 Constitutional Law Outline

 Introduction
 Purpose of Constitutions, generally
o Constitutions deal with the allocation of power a nation wants to put
forward (as opposed to a “separation” of powers). What kind of power
will the State have? How can it exercise this power? In this sense, it forms
the basis for the structuring of the state.
o Constitutions also deal with the rights/individual liberties of citizens
within each State. What rights do the citizens retain? What liberties are
citizens denied?

 The US Constitution, Historically:

o The US Constitution is the oldest constitution in the world; Second oldest
is France’s.
o It was drafted by Common Law lawyers and thus reflects the Common
Law, not the Civil Law, or Natural Law. This makes the US Constitution
unique
o The Framers had, when they wrote the Constitution, several things at their
disposal
 The common law
 Samuel Johnson’s Dictionary
 John Locke’s Treatise on Government
 Habeas Corpus law of Massachusetts
 Charters and Privileges (1701)
 Grievances of the Stamp Act
 Northwest Ordinance

 The US Constitution, Structurally:

o Our Constitution has 6267 words, 27 amendments (17 after 1791). The
citizens were guaranteed 3 rights (habeas corpus, the right to contract, and
privileges and immunities). Other rights were given in the Bill of Rights.
o Through Amendments 13(1), 14(5), and 15(2), the rights in the Bill of
Rights have been “selectively incorporated” and applied to the states.
o The Constitution limits the powers of the Executive, Legislature, and
Judiciary. It also limits the powers of the States (which were separate
sovereigns).
o In Article III, the Rule of Law is established
o In Article IV, the States are rendered subservient to the Federal
Government (“Supremacy Clause”)
o In Article V, the amending process is laid out
o Treaties fall under Article VI as the Supreme Law of the Land
 The US Constitution, Interpreting:
o We have an evolving constitution.
 Deference is given to precedent in interpreting the Constitution.
 Social Movements influence Constitutional Interpretation
 Legislative intent influences Constitutional Interpretation
o There are seven ways to look at the Constitution:
o Textual. You have to look at the document itself and ask what the words
mean. This is the natural starting point- what do the words mean to you?
To the framers? Does the constitution speak clearly in terms of what the
words say?
o Original Intent. (Scalia-Thomas is very fond of this). What was the
original intent of the framers? Under the common law, we don't care what
the legislators thought, we stay within what the document says. Original
intent is only used when someone is attacking the court's position. It is
irrelevant. In Hamilton's paper #90, he identifies this as irrelevant.
Original intent is basically used to constrain Article III of the constitution;
it has nothing to do with the original intent of these guys. The original
intent of those who signed, the original intent of those states signing.
o Ongoing history and events. The constitution is fluid. The question is
whether the court focuses on these issues. The constitution has only been
amended 17 times. So, we can't be like the European Countries where you
amend easily. We amend the constitution through judicial review- it is
ongoing through history, facts, etc. Think: Brown v Board. Cooper v.
Aaron amended it to give it the force it should have had.
o Doctrinal. Stare decisis. 1966. The Supreme Court decided Miranda. It is
now a part of the constitution. 1940's: when officers enter illegally to a
dwelling it violates the 4th. The exclusionary rule (1961) keeps evidence
out of court that was seized in violation of the 4th. The Supreme Ct made
it a constitutional mandate.
o Structural. There is a separation of powers component, but not a
separation of powers doctrine. Article I spills into Article II. We say there
is a doctrine of "Rule of Law." Each branch is mandated to obey the rule
of law. The separation of powers doctrine means the court will review
matters that interject Article I and II. It is the job of the court to review.
o Value Laden. We assume that there are certain values; the framers had
certain values. The 8th amendment, "no cruel and unusual punishment,"
but we have it. 9th- "natural rights" has only been interpreted twice- this
would make the court take a religious view, according to the court. 1865-
70: value laden amendments, equal protection, right to vote regardless of
color. These are provisions dealing with human beings (as opposed to
being democratic).
o Pragmatic. The 4th amendment is the guilty as hell rule. Judges make the
law. Judges draft the constitution. Anti-federalists argues after the
constitution that a Bill of Rights was needed. A lot of the language is
clearly unclear. Due process, for example, cannot be defined. What is the
 most important substantive due process case: Roe v Wade. It goes to the
heart of the legislation (it is not procedural). What is necessary and
proper? Who knows. But, the Supreme Ct has to define it to implement
Article I[8]. They do it in McCullough v. Maryland. Executive powers.
What are they?

 The Nature and Scope of Judicial Power

o Origins, Early Challenges, Continuing Controversy
 Marbury v. Madison (1803)
• Facts: The Judiciary Act of 1789 mandated that the
Supreme Court have original jurisdiction to issue writs of
mandamus. When four individuals, appointed to posts by
outgoing president John Adams, were not given their
appointments by Thomas Jefferson, they brought suit in the
Supreme Court to compel a writ of mandamus.
• Holding/Reasoning: The Supreme Court held that it did not
have original jurisdiction over the issuance of writs of
mandamus, because it was not enumerated to the Court in
the Constitution. Because this grant of power was at odds
with the constitution, it was declared unconstitutional.
• The Constitution as the Supreme Law of the Land is
paramount, and any law conflicting with (repugnant to) it is
void.
• It is the province of the court to interpret law and determine
whether it violates the constitution.
 Cooper v. Aaron (1958) (holding that the Supreme Court interprets
the meaning of the 14th amendment (Brown v. Board), and all state
legislators, executives, and judicial officers are bound to follow it,
not withstanding whether they were parties to the litigation)
 Martin v. Hunter’s Lessee (1816)
• Facts: A Virginia statute gave land, confiscated from
British Loyalists, to soldiers who fought in the
Revolutionary War. Later, the Treaty of Paris (1783)
reversed confiscation laws. The case arose out of a disputed
piece of land. It was decided in Virginia court, under
Virginia law, not taking into account the Treaty of Paris.
• The Court held that where there was a federal question
involved (Constitutional Issue), it could review the
decisions of a state court. This is known as the “Doctrine of
Interposition)
o The purpose of this is to promote uniformity in the
interpretation of the Constitution.
 • The court also held that where a treaty conflicted with a
state law, a treaty, as the Supreme Law of the Land, was
controlling.
 Cohens v. Virginia (1821) (affirmed Martin and extending its
ruling to give the Supreme Court the right to review state criminal
cases when federal questions arose)
 What issues will the Supreme Court not hear?
• SEE NOTES, 1/13
o Political Questions
 Baker v. Carr (1962) (holding that one of six factors must be
present to make an issue nonjusticable by way of it being a
political question:
• The issue is textually committed to a coordinate branch of
government
• There is a lack of judicially discoverable and manageable
standards for resolving the issue
• The issue is impossible to decide without making an initial
policy determination
• The issue is impossible to decide without showing
disrespect for a coordinate branch of government
• There is a need to unquestioningly adhere to political
decisions already made (i.e. National Security)
• The issue may potentially embarrass various departments
or branches of government if the court decides it
 Nixon v. United States (1993)
• Facts: Walter Nixon, a federal judge, was impeached by the
House of Representatives, and tried by the Senate, and
convicted on two counts. A committee of 12 senators was
delegated to be the finders of fact (taking depositions,
reading documents, etc.), who compile a report for the rest
of the Senate, who then votes on impeachment.
• Issue: Whether this violated the provision of the
constitution giving the Senate “sole” power to “try”
impeachments
• The Court held that this was a nonjusticable political
question because it was textually committed to a coordinate
branch of government. The Senate, the Court held, was free
to devise its own rules of procedure for trying an
impeachment; and, because there were no “judicially
manageable standards” for the court to rely upon in
determining whether procedure was adequate.
 Vieth v. Jubelirer (2004) (the court held that in determining
whether Republican gerrymandering of Pennsylvania to their
advantage was unconstitutional, there was no judicially
manageable standard to use, as is race-based equal protection
 claims, and consequently, the gerrymandering was not held to
violate the Constitution.)
o Congressional Regulation of Judicial Power
 Ex Parte McCardle (1869)
• Facts: McCardle was jailed by the military government
imposed as part of the Reconstruction Acts. He brought a
petition of Habeas Corpus under an 1867 Congressional
statute, authorizing the Habeas Corpus cases to be
expedited to the Federal Circuit Courts and the Supreme
Court. After the Supreme Court heard arguments, but
before they handed down a decision, Congress repealed the
portion of the act under which McCardle brought his
Habeas claim (out of fear the entire Reconstruction Act
would be held unconstitutional). In doing this, Congress
limited the ability of the Supreme Court to hear Habeas
Corpus cases, and restored the limits imposed on Habeas
Corpus by the Judiciary Act of 1789 and the Constitution.
• The court held constitutional the act of Congress stripping
the court of some of its power to hear expedited Habeas
Corpus cases. This is done because Congress, as per the
Constitution, can ‘confer’ appellate jurisdiction on the
court, and can thus remove, to a degree, some of its
appellate jurisdiction. Note that the court still had
jurisdiction of Habeas Corpus claims, but now only ones
that came up through the courts.
 Felker v. Turpin (1996) (Anti-terrorism legislation eliminated
Habeas Corpus appeals beyond the first appeal. After Felker’s
petition for a writ of Habeas Corpus is denied by the District and
Circuit courts, the US Supreme Court denies it a writ of certiorari.
The could holds that where channels exist to have your writ heard,
in this case, 28 USC 2254-55, the legislation is constitutional.)
 United States v. Klein (1872) (holding unconstitutional a
Congressional statute dismissing federal court jurisdiction in cases
wherein pardoned Southerners sued the federal government to
regain land they had forfeited to federal soldiers during the Civil
War, on the basis that a stripping of jurisdiction such as this is not
neutral, but rather is a guise for Congress to decide cases that fall
under the power of the judiciary to adjudicate.)

 National Legislative Power

o Sources of National Legislative Power
 Necessary and Proper Clause
• McCullough v. Maryland (1819)
o Facts: Maryland imposed a tax on a national bank
situated in Baltimore. The cashier of the bank did
 not pay and Maryland brought suit against him to
collect the taxes.
o The issue in this case is whether Congress had the
power to incorporate a bank.
o The Court held that, the powers of the government
come not from the states, but from the people, and
as such, the power of the federal government to
implement a bank is not subordinate to the states.
o The Court also held that Congress has an “implied
power” to create a bank under the “necessary and
proper” clause (Article 1, Section 8), as it is
rationally relates to its enumerated powers (collect
taxes, borrow money, regulate commerce, etc.)
 ‘Necessary and Proper’ was construed to
mean that Congress could pass laws that
were legitimate, within the scope of the
constitution, appropriate, and plainly
adapted to the end the government sought.
 This is a rational relationship test.
o The court summarily rejected the notion that
Congress could only pass laws that were
indispensable to secure its goals.
 Specified Powers
• Kansas v. Colorado (1907) (holding that where an act of
legislation is not “necessary and proper” to carrying out
one of the enumerated powers of Congress, the legislation
cannot be exercised)
• Panama RR v. Johnson (1924) (holding constitutional a
substantive federal law pertaining to the rights of injured
seaman, because Congress was impliedly delegated the
power to make substantive maritime and admiralty laws, by
express portions of the Constitution which delegated
jurisdiction over maritime claims to the federal courts)
• Erie RR v. Tompkins (1938) (in diversity cases, federal
courts cannot disregard the state common law to apply
federal common law)
o National Commerce Power
 Basic Concepts
• Gibbons v. Ogden (1824)
o Facts: The NY legislature gave Ogden an exclusive
right to operate steamboats between NY and NJ.
Gibbons, whose boats were licensed under a federal
statute, began operating his boats there, in violation
of Ogden’s monopoly. Ogden got an injunction to
stop Gibbons from doing this.
 o The court held that the monopoly conflicted with
the federal statute licensing Gibbons.
o The court held that the statute was within the power
of the Commerce Clause.
 The commerce clause was held to extend
Congressional power to all commerce that
includes more than one state
• This includes matters and activities
occurring within a single state, so
long as the activity has a commercial
connection with another state.
 Commerce was held to mean “commercial
intercourse,” and was thus not restricted to
the mere buying/selling of goods.
• Paul v. Virginia (1869) (upholding state regulation of
insurance, by holding that issuing insurance policies is not
a commercial transaction, and that insurance policies are
not articles of commerce)
• Kidd v. Pearson (1888) (upholding state ban on alcohol
manufacture, on the grounds that the manufacture and
production of liquor solely for sales out-of-state was not
commerce subject only to congressional regulation)
• The Daniel Ball (1871) (construing “among the several
states” to mean that all commercial activity, even if
confined within a single state, may be subject to federal
regulation under the commerce clause if it “touches upon”
interstate commerce.)
 Foundations for Extending the Reach of Congressional Power
• Shreveport Case (Houston, East & West Texas Ry. v.
US) (1914)
o Facts: The Interstate Commerce Commission set
rates on shipping from Texas cities to Shreveport,
LA. Later, Congress sought to regulate the shipping
rates on railroad traffic exclusively within Texas, on
the grounds that it was having an adverse effect on
TX-LA shipments.
o The court held that intrastate commerce could be
regulated if it had an impact upon interstate
commerce.
o The standard for determining this is whether it
activities being regulated have a “close and
substantial relation” to interstate traffic such that
control is essential or appropriate to the security of
that traffic.
 • Wisconsin RR Comm’n v. Chicago B & QRR (1922)
(holding that if Congress deems it desirable or necessary, it
may impose reasonable conditions on intrastate use of
interstate carriers- here, railroads)
• Stafford v. Wallace (1922) (holding that regulation of
intrastate commercial activity is permissible where
Congress reasonably believes it will have a direct and
undue burden on interstate commerce, and is in-itself part
of the “current of commerce”)
 Regulation of National Economic Problems (through 1936)
• Hammer v. Dagenhart (1918)
o Facts: Congress sought to regulate child labor in
North Carolina on the basis that chairs produced by
the children were destined to become part of
interstate commerce.
o The court held that this was outside the scope of
Congress’ power. The chairs were the articles of
interstate commerce and are not part of the evil the
Congress sought to regulate. Child labor, while evil,
was not directly related to interstate commerce.
o The direct-indirect test is established. Issue
becomes, whether the relationship of the aims of
legislation to interstate commerce is direct.
• Carter v. Carter Coal (1936) (holding unconstitutional the
Bituminous Coal Conservation Act, which regulated wages
of coal workers, on the basis that it did not have a direct
effect on interstate commerce.
 Expansion of Commerce Power after 1936 (The Modern Trend)
• NLRB v. Jones & Laughlin Steel Group (1937) (holding
constitutional an NLRB Act prohibiting management from
interfering with the workers right to organize, on the
ground that it has “substantial effect” on interstate
commerce, regardless of where it fell in the stream of
commerce, be it before or after the stream of commerce
was entered)
• United States v. Darby (1941), overruling Hammer
o Facts: Congress passed laws fining businesses
engaged in production of goods for interstate
commerce if they did not comply with federal labor
standards
o The court held that the motive of Congress in
enacting regulations under the commerce clause is
irrelevant; and that the tenth amendment does not
act as a limitation over interstate commerce.
 o Congress may impose direct prohibitions or
conditions on interstate commerce if they are
reasonably adapted to the attainment of a permitted
end.
 The regulations on wages were a reasonable
means of prohibiting interstate shipments
 Power to Exclude from Interstate commerce
• United States v. Sullivan (1948) (holding that Congress
may regulate the branding of articles that have completed
an interstate shipment)
 Power over Local Activities affecting commerce
• Wickard v. Filburn (1942) (holding that Congress may
regulate acts which taken alone would not have a
substantial impact on interstate commerce, if taken together
with that of other similarly situated, would have a
cumulative effect on interstate commerce, and the
regulation is reasonably related to protecting that
commerce.
• Maryland v. Wirtz (1968) (holding that the Fair Labor
Standards Act can constitutionally be extended to all
employees “engaged in commerce or in the production of
goods to commerce,” to all employees of any ‘enterprise’
so engaged; and to include hospitals, nursing homes, and
all educationa; institutions (elementary, secondary, higher
education)
• Perez v. US (1971) (upholding a ban on extortionate credit
transactions on the grounds that it has a substantial effect
on interstate commerce.
 More on interstate commerce & Congress v. States.
• Congress has plenary powers over interstate commerce. If
it has a relationship to interstate commerce, it is
constitutional. To challenge a commerce clause act you
must show (violation of procedural due process as per
Shreveport):
o It is an unreasonable act of Congress
o Congress has violated specific provisions of the
Constitution.
• Cooley Test: States have a residual power to regulate
intrastate commerce if it is a matter of state concern and
does not interfere with other states (mudflaps on semi
trucks)
• Dormanct Commerce Clause: Government can argue you
are hurting interstate commerce, even if there is an absence
of legislation on the issue. States cannot interfere with the
common market.
 Protection of Other Interests Through Commerce Clause
• Heart of Atlanta Motel, Inc. v. US (1964)
o Facts: The Heart of Atlanta was a motel that refused
to rent rooms to blacks. Title II of the Civil Rights
Act bans discrimination based on race, gender, etc.
in places of public accomodation.
o The Court held that racial discrimination in hotels
discouraged members of the black community from
traveling, and therefore the prohibition on racial
discrimination in hotels would have a substantial
and harmful effect on interstate commerce.
• Katzenbach v. McClung (1964) (holding that Ollie’s Bar-
B-Q could not discriminate based on race because some of
the food it purchased from a supplier had previously
traveled in interstate commerce. The court looks at whether
there could be a ‘cumulative effect’ on interstate commerce
if other similarly situated restaurants discriminated,
deciding there could be, and whether Congress had a
rational basis for enacting the legislation)
• Hodel v. Virginia Surface Mining and Reclamation Ass’n
(1981) (holding that Congress must have a rational basis
for believing that an activity has a substantial effect on
interstate commerce)
 New Limitations at the end of the 20th Century
• United States v. Lopez (1995) (holding that a “Gun-free
Schools Act” to be outside the scope on the commerce
clause. Congress can regulate
o The use of channels of interstate commerce
o The instrumentalities of interstate commerce, or
persons of things in interstate commerce, even
though the threat is from only intrastate activities
o Those activities having a substantial relation to
interstate commerce; (i.e. those activities that
substantially affect interstate commerce)
o The court went on to hold that the test to be applied
to commerce clause legislation is a strict rationality
test to essentially non-commercial activity. The
effect must be substantial, that is, not merely
incidental.
• United States v. Morrison (2000)
o Facts: A woman was raped at Virginia Polytechnic
Institute, and brought a civil action against her
attacker in federal court under the Violence Against
Women Act (VAWA)
 o The court held VAWA to be unconstitutional
because there was no link to interstate commerce,
because gender-motivated crimes are not economic
activity. To allow aggregate effects to be used here
is too attenuated and would destroy the distinction
between state and federal governments by making
everything fall under the police power of the
commerce clause.
• Jones v. United States (2000) (holding that a federal arson
statute covering buildings used in any activity affecting
interstate commerce, did not apply to an owner-occupied
residence not used for commercial purposes).
• Solid Waste Agency of North Cook County v. US Army
(2001) (holding that the Clean Water Act did cover
nonnavigable, isolated, intrastate waters” used as a habitat
for migratory birds.)
o Applying Commerce Clause to state Governments.
 Printz v. US (1997)
• Facts: As part of the Brady Bill, local law enforcement was
required to conduct background checks on gun purchasers
until a national computer system was phased in. Printz, a
sheriff refused to comply, stating it would take him too
much time.
• The court held that this incursion into state sovereignty
violated the commerce clause, relying on a non-textual
(gasp) principle of state sovereignty, stating that the Brady
Bill commandeered the use of state employees.
• The Congress could have got around this by using the
‘purse strings.’ You can coerce, but not commandeer.
 Reno v. Condon (2000) (holding that driver license information,
maintained by state Departments of Motor Vehicles, is a thing in
interstate commerce, and that Congress can regulate whether that
information can be used/disclosed.
o State Power to Regulate
 Introduction
• Crosby v. National Foreign Trade Council (2000) (holding
state law is preempted by federal legislation when Congress
intends a “law to occupy the field,” or when state law
conflicts with a federal statute and it is impossible to
comply with both.
• Wyoming v. Oklahoma (1992) (holding that state
regulations that purposely or facially discriminate against
interstate commerce- such as laws banning the importation
of goods from other states, or “economic protectionist”
 laws- are invalid unless supported by extraordinary
justification not related to economic protectionism.)
• Pike v. Bruce Church (1970) (holding that when a state
statute affects a legitimate local public interest, and its
effects on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits)
 State Regulation when Congress’ Power is Dormant
• Gibbons v. Ogden (1824) (holding that a state can regulate
commerce if it does not conflict with an act of Congress)
• Willson v. Black-Bird Creek March Co. (1829) (holding
that Delaware’s authorizing of construction of a dam did
not infringe on the dormant commerce clause powers of
Congress, because its purpose was to affect health and
safety- matters of local concern- as opposed to commerce,
and that the dam did not discriminate between intrastate
and interstate traffic.)
• Cooley v. Board of Wardens (1851) (holding that states
have the power to regulate matters of interstate commerce
that were of such a local nature so as to require different
treatment from state to state, but could not regulate in areas
of interstate commerce which, because of their nature,
required uniform national treatment)
• Welton v. Missouri (1876) (holding that a state statute
requiring only out-of-state merchants to purchase licenses
discriminates against interstate commerce and is a matter of
national importance subject to regulation by Congress only)
• Leisy v. Harden (1890) (holding that in the absence of
congressional permission, states may not exclude, directly
or indirectly, articles recognized to be subject of interstate
commerce (via Cooley & the need for uniformity rationale)
• Plumley v. Massachusetts (1894) (holding that laws
manifesting a state’s police power to protect its residents
from deceptive sales practices do not violate the commerce
clause.)
 Regulation to protect the Environment
• Philadelphia v. New Jersey (1978)
o Facts: New Jersey enacted a statute prohibiting out-
of-state waste to be brought into the state because it
would endanger the health of its citizens.
Philadelphia, who had previously used parts of NJ
for garbage, sued.
o The court held that the New Jersey measure was
basically protectionist, and did not resolve
 legitimate local concerns, because it discriminated
between in-state and out-of-state garbage.
• Maine v. Taylor (1986) (holding that a Maine law
prohibiting the importation into Maine of live baitfish
which competed with its own baitfish industry did not
interfere with the commerce clause, because Maine had a
legitimate and substantial local purpose in prohibiting the
importation of live bait fish because there was uncertainty
as to the effect it would have on Maine’s unique population
of native fish, and because Less discriminatory means of
protecting against these threats were currently unavailable,
and that future possibilities of less discriminatory means
was of no affect. Maine must make reasonable efforts to
avoid restricting the free flow of commerce across its
borders, but it is not required to develop new and unproven
means of protection at its own cost.)
• Minnesota v. Clover Lead Creamery Co. (1981) (holding
that a statute prohibiting out-of-state non-recyclable milk
containers, but allowing in-state pulp containers. The court
ruled that the law governed evenhandedly, and because it
does not discriminated between inter and intrastate
commerce, the question is whether the incidental burden
imposed on interstate commerce is clearly in excessive
relation to the putative local benefits.)
• C&A Carbone v. Clarkstown (1994) (holding that a local
government can not require its garbage be locally processed
because it deprived non-local firms to bid, etc. and have the
opportunity to process the garbage.
• Hughes v. Oklahoma (1979) (holding that a law barring the
exportation of minnows caught in-state violates the
commerce clause, despite the state’s interest in
conservation and protection of animals, because less
discriminatory measures were not attempted.)
• With respect to environmental laws, Congress can create
environmental laws and standards, and the EPA, as an
executive agency, can enforce them via regulatory means,
but the EPA cannot do whatever it wants in creating laws.

 Powers of the President

o Presidential Action affecting Congressional Powers
• Youngstown Sheet & Tube Co. v. Sawyer (1952)
o Facts: President Truman, in response to threatened
strikes at steel mills, issued an executive order
placing all of the nation’s steel mills under the
control of the Secretary of Commerce. This is a
 request the Congress had previously denied the
President.
o While this case has no definite holding or rule, it is
seen as the Court saying the president may merely
carry out laws, not make them.
o Justice Jackson’s concurring opinion held that the
President’s powers fall in one of three categories,
depending on their conjunction or disjunction with
those of Congress.
 Where the President acts pursuant to implied
or express authorizations from Congress, his
powers are at the greatest.
 Where the President acts in the absence of a
congressional grant or denial of authority,
where he and Congress may have concurrent
authority, and the distribution of authority is
uncertain. The President may typically act
until Congress speaks. Although,
acquiescence can give rise to implied
powers.
 Where the President acts in contradiction to
implied or express authorizations from
congress, his powers are at their lowest.
• Dames & Moore v. Regan (1981) (holding that where the
congress acquiesces to same or similar exercises of
executive power over a long period of time, it gives rise to
an implied authorization of that power.)
o Congressional Action Affection Presidential Powers
 Legislative & Line Item Vetoes
• Immigration & Naturalization Services v. Chadha
(1983)
o Facts: Under Article I, the Congress created Federal
Administrative Agencies, of which INS was one.
Congress disagreed with an action taken by INS, it
vetoed it (either house can veto a decision with a
resolution), and the President had no veto power
over that decision.
o The court held that this is unconstitutional because
the Constitution expressly gives veto power to the
President over bills passed by Congress, and
because these decisions were not made with the
consent of both houses of Congress.
o Congress can only veto a decision by passing a bill
in both houses, which will then be submitted to the
President, who has veto power over the bills.
 • Clinton v. New York (1998) (holding that the President
cannot have a line-item veto over spending issues, unless it
follows the presentments clause of the Constitution,
whereby he can veto parts an entire bill, prior to signing it
into law, after which it would be submitted again to the
Congress)
 Appointment & Removal of Officers
• Bowsher v. Snyar (1986) (holding that Congress may not
remove an executive officer for cause, where the cause is
broad; rather, the right to move an executive officer would
have to be more narrow (physical disability, mental
incapacity, other conditions that impair performance of
duties), or through impeachment.
• Morrison v. Olsen (1988)
o Facts: A statute made for the appointment of a
special prosecutor to investigate President, Vice
President, etc. for crimes if there were reasonable
grounds to do so. The special prosecutor could only
be removed by the Attorney General.
o The court held that Congress may place limitations
on the power of the President, so long as it did not
impede his ability to perform his Presidential duties.
o That the AG could remove a special prosecutor left
to the executive branch, ample authority to decide
whether the special prosecutor was performing his
duties.
o Foreign Affairs & War Powers
 US v. Curtiss-Wright Export Co. (1936)
• Facts: Congress delegated the power to the President to
proclaim an arms embargo between Bolivia and Paraguay if
he found it would contribute to reestablishing peace
between the two countries.
• The court held that the President has broad powers in
respect to foreign affairs under the Constitution, and there
are ample reasons to delegate this power to the President
(sole power to negotiate treaties, gets better intelligence,
need to act free of statutory restrictions).
• The delegation of powers to the president can be more
broad with respect to international affairs than domestic.
 Campbell v. Clinton (2000)
• Facts: Clinton sends troops to Yugoslavia without invoking
the War Powers Act. Case dismissed because Congressman
lacked standing to bring the suit.
• The War Powers Resolution has 3 major components:
o President acts as commander in chief of armed force
 o President can implement policy overseas one of 3
ways
 can recommend to congress that congress
declare war
 can act based on statutory authority
 can act based on a national emergency
(executive order)
o With 48 hours of sending military people to a place
with hostilities, the Preisdent must submit a report
to the Speaker of the House and President Pro
Tempore of the Senate; and troops must be
withdrawn within 60 days unless Congress has
declared war or enacted an authorization.
o Executive Privilege & Immunity
 US v. Nixon (1974)
• Employees of President Nixon’s reelection committee
broke into DNC Headquarters at the Watergate hotel. A
special prosecutor issues an indictment of Nixon for
obstruction of justice, and Nixon invokes executive
privilege to avoid handing over the Watergate Tapes.
• The Court upheld the doctrine of executive privilege, but
held that it did not apply in this case.
• The Court reasoned that the separation of powers bestowed
upon It the ability to evaluate claims of executive privilege,
and that this privilege indeed existed under Article II.
• The court rejected Nixon’s claim that the privilege was
absolute, instead holding that it is a qualified privilege, and
that as such, the need for confidentiality in communications
could be outweighed by the need to develop all of the facts
in a criminal trial.
 Nixon v. Administrator of General Services (1977) (holding that
former President Nixon’s claim of executive privilege in his papers
was outweighed by the need for the Presidential recordings and
Materials Act, requiring an Administrator to take “possession and
control” of Nixon’s private papers, returning those personal to him,
and archiving those of historical interest.
 Nixon v. Fitzgerald (1982) (holding that President Nixon could not
be held civilly liable for the firing of Mr. Fitzgerald for ‘whistle
blowing,’ because the President has absolute immunity from
damages predicated on his official acts)
 Clinton v. Jones (1997) (holding that the President has no
executive immunity, not even temporary immunity, from acts that
are completely unrelated to the carrying out of his job.)
 Harlow v. Fitzgerald (1982) (holding that Presidential assistants
have broad qualified immunity- not absolute immunity- from civil
 liability, stemming from their performance of their job, unless the
official has violated a clearly established right)
 Cheney v. US Dist Ct. (
o Impeachment of the President
 About
o War on Terrorism
 Hamdi v. Rumsfeld (2004) (holding that absent a suspension of the
writ of habeas corpus, US citizen held as an ‘enemy combatant’ at
Guantanamo Bay have the right to due process. This includes the
Right to Counsel, the right to receive notice of the basis for his
classification, and the Right to an impartial hearing, wherein he
may rebut the government’s factual assertions before a neutral
decisionmaker, albeit with a lower burden of proof on the
government, and some of the traditional rules of evidence
suspended, such as hearsay. This gov’t could accomplish this in a
military tribunal. The due process one is afforded is determined by
balancing the need for the government to carry out its role in war
with the interest of the detainee in life, liberty, etc.)
 Rasul v. Bush (2004) (holding that US courts have jurisdiction
under the same habeas corpus statute in Hamdi to consider
challenges to the legality of the detentions of detainees at
Guantanamo Bay. Did not decide what substantive rights they
could assert.
 Rumsfeld v. Padilla (2004) (holding that Padilla, a US citizen,
brought his suit in the wrong federal district court, thus leaving
open the question of whether the ‘enemy combatant’ label could be
applied to an American Citizen, apprehended in the United States)

 Due Process & Economic Interests

o Origins of Substantive Due Process
 Early expressions
• Calder v. Bull (1798) (holding that, although the ex post
facto clause does not apply to civil law, the court will not
hesitate to strike down laws that infringe upon the
fundamental rights of citizens).
• Fletcher v. Peck (1810) (the court held that an act of a State
Legislature that purported to rescind a sale of public land,
resting there authority on the ex post facto clause, bills of
attainder, the prohibition against impairing contracts, and
‘general principles’ common to our free institutions.
• Dred Scott v. Sanford (1857) (holding that the taking of a
slave violated an individual’s 5th amendment protection of
property)
 Search for a Constitutional Basis
 • Barron v. Baltimore (1833) (holding that the Bill of Rights
applied only to the federal government.)
 14th Amendment
• Slaughterhouse Cases (1873) (overruling Dred Scott.
Holding, in respect to the 14th amendment, (i) the
privileges and immunities clause forbids state infringement
on the rights of US citizenship, not of state citizenship; and
(ii) due process and equal protection were meant to apply
only to Negroes
o Prohibition on takings without just compensation
 The purpose of takings (5th as incorporated through 14th)
• Berman v. Parker (1954) (holding that the government
could acquire private property in a blighted area for
redevelopment, even if the buildings were to be used by
private individuals, because it was being done for a public
purpose- to benefit the community through aesthetics)
• Hawaii Housing Auth. v. Midkiff (1984) (upheld the use of
eminent domain, used to force landlords to sell large land
holdings to their tenants at fair market value, in order to
contribute to the general welfare by the destruction of an
oligarchy, a classic example of a state’s police powers. The
court held that where the exercise of the eminent domain
power is rationally related to a conceivable public purpose,
it is constitutional)
 When is ‘regulation’ tantamount to a taking?
• Pennsylvania Coal Co. v. Mahon (1922) (holding that
where a regulation so utterly impairs the ability to use the
land, that the regulation is equivalent to an appropriation or
destruction, it is a taking that cannot be carried out without
just compensation. It is a taking when it “goes too far.”
• Keystone Bituminous Coal v. DeBenedictis (1987) (In a
situation similar to Pennsylvania Coal, the court held it did
not amount to a taking because Keystone had not lost a
substantial portion of the property’s economically viable
value.
• Penn Central Transp. Co. v. New York City (1978)
o Facts: New York City refused a permit to Penn
Central to construct a building on top of Penn
Station because it was a historical sight and the city
did not want it to have a harmful effect on the view
of the terminal from Central Park South.
o Issue: Whether the restriction upon Penn Central,
not being able to erect a building on top of Penn
Station, was a “taking” of Penn Central’s property
for public use within the meaning of the Fifth
 Amendment, made applicable to the states through
the 14th amendment.
o Holding: The court ruled that it was not a taking.
The court held that because the restriction on Penn
Station was not discriminatory, but rather was part
of a comprehensive scheme to preserve historical
landmarks, and because the City would allow Penn
Central to build elsewhere, it was not a taking.
o In determining whether something is a taking, the
court looks at whether a state tribunal reasonably
concluded that “the health, safety, morals, or
general welfare” could be promoted by prohibiting
particular contemplated uses of land.
• Lucas v. South Carolina Coastal Council (1992)
o Facts: Lucas bought two parcels of land on the
ocean. South Carolina, in order to protect the coast
from continued erosion, barred him from building a
permanent habitable structure on the property.
o Issue: Was this total and permanent ban of Lucas
building any structure on his property a taking for
the purposes of the Fifth Amendment?
o The court held that a regulation can be a taking
when either (i) Regulations compel the property
owner to suffer a physical ‘invasion’ of his
property, or (ii) Regulations deny all economically
beneficial and productive use of land. Also, the
Fifth Amendment is violated when land-use
regulation does not advance legitimate state interest
or when it denies an owner economically viable use
of his land.
o The court held that because the ban on Lucas
constructing a structure upon his property was total
and permanent, the regulation was a taking for the
purposes of the Fifth Amendment.
• Nolan v. California Coastal Comm’n (1987) (holding that
land-use regulation does not effect a taking when it
“substantially advances” a legitimate state interest.)
• Dolan v. Tigard (1994) (holding, when the City of Tigard
offered to give Dolan a permit in exchange for an easement
of 10 feet on her property to prevent flooding, that in order
for a taking to not violate the Fifth Amendment, (i) there
must be an ‘essential nexus’ between the legitimate state
interest and the permit exacted by the city, and (ii) there
must be a ‘rough proportionality’ between the trade-off
demanded by the city and the burden to the public from
Dolan’s proposed development.
 •Palazzolo v. Rhode Island (2001) (holding that, in instances
where the regulation is so great to effect a taking, if a
subsequent purchaser of the property takes, with knowledge
of the restriction, he may sue, because to do otherwise
would put an “expiration date” on the takings clause.
• Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency (2002) (holding that when land-use
regulations deprive one of the economically viable use of
his land temporarily, it does not (necessarily) entitle one to
just compensation)
 What constitutes Property?
• Eastern Airlines v. Apfel (1998) (holding it was a taking of
property when the government attempted to force Eastern
to pay health benefits for Apfel, an employee from 1944-
60, after, in 1992 Congress passed the Coal Industry
Retiree Health Benefit Act, which Eastern, having ceased
its coal mining operations in 1965, did not negotiate about,
not agree to make any contributions to.
• Brown v. Legal Foundation of Washington (1998) (holding
that Washington’s use of interest gained from the accounts
of lawyer’s clients, was not a deprivation of property
because (i) There was no economic impact upon the
lawyers (they got all of the money put in accounts back),
(ii) the regulation does not interfere with regulation-backed
expectations (there was none here), and (iii) The character
of the government action is just? (the purpose is to make
sure lawyers act properly and that the poor get legal
services).
o The Contracts Clause
 Home Building & Loan Assn. v. Blaisdell (1934) (holding that
when a law interferes with the performance of a contract, it is
subject to strict scrutiny. Five factors are evaluated: (i) whether
there is an emergency need to ‘protect the vital interests of the
community’, (ii) the law was not designed to favor a special group,
but rather was ‘for the protection of a basic interest of society,’ (iii)
the relief was appropriate to the emergency, (iv) the conditions
imposed were reasonable, and (v) the legislation was ‘temporary in
operation’ and ‘limited the exigency which called it forth’
 US Trust Co. v. New Jersey (1977) (holding that a law that impairs
private contracts may be constitutional if it is reasonable and
necessary to serve an important public purpose. And, could not
have been achieved by any less drastic means? In doing this,
deference to the legislature is not given because its self-interest is
at stake.)
 Allied Structural Steel Co. v. Spannus (1978)
 • Court used the Five Factors from Home Building & Loan
to invalidate a Minnesota law, which required certain
Minnesota employers to pay a full pension to employees
who had worked for them for over ten years and whose
pensions had not yet vested, if they closed down a plant in
the state. This happened to Allied.
• The court held that factors (i) and (ii) had not been met,
because there was no emergency, and because the law was
tailored to a small class of employers.
• Also, the court held that this imposed on Allied a
retroactive obligation, and violated their ‘reasonable’
expectations about what it was getting into when it started
the pension plan.

 Due Process & Individual Rights

o Nature and Scope of 14th Amendment’s Applicability to the States
 Palko v. Connecticut (1937) (holding that the provisions of the Bill
of Rights that were ‘fundamental to the concept of ordered liberty’
would be selectively incorporated into the 14th amendment and
thereby applied to the states)
 Due Process can be defined as the process that is due you.
• You cannot deprive one of life, liberty, or property without
a proceeding, general in nature, and applicable to everyone.
• It ensures the reliability of the guilt determination process
 Due process protected against government excesses and formulates
the relevant questions.
 Duncan v. Louisiana (1968) (holding that one is entitled to a trial
by jury in any case where one’s liberty is at stake. The Court
incorporates those provisions in the Bill of Rights which are
‘fundamental in the context of the judicial processes maintained by
the American States.”)
• Note that some states can constitutionally require a less-
than-unanimous jury verdict
 Rochin v. California (1952) (holding that pumping one’s stomach
in order to obtain evidence- here, morphine capsules- was violative
of due process because it “shocked the conscience.” It offended
civilized standards of conduct and the community’s sense of fair
play and decency.)
 Breithaupt v. Abram (1957) (holding that removing an
unconscious person’s blood to determine whether he was DUI was
not violative of due process because it was so ‘slight an intrusion’
into his body, and was outweighed by the interest in society in
determining intoxication and protecting against this hazard of the
road.)
 Schmerber v. California (1966) (holding that removing the blood
of a conscious person, over his objections, did not violate due
process, because it did not offend the ‘sense of justice,’ because
the privilege of self-incrimination did not extend beyond
testimonial of communicative actions-of which this was not one-,
and because the protection against unreasonable search and seizure
was satisfied because there was probably cause, exigent
circumstances, and the test was chosen and performed reasonably.)
 Sacramento v. Lewis (1998) (holding that a 1983 action’s
requirement of deprivation of due process shocking to the
conscience’ is satisfied when ‘only the purpose to cause harm,
unrelated to the legitimate object of arrest, will satisfy the element
of arbitrary conduct)
 The Fourth Amendment:
• In Wolf v. Colorado, the court incorporates the 4th into the
14th. In Mapp v. Ohio, the court devises the exclusionary
rule, holding that all evidence seized in violation of the 4th
is subjected to suppression at trial.
• In Gideon v. Wainwright, the court holds that everybody
has a right to counsel in criminal cases, and that counsel
must be provided for them if they cannot afford it.
o Procedural due process in non-criminal cases
 Deprivation of Liberty and Property Interests
• Goldberg v. Kelly (1970) (holding that due process requires
that welfare recipients be afforded an evidentiary hearing
prior to the termination of benefits, because their
termination involves state action, and because they are a
statutory right to persons qualified to receive them. In
determining the extent of due process required, the court
will weigh the interest of the person in avoiding loss is
outweighed by the governmental interest in summary
adjudication.)
• Board of Regents v. Roth (1972) (holding that in order for
one to be protected by due process, one must have a
legitimate claim to it, via deprivation of life, liberty, or
property, and not merely an expectation of due process.)
• Arnett v. Kennedy (1974) (holding that giving Kennedy an
administrative hearing, in which he could challenge his
termination, was adequate to satisfy due process)
• Bishop v. Wood (1976) (holding that a police officer, fired
for insubordination, does not have a right to an
administrative hearing)
• Paul v. Davis (1976) (holding that, when 800 total pictures
of Davis, a convicted shoplifter, were sent to every store in
the city, his claim that he would not be able to gain
 employment as a result did not entitle him to a due process
claim because he was not deprived of property.
Furthermore, his picture and charges are part of the public
record and can be distributed freely to the public as such.”
• Megan’s Law (2003) (holding that a state’s interest in
requiring a sexual offender to register within 4 days of
moving, in order to inform the community of the presence
of a convicted/released sexual offender, does not violate
due process because the given individual has not been
focused in upon, and because the state has a compelling
interest in doing so.
 What kind of hearing, and when?
• Goss v. Lopez (1975) (holding, as a general rule, that
before a student is suspended for 10 days, if he disagrees
with the basis for the suspension, he has a right to a hearing
in order to present his side of the story. The rationality test
is applied.)
• Ingrahim v. Wright (1977) (holding that a student is not
entitled to a hearing in Florida before corporal punishment
is inflicted, because there exists legally available remedies
for abuse.)
• Board of Curators v. Horowitz (1978) (the court refused to
consider the merits of a case regarding a woman’s
dismissal from medical school, stating that they would rely
on the historic judgment of educators, and that the
academic review procedures in place were adequate.
• Parham v. JR
o The Right of Privacy, Autonomy & Personhood
 Introduction
• Skinner v. Oklahoma (1942) (holding that equal protection
protects one from being sterilized upon committing a crime
3 times- passing bad checks- because it would be a
deprivation of a basic civil right, and is forever deprived of
this right.
• Griswold v. Connecticut (1966)
o Facts: A Conn. statute forbid using, distributing, or
counseling about contraceptives. Griswold was
convicted of counseling married persons in the use
of contraceptives.
o This is the first modern-era case where a substantive
due process-like approach was used to protect a
fundamental right.
o The court reasoned that there exists in the Bill of
Rights a ‘penumbral’ right of privacy, stemming
from the 1st, 3d, 4th, 5th, 9th amendments. This
 right of privacy, the court reasoned, extended to the
bedroom of a married couple.
• Eisenstadt v. Baird (1972) (holding unconstitutional on
equal protection grounds a statute that held a physician
could only give contraceptives to married persons, and not
to single persons. The court reasoned that the right of
privacy, if it meant anything, means that the individual, be
she married or single, is free from unwarranted
governmental intrusion into matters so fundamentally
affecting a person)
• Carey v. Population Services Int’l (1977) (holding
unconstitutional a NY law forbidding dispensing
contraceptives to persons aged under-16, reasoning that
where a fundamental decision, like whether to beget a child
is involved, regulations may only be placed on it for
compelling interests, and those regulations must be
narrowly drawn to express only those interests, and that no
such interests were found in this case.)
 Abortion Cases
• Roe v. Wade (1973)
o Facts: Jane Roe wanted an abortion, but Texas did
not allow it because her life was not threatened.
o Issue: Was there a compelling state interest in
prohibiting abortion?
o At stake here is a fundamental right, which can only
be outweighed if there is (i) a compelling state
interest in outlawing abortion, and (ii) the state
statute is narrowly drawn, so as to fulfill only that
state interest.
o The two interests that conflict here are the mother’s
interest in her own body, and the state’s interest in
protecting the health of the mother (which does not
vest until the 2d trimester) and the fetus (which
does not vest until viability- 3d trimester). The court
reasons that the term of pregnancy can be divided
into three trimesters, and that a different standard
applied to each trimester, as the interests of the
concerned parties will weight differently.
 First trimester: a state may not ban or
regulate abortions. The woman and her
physician shall make the decisions. The state
has no compelling interest at this point in
protecting the mother’s health.
 Second Trimester: A state may regulate
abortions in only allowing them when they
are ‘reasonably related to the mother’s
 health.” At this point, the state has an
interest in protecting the mother’s health,
and may require abortions be carried out in
such a way so as to protect this.
 Third trimester: At this point, a fetus
becomes viable and the state has a
compelling interest in regulating the fetus. A
state may therefore regulate and proscribe
abortion. Abortion must be permitted where
it is necessary to protect the life/health of the
mother.
o Individuals now have a compelling interest in
privacy in five areas: family, marriage, motherhood,
procreation, and child bearing.
• Danforth (holding that requiring written consent by a
spouse, or if under age 16 by the parents, is violative of
fundamental right to privacy because no ‘lifeline’ exists)
• Planned Parenthood v. Casey (1992) (reaffirms Roe, and
says that an obstacle placed in the way of one seeking an
abortion cannot be an “undue burden.” That is, whether
something is a substantial obstacle to one getting an
abortion.
• Doe v. Bolton (1977) (Companion case to Roe v. Wade,
affirming a Georgia statute allowing a physician to perform
an abortion when in his best clinical judgment he thought it
necessary)
• Maher v. Roe (holding that Medicaid does not have to
reimburse patients for the cost of elective or nontherapeutic
abortions)
• Harris v. McRae (1980) (reaffirming Maher, and holding
that gov’t limitation of abortion funding does not violate
Roe because it does not deprive women of their ability to
have an abortion, merely the financial resources to avail
herself of the right)
• Stenberg v. Carhart (2000) (striking down as
unconstitutional a Nebraska statute banning partial-birth
abortions (D&X), on two grounds, that it (i) did not make
an exception to protect the life of the mother, andd that (ii)
it imposed an undue burden on the mother in choosing
whether to get this type of abortion as opposed to a D&E,
which could possibly be more dangerous under some
conditions.)
 Sodomy & Privacy
• Bowers v. Hardwick (1986) (upholding a law banning
sodomy on the grounds that there is no ‘constitutional right
for homosexuals to engage in sodomy,’ and that laws
 banning sodomy are deeply rooted in history, etc. And, not
being a fundamental right, there is a rational basis for the
law- the Georgia legislature said it is immoral to engage in
sodomy)
• Lawrence v. Texas (2004) (overturning Bowers, and
holding that an individual’s sexual life, including whether
to engage in sodomy, is a personal choice, and is protected
by the Right to Privacy (as per Griswold, etc), and that the
state has no compelling interest in criminalizing it. The
court reasoned that the law gives substantial protection to
people deciding how to conduct their private lives in
matters pertaining to sex.)
 Sexual Orientation
• Romer v. Evans (1996) (holding that a Colorado
Constitutional Amendment, that removes anti-
discrimination legislation for gays and lesbians, was
motivated by the animus toward an unpopular group, which
can never be a legitimate state objective, and therefore (i)
no legitimate state interest was being served, and (ii) the
means chosen by the state were not rationally related to the
interest the state asserted.)
 The Right to Die
• Cruzan v. Director, Missouri Dept. of Health (1990)
(holding that the state has an interest in protecting the
living, and that the removal of a feeding tube from
someone in a persistent vegetative state and therefore
incompetent, and the Missouri law that it can only be done
by clear and convincing evidence, does not violate one’s
substantive due process rights. There is a substantive due
process right for a competent person to refuse life
sustaining treatment.)
• Washington v. Glucksberg (1997) (upholding a
Washington law, stating that an individual has no
substantive due process right to take active measures to end
their life; and that anyone who assists in such an action can
be guilty of a felony. The court reasoned that the liberty
interest in taking one’s life was not ‘fundamental,’ and did
not say whether there was a non-fundamental liberty
interest in doing so. The court applied the rationality test,
and held that there was a legitimate state interest in
protecting life, protecting the integrity of the medical
profession, protecting the vulnerable from subtle coercion
and undue influence, and protecting the state from a
‘slippery slope’ arising; and the Court held that this statute
was rationally related to those ends. States, (as Oregon has
done) are free to permit physician-assisted suicide.)
 • Vacco v. Quill (1997) (case accompanying Glucksberg, and
holding that equal protection does not give rise to a right to
physician-assisted suicide.)

 Cruel and Unusual Punishment

o Introduction
 Weems v. US (holding that the punishment must fit the crime)
 Since 1910, the standard for whether punishment is cruel and
unusual, is that it must be “shocking.”
 If the state attempts to execute someone in good faith, and the
attempt fails, they may try again.
o The Death Penalty as Cruel and Unusual
 Furman v. Georgia (1972) (holding that the death penalty, when
applied haphazardly, discriminatorily, and discretionarily, violated
the 8th amendment’s ban on cruel and unusual punishment)
 Gregg v. Georgia (1976) (holding that the death penalty can be
constitutional if a statute in which its use is authorized is carefully
drafted. There must be a bifurcated trial (guilt/sentence), and in the
second portion, defense counsel should be able to do anything to
save his client. There must also be an automatic appeal to the
highest court in the state in which the punishment is carried out.
o Mandatory Death Sentences
 Lockett v. Ohio (1978) (holding that a judge/jury must consider as
a mitigating factor, “any aspect of a defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”)
 Eddings v. Oklahoma (1982) (holding that the judge/jury must
consider any relevant mitigating factor during sentencing;
including difficult upbringing, etc.)
 Callins v. Collins (1994) (cert. denied, from which Blackmun
dissented, saying that no procedural/substantive rules can ever save
the death penalty from its constitutional deficiencies)
o Death Penalty & Race
 McCleskey v. Kemp (1987)
• Facts: McCleskey argued that the application of capital
punishment is arbitrary and capricious, and therefore
unconstitutional.
• The court disagreed and upheld his sentence of death. The
court dismissed the Baldus study, which proves statistically
that the race of a defendant plays a part in the
determination of whether capital punishment should be
applied. The court dismissed this study because it did not
show that race played a factor in McCleskey’s particular
case; and because it is not a systemic wide failure like in
Furman.
 • The court said that the finding of Baldus would throw into
question our entire criminal justice system, and that
McCleskey’s argument is best presented to the legislature.
o New Restrictions
 Atkins v. Virginia (2002) (holding that it is a violation of the 8th
amendment to administer capital punishment on someone who is
mentally retarded)
 Ring v. Arizona (2002) (holding that a judge may not be the ‘fact
finder’ during the sentencing phase of the trial; the jury must be the
finder of fact. Further, the Sixth Amendment does not permit a
defendant to be exposed to a penalty exceeding the maximum he
would receive if punished according to the facts reflected in the
jury trial alone.)
 Roper v. Simmons (2005) (holding that it is a violation of the 8th
amendment to sentence to death a defendant who was under 18
years of age at the time of the crime’s commission)

 The First Amendment

o Introduction
 To abridge means to curtail, restrict, etc.
 Federalist 25: the Constitution should not be our suicide pact.
 Sedition, pornography, obscenity are not protected.
 Free Speech is not absolute
 Schneck v. United States (1919) (holding that Schneck’s mailing
out of anti-war leaflets was not protected by the First Amendment
because it posed a ‘clear and present danger.’)
 Debs v. United States (1919)(holding that Debs’ anti-war speech,
which violated the Espionage Act, posed a ‘clear and present
danger.’)
 Gitlow v. New York (1925) (holding that Gitlow’s Left-Wing
Manifesto, advocating revolution, was violative of New York’s
criminal anarchy statute, and that because the ‘clear and present
danger’ standard applied only to acts, there need not be a clear and
present danger.)
o Illegal Action
 Dennis v. United States (1951)
• Facts: Dennis was convicted of violating the Smith Act by
advocating violent overthrow of the US government, and of
conspiring to reorganize the US Communist Party.
• Holding: The court held that the ‘clear and present danger’
test did not mean there had to be a clear and present danger
of an actual attempt to overthrow the government, but
rather, that there would have been an attempt at the first
opportunity. By then, the court reasoned, it would be too
late. That a group was ready when the conditions for
 revolution came to fruition is adequate to satisfy the clear
and present danger test.
• The test applied by Learned Hand was whether the gravity
of the evil, discounted by its probability, justifies an
invasion of free speech. Is this interest of the government
substantial enough to infringe on free speech?
 Yates v. United States (1957) (holding that it is illegal to seditious
acts, but it was legal to advocate an ‘abstract doctrine.’
 United v. Spock (1969( holding that Dr. Spock could not be guilty
of advocating ‘draft dodging’ from the mere fact that he hoped the
frequent stating of his views might give young men courage to take
active steps in draft resistance, because this was a natural
consequence of vigorous speech)
 Brandenburg v. Ohio (1969)
• Facts: Brandenburg was KKK member. Convicted under
Ohio’s criminal syndicalism statute, which forbade the use
of violence to achieve political change.
• The court abandoned earlier tests, and formulated the two-
pronged “clear and imminent danger” test. First, whether
the advocacy is directed toward inciting or producing
imminent lawless action. Second, whether the advocacy is
likely to produce such action.
• This is what “speech action” is. Speech that translates &
causes actions.
• Merely teaching the moral necessity of violent overthrow
of the government is not “speech action,” and thus does not
pose a clear and imminent danger.
o Reputation and Privacy
 Public Officials/Seditious Libel
• NY Times v. Sullivan (1964)
o Facts: NY Times publishes an advertisement-
editorial about some racist southern motherfuckers,
and there are some inaccuracies, and they get their
panties in a knot and sue the Times for libel.
o The court ‘nationalizes’ libel law
o The court holds that when a public official is libeled
by the press, it is the plaintiff’s burden to show with
“convincing clarity” that the newspaper acted with
actual malice or reckless disregard of the truth. Any
other rule would chill free speech.
• Curtis Pub Co. v. Butts (1967) and Assoc Press v. Walker
(1967) (holding that public figures have to meet the NY
Times v. Sullivan standard in order to recover damages for
libel)
 • Rosenbloom v. Metromedia (1971) (holding that the NY
Times rule be extended to all matters of general or public
interest, regardless of whether the actors were famous or
anonymous. But see, Gertz.
 Private Individuals
• Gertz v. Robert Welch, Inc. (1974)
o Facts: Gertz, a private individual and lawyer, called
a commie by Welch in the John Birch Society
paper.
o The court held that where a private individual is
libeled, the states may impose whatever standard
they want, even simple negligence, but may not
impose a standard of strict liability.
o Absent reckless disregard or actual malice, the
plaintiff may not recover punitive/presumed
damages. Punitive/presumed damages are only
permitted when reckless disregard or actual malice
is present.
o Only actual damages are permitted for these types
of libel.
o A public figure is one who has achieved “general
fame or notoriety in the community,” and is
therefore a public figure for all purposes.
• Rosenberg’s kids (1951) (holding that when two people are
involuntarily thrust into the limelight, and become part of a
public controversy, they are public figures whether the will
it or not.)
• Time, Inc. v. Firestone (1976) (holding that persons who
have not assumed a role of especial prominence in the
affairs of society are not public figures unless they have
‘thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the
issues involved,’ and are then public figures only for the
purpose of that controversy)
 False Light Privacy
• Time, Inc. v. Hill (1967) (holding that in issues of national
importance concerning private individuals, damages may
only be had for statements made with actual malice or
reckless disregard of the truth. But see, Gertz)
 Emotional Distress
• Hustler Magazine v. Falwell (1988) (holding that a public
figure could not recover for intentional infliction of
emotional distress, unless the publication contains a false
statement of fact made with actual malice or reckless
disregard of the truth.)
  Disclosure of Private Facts
• Florida Star v. BJF (1989) (holding that when a newspaper
publishes truthful information it obtained lawfully, in
violation of a statutory provision, punishment may only be
opposed when a statute is narrowly tailored to fulfill a
compelling state interest.)
o Obscenity
 Roth v. United States (1957) and Alberts v. California (1957)
(holding that pornography and obscenity is not protected by the
First amendment. Whether something is obscene is determined by
asking if, to the average person, applying contemporary
community standards, the dominant theme of the material taken as
a whole appeals to the prurient interest.)
• In 1966, this rule is changed to add, “utterly without
redeeming social value.” This pretty much makes nothing
obscene.
 Kingsley International Pictures Corp. v. Regents (1959) (holding
that advocating an obscene idea- in this case, adultery- is protected
by the first amendment)
 Stanley v. Georgia (1969) (holding that one has a right to have
obscene materials in one’s home, and that the state has no interest
in determining what people can watch/read. Thus, private
possession of obscenity is not a crime.)
• An exception to this is child pornography
 Paris Adult Theaters I v. Slaton (1973) (holding that the showing
of pornographic films in an Adult Theatre was not protected by the
First Amendment)
 Miller v. California (1973) (creating a 3-prong test for whether
something is obscene. First, whether the average person, applying
contemporary community (local) standards, would find that the
work, taken as a whole, appeals to the prurient interest. Second,
whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by applicable state law. Third,
whether the work taken as a whole lacks serious literary, artistic,
political, or scientific merit.)
• States may only ban depictions of ‘hardcore sex.’
 Erie v. Pap’s AM (2000) (holding that nude dancing is protected as
a form of expressive conduct)
o Fighting Words, Offensive Words, Hostile Audiences
 Fighting Words
• Chaplinsky v. New Hampshire (1942) (holding that
‘fighting words’ are not protected speech. Fighting words
are defined as those words “which by their very utterance
tend to incite an immediate breach of the peace.”)
 Hostile Audiences
 • Terminiello v. Chicago (1949) (holding that words must
incite to violence; merely angering the listeners is not
adequate, as the first amendment is there to protect such
ideas. There is no such thing as a “heckler’s veto.”
• Feiner v. New York (1951) (holding that when someone
threatened to attack Feiner during a speech, prompting the
police to remove Feiner. The court upheld the arrest of
‘trying to incite a riot,’ stating that the police made the
determination that a riot was imminent. While ordinary
murmuring and objections of a hostile audience are not
enough to silence a speaker, Feiner was creating much
more than that. Last ‘fighting words’ conviction that was
upheld.)
• Dick Gregory Case (holding that when the police dispersed
demonstrators with a permit, stating that violence was
imminent from counter-demonstrators, they violated first
amendment rights because they failed to call for backup
first.)
 Offensive Words
• Cohen v. California (1971)
o Facts: Cohen arrested in a courthouse by a pig for
wearing a “Fuck the Draft” jacket.
o The court held this was not obscene, because
obscenity has to be, in some significant way,
‘erotic.’
o The court reasoned that audiences were not captive,
because outside of our homes, we will be exposed
to ideas we find offensive. The jacket could be
avoided by averting one’s eyes.
o The court reasoned that ‘one’s man vulgarity is
another man’s lyric,’ and that to cleanse public
debate to make it palatable to the most squeamish
among us is to violate the 1st.
o The court also reasoned that ‘Fuck the Draft,’
contained within it an otherwise inexpressible idea.
o After Cohen, the standard for ‘fighting words’ is (i)
whether the words were aimed at a specific person;
and (ii) whether the words are reasonably
interpreted as saying something vitriolic about that
person.
• Lewis v. New Orleans (1974) (holding that vulgar or
offensive speech is protected under the first amendment)
o Should categories be created?
 New York v. Ferber (1982) (holding that it is illegal to sell
materials depicting minors engaged in sexual activity, even if not
 obscene, because the state has a compelling interest in protecting
children from harm and sexual exploitation, that outweighs any
First Amendment interest. Scienter is not important; one does not
have to know that materials he possesses depict minors; mere
possession is adequate to find guilt.)
 Simon & Schuster v. Members of NY State Crimes Board (1991)
(holding unconstitutional a New York law requiring income
derived from works in which individuals admit to crime involving
victims, on the grounds that the individual’s interest in free
expression outweighed the government’s compelling interest in
compensating the victims from the fruits of the crime. Setting up a
victim’s compensation fund is probably constitutional if done in a
uniform way, that is, taking money from all of a person’s income,
as opposed only to protected free speech activity)
 Osborn v. Ohio (1990) (holding that the state’s compelling interest
in protecting children from sexual exploitation overcomes any first
amendment claims, and it is therefore illegal to possess child
pornography in one’s home.)
 Ashcroft v. Free Speech Coalition (2002) (holding that the
government may not ban ‘virtual child pornography,’ that is to say
computer generated pornography or adults posing as minors)
o Pornography & Women
 American Booksellers Assoc v. Hudnut (1985) (holding
unconstitutional a statute mandating adult booksellers be fined if
someone assaulted a woman after reading a book that ‘degraded
women.’ This statute eliminated level 3 of Miller, because it did
not account for works that did this but had redeeming qualities. It
is viewpoint-based discrimination.)
o Racist Speech
 Collin v. Smith (holding that the city of Skokie could not deny the
ANP a permit to march based on their political beliefs, reasoning
that, as per precedent, someone has to react before the parade can
be stopped. What is at stake here is the content of the ideas
expressed, coupled with the lack of a captive audience.)
o Unconventional Communications
 US v. O’Brien (1968)
• Facts: Draft Card burning in violation of law making it a
crime to destroy or mutilate your draft card.
• The court held that it was within Congress’ power to
regulate this type of symbolic speech. This case establishes
the time/place/manner restrictions on free speech.
• You must ask four questions as to whether a government
regulation of speech violated the First Amendment:
o Was the regulation within the constitutional power
of government?
 o Did it further an “important or substantial
government interest”?
o Was the interest “unrelated to the purpose of free
expression”?
o Is the “incidental restriction” on First Amendment
Freedoms “no greater than is essential to the
furtherance of” the government interest?
• The court held that all of these conditions were satisfied.
 Tinker v. Des Moines School District (1969) (holding that the
wearing of black armbands at school to protest the Vietnam War
was ‘symbolic speech akin to pure speech,’ and therefore protected
under the First Amendment.)
 Texas v. Johnson (1989)
• Facts: Johnson burned a flag in protest.
• The court held that the statute under which he was
convicted was violative of the First Amendment.
• The court reasoned that if Texas’ interest in banning
burning the flag was to preserve the flag as a symbol of
national unity and to prevent others from being seriously
offended by its burning, then to prohibit Johnson’s conduct
using the statute, made the statute’s restriction on
activity/speech content-based (content-specific). Because
of this, the statute was subject to strict scrutiny. A
compelling interest may exist to protect the dignity of the
flag, but Texas’s means were not necessary.
 Clark v. Community for Creative Non-violence (1984) (holding
that a statute prohibiting sleeping in a public park was content-
neutral, and therefore, prohibiting protestors from sleeping there to
dramatize the plight of the homeless was subject to the O’Brian
test. Statute was upheld.)
o Is Some Protected speech less equal than other types?
 Renton v. Playtime Theaters, Inc.
• Facts: City zoning mandated that adult shops had to be on
the outskirts of town, citing the harmful secondary effects
of such places.
• The court held that government has a substantial interest in
protecting its citizens from harmful secondary effects, and
that if the purpose of the zoning is done for this reason (and
not because of content per se) and is therefore ‘content
neutral,’ the zoning is subject to intermediate. The zoning
will only be found unconstitutional if not substantially
related to the government’s interest in combating secondary
effects.
• The court applied the time/place/standard test of O’Brian.
• The city still allowed a forum for Playtime theaters to exist.
  Boos v. Barry (1988) (holding that a Washington D.C. statute
prohibiting signs of protest within 500 feet of a foreign embassy
was content-specific, and therefore strict scrutiny applied (whether
to advance a compelling interest, and as narrowly tailored as
possible). The statute failed on the second prong, with the Court
holding it could be more narrowly tailored.)
 Erie v. Pap’s A.M. (2000) (holding that nude dancing is protected
under the First Amendment, but it can be zoned. Since the zoning
was for secondary effects, it is a content-neutral restriction on free
speech and therefore time/place/manner restrictions apply. The
state must then only show, like in Renton, that the zoning is
substantially related to combating harmful secondary effects.)
 Los Angeles v. Almeida Books (2002) (affirming Renton)
o Hate Speech
 R.A.V. v. St. Paul (1992)
• Facts: Some teenagers burnt crosses on the lawn of their
black neighbors. A hate-speech statute made this a crime.
The MN Sup Ct construed the statute only to apply to
‘fighting words.’
• The court held that, even as construed, the statute making
this a crime was overbroad, and impermissibly content-
based.
o It was content-based because it applied only to hate-
speech that was directed toward people based on
race, color, creed, religion, or gender. Not covered
were political affiliation, sexual orientation, or
union membership, for example.
o The court held it was viewpoint based, because, in
an argument, it allowed one person to insult a
certain way, but not another.
• As content-based, the statute had to pass a strict scrutiny
test. That is, there must be a compelling governmental
interest and the law must be narrowly tailored to meet that
interest.
o The Court held that while there was a compelling
governmental interest, but the statute was not
narrowly tailored, as other, content-neutral statutes,
could serve the intended purpose.
 Wisonsin v. Mitchell (1993) (holding constitutional hate-speech
laws that mandated an increased sentence for crimes committed
where the victim is selected because of his race. The court
reasoned that he was being punished for his motive as exhibited
through speech-action, not for his thoughts.)
 Virginia v. Black (2003) (holding that it a ban on cross-burning is
constitutional, because the act is done to intimidate people in order
 to bring about social change- FBI’s terrorism definition- and poses
a ‘clear and imminent’ danger to the public, independent of race,
color, national origin, etc.)
o Prior Restraints and National Security
 New York Times Co. v. US (Pentagon Papers)
• Facts: Sensitive documents about US involvement in
Vietnam were leaked to the press. US sought an injunction
to prevent their publication.
• The court held that prior restraint comes to this court
bearing a heavy presumption against its validity and the
government carries a heavy burden of showing justification
for the enforcement of such a restraint.
• The court reasoned that there were no issues of national
security at stake with the documents. Had there been a
substantial certainty of the threat of ‘direct, immediate, and
irreparable damage to the country,’ an injunction may have
been upheld.
 US v. Progressive, Inc. (1979). Fed Dist Ct.
• Facts: Progressive sought to publish (mostly declassified)
technical information about how to build an H-Bomb. The
US argued that this information could pose a threat to
national security.
• The court bought it.
• The court employed a balancing test between the Interest of
the Government in protecting national security, and the
rights guaranteed under the first amendment. Reasoning
that preventing the publication of material would not
contribute to disarmament (the stated goal of Progressive),
the court decided that the First Amendment was not
interfered with and the presumption of unconstitutionality
was overcome.
• The case was dropped when the information was published
elsewhere.
 Snepp v. US (1980) (holding that an employee of the CIA who
signed an employment contract not to publish any information
without consent of CIA, could be subject to subsequent
punishment; he was not allowed to collect on the proceeds of his
book containing within it confidential materials not cleared by
CIA).
 Watchtower Bible & Tract Society v. Stratton (2002) (holding that
a ban on solicitation without prior permit is unconstitutional, on
the grounds that it is a prior restraint on speech, since the statute is
not narrowly tailored to meet the ends sought by the city- assuring
the ‘privacy’ of residents)
o Newsgathering
 Publicity About Trials
• Sheppard v. Maxwell (1966) (holding that if a convicted
defendant can show that pretrial publicity prejudiced the
jury, that is to say, the jury came in with opinions already
formed about the case, he is entitled to a reversal of the
decision)
• Nebraska Press Assoc v. Stuart (1976) (holding that pretrial
gag orders on the press (prohibition from publishing
anything out of fear it will prejudice the jury), will only be
upheld if there are compelling governmental interests. This
will almost never happen. It will only be allowed if the
“gravity of the evil, discounted by its improbability, is
greater than the damage from impairment of First
Amendment Rights.” This prejudicing of the jury must be
proved; it cannot be speculative.)
o Here, there were other alternatives to avoiding
prejudicing the jury
 Change of venue, postponement of trial, voir
dire, restricting statements by lawyers &
police.
 Protection of Confidential Sources
• Branzburg v. Hayes (1972)
o Facts: Branzberg, et. al. is brought before a grand
jury, seeking information on crimes related to
assassinating the President and ‘violent overthrow
of the government.’ He says as a reporter he is
privileged from divulging his sources to the grand
jury. The court disagrees.
o The court reasons that the grand-jury is allowed to
seek evidence and that a reporter has no greater
protection than other citizens in front of a grand
jury.
o One can only claim a press privilege if the grand
jury sought the evidence in bad faith, with the intent
of harassing Branzberg and disrupting his sources.
o A press privilege cannot be claimed if grand jury
asserts a subpoena for ‘compelling reasons,’ like
investigating crimes.
o The court weight the interest in protecting sources
with the interest of a grand jury needing to
investigate crimes and rules in favor of the Grand
Jury.
• Zurcher v. Stanford Daily (1978) (holding that a First
Amendment claim does not arise when a search- with
 warrant- delays the ability to publish a newspaper, because
the freedom of the press is not abridged.
 Access to Trials and other Government controlled Arenas
• Richmond Newspapers v. Virginia (1980)
o Guy keeps getting mistrials because everyone
knows about his bloody shirt seized illegally.
o The court holds that the Right to a Fair trial does
not trump First Amendment claims, and that trials
may only be closed to the public if there is an
‘overriding interest’ to close the trials. The First
Amendment requires they be open.
o Court also reasons that an open trial is necessary to
a fair trial.
 Access to Private Sources
• Food Lion v. Capital Cities
• Bartnicki v. Vopper (2001)
o Facts: Bartnicki published a communication that
was obtained illegally- two teacher’s union heads
saying they wanted to blow up the porches of some
school board officials. The parties sued him.
o The court uses intermediate scrutiny (?) and reasons
that where an event is “extremely newsworthy,”
publishing information obtained illegally about it
isn’t not punishable.
o However, the person who obtained it may be
punished.
o Government Property
 ISKCON v. Lee (1992) & Lee v. ISKCON (1992)
• Facts: Krishnas told they cannot solicit in the NY Port
Authority Airports.
• The court reasons that the Airport is a non-public forum,
and that as such, the government regulation of the
expression must be ‘reasonable in the light of the purpose
served by the forum’ and ‘viewpoint neutral.’
• Where, as in this case, the Krishna’s speech is banned but
vendors are allowed to sell inside the airport, the
government must have a compelling interest in preventing
the Krishnas from soliciting, handing out literature.
o There is a compelling reason to stop soliciting- to
prevent fraud and bothering people. The court
allows them to solicit outside the airport.
o There is no compelling reason to stop them from
handing out literature because everyone else is
allowed to hand out literature. All groups must be
equally abridged from free speech activity.
 • Government needs compelling reason to restrict activity in
limited public forum if restrictions are content based.
• 3 levels
o Traditional Public Forum
 Parks, etc.
o Limited Public Forum
 Philips center, theaters, etc. Airport.
 Government can change its mind anytime.
They can change it into a science lab. Not
historically a public forum.
o Nonpublic Forum
 Governmental forum where there is no
trespass.
 Nuclear Submarine, Military bases.
 Lehman v. Shaker Heights (1974) (upholding a city’s ban on
political advertising on buses, where commercial advertising was
allowed, reasoning that they were a non-public forum, and that
avoiding subjecting a captive audience to political advertising was
a important government interest. It is important to note from this
that different categories of speech- here, political versus
commercial- may not subject ordinances to strict review as would
traditional ‘content-based’ ordinances.
 Burson v. Freeman (1992) (upholding a ban on political
campaigning within 100 feet of a polling place, a traditional public
forum, on the grounds that it passed strict scrutiny because the
government had a compelling interest in protecting its citizen’s
rights to vote freely, and because the law was narrowly tailored to
meet that objective, and was content-neutral.)
o Privacy and the Public Forum
 Hill v. Colorado (2000) (upholding a ban on ‘approaching people,
passing out leaflets, or picketing, within 100 feet of an abortion
clinic,’ reasoning that the test survived strict scrutiny because it
was a valid regulation on time/place/manner, because it was
content neutral, and narrowly tailored to meet the compelling
government interest on making sure people are ‘let alone.’
o Government Support of Speech
 Subsidies
• Rust v. Sullivan (1991) (holding that the government, when
it allocates funds to promote a given idea- in this case, not
funding clinics who promote abortion- it does not have to
use funds to promote a competing idea. This establishes
selective federal funding; whereby the government can
selectively fund certain kinds of speech, if done for a
compelling reason, so long as that speech is not restricted
across the board.)
 • Rosenberger v. University of Virginia (1995) (holding that
if the government (state university) funds speech by Third
Parties (in this case a student newspaper), it cannot choose
which to fund and which not to fund based on viewpoint,
on the grounds that it is a content-based restriction on free
speech.)
• Nat’l Endowment for the Arts v. Finley (1998) (holding
that where Congress allots funds to fund the arts, it may
discriminate as to where its money goes, by not funding
obscene artists, because the obscene artists are not barred
from doing their work, merely from receiving federal
funding for their work)
• Legal Services Corp v. Velazquez (2001) (holding
unconstitutional a statute saying that Legal Aid will lose
federal funding if it represents people in cases against
welfare systems, etc. on the grounds that it is viewpoint
based as it does not allow for a disfavored type of speech-
because lawyers help resolve disputes- and therefore this
legislation amounts to a particular type of speech being
discriminated against.)
 Government as educator and editor
• Pierce v. Society of Sisters
• Meyer v. Nebraska
• Tinker v. Des Moines School District (1969) (holding that
the school’s restricting students from wearing anti-Vietnam
War armbands was unconstitutional because it
discriminated against a particular type of speech; the
armbands were speech for the purposes of the 1st
amendment because it was ‘symbolic speech akin to pure
speech.’)
• Bethel School District v. Frasier (1986) (holding that a
student who makes a speech that is considered lewd and
disruptive by teachers, can be disciplined; it is the teachers
who determine what is a substantial disruption of the
educational process)
• Hazelwood School District v. Kuhlmeier (1988) (holding
that a principal may censor a student newspaper if it is done
for reasons reasonably related to legitimate pedagogical
concerns)
• Board of Educators v. Pico (1982) (holding that books may
not be removed from shelves in a ‘narrowly partisan or
political manner’ or to deny students access to ideas with
which the authorities disagree. Books can be removed for
valid reasons, like educational suitability, or if they are
pervasively vulgar. A school can refuse to add a book to its
collection. If the book is available somewhere in the
 community- public library- it is not censorship. If you
remove books, you implicate the “pall of orthodoxy”)
• Southeastern Promotions, Ltd. V. Conrad (1975) (holding
that where a city theater puts on productions, it becomes a
public forum, and certain groups/productions cannot be
excluded merely because a different theater is available. To
ban ‘Hair,’ you must prove it is pornography.)
• US v. American Library Assoc. (2003) (holding that where
a library receives federal funding, it may require the
computers therein to put on ‘pornography filters,’ even
though some protected speech is inevitably filtered out.
Again, where Congress provides funds, it has wide latitude
to impose conditions on the use of those funds. Further,
filters could be removed for academic research)
o Access to the Mass Media
 Print media (where restrictions are prior restraints) fares much
better than TV/Radio (which, as a ‘limited medium,’ is subject to
stricter government regulation). Nobody knows what the hell to do
with computers.
 Miami Herald v. Tornillo (1974) (holding unconstitutional a
Florida statute, which mandated a candidate criticized in a
newspaper has an right to an equal reply in that newspaper, on the
grounds that it is a prior restraint, because forced access,
essentially, is telling the press what it can/can’t print. Therefore it
is presumed to be unconstitutional on its face.)
 Red Lion Broadcasting v. FCC (1969) (holding that where a
political person is disparaged on radio, he must be given an
opportunity to respond for equal time, for free, on that radio
station. This was ruled to be constitutional on the ground that
because fiber-optics are limited, Congress has a substantial interest
in making sure people get fair treatment on the airwaves. The
regulations are subject to intermediate scrutiny.)
 Turner Broadcasting System v. FCC (1994) (holding that where
regulation of cable TV is content neutral, mid-level review is to be
used. Cable is subject to regulation greater than broadcast TV, but
lesser than newspapers.) (1997) (holding that ‘must carry’
provisions of legislation, mandating cable TV systems to carry
local programming and educational TV free of charge, passed mid-
level review. What is the substantial government interest? To
educate the citizen and to make sure cable TV doesn’t become a
‘trust’ by forcing local channels out of business)
 Arkansas Educational Television v. Forbes (1998) (holding that
government may not select candidates for the purpose of a political
debate based on viewpoint, because TV is a level 2 forum,
although the debate machinery was a Level 3 nonpublic forum on
the grounds that some people were excluded, and the government
 can choose to exclude him on other reasonable grounds- i.e.
unpopular with the viewers.)
o Electronic Media & Content Regulation
 FCC v. Pacifica Foundation (1978) (holding that, as a level 2
forum, the FCC has a right to ‘time zone’ certain radio programs
which may offend persons- i.e. children- if played at a certain time
of the day)
 FCC v. League of Women Voters (holding that where the
regulation against broadcasters, TV & Radio, is content based, it is
subject to a mid-level review, because of government’s interest in
preserving the scarce airwaves; here, gov’t restriction on
editorializing on public airwaves did not pass the test because the
legislation was not narrowly tailored to meet a substantial
government interest.)
 Ashcroft v. ACLU (2002) & Ashcroft v. ACLU (2004) (both
suggesting that the internet is more akin to print media and that
encryption codes are protected under the First Amendment. The
court struck down the COPA because it was unconstitutional on its
face, because it was not narrowly tailored enough to meet the
government’s end of protecting kids from online pornography,
because it restricted many kinds of legitimate speech.)
o Freedom of Association
 Roberts v. US Jaycees (1984) (holding that there was no
compelling reason to keep women out of the JC’s based on their
sex because they have a freedom of association, and because it was
not ‘central to their activities,’ and therefore did not inhibit the
attainment of their goal of fostering civic responsibility, etc. Strict
scrutiny also applied to race, sex other suspect criterion)
 Boy Scouts of America v. Dale (2000) (holding that because
opposition to homosexuality was part of the Scouts’ ‘expressive
message,’ their freedom of association (or, freedom not to
associate) was violated by an anti-discrimination law barring them
from excluding gays as members. This law ‘impaired’ their
message.)
 Timmons v. Twin Cities Area New party (1997) (holding that a
political party’s freedom of association is not violated when a state
refuses to put its candidate on the ballot when he is already
nominated by another party, because applying this restriction was a
reasonable and nondiscriminatory way of achieving the state’s
important regulatory interest in ballot integrity and political
stability).
o Establishment Clause
o Both the establishment clause & the free exercise clause present
compelling interests of the people.
 Aid to Religion
• Everson v. Board of Education (1947) (holding that public
funds could be used to provide buses to transport students
to and from private religious schools because the funds also
funded public school buses. Would likely not be upheld
under the Lemon Test.)
• Walz v. Tax Comm’n (1970) (holding that the granting of
property tax exemptions to churches does not violate the
Establishment Clause; religion not favored over
nonreligion)
• Texas Monthly v. Bullock (1989) (holding unconstitutional
a Texas sales tax exemption on periodicals published or
distributed by a religious faith, aimed wholly of writings
promulgating the teaching of the faith, and books that
consist wholly of writings sacred to a religious faith, on the
grounds that it violated the Establishment clause; religion
was favored over nonreligion)
• Lemon v. Kurtzman (1970) K-12 standard.
o Establishes a three part test to determine whether
government action violates the establishment clause
 It must have a secular legislative purpose
• (post Mitchell: whether the materials
are in-themselves ideological or non
ideological in nature.)
 Its principle effect must neither advance nor
inhibit religion
• (Post Mitchell; Supplementing
religious education is okay, but not
supplanting gov’t funds for it)
 It must not foster an excessive government
entanglement with religion
• (Post Mitchell: You must prove
excessive entanglement with
religion)
• Mitchell v. Helms (2000)
o Holding that non-textbook materials (computers,
AV equipment) could be given to religious schools
so long as
 The materials are not religious in nature
 The materials are not diverted for religious
purposes (computers not used to run
religious programs)
 All schools- religious or not- are eligible for
the materials on the same terms.
• Tilton v. Richardson (1971) Higher Ed. Standard.
 o Holding that money given to a university to build a
new building if not violative of the establishment
clause if the building is used for a secular purpose,
and if it is only a ‘one-time’ grant. If done more
than once, it is ‘government entanglement)
• Roemer v. Board of Public Works (1976) (holding that a
scheme of subsidies given to private colleges, including
private religious colleges, did not violate the establishment
clause because the colleges performed an “essentially
secular educational function.”
• Zelman v. Simmons-Harris (2002) (holding that tuition
vouchers given to parents may be used to pay tuition at
religious private schools if they could also be used to pay
tuition at non-religious private schools, reasoning that any
‘advancement of religion’ was incidental and resulted from
the choice of individuals, not the government)
 Religion and Public Schools
• Wallace v. Jaffree (1985) (holding that a ‘silent prayer’
period failed the Lemon Test, even though it is silent not
compulsory. The court concluded that enacting legislation
mandating this was done solely to advance religion.)
• McCollum v. Board of Education (1948) (holding it
unconstitutional to have privately-employed religious
teachers conduct classes on school premises during school
hours because it helped religious groups obtain pupils
through the state’s compulsory public school machinery.
Also, facilities were only available to religious groups, not
equally available to nonreligious groups.)
• Zorach v Clauson (1952) (upholding a program where
students who were to receive religious instruction were
released and attended classes away from the school)
• Stone v. Graham
• Epperson v. Arkansas (1968) (holding unconstitutional a
statute that banned the teaching of evolution in the
classroom on the grounds that its sole purpose was a
religious one: barring the teaching of a theory at odds with
the Bible.)
• Edwards v. Aguillard (1987) (holding unconstitutional a
statute that forbade teaching evolution without teaching
‘creation science,’ on the grounds that there is no secular
purpose, and that the legislative history showed the
motivation was to advance religion.)
• Good News Club v. Milford Central School (2001)
(holding that it does not violate the constitution to allow
religious groups to meet in public school facilities during
 after-school hours if the facilities are equally available to
all groups, religious or nonreligious.)
 Official Acknowledgement of Religion
• Allegheny County v. ACLU (1989) (holding that when a
crèche is not part of a ‘holiday celebration,’ the test to
determine whether the establishment clause has been
violated is to ask whether a reasonable observer upon
seeing the display would think the government was
endorsing a religious or sectarian message; chances are, in
the absence of a holiday celebration, it will be a violation)
• Lee v. Weisman (1992) (holding that where school officials
endorse a prayer, even a non-denominational prayer, at
school ceremonies, it violates the establishment clause.)
• Santa Fe Ind. School Dist. v. Doe (2000) (holding that a
speech by a member of the student body that is given
before a high school football game is not a private speech
because it is at a level 3 forum; it is given by a single
person before every game, and the purpose of the
legislation was to advance religion.)
o Free Exercise Clause
 Conflict with State Regulation
• Employment Division v. Smith (Peyote)(1990) (holding
that when a prohibition on religious beliefs is merely an
incidental effect of a generally applicable law, there is no
violation of the free exercise clause. When this happens,
the government has to show it is a ‘particularly important
governmental goal’ and that an exemption would
‘substantially hinder’ the fulfillment of that goal.)
• Sherbert v. Verner (1963) (holding that a 7th day Adventist
on unemployment does not have to take a job where she is
required to work on Saturdays because the exemption does
not substantially hinder the fulfillment of the government
goal, and because Christians were not made to take jobs
where they had to work on Sundays)
• Yoder (holding that the Amish do not have to go to public
schools)
• Goldman v. Weinberger (holding that a Rabbi in the
military cannot wear his hat for national security reasons)
• Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993)
(holding that where governmental actions has an intent to
disfavor a particular religion, it will be subject to the most
strict scrutiny, only surviving if it is ‘neutral’ (doesn’t
disfavor a particular religious practice) and ‘generally
applicable’ (applies to all persons, not just those of a
particular religious credo.)
 • Locke v. Davey (2004) (holding that one’s free exercise
rights are not abridged when a state scholarship funds
refuses to provide scholarship to those attending schools
and seeking degrees in devotional theology.)
 Unusual religious Beliefs
• US v. Ballard (1944) (holding that faith healers could not
be charged with fraud because their beliefs were sincere)
• Torasco v. Watkins (1961) (holding that both theistic and
non-theistic religions receive free exercise protection)

 Equal Protection
o Race & Ethnic Ancestry
 Historical Background
• Dred Scott v. Sanford
 Discrimination against Racial & Ethnic Minorities
• Strauder v. West Virginia (1880) (holding that an act which
violated on its face against blacks violated equal protection)
• Plessy v. Ferguson (1896) (holding that separate but equal
facilities does not violate the equal protection; the
government’s reason was to prevent violence in the cars.)
• Korematsu v. United States (1944) (holding that race is
subject to strict scrutiny and that any statute discriminating
on the basis of race loses its presumption of
constitutionality.)
o Is there a compelling government reason for it, and
o Is the law narrowly tailored to achieving that end
and it could not be achieved by less drastic means.
• Brown v. Board (I) (1954) (holding that where two
facilities are separate but tangibly equal, there is a violation
of equal protection, because what is important is
nontangible qualities in a school, incapable of
measurement, and that separate facilities are inherently
unequal.)
• Brown v. Board (II) (1955) (holding that desegregation is a
matter of local concern and must be taken care of locally,
the courts in desegregating will be guided by equitable
principles, that defendants make a prompt and reasonable
start to full compliance, and that actions be taken ‘with all
deliberate speed.’ Court threatened to withhold federal
funds otherwise)
o Swann v. Charlotte (court orders integration of
schools; bussing)
• Loving v. Virginia (1971) (holding that anti-miscegenation
laws violated equal protection because there was no
compelling government interest in prohibiting interracial
 marriages. It was of no matter that the law applied ‘equally’
to blacks and whites)
 De Jure v. De Facto Segregation
• Yick Wo v. Hopkins (1886) (holding that discrimination in
the active administration of a statute, even if it is
constitutional on its face, violates equal protection)
• Washington v. Davis (1976) (holding that a law is only
violative of equal protection if it is a product of
discriminatory purpose; disproportionate racial impact may
be a factor in ascertaining intent, but it can never by itself
be sufficient to prove discriminatory intent)
o Affirmative Action & Benign Discrimination
 Regents of U. Cal v. Bakke (1974) (Powell’s opinion held that
racial/ethnic classification must be subject to strict scrutiny, even if
not a ‘discrete and insular minority.’ The government had to have a
compelling reason and racial classification had to be necessary to
achieve that objective. In education, this could only be done to
create a ‘diverse student body,’ with each applicant being treated
like an individual, and race being only one of many factors taken
into account)
 Adarand Constructors, Inc. v. Pena (1995) (holding that all racial
classifications, even if done for benign purposes, must be subject
to strict scrutiny, with a compelling governmental interest behind
them, and the law narrowly tailored to achieve that end, where no
less drastic measure could have been taken,
 Grutter v. Bollinger (2003) (holding that when race is one of many
factors taken into account in constructing a diverse student body, it
passes strict scrutiny. Good faith about the desire for a diverse
student body as a compelling interest is presumed, absent a
showing the contrary. Such an admissions program may be
“flexible enough to consider all pertinent elements of diversity in
the light of the particular qualifications of each applicant, and to
place them on the same footing for consideration, although not
necessarily according to the same weight.” Let’s check this out
again in 25 years to see if it is still necessary. Key: this is a GOAL)
 Gratz v. Bollinger (2003) (holding unconstitutional a quota-like
system on the grounds that it was not narrowly tailored enough to
meet the compelling interest of diversity. By giving ‘points’ to an
applicant, the applicants were not considered in the ‘entirety of
their character,’ which is wrong. Difficulty in implementing a
constitutional program is no excuse. Key: this is a quota.)
o Gender Discrimination
 Defining the Level of Scrutiny
• Reed v. Reed (1971) (court applied rationality standard)
 • Frontiero v. Richardson (1973) (court applied strict
scrutiny)
• Craig v. Boren (1976) (beer distributor… court holds that
gender classifications are subject to intermediate scrutiny
whether benign or not; that is, the law must be meant to
achieve an important governmental objective, and it must
be substantially related to the achievement of those goals.”
• US v. Virginia (1996) (holding that a state must show an
‘exceedingly persuasive justification” for a gender-based
scheme. Also, the use of faulty stereotypes about the
genders will not serve to justify discrimination. It does not
matter whether it is done with animus or not.)
 Benign-Compensatory-Remedial Discrimination
• Califano v. Webster (1977) (allowed women to not include
three years of lowest earnings when calculating social
security payouts. Holding that in a particularly narrowly
defined sphere where women have been previously
disadvantaged, a state attempt to remedy this must pass the
intermediate scrutiny test.)
• Orr v. Orr (1979) (holding that by allowing alimony to only
be paid to women by men was not substantially related to
remedying past discrimination)
• Mississippi Univ. for Women v. Hogan (1982) (holding
that gender-based classifications in admissions to
Mississippi University for Women Nursing school did not
pass intermediate scrutiny because women had not been
historically disadvantaged in the sphere of nursing.
o Mental Retardation
 Cleburne v. Cleburne Living Center, Inc. (1985) (holding that the
retarded are not a quasi-suspect class; for them, the mere
rationality standard is applied, but perhaps more rigorously than
with economic discrimination. Perhaps lowest standard because
they are ‘represented in government’ and therefore not a discrete
and insular minority.)
o Alienage
 Alienage is a discrete and insular minority. Pre-9/11. Provisions in
the constitution may or may not be applicable.
 All of the 1st amendment rights apply (incl. ability to form unions)
• 3d applies…
• 4th becomes rather complex.
• Every person on US soil is entitled to 4, 5, 6 amendment
protections if it is a criminal case.
• However, if the matter of evidence occurs outside the
continental limits of the US, where US officers break into
 an office, seize evidence, bring it back, try him with the
stolen evidence; he gets counsel but confesses on the way.
• 6th amendment says, you cannot introduce coerced
confessions.
• You can introduce this into evidence, unless the other
nation has a similar 4th amendment provision.
• If a person is lawfully within US borders they get 1, 3, 4, 5,
6, 8 amendment…
• Illegals have the same rights, unless caught at the border.
• Aliens are between low and middle level review.
• But, persons who are lawfully on the soil of the US or its
territories, are entitled to constitutional protections under 1st, 4th,
5th, 6th...
• Material Witness Act (government can keep you as long as
they want, so long as a court agrees that yo uare a person of
interest at a habeas corpus hearing.)