feiners address included calling the President a bum and the mayor of Syracuse a champagne sipping bum and these statements stirred up a little excitement. Police asked Feiner to stop but he refused to. They then arrested Feiner. a. When speech moves from expressing unpopular views to incitement to riot, police can step in. i. not fighting words 1. speech may incite a riot 2. When clear and present danger of riot, and disorder exist: then the speech can be punished ii. Immediate threat to public safety peace or order b. Feiner did not argue that the statute was vague or overbroad as Terminiello did.

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3. It is important to note that in both Terminiello and in Feiner: the confrontations are not face to face but where insults delivered that were likely to provoke violence by the listeners: not fighting words 4. The Court gets away from Feiner in Edward v. South Carolina where they hold that it is a far cry from Feiner: v. Cohen v. California (1971) Cohen was convicted for a breach of the peace based on his presence outside of LA courthouse wearing a jacket that sad Fuck the Draft. 1. Justice Harlan: a. Court recognizes that people in public places must be subject to some objectionable speech, but they could simply avert their eyes and ears i. The speech is not obscene: not erotic ii. It is offensive but is protected speech iii. There is no captive audience iv. Speech has an emotive function v. Speech is important to the marketplace of ideas 2. The California statute is too vague to give notice: a. offensive conduct : what does that mean b. the statute does not limit the use of this language only in the Courthouse: it regulates it everywhere c. One mans vulgarity is another mans lyric 3. Speech is not fighting words: a. Is it because it is not directed at someone and is not a face to face confrontation: this is in line with the Chaplinsky reasoning nor was the state enforcing its police power to stop a riot as in Feiner vi. Content based Fighting Words: the problem of Hate Speech: RAV v. St. Paul (1992) the State cannot make content- based distinctions within categories of unprotected speech. vii. Facts: St. Paul had an ordinance that punished those who placed on public or private property a symbol, objectthat one knows or would know would arouse angeron the basis of race, color, creed, religion or gender 1. Ds burned a cross on a black familys lawn and were punished under the statute 2. Scalia:

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a. State Supreme court held that the expression banned in the ordinance were limited to fighting words b. Scalia accepted the State courts interpretation (remember Wainwright) of the statute but ruled that the statute was unconstitutional on its face c. Content based restrictions are unconstitutional even if they are within an unprotected category: for example the government may proscribe libel but it may not proscribe libel critical of the government 3. What are Scalias exceptions to the rule? a. The worst of the category b. Secondary effects of the speech i. Directed at conduct c. No chance of suppression (of ideas) 4. Note: After RAV o I think nobody knows this is going anywhere or not o Nothing before it or after it so it stands by itself o. Obscenity I know it when I see it i. In the dicta in Chaplinsky (1942), Justice Murphy listed lewd and obscene as one of the categories of speech that would bring up a constitutional problem, the dicta in Beharnais (1952) grouped obscenity with group libel. The Supreme Court finally came down with a test for obscenity in Roth v. United States (1957) ii. Roth 1) Obscene material is not protected speech, which begs the question: what is obscene? The Roth test: that is appeals to the prurient interest in sex and has no redeeming literary, artistic political and scientific merit and is offensive to the average person under contemporary community standards was revised in Miller v. California (1973) iii. Miller: D was convicted under Californias obscenity law for mailing unsolicited pictorial advertising depicting men and women in group sexual activities. iv. Miller set out a new test: 1. Whether the average person applying contemporary community standards would find the work, taken as a whole appeals to the prurient interest 2. whether the work depicts in a patently offensive way sexual conduct as defined by applicable state law 3. whether the work taken as while lacks serious literary artistic political or scientific value (SLAPS) 48

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v. The most controversial aspect of Miller is its rejection of national standards vi. Brennans Dissent: 1. The state can regulate material so that children and un-consenting adults dont have to deal with it but otherwise the state should not be prohibiting obscene materials p. Child pornography i. New York v. Ferber (1982) Court upheld a conviction a seller of films depicting young boys masturbating ii. The Court held that sexually explicit speech that is not obscene but involves children can be restricted including those who sell, advertise and promote it iii. Why? 1. The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance 2. The distribution of child pornography is intrinsically related to the sexual abuse of children in at least two ways: a. The materials are a permanent record of their abuse and furthers the childs harm b. The most practical way for the state to regulate the material is to impose penalties on its distribution 3. the distribution of child pornography provides an economic motive to those selling it 4. it has no value: you can always use younger looking adults instead of children 5. recognizing it as unprotected category is not inconsistent with our earlier decisions iv. Pornography: 1. American Booksellers - cannot ban speech because you thinks its patently offensive a. The Constitution does not makes the dominance of truth a necessary condition of the freedom of speech b. You cannot prosecute ideas c. Statute is overbroad q. Electronic Media and Content Regulation i. FCC v. Pacifica George Carlins seven dirty words monologue is considered to be patently offensive but does not fall into any of the unprotected categories ii. Different from a man on the street making a speech because it is being broadcast over the radio

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iii. The law generally speaks to channeling behavior more than actually prohibiting it (Time, place and manner?) iv. So whats the big deal? 1. The monologue was broadcast in the afternoon at a time when children were undoubtedly in the audience 2. And it brings this speech into the privacy of ones home without consent v. Pacificas arguments shot down: 1. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is to be applied only as a last resort so we wont consider whether or not the statue is overbroad 2. The words are speech within the first amendment a. Not obscene just offensive 3. The medium does add to the expression: privacy issues; children 4. The speech had little or no value: no essential part of the exposition of ideas a. Not an Elizabethan comedy vi. Powells concurrence 1. It is offensive to most people so I am ok with channeling it so that unsupervised children cannot hear it 2. Also the broadcast invades the privacy of the home 3. We should not decide whether or not the speech has value 4. Society has a right to protect children and unwilling adults in the privacy of their homes vii. Brennans Dissent 1. the radio can be turned off 2. We should let parents decide what they want their kids to hear or not hear r. Symbolic Speech i. First question: since this is speech plus: are we regulating the speech or the conduct? If it is speech: Strict Scrutiny, if conduct: then we balance interests ii. U.S v. OBrien (1968) OBrien burned draft cards on the steps of a Boston courthouse to protest the Vietnam War in violation of a statute making it a crime to knowingly destroy or mutilate a draft card iii. OBrien contends the burning was symbolic speech: The Court rejects this all encompassing argument stating that we cannot accept the view that a limitless variety of conduct can be labeled speech whenever the coducct expresses an idea 50

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1. when you combine speech and non-speech elements: you can apply the following test: a. furthers an important or substantial governmental interest b. if the governmental interest is unrelated to the suppression of free expression c. no greater than is essential (narrowly tailored) 2. Note: SC threw out OBriens congressional purpose argument saying that an illegitimate purpose does not change the fact that the statue has a legitimate state interest 3. Sounds very similar to Time, Place and Manner regulations iv. OBrien fails the test so we uphold the conviction v. When the governments regulation is targeted at the expressions content then that is not cool: 1. Tinker v. Des Moines School District (1969) several high school students were suspended for wearing black armbands as a symbol of protest to the war 2. What was being regulated was not potentially disruptive conduct but pure speech 3. The Court treats it as speech because he does not do anything more than communicate an idea a. This was not content neutral b/c other political and controversial symbols were allowed i. If the School had said- we ban all political speech, what would the Court have done? 4. What about the States interest: a. Usually free speech is more curtailed in schools because the State has a greater interest in the school i. Court even says we are not talking about hair or skirt length b. The Court states that there was no showing and no finding that this would lead to materially and substantially interfere with the requirements of appropriate discipline in the operation of the school vi. Texas v. Johnson (1989) - D burned an American flag outside the Republican National Convention and was convicted for flag desecration 1. Is this speech? Yes. Is it unprotected speech? (perhaps fighting words hostile audiences): No. Is this speech plus conduct: Yes 51

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2. Are the restrictions on this speech plus unrelated to expression: No (so we do not apply OBrien) 3. Note: The Court dismisses fighting words because there was no direct insult or invitation to fight and since there was no hostile audience about to breach the peace no hostile audience argument 4. Fails the Brandenburg Test: imminent lawless action 5. This is a content based restriction and as we know from Boos v. Barry: its time to apply Strict Scrutiny vii. Strict Scrutiny: Justice Brennan 1. it is the means not the ends we object to a. Government has a legitimate interest in making efforts to preserve the flag as symbol of our country b. but the way to preserve the flag is not to punish those who feel differently about the matters; it is to persuade them that they are wrong. 2. Rehnquist Dissents: a. The flag is simply not just another idea b. so inherently inflammatory: akin to fighting words 3. Note: could the Court have carved out an exception here? s. Racist Speech i. Beuharnais v. Illinois (1952) upheld a state law making it a crime to libel of a class of citizens. D had distributed a racist leaflet calling for white unity against further encroachment by the Negro ii. Justice Frankfurter: 1. statutes that curtail group libel do not bring up a constitutional issue unless they are willful and puNazrposeful restrictions unrelated to the peace and well being of the state. 2. Given the states history of tension among the races: there is legitimate government interest in proscribing group libel 3. Libel is not protected speech so we do not have to apply the clear and present danger test/ Brandenburg test. iii. Collin v. Smith (1978) Nazis want to march in front of the city hall in the predominantly Jewish neighborhood of Skokie 1. The Court holds that:

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a. The Village does not suggest that there will be physical violence (ala hostile audiences (Feiner) or Brandenburg) i. It takes out any mention of fighting words b/c the remarks would not be individualized b. Psychic trauma is not enough of a reason: we cannot prohibit expression just b/c it is offensive c. Also the Court rejects that the march is not speech: and there is no captive audience here (just like in Cohen) i. So no substantial privacy interest (FCC) 2. so the Nazis may march unless the Village passes strict scrutiny. 3. Should a new category have been created here: genocide t. Public Forum/ Time, Place, and Manner restrictions u. Schneider (1939) i. invalidated several ordinances prohibiting leafleting on public streets or other public places ii. Rule 1. As long as legislation does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. a. Keeping the streets clean of littering is insufficient to justify burdening free speech. 2. There are other ways to prevent littering (lack of a necessary relationship) a. One is not to have their freedom abridged in appropriate places on the plea that it may be expressed elsewhere v. Cox v. NH(1941) i. upheld the convictions of 68 Jehovahs Witnesses for parading without a permit ii. Rule 1. A municipality has undoubtedly the authority to control the use of its public streets for parades or processions. 2. Time, place and manner restrictions as to conserve the public convenience were seen as permitted w. Heffron (1981) 53

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i. upheld a state fair rule prohibiting the distribution of printed material except from a licensed booth ii. Time. Place and Manner restriction test: 1. Whether the restrictions are justified without reference to the content of the regulated speech a. That they are content neutral b. serve a significant governmental interest c. narrowly tailored (added by Ward) d. they leave open ample alternative channels for communication of the information x. Mosley (1972) invalidated an ordinance banning all picketing within 150 feet of the school except picketing that had to do with a labor dispute involving the school i. The Court wrote that there was an impermissible distinction between labor picketing and other peaceful picketing. ii. This restriction on time, place and manner is content based and therefore cannot be allowed y. Renton v. Playtime Theatres An ordinance that treats some theaters different than other theaters based on their content is constitutional as long as the citys pursuit of its zoning interests was unrelated to the suppression of speech: or in the case if there are secondary effects that the ordinance seeks to regulate i. The Court upheld a zoning ordinance that prohibited adult motion picture theatres from operating within 1000 feet of an residential zone, church, park or school which left only 6 percent of the city available ii. Brennan Dissents: 1. Why is an adult movie theater different than other adult entertainment: why is it singled out 2. That some people find it offensive is not a good reason 3. This selective treatment proves that the statute is not concerned about the secondary effects but does not like the content in these films z. Boos v. Barry a statute banning the displaying of embarrassing signs near embassies does not discuss secondary effects but regulates based on content so its different than Renton. i. if they had pointed to congestion in the streets, interference and so forth- different story ii. this is about image and its impact on listeners

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VII.

FEDERALISM a. Generally: Limits on the power on the Federal government in its relationship to the states, and to the people. i. Necessary and Proper Clause ii. Commerce clause iii. Section 5 of the 14th Amendment b. Necessary and Proper Clause i. Congress should be allowed discretion in the means they choose to carry out the power that have been conferred on them by the Constitution. 1. McCulloch v. Maryland (1819) p. 58 a. Maryland imposes a tax on the Second Bank of the US. The main question is: is the United State allowed to create banks. b. Court says that since the levying of taxes, borrowing of money and regulating commerce is part of the enumerated powers: the necessary and proper clause allows Congress to pass laws for the accomplishment of these objects. i. Court also notes that is such a reason was pre-text and if laws were passed to execute powers not given to the government: the SC would knock them down. 2. States cannot add to the qualifications for Congress and thus cannot bar the name of an otherwise eligible candidate from appearing on the ballot. a. US Term Limits v. Thornton (1995) p. 62 3. The necessary and proper clause is not the delegation of a new and independent power but simply a provision for making effective the powers theretofore mentioned. a. Kansas v. Colorado (1907) p. 64 c. Commerce Clause i. Commerce is more than traffic, buying and selling, it is commercial intercourse and it includes navigation. 1. Gibbons v. Ogden (1824) p. 65 a. Ogden has exclusive right to commercially navigate the waters between New York and NJ. Gibbons has a license from Congress to navigate the same waters. Ogden seeks injunctive relief against Gibbons

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b. We dont have a satisfactory definition of commerce: commercial intercourse i. Among the states: 1. Affects more states than one ii. How much power does the Congress have over this it? 1. Plenary so however it wants to ii. Subsequent History (make weird sound as we time travel) 1. There is not much regulation 2. Then monopolies spring up and the government starts regulating monopolies a. Fight between indirect and direct regulation of monopolies 3. Then stop sending poisonous goods between the states 4. Government says we will regulate child labor: Court says no b/c these goods are not intrinsically harmful a. Hour and wage regulations are struck down 5. Then the Court packing plan happens: a. Then the court changes its mind and upholds labor practices in the Steel industry: substantial effect b. Then upholds hour and wage regulations 6. What happens when Congress tries to use the ICC to pursue non- economic goals? iii. As long there is a substantial affect upon interstate commerce, then Congress can regulate the activity regardless of motive, including local activities within a state. 1. Heart of Atlanta Motel v. United States (1964) p. 89 a. United States is allowed to ban discrimination based on race in places of public accommodation under the ICC. b. Heart of Atlanta Motel is near the highway in Georgia and does not allow blacks to be guests. c. Why not use Section 5 of the 14th Amendment? i. There is a question of whether or not the 14th Amendment only applies to state actors d. Congressional motive does not matter as long as there is a substantial effect on commerce. i. Which begs the question: what is a substantial effect? 1. 75 percent of its guests are from out of state 56

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iv.

v.

vi.

d. Here i.

2. blacks are discouraged from traveling because of racism. If in the aggregate, the contribution of an actor that may seem trivial has a substantial effect on interstate commerce, then that actor can be regulated. 1. Katzenbach v. McClung (1964) p. 90 a. Ollies BBQ in Alabama is not near the highway and does not really have many out of state guest. Ollies only allows blacks to get take out service. b. Since restaurants generally substantially affect interstate commerce, the Congress can regulate Ollie because in the aggregate, the harm that these restaurants create substantially affects Interstate commerce. c. If you make a rule that only affects a select number of places, it is easy to evade the rule. Congress may directly regulate intrastate activity when it in any way or degree obstructs or adversely affects interstate commerce. 1. See Wickard and Wirtz p. 86 Where the class of activities is regulated and that class is within the reach of federal power, the courts have power to exercise such power over the trivial individual instances of the class 1. Perez v. United States (1971) p. 87 a. Court upheld a federal law banning extortionate credit actions even if they were purely intrastate because they may affect interstate commerce b. Congress thinks racketeering is linked to organized crime and has an affect on interstate commerce, and even if P was not engaged in interstate commerce he is within the class of activities being regulated that is with the reach of federal power comes the Modern Court and its limits: United States v. Lopez (1995) 1. Court strikes down Gun Free School Zone Act which made it a federal crime to knowingly posses a firearm in a school zone 2. In the past: three categories that Congress may regulate: a. Use of channels of interstate commerce

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b. Instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities c. Activities having a substantial relation to interstate commerce (those activities that substantially affect interstate commerce) d. Redefines substantial effect: 5 considerations i. Is it commercial? No ii. Is there a jurisdictional element? No 1. Example: did the gun move through interstate commerce iii. Were there congressional findings? No iv. Is there a direct link between commerce and the act? No v. Is this a non-traditional state area? No ii. Generally, the Court has only aggregated intra-state activities to see if it affects interstate commerce when the activity has been economic, not when the activity has non-economic. (I know its redundant) 1. United States v. Morrison (2000) p. 93 a. Court struck down a part of the Violence against Women Act that allowed for a federal civil remedy for victims of gender motivated violence. b. Despite extensive congressional findings, the Court rejected the argument that the activity substantially affected interstate commerce by applying the Lopez test. c. Thomas Dissents: i. Thinks commerce is only selling, buying and bartering historically so the clause should be narrowed d. Souter Dissents: i. Lopez is an aberration: there is evidence here in the congressional findings ii. What about deference to Congress? e. Breyer Dissents: i. Non economic/ economic distinctions are difficult ii. Everything is commerce

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1. so let Congress figure out how to balance state and federal interests here 2. Also the state want this, so what is the issue? iii. Note: Perez allows for regulation and Morrison does not: what gives? 1. The only difference is that Perez is commercial and Morrison is not. iv. Congress may regulate an intrastate local activity for personal use if it may have a substantial impact on the interstate market. 1. Gonzales v. Raich (2005) p. 4 (s) a. California allows personal growing of marijuana for medical use. b. Court upheld the Controlled Substance Act, which prohibits the local cultivation and use of marijuana. c. Scalia concurs (under-cutting argument): i. Congress has the power to regulate activities that are an essential part of a larger regulation of economic activity in which the regulatory scheme would be undercut unless the intrastate activity was regulated. 2. Note: many people think that Raich is a stark departure from Lopez and Morrison. 3. *How would you appeal to Scalia? v. Tenth Amendment is not a limit on the commerce clause. 1. Garcia v. San Antonio Metropolitan Transit Company (1985) p. 130 a. Court upholds the Fair Labor Standards Act under the power of the commerce clause and overrules National League of Cities four part test of state sovereignty: i. Must regulate the states as states 1. Regulating the state when the state is employer ii. Address matters that are attributes of state sovereignty iii. Directly impairs states abiity to structure integral operations in areas of traditional governmental functions 1. Regulating something that state has traditionally regulated itself 59

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2. Big enough to impair regular operations iv. Relation of state/federal interests must not be such that the nature of federal interest justifies state submission -balancing test 1. If federal interest was really important, you wouldnt be able to do this anyway b. Court instead says that once it has been decided that the commerce clause can be used, then the limitations on encroaching on state sovereingty are procedural safeguards inherent in the structure of the federal system i. Senatorial representation ii. State control over electoral qualifications for federal elections iii. Electoral college input iv. Basically, state sovereing interests are front-loaded in the federal system c. Kennedy Dissent: i. Framers thought that the commerce clause would solve national economic issues with a sphere of local autonomy ii. As we move into a national economy these two ideas start to clash and so we should look at the spirit of the Tenth Amendment and we should balance state and federal interests vi. Congress may not make state executive officers administer federal law, unless the function is purely ministerial. 1. Printz v. United States (1997) p. 136 a. Court invalidates Congress attempt under the Brady Gun Control Act to direct state officers to temporarily participate as part of a federal regulatory scheme. b. Scalia says this infringes upon state sovereignty. You cannot impress state officers to administer federal law. This is different than judges applying federal law. c. OConnor concurs: in order to add in the ministerial exception (i.e reporting how many people are in the state for draft purposes) 60

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d. Stevens Dissents: i. Consider times of national emergency ii. This is a political issue that should be decided by the Congress and its Representatives (remember Garcia) 1. No tenth amendment limit on the enumerated powers of Congress. iii. Majoritys ruling would make the federal government create large bureaucracies. e. Alternative Methods of Forcing States to Comply i. Spending power 1. Condition receipt of federal funds ii. Threat of regulation 1. Directly regulate conduct in question vii. Briefing Commerce Clause 1. Is this within reach of commerce clause? a. Is it federal power? b. Is it commercial/economic? c. What does Raich mean? 2. Is it just being applied to state entity? a. Does it only target state government? b. Is it forbidden per NY & Printz? i. Directing to do something ii. Not purely ministerial 3. If its not just being applied to state entity a. Is it explicit? (Gregory v. Ashcroft) b. Even if it is, could we overturn Garcia? c. If we did overturn Garcia, what would result be under National League of Cities? e. Congressional Power to Enforce the Fourteenth Amendment Section 5 i. Section 5 of the Fourteenth Amendment gives Congress only the power to discover, regulate, prohibit, and remedy activities that the Justices (if they had known the facts considered by Congress) would have found to be a violation of section 1 of the 14th Amendment ii. Pre-Morgan: Power to enforce a decision about what the Constitution meant in a way which the Court could not enforce iii. Congresss power to enforce Amendment broadly any rational means could be used to enforce Amendment ban on voting discrimination. 1. South Carolina v. Katzenbach (1966):

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2. Relies on a remedial theory that Congress actions were viewed as being designed to combat what constituted past or prospective violations of postCivil War Amendments. iv. Can be interpreted as acknowledging power in Congress to enact legislation expanding rights contained in 1 of 14th Amendment. 1. Katzenbach v. Morgan (1966): 2. Court upheld the constitutionality of section 4(e) of the Voting Rights Act of 1965, which provided that no person who has completed sixth grade in a Puerto Rican school (where predominant language was not English) may be denied the right to vote in any election because of his or her inability to read or write English 3. This statute prohibited enforcement of NY law requiring ability to read and write in English as a condition of voting 4. Question: Whether Congress could prohibit enforcement of state law by legislating under section 5 of the 14th Amendment, regardless of whether Court would find equal protection clause itself nullified NY literacy requirement? [Yes] 5. Harm that Congress is remedying? Invidious discrimination with respect to voting. 6. Two part analysis: a. Construed 5 as granting Congress the same broad powers it has in necessary and proper clause i. Congress has the power to determine Puerto Rican minority needed vote to gain nondiscriminatory treatment in public services and that this need warranted federal intrusion on the states b. Because Court perceived a basis on which Congress might reasonably predicate its judgment that NY literacy requirement was invidiously discriminatory, Court would uphold law. 7. Why allow Congress to do this? They have superior fact-finding abilities and can investigate in ways that the Court cannot v. Congresss power is not constructive but remedial, which can be preventive if there is reasonably many laws affected with a significant likelihood of being unconstitutional. 62

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1. City of Boerne v. Flores (1997): 2. Court found that Congress exceeded its powers under 5 of 14th Amendment when it enacted Religious Freedom Restoration Act 3. Congress has no right to specify the substantive contours of constitutional rights. 4. Court held that Congress could not use 14th Amendment remedial powers to prevent local governments from unintentionally burdening individuals religious freedom in certain ways prevents Congress from effectively overruling a prior Supreme Court decision about the meaning of the Free Exercise clause. 5. Rejects Katzenbach because effects would be unboundedConstitution could be easily changed if could affect substance 6. Struck down RFRA because it modified the scope of free exercise clause a. Congress can sometimes prevent states from enacting statutes that were not facially unconstitutional b. Congruence and Proportionality test: Congress must have wide latitude in determining line between remedial provision and improper redefinition but there must be a congruence and proportionality between injury to be prevented or remedied and the means to adopted end i. RFRA out of proportion 7. Dissents: a. Congress cant expand or contract scope of constitutional guarantees even 14th Amendment guarantees as to which Congress has explicit remedial power (agreed with Majority) b. BUT dissented because they didnt believe that Congress was modifying scope of Free Exercise Clause vi. Legislation directed against the action of private persons exceeds Congresss 5 power, because the 14th Amendment only prohibits state action 1. United States v. Morrison a. Dissent: i. It restricts private actors only by imposing liability for priate conduct that

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is, in the main, already forbidden by state law

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