Updated 11/28/09

Constitutional Law

I. Methods of Constitutional Interpretations

A. History
i. Relates to both text and structure but is a separation
ii. When the nation abandoned the Articles of Confederation they moved toward a stronger
federal government but at the same time they feared a strong federal government. But they
put it in charge of ensuring liberty anyway.
iii. Notion that government is dangerous and is a threat to liberty but also putting it in charge of
protecting liberty
iv. Originalism: What is the original meaning of the constitution how did they originally intend
to interpret the constitution
a. Problem: what was the meaning and how do we apply it today,
whose meaning and when?
v. Last amendment trumps everything that comes before
vi. Tension with history is really a tension with social context:
a. Context Need: Allows the government to give us what we need
b. When things change this allows us to reinterpret the constitution to let it mean what
we need it to mean instead of throwing out the constitution every 20 years.
1. Ex: Civil War: Amended 14th and 15th
2. Ex: Depression: had to reinterpret commerce clause to allow regulation on
the economy
B. Text
i. Plain meaning, what do the words actually mean: whose meaning are they talking about and
when do you look at meaning (when it was written or present)
ii. Problems: multiple meanings, meanings change, meanings when, do you look to one word
or one phrase – ambiguity, vagueness, diverse meanings
iii. Use in context or look at word alone.
C. Structure
i. Nothing in the constitution actually says these things it is more implied by the structure of
the constitution – Art. I, II, III.
ii. Federalism
a. Vertical: Nation v. State
b. When States rights (fiscally) are at issue conservatives are all about federalism but
opposite for individual rights,
c. When indv. rights more interested in Nation taking precedent and states rights take
the bottom rung.
- Conservatives on the court believe structure matters greatly when rights of the
states are at issue
d. Opposite for liberals
iii. Separation of Powers
a. Horizontal: Separation of the three branches
b. Political Question Doctrine – won’t get involved in political questions
D. Precedent
i. How closely are they going to follow precedent – is there a case or test that they need to
follow or distinguish
E. Policy Effects
i. If we can use policy to interpret the constitution in a plausible way then do it
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ii. Conservatives use for abortion, and liberals for guns

F. Values – “Spirit”
i. Finding an important principle in the constitution to base your decision on, the “Spirit of
equality”
ii. Values changes – inequality (slavery) to equality (13 Amend)

II. Federal Judicial Power

A. Power of Judicial Review

i. Marbury v. Madison – set up the power of judicial review (cited to say court has power to
interpret)
a. Three Reasons Given By Court:
1. Art. 6 §3 – justify with textually language: Constitution supposed to be
supreme to the laws because it is listed first and the members of the court
took an oath to uphold so they must be able to interpret
2. Art. 6§2 – supremacy clause
3. Art. 3 – congress derives its power from this Art. but congress didn’t have
power to make the law it made so there needs to be some body to make sure
congress doesn’t overstep your powers (separation of powers argument)

B. Limits on Federal Judicial Power

i. Limits via Interpretation
a. DC. v. Heller: Washington DC had a gun law about guns in homes, court ound law
unconstitutional after Scalia was able to say the 2nd Amendment codified a
preexisting right and distinguished from precedent that said 2nd amendment was tied
to Militia
b. Where there is a precedent this is a limit because they have to follow the precedent
or find some way to distinguish it, this acts as a limit by making them do something.
ii. Limits via Congress
a. Congress has power to make exceptions
b. Supreme Court has discretion over its docket because congress has given it that
discretion
c. Jurisdiction Stropping: Congress taking away some jx from the court
1. There is no decision from the court that would allow congress to entirely strip
an category of jx from the court
2. It does seem that where congress grants a category fo jx t
hey can also take that category away.
i. Ex parte McCradle: Congress had taken something they had given

ii. Limits via Justifiability Doctrines

- Art. III fed. jx authority for all “cases” and controversies”
- Cases: generally about some kind of subject matter (federal questions jx)
- Controversies: federal diversity of citizenship jx

a. No Advisory Opinions
1. This means that parties are required to wait until there is an actual case or
controversies
2. Keep the legislative and executive accountable
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3. Keep the separation of powers – congress to make the rules not the judiciary
4. Nothing has really happened, the problem hasn’t arisen. – Court can’t see the
problem first they have to wait until someone to bring it
b. Standing (Injury, Causation, Redressability) – just violating a law not good enough
for standing
1. Injury: Something bad has to have happened to someone
i. Injury must be actual and imminent – Distinct and Palpable not
abstract conjectural, hypothetical or speculative” p. 48
ii. Money is a great harm to have for standinf
iii. What count as an injury is subject to life experience and different in
different peoples eyes
iv. Allen v. Wright: not getting a desegregated education (didn’t work)
v. Mass. v. EPA: Climate Change destroying coast line (did work)
vi. Most Common types of Injury Claimed
a. injury to common law right
b. Injury to statutory right
c. Injury to constitutional right
vii. Lujan: Not seeing the endangered species is speculative – show me
the plane ticket
2. Causation: injury is fairly traceable to the ∆ ’s conduct
i. Independent 3rd party decisions make things untraceable or can be an
intervening cause
a. Allen: gov. couldn’t force the parents to send their kid to
public school, no guarantee that without the subsidy they
would send kids to public school.
ii. Entirety v. Incremental – just because it isn’t a link to the entire
problem doesn’t mean they can’t do something about it. Will
sometimes look at things incrementally and is there a link to the small
increment and will that some reduction be enough
a. Ex: Mass. v. EPA

3. Redressability: court must be able to do something to help

i. Tied to causation, where there is no link there is no Redressability
because anything they do won’t make a difference
ii. City of LA v. Lyons: wanted an injunction but would have to prove
that someone would get the same injury so they could redress with an
injunction. If he would have asked for money that would have been
ok.
4. Prudential Standing Requirements
1. No 3rd Parties – has to be your injury, cannot bring a case on
another’s behalf 9exception- parents for children)
2. No Generalized Grievances suits/harms– exception for taxpayer and
environmental claims (but only because congress authorized)
• Sometimes we are all harmed but no standing
3. In there is a statutory injury claim you must be in the zone of interest
the statute was designed to protect
• Arises almost exclusively in administrative law
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c. Ripeness
1. Can’t Bring a case too early
2. injury can’t be speculative – doesn’t have to have already occurred but must
be imminent
3. 2 factors for determining if ripe:
1. Fitness fro Adjudication: how focused is the legal questions?, do we
know what the legal questions will be or do they require further
development and are there enough facts for the legal questions to be
clear?
2. Potential Hardship to Parties if they must wait til they are fully
injured to bring suit:
i. Government in not enforcing law could make it impossible to
bring suit
ii. Chilling effect on bringing suits
iii. Pre-enforcement review: if ripeness seems unfair it doesn’t
need to be shown/ they ignore it.

d. No Moot Cases
1. General Rule: No moot cases, meaning you cannot bring a case too late.
2. A case becomes moot when:
i. Death: a party dies
ii. Settlement: when the parties settle their suit becomes moot
iii. Law Change/Repeal: When there is a law change it may no longer be
an issue
3. Exceptions to the General Rule:
i. Wrongs capable of repetition but evading review (p. 98)
a. The harm occurs for a short distinct period of time too short to
bring a suit
b. EX: elections, pregnancy, school years
ii. Voluntary cessation
a. Where a ∆ voluntarily ceases the act but is free to resume the
behavior at anytime
b. EX: the government stops enforcing a law
c. The government cannot say they will stop and have the case
be over unless they agree to stop forever (appeal a law for
example)
iii. Class Action Lawsuit
a. A class action is not moot even if the named parties settle their
case, the class action goes on.
b. An action can continue even if the named plaintiff’s claims are
rendered moot
c. When the government buys off the named Π the class action
continues (in the same name even.

e. No Political Questions
1. Courts will not decide matters that the constitution committed to the political
branches for resolution
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2. 3 Categories of Political Questions

i. Guarantee Clause: anything to do with this clause in Art. IV is a
political question (except ep)
a. No invasion from without, no insurrection from within
b. No states shall be overthrown
c. The Supreme Court will not decide who is the right
government; this is up to congress
d. This could mean that the courts stay out of elections (except
on equal protection grounds)
ii. Challenges to Presidents Foreign Policy Conduct
a. The Court does not allow citizens to bring a suit against the
president for unconstitutional foreign policy
b. For the War on Terror the suits brought are not challenging
foreign policy but the violations of individual rights in policy
application
iii. Challenges to the Impeachment Process
a. The president may be impeached for high crimes and
misdemeanors
b. The text of the constitution gives the power of impeachment to
congress
c. What constitutes a high crime or misdemeanor is still unclear
3. Exception: Challenges to restrictions on congressional membership – then the
court will get involved
4. Criticism of this doctrine: the court is just chickening out
III. Federal Legislative Power
A. General Power
i. Congresses powers come from Art. I and Amendment Enforcement Clauses, and they are
“All legislative powers here in granted”
a. This limits the power of Congress
b. Neither the executive nor the judicial branches are limited this way
c. This is how federalism is built into the constitution because the framers were afraid
of giving the federal government too much power
d. Congresses powers are enumerated – they can also do what is necessary and proper
to make the enumerated powers work
e. It is all about he Ends and Means – let the ends be legitimate and the means be
rationally related to achieving the ends (p. 135)
f. (Separation of Powers) v. (Federalism)
Judicial Restraint Protecting States Rights
(Defer to Congress) (Overturn Congress)
ii. McCulloch v. Maryland – whether means plainly adapted to legitimate ends
iii. Congress was given the Power to regulate commerce among the states (the question
becomes what is commerce and when is it interstate)

B. Commerce Power
- historical pendulum between broad and narrow scope: apply contemporary factors from Lopez
guns/schools & Morrison gender violence
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i. Historical Background
a. Four Era’s of Commerce Clause Jurisprudence
1. 1790 to 1890: Broad Definition – Court essentially says “ congress do
whatever you need to do to help the economy”
2. 1890 to 1937: Narrow Definition – Congress began to regulate work
environments during the industrial revolution and the court put a stop to it,
when there is a time of greater regulation congress tends to put the breaks on
it and say it is up to the states
3. 1937 to 1995: Broad Definition – when the depression hit the court let
congress do what it needed to do to get things back on track, this had to
include a great deal of regulation, the switch in time that saved nine
4. 1995 to Present: Narrow Definition – the court reacted to society and again
put a stop to too much regulation
b. When the court increases its checks there is less deference to congress (more
activist) – this is normally done through Formalism
i. Production (indirect effects on Econ) v. Commerce (direct effects Econ)
ii. Formalism these tow things, there is production and then there is commerce
and they are completely separate.
c. When the court decreases its checks they show judicial restraint and increase
deference to congress – this is done through Functionalism
i. The line between production and commerce becomes arbitrary
ii. The economy is seen as an integrated, functionally related thing – what
doesn’t related
iii. If everything related functionally then the problem comes at finding the limit
d. Wickard v. Filburn – This case makes growing wheat for private consumption part of
interstate commerce.
i. The court took a functional approach and said that when aggregated home
wheat production has a “Substantial Effect” on interstate commerce so
congress had the authority to make laws regulating it
ii. Substantial Effects Test: Congress can regulate when the activity has a
substantial effect on interstate commerce

ii. Civil Rights as Commerce

a. Congress did not have the power to regulate private actions using the 14th
Amendment so they had to use the commerce clause to regulate
a. Heart of Atlanta v. US – Hotel would not accommodate African Americans,
Congress made a law saying they had to and the hotel sued.
i. The Court found that this does have a substantial effect on interstate
commerce so congress has the power to regulate
ii. Congress had made no specific findings about the effect on interstate
commerce the court just bought the argument
b. Katzenbach v. McClung (Ollies BBQ)
i. Restaurant would only let African American’s get food to go.
ii. The court found that congress did have the authority to regulate this business
because they had a substantial effect on interstate commerce
iii. Use the Rational Basis Test: all court does is make sure that there was a
rational basis for Congress’ decision/regulation. (Still can only regulate if
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there is a substantial effect but now only look at whether that beliefe has a
rational basis)

iii. Contemporary Cases

a. Congress may Regulate three Categories:
i. Channels of Interstate Commerce: how the goods and services move across
the nation
ii. Instrumentalities of interstate Commerce: the actual goods, things, services
moving across the nation
iii. Activities having a Substantial Relation to interstate commerce – things that
substantially effect commerce (where the 5 Lopez factors come in) – to
determine this:
1. Economic – Is the activity itself economic in nature or is it part of a
larger scheme. Whether the activity is economic or an essential
part of regulation of economic market.
a. EX.: U.S. v. Morrison: Virginia Tech girl assaulted and
school and state did nothing. Court determined that her harm
was not economic in nature and was not part of a larger
scheme
b. Ex: Gonzales v. Raich: use the substantial effects test to say
this is economic and to aggregate, congress needs to regulate
intrastate commerce in order to regulate interstate commerce
2. Jurisdictional Element – Do the facts of the case involve an activity
that is interstate? Does the law at issue have a jurisdictional element
that makes it interstate? whether any jurisdictional element limiting
to situations affecting interstate commerce.
• To ensure case by case that the law has an effect on interstate
commerce
• Add an element to the crime (in Lopez add “any gun that had been
part of interstate commerce)
• US v. Morrison: no limitation in this case and doesn’t seem to be
interstate.
3. Congressional Findings – Did congress do anything to show the
economic effect or that it is interstate? Whether legislative findings
demonstrate effects on interstate commerce
a. U.S. v. Morrison: here the court had been presented with lots
of data but the court was un-persuaded
4. The Fit between the means and the ends – Are the links between
the ends and the means too attenuated? Are there just too many leaps
of logic?
a. Lopez – means were too attenuated, too loose
5. Managing Federalism – Can we still distinguish between federal and
local?
b. US v. Lopez:
i. Congress passed a law regulating guns in schools
ii. The court invalidated the law saying that congress did not have the authority
to make it because it did not involve interstate commerce; they used the
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factors above to determine this

iv. Limits from Tenth Amendment

a. Whatever powers the constitution didn’t give to the federal government is left to the
states
b. The federal government may get the states to do what they want by bribing them
with federal money but they cannot coerce, commandeer or compel the states
i. NY v. US – compel the legislature to make laws (that’s commandeering the
legislature and we don’t allow that)
ii. Printz v. US: cannot commandeer the executive branch to implement law.
Brady Gun Law wanted officers to process gun reg. checks but court said this
was commandeering.
iii.
c. The tenth amendment only protects states when they are acting in their state
capacity, if congress isn’t violating a sovereign right then they are not limited by the
10th amendment
i. Reno v. Condon – the DMV was selling residents information, and congress
made a law prohibiting them form doing this. The Court upheld the law
because they found that there was no sovereign right to sell information so
the 10th Amendment didn’t protect them.
ii. state v. market participant

C. Taxing and Spending

i. Test for Acceptable Spending Power
1. General Welfare
i. Congress can spend for the general welfare
ii. Congress assumes that if Congress is spending money then it is fore the
general welfare.
2. Conditions
i. Conditions on money must be clear and unambiguous
ii. States must make a knowing choice when they accept federal funds
3. Nexus/Germane
i. condition must be germane/connected to the spending goal
ii. The means have to fit the end
4. No other constitutional violations Allowed
i. We don’t want to buy peoples rights
ii. Look to other constitutional Provisions
a. South Dakota v. Dole – 21st amendment limit returning alcohol
regulation to the states, court got around this with
iii. Tenth Amendment: its not coercive when it is a small amount of an overall
budget (5% in funds wasn’t enough to make it coercive)

Greater Power (to Spend) includes Lesser Power (to Spend with Conditions)
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 Congress’ greatest power is to not spend at all

 So, if they choose to spend, should be able to spend conditionally
 States aren’t entitled to any spending from the federal government, so why cant
fed govt make conditions?
v.
Unconstitutional Conditions Doctrine – The Government may Not do Indirectly what
if may NOT do directly
 Congress may not do indirectly what it may not do directly
 Indirectly by bribing citizens
 Buying up rights and freedoms

D. Section 5 of Fourteenth Amendment

i. §5 of the 14th amendment is an enforcement provision, telling congress to enforce the rights
in the 14th amendment
ii. Limit on the 14th amendment is that it only applies to state and federal actions
iii. Congress may remedy or deter constitutional violations via congruent and proportional
means

Level of Scrutiny Purpose/Ends Means

Strict Compelling Necessary or Narrowly
ex: race Tailored
Intermediate Important or Significant Substantially Related
ex: sex
Rational Basis Legitimate Rationally Related
ex: age, general laws

iv. Congress can use its §5 enforcement power via mean that are congruent and proportional
to enforce the meaning of the constitution as the court has interpreted it (the meaning or its
constitutionality is determined by its level of scrutiny)

E. Limits on Congressional Power

i. 10th Amendment: Cannot coerce, commandeer or compel the states
a. Congress may not commandeer either the states policymaking function (legislature)
or its enforcement function (executive)
ii. 11th Amendment: protects the states’ sovereign immunity from lawsuits
a. Bars litigation by citizens of any state against their state or another state
b. Exceptions:
1. State Officials: generally suing for injunctive relief, can only get damages if
personally liable but in position as state official
2. Waiver/Consent: a state can waive immunity, often part of federal spending –
bride state – take money must waive immunity, waiver must be explicit, can
sure for money
3. Congress Authorizes suits as per §5 of the 14th Amendment
4. Can still sue states in state court section if allowed by state

IV. Federal Executive Power – Article II

- Text: Vested Clause (not limited to “herein granted”): take case Clause; Commander in
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Chief; various shared powers (Appointments, Treaties, War)

- Express (Art. II §2) and implied powers (Art. II §1)

A. Scope of Executive Power

i. Inherent: Test for executive Power
1. President + Congress
a. The president and congress are on the same page and want the same thing,
clear that congress and the president want the same thing
b. In this case the Court would be deferential
2. President Acting Alone
a. Would look to the president’s constitutional authority, case by case and the
circumstances
b. Defer or not based on the circumstances

3. President – Congress
a. The President and Congress disagree as to what to do (presidents power the
lowest here)
b. The court uses high scrutiny to evaluate; president’s actions must be
scrutinized with caution
- Youngstown – court determined that this was a congressional power and congress didn’t
have the authority, said it fit into 3 cause congress had passed a law saying he couldn’t
act alone. Power to regulate military isn’t enough cause congress supplies the army.

ii. Executive Privilege: Middle category – Just President Acting Alone

1. There was no general protection of confidentiality but the court did say that in some
situations it would be needed, it depends on the circumstances
2. Nixon- court balanced confidentiality/privilege v. criminal justice and here criminal
justice won.

B. No expansion by Congress
i. Congress may not alter specific textual grants of power
ii. The constitution has a specific method for making laws and congress and the president (even
if they agree) can’t just alter that (Clinton v. City of NY)

C. Powers of Administrative State

i. Minimal Non-Delegation Doctrine
1. Congress may delegate to agencies
2. They delegate policy making to the various agencies
 minimal: congress only has to set out “intelligible principles” to guide the
agencies
 struck down
3. Test: Congress has to set out “intelligible principles” for the agency to
follow, this is meant to guide the agencies
4. This isn’t much of a check because agencies have a lot of leeway and though
congress can override the agency they rarely do because they have so much to look
at.
ii. No Legislative Veto
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1. There is no legislative veto because it was found unconstitutional

2. Congress tells agency to make standards and if you get it wrong the House or the
Senate will tell them that it was wrong, only one house has to do it to make it more
efficient
3. Now congress MUST pass the law through both houses

iii. Minimal Appointment & Removal Limitations

1. Checks of appointment and removal of chief officers of the agencies
a. Principal Officers – the president nominates and the senate confirms
b. Inferior Officers – congress can delegate this to the president or courts can or
have a combination of presidential and congressional power BUT it cannot
reserve the power for itself
2. The constitution is totally silent on how to remove these officials, but congress may
limit removal. (see handout)
iv. Congress can also control the agencies though MONEY – they control the agency budget
and that has a lot of power.
v. Congress can also control agencies a little through committee monitoring

D. Foreign Policy
i. The president’s domestic and foreign powers are different and have different origins
1. Domestic: federalism limits domestic powers
2. Foreign: States never dealt in foreign affairs so that’s the sole realm of the executive
and they are unencumbered in making foreign policy – no limitation
ii. President’s Foreign Policy power plenary (US v. Curtiss)
iii. Treaties and Executive Agreements
1. When the president makes treaties the constitution sets out the procedure: The
president and 2/3 of the senate must agree and approve
2. An Executive Agreement does not require congressional approval it is a unilateral
decision by the president
a. There are no limits on Executive Agreements even though it is not mentioned
in the constitution
b. Not listed in Supremacy clause but would use US v. Curtiss to argue that it is
supreme
c. The Supreme Court has never held one to be unconstitutional
iv. Defacto Wars – send troops but no official declaration of war – judiciary would probably not
get involved because it is a political question
v. War on Terrorism
1. Basis for Detention
a. violation of law of war
b. Criminal Charges – most cases about avoiding this system
c. Immigration Charges
d. Material Witness – if authorized by a federal judge and sent to federal grand
jury
e. Treason (Specific Requirements)
2. Citizen (Enemy Combatants)
a. Due Process can never be suspended
b. To determine what process is due use the Eldridge Test
i. Nature and degree of private interest
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ii. Risk of erroneous deprivation under current procedure compared with

value of additional safeguards
iii. Nature and degree of government interest
c. Hamdi v. Rumsfeld – court found that due process applied but gave less
process than normal
3. Aliens
a. Rasul – Habeas Corpus applies to Aliens
b. Habeas can be suspended but it must be done properly (Boumediene – here
they did not suspend habeas properly)

E. Checks on The President

i. Distinguish between the President acting as President and the President acting before
President
1. As President: The president has absolute immunity for all official acts
a. Comes from fear that there would b too many law suite
b. Fear chilling effect: don’t want president to worry about actions
c. Separation of powers: political questions justiciability doctrine
2. Actions Before or After Presidency: No immunity for acts before presidency
(Clinton)
a. Court not even going to stay the law suit (they didn’t’ think it would interfere
in his work)
3. There is no ruling regarding unofficial acts the president commits during his
presidency – probably wouldn’t be immune forever
ii. Impeachment
1. The President can only be impeached for high crimes and misdemeanors
2. No real guidelines for what a high crime is
3. They usually don’t’ get your for the act but for the lying about it.

V. Constitutional Limits on State Regulatory Power

A. Preemption – Through the Supremacy Clause

i. Express: Congress has passes a law that expressly preempts any state law
1. Congress has absolute power to preempt as long as its acting within one of its proper
powers but they must expressly state that they are preempting.
2. Lorillard Tobacco v. Reilly
ii. Implied:
1. By Conflict – the state passes law that conflicts with congresses regulation imply
congressional intent to preempt
a. Can’t comply with both state and federal government
b. Avocado example
2. By State frustration of federal purpose – the purpose would be undermined by the
state law
a. Nuclear Power example: CA purpose was safety, which matched one of the
federal purposes so it was ok, making it safer makes people want to use it so
making more stringent safety standards make it more acceptable and
promotes its use.
3. By Occupation of Field – congress regulated an area so heavily and so completely
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that there is no room for state regulation

- these are all facts specific like standing

B. Dormant Commerce Clause

- stands for the principle that the state and local governments can’t make laws that unduly
burden interstate commerce
- courts infer from congress having the power to regulate interstate commerce that the
framers intended that the states not be able to unduly burden interstate commerce.
- Dormant commerce clause applies when Congress has either not regulated, or has
regulated somewhat but has not preempted
i. Protectionist
1. If a state or local law is protectionist it is virtually per se invalid
ii. Facially Discriminatory and Facially Neutral
1. Where a law discriminates on its face or by effect the burden shifts to the state to
prove:
a. The local benefit outweighs the burden to interstate commerce; show
legitimate state/local interest and
b. there is no other nondiscriminatory alternative ; no less restrictive alternative
available
2. Can be discriminatory even when it is against citizens of another city because by
virtue of out of city it is discriminatory against out of starters
3. Maine v. Taylor – have to allow state to protect against science uncertainty when
there is a big risk; also the key that there was no non-discriminatory alternative
iii. Non-Discriminatory
1. The benefits (to state) must out weigh the burden on interstate commerce
2. Loren Pike (Cantaloupes) – burden on interstate commerce too great.
3. local benefits > interstate costs
iv. Exceptions
1. Congressional Approval/Authorization: where congress gives the power to regulate
something to the state then the state will be allowed to regulate it.
a.
2. Market Participant: when the state is acting as a normal market participant then the
Dormant commerce Clause doesn’t apply; they are free to act as any other private
market participant.
a. Reeves v. William – cement case

C. Privileges and Immunities

i. Privileges and Immunities clause comes from Art. IV §2
ii. Protects (mainly) citizens rights (1) constitutional rights but generally not used for this cause
just challenge under that right (2) right to earn a livelihood – right to move freely among
states to earn living
1. Toomer v. Witsell: Shrimp boats – unconstitutional because discriminates against out
of starters earning a living
2. Camden; Preference to Camden residence for jobs – unconstitutional even when it is
based on city citizenship
3. Lester Baldwin: Elk hunting – constitutional hunting is a hobby not a livelihood
4. Supreme Court of NH – denying people membership to state bar based on residency
– unconstitutional no good reason.
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iii. Test:
1. Denying some right/ livelihood based on state citizenship (threshold question)
a. Can also be on city citizenship because this means that it also denies out of
staters the right
2. Can deny right as long as there is a substantial reason (the out of state actors are a
peculiar source of evil)

VI. Equal Protection

A. Race (Strict Scrutiny)

Level of Scrutiny Ends Means

Strict
Race: All facial racial; disparate
impact if you can show effect and
intent, affirmative action
Alienage – discrim by state or
other fed agency
Intermediate
Sex/Gender: facial and disparate
impact with intent proven
Undoc Children in Education
Non-marital Children
Compelling Necessary or Narrowly Tailored
• Ends • Are the
cannot be race based links to the end too attenuated
• Must be • Probably
ACTUAL ends requires empirical evidence,
• Role requires proof
Models are or a compelling
interest
• Remedyi
ng past wrong is compelling as
long as particular
• Diversity
in Education Compelling
interest
• Administ
rative Convenience not
compelling
• Remedyi
ng past discrimination not
compelling when it wasn’t that
gov agency that did it.
Important or Significant Substantially Related + exceedingly
• Has to be persuasive justification
the actual purpose • A
• Traffic classification based on
Safety important/significant stereotypes is not substantially
state interest related (beer drinking)
• Remedyi
ng past discrimination is
important (didn’t have to be
by that gov agency)
 Updated 11/28/09

Rational Basis Legitimate Rationally Related

Race: Disparate Impact with effect
Alienage: Discrim by Congress or
ICE
Sex/Gender: Disparate Impact
with no intent
Age, Disability, Wealth, Sexual
Orientation
• Administ
rative convenience is
legitimate
• A bare
desire to harm a politically
unpopular group is not enough
to be considered legitimate
• Animosit
y for one group is not a
legitimate end.
• just
conceivably we might imagine
that these means further the
ends
• doesn’t
have to show actual empirical
evidence
• just
plausible or conceivable

i. Facial Discrimination
a. Korematsu v. US: WWII rounding up Japanese, court used heightened scrutiny and
still got it wrong (Federal Gov.)
b. Loving v. Virginia: Wouldn’t let interracial couple marry criminalized it, Ends
cannot be race based, when your ends are based on race, or keeping the race pure
that will not be allowed. Court can look through an argument and say they don’t
believe it. (State Gov.)
c. Palmore v. Sidoti: Judge took kid from mom because she had remarried to a black
man. Court held, judge cannot give effect to private bias/discrimination. A judge is a
member of the government and is reached by the 14th amendment. (Judiciary)
d. Brown v. Board of Education: Separate but equal is not ok it is a violation of equal
protection, cannot segregate school based on race – used strict scrutiny, relied on
social psychology. Court determined that separate can never be equal in education
e. Johnson v. California: prison segregation. They were using race as a proxy for
being in a gang which was a proxy for violence. Is this link to attenuated. When a
government uses a facial racial classification, the court will apply strict scrutiny,
NO EXCEPTIONS (not even for prisons or military).

ii. Disparate Impact

a. Washington v. Davis: Washington gave a written exam to applications to the police
force. Blacks failed more than whites so two challenged under disparate impact. The
court used rationality review. Disparate impact effect alone does not get strict
scrutiny.
b. McClesky v. Kemp: Death penalty case. Have to show disparate effect on you to get
to show disparate impact. Empirical data is not enough to show effect or intent. If
you cannot prove intent you are stuck in rationality review. – need the smoking
gun.
c. Palmer v. Thompson: Pools closed. Need disparate impact effects to get rationality
review. If you don’t have effects but do have intent too bad you don’t get helped.
d. Arlington Heights: zoning laws to have big yards. Get how to prove intent with
disparate impact:
1. Sequence of Events and Historical Records
i. Is it so clear from the sequence that the intent was to discriminate,
like the pools (no more separate but equal then close pools)
 Updated 11/28/09

2. Legislative/Administrative Record
i. Find the Smoking Gun – someone willing to be a big or racisit on the
record
ii. Look for a departure from normal procedure or substance
3. Obvious Pattern
i. Like Yick Wo – only giving licenses to white people
ii. Obvious patter that leaves no other explanation
iii. Gamillion – voting districts
- it is very difficult to take these factors and use them to show intent.

iii. Affirmative or Remedial Action

a. Richmond v. J.A. Croson: construction contracts to minorities.
1. Ends: Generalized assertion of discrimination in the private industry is not
enough for a government remedy, you have to show the end is to remedy
discrimination by the government agency
2. Means: there must be proof that the affirmative action is remedying a
particular discrimination by that government entity and that there is no other
way.
b. Adarand – establishes that strict scrutiny for all face race cases.
1. Principles for all facial racial cases to be subject to Strict Scrutiny
i. Skepticism of ALL racial classifications – we don’t care what the
reason we do it we don’t like it at all.
ii. Consistency among different races – treat every race the same
iii. Congruence between the 5th and 14th Amendments – there is only
one ep clause in the text and it applies to the sttes, reverse incorporate
through the 5th amendment to apply it to the deferral government,
treat state and federal the same
2. After Adarand if the government wanted to use race as a classification they
had to show that considering race is narrowly tailored or necessary to
achieving some compelling government purpose (the strict scrutiny test).
c. Univ. of Michigan/Grutter v. Bollinger
1. Diversity in Education is a compelling state interest
2. Narrowly tailored if there is an individual assessment of each applicant, race
is not ok if it is a numerical quota system. Critical Mass ok because it is
individual not a quota. Narrowly tailored because there really isn’t another
way of doing.
3. Court also has sunset provision – only allow for 25 years
4. Racial prejudice, stereotypes, quotas and mechanical are not allowed.

B. Gender (Intermediate Scrutiny)

i. Facial Discrimination
a. Frontiero v. Richardson: Service members getting benefits fro husband or wife. Men
its automatic benefit for wife, for women they have to show that husband is
dependant.
b. Courts factors on whether to raise the level of scrutiny for a “Suspect Class or
Classification” – has to be discrete (identifiable) and Insular (segregated or
 Updated 11/28/09

marginalized)
1. History of Discrimination against a disadvantaged Group
i. Asking: Is there a history of discrimination against this group?
2. Political Powerlessness
i. Numerical minority – African Americans are a numerical minority
ii. Under Represented Politically – Is this group well represented in
political office or underrepresented for their portion of society
a. Women make up more than half of the polulation put don’t
make up half of the people in political office – they are under
represented
b. This matters because when a group has been historically
underrepresented in politics they have not been able to help
themselves politically through the legislature so the judiciary
steps in to protect them.
3. Classified by an Immutable Trait
i. Is this a trait that is easily changed or does it take too much to change
– money or identity.
ii. Race and sex are pretty immutable
4. Classified by a trait that is irrelevant to ability
c. Craige v. Borene – establishes intermediate review for sex and gener ( the beer case)
d. When a disadvantaged group finally gets a higher level of scrutiny the non-
disadvantaged group also gets that same level of scrutiny automatically (based on the
trait analysis)

ii. Based on Sex

a. Craige v. Borene – establishes intermediate review for sex and gender ( the beer
case)
b. When a disadvantaged group finally gets a higher level of scrutiny the non-
disadvantaged group also gets that same level of scrutiny automatically (based on the
trait analysis)
c. US. v. Virgina – military school won’t let women in.
1. Adds exceedingly persuasive justification for the ends in intermediate cases
2. Can’t use sex/gender/stereotype as a proxy for ability, it has to be an
individualized assessment
3. Unclear what the new language means, does it just tighten the fit between the
means and the ends?

iii. Based on Sexual or Reproductive Differences

a. Geduldig v. Aiello: is it that sexual reproductive differences get rational basis?????
iv. Based on Gender Role
a. Orr v. Orr: Spousal Support. There is no need to treat sex as a proxy for need
because the court is already doing an individual assessment for need. The means are
not substantially related to the important end of getting support to needy spouses.
1. when something is a stereotype (even with data) it is not taken into account.
b. Mississippi v. Hogan: Nursing school, court didn’t buy the reason for the all
women’s school, didn’t want them to be able to perpetuate stereotypes.
v. Disparate Impact
a. Constitutional Test for disparate impact to get higher scrutiny: “at least in part
 Updated 11/28/09

‘because of’ not merely ‘in spite of’ its adverse effects upon an identifiable group.
b. Have to show intent using the Arlington factors to show intent
c. Personal Admin of Mass v. Feeney: Veterans get the jobs first and most veterans
are men. Feeney couldn’t show that they did it at least in part to discriminate.
vi. Affirmative or Remedial Action
a. Where there is facial discrimination (affirmative action) then you get intermediate
scrutiny
b. But having the lower standard could be helpful in affirmative action cases
c. Califano v. Webster: Benefits allow women to drop 3 years and not men. Court
says that does have a substantial relationship to remedying past discrimination
against women in the work place – didn’t have to be that agency doing the
discrimination like with race
d. Intermediate scrutiny is an easier level to meet for affirmative action.
e. Classifications based on reproductive differences are more likely to be upheld –
allowed by court more often than not.

C. Other Classifications

i. Alienage
a. When a state/local gov. discriminates on Alienage then they are given Strict
Scrutiny
1. Can discriminate when it is about government function/self Government and
Democratic process in this case they get Rationality Review
2. Police and teachers can be discriminated against
b. When Congress or ICE is discriminating they are given Rationality Review because
this is the agency/gov body that has been uniquely charged with governing about
immigration
c. Other federal agencies get Strict Scrutiny
d. Graham v. Richardson: welfare benefits only given to aliens (documented) when
here for 15 or more years. Wasn’t allowed because given strict scrutiny.
e. When a group is denied the very thing that they need to remedy a disadvantage the
court is more likely to give a higher level of scrutiny.
f. Can raise the level of scrutiny either with a suspect class or when a fundamental right
is at issue.
g. Group (disadvantage) & Right (important to remedy the disadvantage) = Higher
scrutiny
f. Plyer v. Doe: Denying undocumented children free TX public education. Court says
not allowed. Raise level of scrutiny even though children alone, undoc, alone and
educ. alone would not get higher level of scrutiny

ii. Non-Marital Children

a. Non-marital children get intermediate scrutiny
b. non-marital v. marital = intermediate, non-marital v. non-marital = rationality review

iii. Rationality Review

a. Age – always use rationality review, the court has decided, the court thinks that age
is a good proxy for ability
 Updated 11/28/09

1. Massachusetts Board v. Murgia: Mandatory retirement age for cops that

reach 50. Court doesn’t think history of discrimination and yeah can’t change
age but it changes for you and everyone’s changes, and most importantly they
think that it is relevant to ability.
b. Disability – always gets rationaliy review because disability is relevant to ability
c. Wealth – level of scrutiny has not yet been decided
1. Moreno: Food Stamps for people with someone not related living with them.
Use rational basis to decide the case and say that it is totally irrational. Court
said real reason was to harm hippies and this isn’t a legitimate government
interest and the means weren’t rationally related because they could deal with
fraud and were in other ways.
2. A bare desire to harm a politically unpopular group is not a legitimate interest
3. Can find that the state interest is not the real interest.
d. Sexual Orientation – level of scrutiny has not yet been decided
1. Romer v. Evans: CO banned all legislation that protected homosexuals. Court
found invalid based on rationality review, said animosity is not a legitimate
end
2. Animosity is not a legitimate end – found the animosity by looking at the fit
of the means and the end
i. can’t broadly sweep to take rights away from one group
ii. trying to make one group unequal is the animus that ep was meant to
protect against
3. Protection from discrimination is not a gift it is a remedial measure to bring
people up to the base line and you only get it if you need it.

VII. EQUAL PROTECTION OF RIGHTS (FUNDAMENTAL RIGHTS) – when the government chooses to
give you something do they have to give it equally (if it is a fundamental right they do)

A. Education – NOT FUNDAMENTAL

i. Education is not a fundamental right
ii. Relative Infringement v. Absolute Denial
a. Courts don’t generally care about relative infringement but would look closer at
absolute denial
iii. San Antonio v. Rodriguez
B. Voting - FUNDAMENTAL
i. Can’t deprive the right to vote based on inability to pay a poll tax
ii. Property Ownership: sometimes being a property owner matters such as in water rights stuff
so property ownership may be a legitimate requirement in other instances it is not allowed
such in school district.
iii. Literacy is constitutional but congress outlawed it
iv. Restrictions for felons are constitutional
v. ID requirements are constitutional
vi. The right to vote is equal – racial jerry meandering is unconstitutional
vii. Voting is not a fundamental right in the sense they must give it to us but when they choose
to give us the right they cannot deny it unequally.
vii. Votes have to be counted the same in each county and district and consistently from county
to county and district to district (Bush v. Gore)
 Updated 11/28/09

C. Travel - FUNDAMENTAL
i. The right to travel is implicit in the constitution. Travel is implicit in a concept of a unified
United States.
ii. More recently the privileges and Immunities clause has been used.
iii. CA making it a crime to come into the state poor or help a poor person into the state was a
complete denial of the right. The welfare laws were relative infringements.

D. Access to Courts/Justice – access alone not really enough for a claim need more
i. Criminal Cases
a. Indigent must be provided trial transcript for appeal
b. Counsel must be provided for certain crimes and the first appeal of right/ no right to
counsel on discretionary appeal.
c. Its about access plus a right being created by the government
ii. Civil
a. Cannot deny divorce because the person can’t pay
b. Counsel has to be given to parents in parental rights – can’t deny appeal have to
give transcript
c. Welfare and Bankruptcy you are on your own nothing fundamental about these two
that fees have to be waived.
d. access plus family
iii. W/regard to prisoners

VIII. SUBSTANTIVE DUE PROCESS – LIBERTY

Analysis:
1. Is it a fundamental right?  if so then go with strict scrutiny
2. Infringed?  if it is only infringed go with rationality
3. Sufficient End?
4. Sufficient fit of means to ends?

How to determine if a right is fundamental

1. Is it deeply rooted in our nations history and tradition or; (backward looking)
2. Is it implicit in our concept of ordered liberty. (forward looking – its conceptual and concepts change)

A. Economic
i. use rationality review for economic cases now – with regard to all things economic going to
defer and only use rationality review
ii. Freedom of contract not so fundamental anymore
iii. Very deferential – no liberty of contract has been enforced since the 30s. Williamson and
Carolene (milk and eyes)

B. Reproductive
i. Right to procreate is fundamental (Skinner)
ii. Right to Contraception is Fundamental
a. Emanations/Penumbras/Zone of Privacy for married Couple (Griswald)
b. Shift Justification to the individual right to bear or beget a child (Eisenstade)
c. Minors have a right just like individuals (Carey)
iii. Abortion
 Updated 11/28/09

a. the word person in the 14th amendment does not include “unborn” (Roe v. Wade)
b. Use the Undue Burden Test (not strict scrutiny):
i. Regulation that has the purpose or effect of placing a substantial obstacle in
the path of a woman seeking an abortion of a nonviable fetus - is
invalidated
c. No trimester test now there is the viability test
i. Before Viability cannot completely ban abortion
ii. After Viability can completely ban abortion
iii. For all regulations before viability just have to meet the undue burden
standard meaning that as long as the regulation is not unduly burdensome it is
allowed
a. Informed consent – upheld
b. 24 hour waiting period – upheld
c. Parental Consent – upheld
d. Reporting Requirement – upheld
e. Spousal Consent - invalidated

d. Late Term Partial Birth Abortion court invalidated law but congress then passed law
and court upheld – can’t use method
e. The government can refuse to pay for abortions even when they are paying for
medical coverage and they would pay for the baby to be born.
C. Familial
i. Fundamental right to marry (Loving v. Virginia)
ii. Zablocki v. Redhail: wouldn’t let them marry because hadn’t paid child support. Court said
this infringed his fundamental right to marry. The court said that the ends (getting child
support paid) were compelling but the means were not narrowly tailored because marriage
might improve chances of paying and can still have kids outside marriage.
a. The court took judicial notice of the poverty issue – generally they ignore but
marriage is different.
iii. Right to parent/custody:
a. Bio Father/non-marital/ involved = right to parent (Stanley v. Illinois) - statute took
kids automatically when mom died and parents not married – statute over inclusive
cause takes kids from fit parents – marriage as a proxy for good parenting is not ok
b. A marital father that is involved wins over the bio father (Michael H.) – marital
father’s rights greater.
c. Michael H. – footnote 23 – must look at things in history but should also define them
as narrowly as possible
iv. Extended Family – right to keep them together
a. Moore v. City of East Cleveland: ordinance would have required grandma to kick
grandson out. Court found history/tradition that extended family lived together and
there is a fundamental right to stay together (just a plurality)
v. Fundamental Right of Parent to Control Up-brining
a. Not an absolute right – courts have upheld requirements of vaccinations, blood
transfusions
b. Parents can choose the school (public or private) and the language that their children
are educated in (Meyer v. Pierce) – no standardizing children
c. Troxel v. Granville: the court invalidated a statute that allowed anyone with a
 Updated 11/28/09

relationship to the child to challenge for visitation. They reasoned that the state could
not place their interest before the parent’s interest unless harm was being done to the
child. (parent interest trumped state interest) – only plurality opinion
D. Medical
i. There is a fundamental right to refuse medical treatment
a. Person must be a competent adult at the time of the decision to refuse treatment
b. Can have someone make the decision for you
c. A state can require clear and convincing evidence that the refusal is what the patient
wanted.
d. Cruzan v. Director Missouri Department of Health: want to take daughter off life
support but Missouri said they needed clear and convincing evidence that was what
she wanted. The court upheld the law in a plurality opinion.
c. When it is a child: the parents usually get to decide for minor children but if the state
thinks that the parent is not acting in the child’s bet interest (but in their own) then
the state can step in.
d. distinction between refusing and receiving
ii. No fundamental right to assisted suicide
a. Defining the right is very important – defining the right narrowly for assisted suicide
not broadly as the right to make your own decisions regarding medical care.
b. Washington v. Glucksberg cited for defining a right narrowly (best precedent
for framing it broadly is Casey)
c. there is a distinction between refusing care (ok) and receiving care to end your life
(not ok)
d. No equal protection problem – the court found a distinction between being on life
support and not being on life support. (Vacco v. Quill)

E. Sexual
i. There is a Fundamental Right to Sexual Privacy (Lawrence v. Texas)
a. Limits to 2 consenting adults in private
b. Morality not a great basis for law anymore (possibly) – substantially impinges this
rationale.

IX. FIRST AMEDNMENT

A. Freedom of Speech
i. Written in most absolute terms of all individual rights – but not absolute
ii. When the court decides to make an exception they keep four ideals in mind:
a. Why we have free speech – Purpose of discerning the truth
b. Commitment to democracy – people need to talk for democracy to work
c. Liberty – protect speech to protect thought
d. Equality – make sure even a minority viewpoint is able to be heard
iii. Types of Infringements – need government action
a. Types of infringement courts have found
1. Direct prohibition of speech (usually including criminal liability)
2. Compelled Speech (loyalty oath)
3. Prior Restraints – usually 2 kinds
i. Court Orders
a. Collateral Bar Rule applies – cannot just violate a court order
 Updated 11/28/09

have to go through the proper avenue to challenge

b. Usually upheld
ii. Licensing and Permitting systems
a. usually upheld – have to allow some order but government has
to have
1. An important reason for permitting
2. Clear Criteria and no unfettered discretion
3. Procedural Protection – notice and opportunity to be
heard if denied
4. Civil Liability – still applies
i. public figures have to prove actual malice in defamation cases
ii. slander law still apply
5. Unconstitutional Conditions
i. When the government gives us something they don’t have to give and
attached a requirement to waive 1st amendment rights
b. Cannot compel people to say the pledge of allegiance (West Virg. v. Barnett)
1. Not constitutional to compel one to speak against ones own mind
2. Look at whether there is harm and if it is dangerous
3. No standardizing people (w/Meyers)
iv. Unconstitutional Conditions v. Greater Power
a. Speiser v. Randall: Gov. giving tax breaks to vets but then requires them to sign
loyalty oath. Court says can’t do this. They said that to deny the exemption on the
basis of refusing the oath was coercion and the same as placing a fine on speech and
not ok. – uncost. Condition Doc.
b. Rust v. Sullivan: gove. providing funds for family planning but won’t allow funds to
be used for abortion promotion. Court says this is ok because they have the greater
power to not give money which includes the lesser power to say how it is spent. –
Greater power argum.
c. Both viable arguments and it just comes down to when the court will use one or the
other. Comes down to coercion – when the court thinks its too coercive.
d. Legal Services v. Velazquez- most restrictions on money for legal aids found ok but
restrictions on kind of claim they could bring was not ok. – comes down to ideas and
we aren’t going to restrict this
v. General Doctrines
a. Not Vague
1. “ can’t gather on a sidewalk and be annoying” – too vague
2. look to what a reasonable person would know
3. Reasonable Notice to a Reasonable person
b. Not overbroad
1. Cannot be Substantially overbroad (either it regulates more speech than the
1st amendment would allow or the challenger may argue that it would be
unconstitutional as applied to others)
2. Regulates more than first amendment would allow it to regulate
3. A person who cannot challenge law as applied to him can challenge the law
on behalf of 3rd party – unconstitutional as applied to others
c. Content Neutral (3 different states)
1. Content Neutral (ex: no demonstrations)
i. General rule is that restrictions on speech should be content neutral –
 Updated 11/28/09

sometimes we allow content based but we really don’t like viewpoint

based.
2. Content Based (ex: no demonstrations regarding war)
i. If a restriction is content based it should at least satisfy time place and
manner neutrality (like intermediate scrutiny)
3. Viewpoint based (ex: No demonstrations against the war)
i. If a restriction is viewpoint based it is likely to be struck down unless
the equivalent of strict scrutiny is met
d. Public Forum
1. Traditionally Open: If the forum is the kind of space that the government has
traditionally made available for speech
i. The court will simply ask whether or not the restriction is functionally
compatible with allowing speech. (this is very likely to prohibit
restrictions)
ii. Restrictions must be:
a. Content Neutral
b. Reasonable TPM restriction
c. Not an improper prior restraint
d. Narrowly Tailored (not required to be least restrictive
alternative)
2. Limited public Forum; A place where the government doesn’t have to allow
speech but they have (aka Voluntarily open)
i. Restrictions must be (same as Traditionally open)
a. Content Neutral
b. Reasonable TPM restriction
c. Not an improper prior restraint
d. Narrowly Tailored
3. Non-Public Forums
i. Restrictions must be:
a. Viewpoint Neutral
b. Restriction must reasonably serve a government interest
vi. Time Place Manner Restrictions
a. Restrictions Should be:
1. Content Neutral
2. Significant Gov. Interest
3. Narrowly tailored (doesn’t mean the least restrictive alternative just that it
doesn’t burden speech more than is necessary to achieve the significant
government interest) – leaves open ample alternative channels of
communication
b. Hill v. Colorado – bubble zone where no demonstrating was allowed, near clinics.
Court said it was a content neutral law, it was not about speech but about space, it
was unrelated tot he content of the speech and was narrowly tailored (order is a
common reason given but it wasn’t here) – dissent said it was all about speech and
preventing abortion speech
c. Ward v. Rock Against Racism – the NY park said that if a concert was to use their
sound equipment the performers would have to let the city’s people work it to
control noise and decibel levels. The reason they gave was to protect and preserve
the meadow near by and to protect residence of the surrounding area. Court said ok,
 Updated 11/28/09

narrowly tailored doesn’t mean the least restrictive alternative.

vii. Exceptions to Content Neutrality (When the gov. can make non-content neutral restrictions)
a. Defamation
1. Public officials and figures must prove actual malice
b. Commercial Speech
1. If the commercial speech concerns lawful activity and is not misleading
then a government regulation must be no more extensive than necessary to
directly advance a substantial government interest. (roughly intermediate
scrutiny)
c. Incitement
1. Brandenburg Test – when speech crosses the line into action
i. Intent
ii. Likelihood
iii. Imminent Harm
2. Brandenburg v. Ohio: there was a statute that said no advocating criminal
syndicalism; the court found the speech was protected because they did not
meet the test. They were not immediately inciting violence with their words.
d. Fighting Words/Hate Speech
1. Fighting Words
i. Words that by their mere utterance inflict injury or tent to incite an
immediate breach of the peace
ii. Vague or overbroad laws can only be applied to actual fighting words
(utterance = breach) – the law will be stricken if it is over broad
iii. Also can’t just say “fighting words” because that is too vague.
ii. Chaplinsky v. New Hampshire:
iii. Gooding v. Wilson:
2. Hate Speech – cannot proscribe view-point or content based fighting words
(hate speech)
i. RAV v. City of St. Paul: burnt cross on black families lawn, court
found that the statute was unconstitutional because it was viewpoint
based.
e. Sexually Oriented Speech
1. Obscene Speech can be prohibited but it must meet the three part test to be
considered obscene.
i. Whether “the average person” applying contemporary community
standards would find that the work taken as a whole appeals to the
prurient interest. AND
a. This is generally a local standard
ii. Whether the work depicts or describes in a patently offensive way,
sexual conduct specifically defined by the applicable state law; AND
iii. Whether the work taken as a whole lacks serious literary artistic
political or scientific value
a. This is generally a national standard
2. Very high standard to meet
3. The government mostly regulates obscenity/pornography through TPM
restrictions
4. Miller v. California;
 Updated 11/28/09

5. The government cannot prohibit the private possession of pornography even

if it is obscene (Stanley v. Georgia – came into house looking for something
else but found pornography)
6. Children and Obscenity and Pornography
i. The government may prohibit pornography depicting children; they
can even ban the possession of it in the home (unlike adult
pornography)
7. Profanity/Indecent Speech
i. Cohen v. California – “Fuck the War” written on jacket and man
arrested. Court said this cannot be prohibited, it did not meet the test
for obscene and were not fighting words
ii. Takes into consideration the medium used: TPM restriction of media;
sometimes willing to uphold restrictions if they feel the recipient
wouldn’t be able t avoid the speech
f. Communicative Conduct
1. When conduct crosses the line to action the government can get you for the
action
2. Test: (page 1497)
i. Regulation must be within the government power
ii. it must further a substantial government interest
iii. Cannot be related to content
iv. Any incidental restrictions on speech cannot not be more than
necessary
3. US v. O’Brien: kid burned his draft card, court said state had legitimate
interest in having them not burn the card and law was narrowly tailored
4. Texas v. Johnson: Invalidated ban on burning the flag

B. FREEDOM OF ASSOCIATION
i. 2nd right of the 1st amendment, not explicitly stated but seen emanating in the penumbra
ii. Intimate Association
a. The smaller the group the better
b. Purpose must be personal
c. Selectivity
d. Exclusiveness
e. EX: marriage and family (very selective about who we do this with – in theory)
f. Link to substantive due process
g. Protected by like Strict Scrutiny if the government tries to limit
iii. Expressive Association
a. Protects freedom to associate with those of like-minded ideologies and messages
b. Protecting our ability to come together with those of like minded ideology - protects
freedom to discriminate
c. Not an absolute right
d. Roberts: Court looked to see what the Jaycees and Rotary’s purpose was and if
letting in the women would frustrate that purpose. The court found that
nondiscrimination against women was a compelling gov. interest and that allowing
women in wouldn’t frustrate purpose.
e. Hurley v. Irish-American Gay : A gay organization wanted to march in the Boston
St. Patrick’s day parade. The parade organizers said this would frustrate their
 Updated 11/28/09

purpose of family values, the court accepted this without a discussion of how being
openly gay automatically means no family values.
f. Test: Infringements may be justified if:
1. Serve compelling state interest
2. Unrelated to suppression of ideas
3. That cannot be achieved through means significantly less restrictive of
associational freedoms