User:CheshireKatz/Constitutional

User:CheshireKatz/Constitutional/Slavery =US Supreme Court Authority=

Constitutional Judicial Powers
A3§2: The judicial Power shall extend to:
 * all Cases:
 * in Law & Equity, arising under this Constitution or U.S. laws or treaties
 * affecting Ambassadors, other public ministers & Consuls
 * of admiralty & maritime Jurisdiction
 * Controversies:
 * in which the U.S. shall be a Party [or]
 * between
 * two or more States
 * a State & Citizens of another State
 * Citizens of different States
 * Citizens of the same State claiming Lands under Grants of different States
 * a State, or the Citizens thereof, & foreign States, Citizens or Subjects.

Judicial Review Powers
Marbury v. Madison Incoming Pres. Jefferson ordered his Secretary of State, Madison, not to issue Marbury's commission to become Justice of the Peace for D.C. as appointed by departing Pres. Adams. Marbury petitioned the USSC to order Madison to issue it. The court found authority to give the order, though it refused to do so in this case.


 * Nothing trumps the Constitution. Any executive or legislative act is superseded by the Constitution.
 * "“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”"

"Cooper v. Aaron: AK Gov. Orval Faubus sent troops to prevent segregation post-Brown on belief that the decision was limited to Kansas."
 * The Supreme Court’s interpretations of the constitution in its rulings apply not only to the individual parties, but all other relevant parties.

"Dickerson v. U.S.: Post-Miranda, Congress passed statute permitting voluntary confession prior to rights being read."
 * Rights (eg. Miranda) extrapolated out of the Constitution, may not be legislatively overridden by Congress, absent a Constitutional amendment.

"Martin v. Hunter's Lessee"
 * VaSC ordered by USSC to hand land over, in spite of indignity: in resolving issues, the cases matter, not the courts. Constitution is very clear in restricting state authority

"Cohens v. VA"
 * USSC maintains full appellate jurisdiction over any case tried before any US Court. Unique independence enjoyed by the USSC justices provides compelling argument.

Political Questions
"Baker v. Carr"
 * To preserve the separation of powers, the courts cannot give redress for political questions.
 *  Political Question Test 
 * "Textually demonstrable constitutional commitment of the issue to a coordinate political department;"
 * eg. foreign affairs and executive war powers
 * "A lack of judicially discoverable and manageable standards for resolving it;"
 * "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"
 * "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"
 * "An unusual need for unquestioning adherence to a political decision already made;"
 * "The potentiality of embarrassment from multifarious pronouncements by various departments on one question."

"Powell v. McCormack: Representative comes to congress. Speaker disqualifies him for failing to meet standards. Not a political question, but a procedural one."
 * A suit "arises under" the Constitution if a petitioner's claim will be sustained if the Constitution is given one construction and will be defeated if it is given another.
 * Judicial review of the constitutionality of legislative decisions is not barred by legislative immunity

"Goldwater v. Carter: USSC tosses out suit brought by Sen. Goldwater against President for decision to repeal a treaty."

"Nixon v. U.S.: Judge Nixon challenged his impeachment conviction b/c whole Senate did not take part in evidentiary hearings."
 * The controversy violated the 1st & 2nd elements of PQ test.
 * Impeachment Clause granted sole authority over impeachments to the Senate, & did not require or provide a means of judicial review.
 * No discoverable standards for judicial review of impeachment proceedings & managing relief difficult.

Advisory Opinions
Advisory opinions pp. 49-50

Judicial review requires an actual dispute. Neither hypothetical problems nor adversaries funded by the same source may be heard by the USSC.

Standing
Standing pp. 51-56;

Warth v. Seldin


 * Constitutional requirements (pp. 62-64)
 * 1) Injury: PLA suffered (or imminently will suffer) injury, an invasion of a palpable, distinct, & legally-protected interest (whether economic or not).
 * 2) Causation: PLA's injury shares a traceable causal connection to DEF's complained of conduct.
 * 3) Redressability: PLA's injury would likely be redressed, if awarded with a favourable decision.


 * Prudential requirements (judicially-created, Congress may override by statute)
 * Prohibition of Third Party Standing: A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court; exceptions exist where the third party has interchangeable economic interests with the injured party, or a person unprotected by a particular law sues to challenge the oversweeping of the law into the rights of others, for example, a party suing that a law prohibiting certain types of visual material may sue because the 1st Amendment rights of others engaged in similar displays might also be damaged as well as those suing. Additionally, third parties who don't have standing may be able to sue under the next-friend doctrine if the third party is an infant, mentally handicapped, or not a party to a contract.
 * Prohibition of Generalized Grievances: A plaintiff cannot sue if the injury is widely shared in an undifferentiated way with many people. For example, the general rule is that there is no federal taxpayer standing, as complaints about the spending of federal funds are too remote from the process of acquiring them. Such grievances are ordinarily more appropriately addressed in the representative branches

"L.A. v. Lyons: LAPD chokehold allegedly used discriminatorily against blacks, though PLA is no more likely to be a victim than any other black person."
 * To establish the basic requisites of the issuance of equitable relief requires the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.
 * PLAs must demonstrate a personal stake, that they sustained (or are immediately in danger of sustaining) some direct injury resulting from official conduct, that must be both "real and immediate," not "conjectural" or "hypothetical."

ACLU v. NSA: Ongoing domestic wiretapping case. To assure standing, joined PLAs restricted to the following categories:
 * Criminal defense attorneys w/foreign clients → Invasion of attorney-client privilege: thus we can't talk on the phone anymore, & I incur travel expenses
 * Journalists & reporters → Invasion of confidentiality: sources/informants unwilling to speak over the phone, & I incur travel expenses
 * Professors & other scholars → Fellow scholars & interviewees abroad won't speak frankly on the phone anymore, & I can't do research

Mootness
Mootness pp. 69-70 A case is moot when, over the course of litigation, the controversy central to the dispute ceases to be, such that the case is deprived of practical significance. Example: "Requisite 1-yr residency for divorce challenged by impaired married newcomers; during litigation, got divorced in another state. Controversy is moot (ie. they got what they wanted).''"
 * Exceptions:
 * Voluntary cessation: (broadly defined) Illegal acts ceased once litigation began, b/c likely to resume if case is dismissed.
 * See Friends of Earth v. Laidlaw Env. Svc.: No mootness for polluter, though offending factory closed, b/c DEF still held license & could reopen, if not deterred by fine.
 * Capable of repetition, yet evading review: (narrowly defined) Perpetually recurring controversy, but too short to reach USSC in time.
 * Mostly restricted to Roe v. Wade-esque situations (266-day gestation period)
 * Class action representatives: Mootness of class action representative's case does not bar attorney's from continuing to litigate on behalf of class.
 * Meant to prevent DEFs from settling representatives claims as a means of collapsing class's case & forcing expense of re-litigation.

Ripeness
Ripeness pp. 70-71 A case is not ripe (premature) when the controversy central to the dispute is contingent upon a party's prediction of an uncertain event in the future. Example:

"Laird v. Tatum: Citizens fearful that army intelligence on civilian political activity will be misused in future."
 * Anticipatory relief cannot be granted based upon vague fear of future misuse, until a specific harm (either present objective or future threat) is evident to ripen controversy.

Congressional Control of Court Jurisdiction
pp. 75-79

Ex Parte McCardle, : McCardle published "incendiary" articles which advocated opposition to Congressional Reconstruction. Jailed by military under Congressional law. McCardle invoked habeas corpus in the So. Dist. of MI. Appealed to USSC under another Congressional Act that allowed fed. judges to issue writs of habeas corpus and hear appeals from circuit courts. After the case was argued but before an opinion was delivered, Congress repealed the statute. H: Congressional withdrawal of some aspect of appellate jurisdiction is valid. Basis for repeal was exceptions clause of Article III Section 2.[2], but a repeal of jurisdiction "does not affect the jurisdiction which was previously exercised." Because the Court held it lacked jurisdiction to hear the case, the second question was not answered. Because Congress withdrew jurisdiction to hear the case, McCardle had no legal recourse to challenge his imprisonment in federal court.

Presidential Immunity (Executive Privilege)

 * Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.

U.S. v. Nixon F: Aids of presidential candidate Richard Nixon break into Democratic National Convention at Watergate Hotel. Criminal investigator subpoenas tape-recordings of Nixon's meetings. Nixon refused to hand over the tapes, claiming executive privilege, and stating he would not release them without a definitive decision from the court ordering him to do so. H: Executive privilege does not absolutely protect the president from all subpoena. Where a compelling countervailing value outweighs the value of protecting the executive's privacy. "Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisors calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."

Nixon v. Fitzgerald, F: Whistle-blower Fitzgerald sues President Nixon for wrongful termination seeking damages. H: President is absolutely immune from litigation for acts within his executive capacity.

Clinton v. Jones, F: H: A sitting President of the United States has no immunity from civil law litigation against him, for facts unrelated to his office (having occurred before he took office).

State Immunity (11th Amendment)
11A - The Judicial powers of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
 * Origins


 * Federal government cannot be sued in any US Courts without consent (for violating any US laws).
 * State government cannot be sued in any State Courts without consent (for violating state laws).

Three Theories of 11A:
 * Interpretations
 * 1) 11A repealed federal courts' diversity jurisdiction, where state is a non-consenting party. Chisolm v. GA,
 * 2) 11A repealed all federal courts' jurisdiction, where state is a non-consenting party, except for original jurisdiction of USSC. Hans v. LA,
 * 3) 11A repealed all federal & state courts' jurisdiction, where state is a non-consenting party. Alden v. ME, (Current Majority View)
 * Rationale: Money judgments could destroy state independence; gives congress too much leverage over states


 * Exceptions
 * U.S. Suit: Federal jurisdiction may be established where the federal government is the complainant.
 * Consent: Federal jurisdiction may always be established by consent (true for state jurisdiction too)
 * Abrogation: Federal jurisdiction may be established by clear & unambiguous law abrogating state sovereignty for civil rights violations (14A§5), where congruent & proportional.
 * Injunctive Relief Against Officials: Federal jurisdiction may be established where complainant seeks injunctive relief to halt state officials' violations of federal law.

 Cases  Alden v. Maine, F: Probation officers seeking to sue state of Maine in Federal Court under FLSA (a federal question). Case dismissed based on Seminole Tribe v. Florida, which recognized the 11th Amendment removing Federal Court Jurisdiction over States. Officers bring suit to state courts, however, state supreme courts declared that states draw immunity from their own citizens,

Florida Prepaid v. College Savings Bank, F:

Kimel v. Florida Bd Regents, F:

Fitzpatrick v. Bitzer, F:

14th Amendment §5: Congruent & Proportionate - Courts more eager to pursue litigation

Ex Parte Young, F: Suits seeking injunctions may be brought against state officials.

=Presidential Authority=

Article 2 Powers

 * A2§1: ''The executive Power shall be vested in a President of the United States of America.
 * A2§2: The President shall be:
 * Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
 * he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and
 * he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
 * and He shall have Power, by and with the Advice and Consent of the Senate, 
 * to make Treaties, provided two thirds of the Senators present concur; and 
 * he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

From Congress
Legislation & Administrative Agencies

Authorized Use of Military Force
AUMF (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (b) War Powers Resolution Requirements-
 * 1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
 * 2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

From U.S. Supreme Court

 * Language argument for broad presidential authority:
 * Art.1 §8 (powers enumerated & limited) vs. Art.2 §1 (powers expansive & broad)

3 Categories of Presidential Power (Steel Seizure, Jackson Concurrence)
 * 1) Express power granted by Congress → Powers are at maximum, Judicial role at minimum (political question)
 * 2) Zone of Twilight - Congressional silence → Implied consent by acquiescence, but power is not plenary. This temporary power remains (1) subordinate to statute & (2) may not be exercised in violation of other constitutional provisions.
 * → Dames & Moore v. Regan - Congressional acquiescence found due to silence
 * 1) Presidential Acts inconsistent w/Congress → Presidents power is at minimum, Judicial role at maximum
 * → Youngstown Sheet & Tube v. Sawyer - Congress previously refused to grant seizure authority

Executive power cases
Youngstown Sheet & Tube v. Sawyer, F: Truman sends government officials into steel mills to ensure they keep running in spite of strike due to wartime need. Action deemed unconstitutional. Justice Black writing for majority says that there is no origin for this authority, that the Vesting clause, Faithful execution clause, & Commander in Chief clause were all insufficient.

Justice Jackson's concurrence drawing the boundaries of executive powers
 * 1) Express or implied authority of congress: (a) maximum power, (b) unconstitutional if law itself is unconstitutional, & (c) widest jurisdictional deference
 * 2) Twilight Zone (concurrent authority by congressional authority): (a) uncertain executive power, (b) case by case analysis (ie. congressional acquiescence), & (c) judicial role is on case by case basis
 * 3) Expressly denied: (a) lowest ebb/minimum, (b) executive action allowed only if congressional power contradicts constitutional power of executive power, & (c) heavy judicial scrutiny

Dames & Moore v. Regan, F: A holding of D&M was attached to an Iranian account and frozen under Executive Order 12170 during the Iran Hostage Crisis. H: Incorporates Jackson's concurrence in Youngstown in the majority. This was not an act of authority banned by congress, and thus finds that this exercise of executive authority falls into the Twilight Zone. In this case, an executive response to a foreign hostage crisis, the court is willing to grant the president greater authority. http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0453_0654_ZS.html

Executive Discretion during War Time
Congress declares war, President is commander in chief of military

President may deploy troops to any location, but within 60 days the President must get authorization by one of the following:
 * 1) Congressional declaration of war
 * 2) Specific statutory authorization
 * 3) National emergency

Johnson v. Eisentrager, F: German prisoners in a U.S.-administered prison located in Germany submitted writs of habeas corpus to U.S. courts. The U.S. courts had no jurisdiction over enemy aliens held in a foreign nation, even if the U.S. controls the facility in which they are being held.

Hamdi v. Rumsfeld, F: Yaser Esam Hamdi was captured in Afghanistan and the U.S. government detained him in a South Caroline brig, alleging that Hamdi was fighting for the Taliban. The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be properly detained as an unlawful combatant, without any oversight of presidential decisionmaking (thanks to AUMF), or without access to an attorney or the court system. Hamdi's father brought a habeas corpus petition on behalf of his son. H: Reversed dismissal of petition, although, as the war in Afghanistan is still ongoing, the detention of unlawful combatants from that conflict remains lawful. However, those detained are entitled to contest their status as unlawful combatants. The Executive Branch does not have the power to hold a U.S. citizen indefinitely without basic due process protections enforceable through judicial review. The court's role is not undermined by the war when it comes to human rights. Anyone assigned the status of unlawful combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.

=Congressional Authority=

Article 1 § 8 Powers

 * The Congress shall have power
 * to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; 
 * To borrow money on the credit of the United States;
 * To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; 
 * To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
 * To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
 * To provide for the punishment of counterfeiting the securities and current coin of the United States;
 * To establish post offices and post roads;
 * To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
 * To constitute tribunals inferior to the Supreme Court;
 * To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
 * To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
 * To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
 * To provide and maintain a navy;
 * To make rules for the government and regulation of the land and naval forces;
 * To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
 * To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
 * To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And
 * To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. 

Enumerated powers in sum: To tax & spend, and regulate: commerce; naturalization & bankruptcy; currency; counterfeiting; postal service; intellectual property; inferior courts; piracy, admiralty, & international law offenses; declare war, approve seizure of international criminals' persons & assets, and govern their capture; raise & support armies for 2 years; maintain a navy; regulation of land & naval forces; call upon militias to suppress insurrection & repel invasions; authority over D.C.

Article 1 § 9 Limitations

 * The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
 * The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
 * No bill of attainder or ex post facto Law shall be passed.
 * No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.
 * No tax or duty shall be laid on articles exported from any state.
 * No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.
 * No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
 * No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

Bill of Rights Limitations

 * 1A - Freedom of religion, speech, press, & peaceable assembly
 * Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 * 2A - Right to bear arms
 * A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear Arms shall not be infringed.
 * 3A - Protection from quartering of troops
 * No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
 * 4A - Protection from unreasonable search and seizure.
 * The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 * 5A - Due process, double jeopardy, self-incrimination, private property.
 * No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
 * 6A - Trial by jury and other rights of the accused.
 * In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
 * 7A - Civil trial by jury.
 * In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
 * 8A - Prohibition of excessive bail, as well as cruel and unusual punishment.
 * Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
 * 9A - Protection of rights not specifically enumerated in the Bill of Rights.
 * The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

14th Amendment § 5 Powers

 * 14A§5 - Congressional enforcement of civil rights (equal protection & due process) within states
 * The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 
 * 14A§1 - No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
 * Retroactively incorporates Amendments 1-8
 * Seminole Tribe v. Florida

CC History
Limited Interpretation until 1937 Champion v. Ames: Lottery Traffic Act banning sale of tickets between states Hipolite Egg v. U.S.: PFDA banning sale of low-grade eggs between states Hoke v. U.S.: Mann Act banning transport of prostitutes over state lines Hammer v. Dagenhart: KOCLA banning sale of child-made goods between states R.R. Retirement Bd v. Alton R.R.: R.P.A. requiring employees to get pensions. Schechter Poultry v. U.S.: NIRA competition codes to be met for interstate sales Expansive Interpretation after 1937 (all upheld; activities just need to effect I/C) NLRB v. Jones & Laughlin Steel, H: Fed law protecting employees' right to unionize. U.S. v. Darby Lumber, H: Overturned Hammer v. Dagenhart Wickard v. Filburn, H: Fed law restricting wheat quantity permissible to grow. Heart of Atlanta Motel v. U.S., & Katzenbach v. McClung, (Ollie's BBQ): Fed law banning racial bias in public accommodations, so blacks can travel.
 * Upheld (Regulate immoral/unhealthy goods moving across state borders)
 * Struck down (No indirect regulation to reach intrastate acts)
 * Civil Rights Cases

CC Current
In Lopez, Rehnquist defined the current scope of the commerce clause.
 * Under the Commerce Clause, Congress may legislate:
 * 1) Channels of I/C - I/C entities: people & locations
 * 2) Instrumentalities of I/C - I/C avenues: roads, transports, & communications
 * 3) Activities that Substantially Affect I/C - Test:
 * A) economic in nature? (if not, cannot be aggregated) B) jurisdictional "hook"? (eg. limitation to those that traveled in I/C) C) regulation not traditionally left to states? (close link to congress's enumerated powers) D) congressional findings*? (absent findings, rational link can't be determined)
 * * Mere existence of findings is NOT dispositive. Rational basis scrutiny applied to them. (see Morrison)

U.S. v. Lopez, H: Struck down Gun Free School Zones Act (created for education's sake, not I/C's).

U.S. v. Morrison, H: Struck down Violence Against Women Act (not created for sake of I/C).
 * Congress cannot “pile inference upon inference” to draw the link between the regulated conduct and its effects on commerce.
 * If we permit regulation of gender-motivated violence on basis of interstate commerce, what can’t Congress regulate?

Gonzalez v. Raich, H: Upheld Controlled Substance Act permitting the FBI to conduct raids on pot growers (Lopez, not applied, instead citing Wickard)

Abrogation of State Immunity Powers
Congress may abrogate states' immunity to enforce civil rights under 14th Amendment §5 Older view: Broad power to enforce Modern view: Strictly remedial and only for those problems the court itself has identified and for EP only those that required heightened scrutiny.

Free Exercise
Sherbert: Gov't interference of free exercise of religion must pass strict scrutiny

Employment Division v. Smith, F: Native animists smoke peyote H: Lowers standard to rational-basis (absent invidiousness)

RFRA attempted to overrule Smith & reestablish strict scrutiny standard.

City of Boerne v. Flores, H: The RFRA is not remedial it is attempting to make a substantive change to the interpretation of the 1st amendment without a constitutional amendment.

Congress can't abrogate state sovereign immunity to force compliance with anti-age discrimination law. Congress can't establish a greater scrutiny standard than the U.S. Supreme Court has interpreted.

Is the remedial law (1) congruent & (2) proportional?

Florida Prepaid U.S. v. Morrison Upheld Civil Rights Cases

Kimel - Congress cannot abrogate sovereign immunity for ADEA suits—its attempt to do so lacked congruence and proportionality to problem.
 * Age

University of Ala. v. Garrett (ADA-I employment discrimination) - Congress cannot abrogate sovereign immunity for ADA-I suits.
 * Disability

Tenn. v. Lane (ADA-II access to buildings) - Congress can abrogate state immunity under ADA-II because it protects a fundamental interest in access to courts and other public buildings. Requirement of access programs was congruent and proportional to problem of access to courts.

Legislative Encroachment on Executive Power
Modern Administrative State - The legislature creates agencies placed in the authority of the president to regulate particular areas of law.

Nondelegation Doctrine

INS v. Chadha, F: In 1952, Congress passed the Immigration and Nationality Act, gave the attorney general the discretion whether or not to deport individuals, with a condition that one house of congress may veto his discretion. H: Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch consistent with the bicameralism principle and Presentment Clause of the United States Constitution.

Clinton v. New York, F: The line-item veto is unconstitutional for failing the presentment clause.

Signing statements

Congressional Control Over Executive Officers
Appointments Clause

Buckley v. Valeo, F:

Bowsher v. Synar, F:

Humphrey's Executor v. United States, F:

Morrison v. Olson, F: H: The Court upheld the Independent Counsel Act because it did not violate the separation of powers by increasing the power of one branch at the expense of another. Instead, even though the President could not directly fire the independent counsel, the person holding that office was still an Executive branch officer, not under the control of either U.S. Congress or the courts.

Mistretta v. United States, F:

SA History
Coyle v. Oklahoma, H: Congress may not regulate the location of a state's capitol.

N.Y. v. U.S. (1), H: Bottled Mineral Water tax upheld, because state was acting as market actor, not as a state

National League of Cities v. Usery, H: Congress may force states to respect minimum wage.
 * Congress can't regulate... 1) States as states, 2) indisputable attributable of state sovereignty, 3) compliance would impair with state's traditional integral functions.

Garcia v. San Antonio MTA, H: Usery overturned, The test is irrational, unworkable, interpreted by unelected justices. Leave it to political system.

SA Current
Dual Sovereignty exists to prevent tyranny & abuse by ensuring the independence & autonomy of State governments from Federal incursion.
 * Congress has enumerated powers, under Art.1 S.8, to regulate individuals, not states.
 * Congress may neither direct States' legislatures nor commandeer States' officers for the purpose of administering Federal law.
 * State officials must not obstruct the operation of Federal law.
 * State directives aimed at obstructing Federal law are ipso facto invalid.
 * Congress has authority to regulate where States' conduct themselves as market actors engaged in interstate commerce.

N.Y. v. U.S. (2), H: Struck down the "take title" provision of a radioactive waste act for imposing an illegitimate burden on state legislatures.

Printz v. U.S., H: Struck down the "interim documenting" provision of the Brady Gun Act for commandeering state's agents (CLEO)

Reno v. Condon, H: Upheld ban on State sale of DMV info, because State is acting as market actor (see NY v. US (1))

Spending Power Exception

 * Congress may use the Spending Power as a persuasive mechanism. However, such use is subject to several restrictions:
 * 1) Conditions for federal grants, must be in pursuit of the general welfare (courts should substantially defer to Congress's judgment).
 * 2) Conditions for federal grants, must be unambiguous, allowing states to make an informed choice.
 * 3) Conditions must also be related to the federal interest in supplying the grant.
 * 4) Conditions must not be otherwise independently constitutionally barred.

South Dakota v. Dole, H: Upheld highway spending incentives to raise drinking age. O'Connor dissents:
 * (3) Over-inclusive (affecting all highway drivers) & Under-inclusive (affecting only under-aged drunk-drivers) & Attenuated
 * (4) Banned by the 21st Amendment, state's "compliance" is coerced.

=State Legislative Powers=

From U.S. Constitution

 * 10A - Powers of states and people.
 * The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

DCC History
The Dormant Commerce clause is a limitation on State legislation implied by the Commerce Clause. State law are prohibited from improperly burdening interstate commerce, potentially leading to interstate tariff wars at the sake of the national economy. To resist unconstitutionality, State has the burden of showing the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake.

DCC Current
The Commerce Clause of Art. 1 § 8 grants the power to regulate interstate commerce to Congress.

In granting this power to Congress, the contrapositive of the Commerce Clause prohibits such regulation by states. Three categories of state regulations are found invalid under this dormant implication of the Commerce clause: discriminatory, burdensome, & preempted regulatons. Discriminatory regulations may be either acts of facial economic protectionism or merely result in a discriminatory effect. Burdensome regulations are not discriminatory against interstate commerce, yet unjustifiably burden interstate commerce. Preempted regulations are those which Congress has already legislated on.


 * A facially discriminatory state law is invalid, unless there exists
 * 1) a legitimate health/ecological interest
 * 2) no non-discriminatory alternatives are available.

Originating from Article VI, the Supremacy Clause, if Congress has already passed legislation covering an issue or otherwise taken over the responsibilities governing an issue, then the state law will be overturned. The purpose of this is to preserve Uniformity & Unity, but not to dramatically undercut the states' power. p. 326 An issue is preempted, if Congress has asserted authority over it, 1) Expressly 2) Implicitly: Field - Categorical 3) Conflict: Case by Case

U.S. Constitution, Article III §2
Chisholm v. Georgia,

Brown v. Board of Ed.
Brown v. Bd. of Ed. of Topeka, H: Segregation laws by states are unconstitutional. "Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

Bolling v. Sharpe, H: Segregation laws by federal govt is unconstitutional.

Green v. County School Bd., H: Right to integration

Swann v. Charlotte-Mecklenburg Bd. of Ed., H: School's must overcome residential segregation to ensure integration

Keyes v. School Dist., H:

Columbus Bd. of Ed. v. Penick, H:

Dayton Bd. of Ed. v. Brinkman, H:

Milliken v. Bradley, H: Cannot remedy, because it would infringe on non-guilty districts

MO v. Jenkins, H:

Bd. of Ed. of Oklahoma City v. Dowell, H:

Freeman v. Pitts, H:

U.S. v. Fordice, : Eight public universities in MI had not sufficiently integrated and that the state must take affirmative action to change this under the Equal Protection Clause.

Mo. v. Jenkins, : USSC majority interpreted Brown as restricting only de jure segregation, and referred to Milliken & other precedents as applying only to intra-district desegregation. USSC argued that lower courts exceeded authority in ordering measures (ie. across-the-board state-funded salary increases) and in the order to fund continued quality education programs that could not be sustained by local government.

Yick Wo v. Hopkins, : The Court, in a unanimous opinion written by Justice Matthews, noted that it was clear that the administration of the law was discriminatory even if the ordinance was not. Even though the Chinese laundry owners were usually not American citizens, the court ruled they were still entitled to equal protection under the Fourteenth Amendment. He also noted that the court had previously ruled that it was acceptable to hold administrators of the law liable when they abused their authority. He denounced the law as a blatant attempt to exclude Chinese from the laundry trade in San Francisco, and the court struck down the law, ordering dismissal of all charges against other laundry owners who had been jailed.

Underinclusive & Overinclusive
Railway Express Agency v. New York, F: City banned truck advertising, unless it pertained to the truck owner's business. Railway was engaged in the business of delivery and sold space on its trucks for advertisements of other businesses. H: Deference to legislature, RB of the law was to prevent distractions to drivers.

Williamson v. Lee Optical Co., F: Only optometrists can sell glasses except ready-to-wear glasses H: Deference to legislature

In rational basis review the court only asks whether there is any rational basis to a legitimate state end.

New Orleans v. Dukes, F: Pushcart vendors limited to those permitted under grandfather clause of 8 years H: Deference to legislature, arbitrary number is irrelevant absent clear invidiousness

Massachusetts Board of Retirement v. Murgia, F: Forced retirement for men over X, yet in top physical shape H: Deference to legislature

FCC v. Beach Communications, Inc., H:

US Department of Agriculture v. Moreno, F: Food stamps limited to family members. Clear intention to harm hippies. H: NO. Clear invidiousness will not be tolerated

Korematsu v. United States,

Facially Discriminatory
Loving v. Virginia, H: Anti-miscegenation statutes are unconstitutional under Equal Protection Clause.

Palmore v. Sidoti, F: Divorced father sues for custody of his child after ex-wife remarries to a black man. Father claims his son will be adversely affected by society's prejudice against him for having a black step-father. H: The effects of racial prejudice cannot justify a racial classification removing a child from the custody of the natural mother otherwise found to be an appropriate person for custody.

* Strongest qualifier (eg. Important would be a lesser qualifier)
 * Strict Scrutiny [completely overturns reasoning in Plessy, all (non-benign) laws related to race will be considered under strict]
 * 1) Compelling* government interest
 * 2) Means chosen must be necessary to accomplish government goals

Disproportionate effect
Gomillion v. Lightfoot, F: Bizarre redistricting revealed to exclude black voters H: Redistricting is unconstitutional under the 15th Amendment provision prohibiting states from denying anyone their right to vote on account of race, color, or previous condition of servitude.

Washington v. Davis, F: Group of black men rejected as applicants to police force allege discrimination H: No evidence that application process was racially prejudiced beyond end result. While result is evidence, it alone is insufficient.

Hunter v. Underwood, F: H: Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. Proof of racially discriminatory intent is required to show a violation of the Equal Protection Clause.

Batson v. Kentucky, F: H: Where peremptory challenges result in a racially biased jury, defense lawyers may contest the challenges and require legitimate reasons for the jury members dismissal.

If race is a motivating factor, then struck down.


 * 1) Clear statistical pattern, with no rational explanation (Yick Wo & Gomillion)
 * 2) Circumstantial evidence - (A) Historical background (What went on & what changed; see Gomillion) and (B) Departures from normal procedures
 * 3) Direct Evidence - (A) Legislative history and (B) Testimony

Scrutiny: Strict, Heightened, Intermediate, Rational Basis

Griffin v. County School Board,

Palmer v. Thompson, the Supreme Court ruled that discriminatory intent was insufficient to make out an Equal Protection claim; that discriminatory purpose was also required. In that case, the City of Jackson, MI, closed its municipal swimming pool after it had been ordered to desegregate it. The closure was apparently motivated by antipathy toward blacks, but still no EP violation because the closure equally burdened both blacks and whites. An exception to this rule arises where a law contains a racial classification on its face.

McClesky v. Kemp,

Clary v. United States,

Non-invidious
Regents of Univ. of Cal. v. Bakke, H: Non-invidious practices to overcome societal discrimination is permissible, but not where the practices are attenuated from the discrimination sought to overcome. Points and quota systems are not permissible.

Wygant v. Jackson Board of Education, H: School not permitted to exempt minority professors from seniority-based firing practices.

Fullilove v. Klutznick, H: The U.S. Congress could constitutionally use its spending power to remedy past discrimination, requiring 10% of federal funds going towards public works programs had to go to minority-owned companies.

City of Richmond v. J.A. Croson Co., H: The city minority set-aside program in the awarding of municipal contracts failed to identify the need for remedial action. "If the city finds discrimination, the city can act to remedy it. If the state finds discrimination, the state can act to remedy it. Where the U.S. Congress found discrimination, Congress was permitted to remedy it.

Adarand Constructors v. Peña, H: All racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under a standard of "strict scrutiny," the highest level of Supreme Court review (such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests).

Grutter v. Bollinger, H:

Gratz v. Bollinger, H:

RBD Current

 * Race-Based Discrimination
 * All government-imposed race-based discrimination must be analyzed under strict scrutiny, to "smoke out" illegitimate uses of race.
 * Such discrimination is only constitutional where narrowly tailored to further compelling governmental interests.
 * Narrow-tailoring does not require exhaustion of all race-neutral alternatives, but must demonstrate a serious, good faith consideration of workable ones.
 * Outright racial balancing is patently unconstitutional. Racial balance is not to be achieved for its own sake.

Gender Discrimination

 * Intermediate (Heightened) Scrutiny for Gender-based Discrimination
 * 1) Important Government Interest (O'Connor: Exceedingly persuasive justifications)
 * 2) Substantial relationship b/w program & interest

Impermissible
Reed v. Reed, H: Mandatory preference to either sex merely to eliminate hearings on the merits is an arbitrary legislative choice forbidden by Equal protection clause

Frontiero v. Richardson, H: Different standards requiring servicewomen to show dependency by husbands for compensatory allowance promoted gender stereotypes and forbidden by Equal Protection Clause, but did not require strict scrutiny.

Craig v. Boren, H: Ban on men under 21 from buying Near Beer to curb drunk driving (men more commonly drunk driving). Accepting this law perpetuates a stereotype

MI Univ. for Women v. Hogan, H: Ban of men from the nursing school, but 94% of nurses are women & no demonstration of a disadvantage to women in nursing school access.

U.S. v. VA, H: Male-only admission process to preserve adversative (rat line) method to produce male citizen-soldiers is forbidden by Equal Protection Clause and not saved by a separate institution. The important interest must be the interest giving rise to the program (preservation of the model resisting modification for women), not just possible interests posited after the fact (diversity of offering both single-sex & mixed-gender education. Demonstration of gender-based tendencies (Women being averse to adversative education), does not justify the exclusion of women that stand apart.

Orr v. Orr, H: Laws that imposed alimony obligations on husbands, but not on wives, was struck down.

Califano v. Webster, H: Upheld law permitting female retirees to waive the three years of lowest wage earning in calculating pension, as a leg up to compensate for women's historic exclusion from well-paying positions.

Permissible
Geduldig v. Aiello, H: "not . . . every legislative classification concerning pregnancy is a sex based classification." But that case construed a constitutional provision governing state action, which is far different than determining the scope of a statute aimed at rectifying harms inflicted by private actors. (insurance policy which did not pay out to pregnancy-related disability claims was not held to be unconstitutional under the EPC)

Michael M. v. Sonoma County, H: Sex-specific statutory rape law upheld, criminal charges would discourage pregnant females (& their parents) from reporting incidence.

Rostker v. Goldberg, H: Authorization the president to require males, but not females for draft is upheld, because females are not permitted in combat & the burden distributing females to non-combat positions would be overburdensome.

Other Suspect & Quasi-Suspect Classes
Footnote of U.S. v. Carolene Product, FN4: Discussed need for greater scrutiny where discriminated group is a discreet & insular minority.
 * 1) Immutable characteristic, 2) Suffered a history of discrimination, 3) traditionally left out of political process, 4) losses in political process been motived by prejudice, fear, animus

However, USSC is now uncomfortable with this measure.

Alienage
Sugarman v. Dougall, H: New York state law restricting government employment to citizens is struck down. An exception is made where some right of citizenship is necessary to conduct a public job

Foley v. Connelie, H: A second exception is made where the position is key to the democratic process (such as court officers, public school teachers, & state troopers, but not custodians, clerks, or notaries public).

Disability
Disabilities may be relevant in ways that race, gender, & alienage likely are not.

Cleburne v. Cleburne Living Center, H: The court does not apply heightened scrutiny in cases of the mentally disability, merely rational-basis scrutiny. However, bare desire to harm, actions based on irrational fear or prejudice. This test constitutes: "Rational-basis w/bite" -Baher, on citation of USDA v. Moreno A Texas city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes. The Court of Appeals for the Fifth Circuit held that mental retardation is a "quasi-suspect" classification and that the ordinance violated the Equal Protection Clause because it did not substantially further an important governmental purpose. We hold that a lesser standard of scrutiny is appropriate, but conclude that under that standard the ordinance is invalid as applied in this case.

Homosexuality
Romer v. Evans, F: In Colorado, a special class has the right to organize, approach their municipality, and ask for anti-discrimination protection. Amendment 2 took this right away exclusively from homosexuals. H: A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. The right to participate equally in the political process is affected by this section because it bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs insofar as those persons deem it beneficial to seek legislation that would protect them from discrimination based on their sexual orientation; it alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment.

This section is not necessary to serve any compelling governmental interest in a narrowly tailored way. It is not narrowly tailored to serve the compelling governmental interest of ensuring the free exercise of religion or preserving associational privacy, nor are the preservation of fiscal resources, the promotion of public social and moral norms, the prevention of governmental support of political objectives of a special interest group, or the deterrence of factionalism compelling governmental interests served by this section.

If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

Non-suspect Groups
Age, Wealth, Etc.

If a law discriminates non-suspect class from enjoying a fundamental right, it will be analyzed under strict scrutiny. 1. Voting, 2. Access to Courts, & 3. Travel

Right to Vote
Harper v. VA State Bd of Elections, F: HN: Where fundamental rights and liberties are asserted under the Equal Protection Clause of the Fourteenth Amendment, classifications which might invade or restrain them must be closely scrutinized and carefully confined.

HN: The political franchise of voting is a fundamental political right because it is preservative of all rights.

Kramer v. Union Free School Dist. #15, F: Voting right restricted to those Owning land in neighbourhoods or having Children in school system requirement

HN: When courts are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the court can conceive of a "rational basis" for the distinctions made are not applicable.

Reynolds v. Sims, F:

When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.

Access to Courts
Griffin v. IL, H: Fundamental right to free court transcript for the purpose of appeal, so as not to deprive the poor.

Douglas v. CA, H: Fundamental right to benefit of free counsel in deciding the merits of appeal, so as not to deprive the poor.

Not Right to Education
San Antonio Independent School Dist. v. Rodriguez, H: Indigent are NOT a suspect class. No fundamental right to education. Where education is provided, Equal Protection guarantees education, though not in quality.

Plyler v. Doe, H:

Bill of Rights Incorporation
Resistance to total incorporation

Palko v. CT, H: Double Jeopardy permitted

Adamson v. CA, H: Double Jeopardy permitted

Selective incorporation wins out, but through case law nearly total incorporation has since been achieved.

SDP History & Lochner
Lochner v. NY, H: "Freedom to contract" is a fundamental right guaranteed in the "liberty" term of 14th Amendment: "No State shall...deprive any person of...liberty...." Workweek law limiting hours infringes on this liberty. Holmes (dissenting): This case is a matter of weighing economic philosophies & should not be the domain of the Supreme court. Result: 100s of laws intended to protect employee rights overturned, b/c the unequal bargaining power between employer/employee is a "fundamental" right.
 * Right to Contract


 * Theories of Lochner's error:
 * 1) Freedom to contract has no textual support
 * 2) Court misunderstood its institutional role, dictating that legislation was illegitimate out of disagreement with its ideology
 * 3) Disagreed over quality of evidence reviewed by legislature
 * 4) Substituting court's policy preference for legislature's
 * 5) Analytical problem, there are fundamental rights in constitution, but complete right to contract is not one. Nothing "natural" about "right to contract" (absent the sovereign).

Early Surviving SDP Rights
These cases survive Lochner's later rejection:

Meyer v. NE, H: State ban on German language education overturned for violation of SDP fundamental ''' right to free thought, raise children as desired, & choose children's education. '''
 * Child-rearing

Pierce v. Society of Sisters, H: State ban on private schools overturned for violation of SDP fundamental right to ''' raise children as desired & choose children's education. ''' Skinner v. OK, H: State's forced sterilization of those convicted of acts "amounting to felonies involving moral turpitude" was overturned for violation of Equal Protection Clause of 14th Amendment and  right to procreate  or ''' freedom from forced sterilization. '''
 * Procreation

Privacy

 * Reasons to preserve right to privacy
 * 1) Distinguishes us from totalitarian states a. Necessary to Democracry b. Autonomy & Personhood
 * 2) Autonomy on important decisions allows us to develop morally & make our own choices.
 * 3) Pre-sovereign Right

Contraception
Griswold v. CT, H: State ban on contraception information overturned for violation of SDP fundamental right to privacy protected from governmental intrusion. R (Douglas): Law violates a husband & wife's  right to privacy . Their right to privacy is a  Penumbra  (shadow/peripheral area), an implicit, unenumerated right found in the Constitution through analysis of other constitutional rights.
 * ...for married couples
 * Example of a penumbra - 1st Amnd. Freedom of speech includes right to distribute, receive, print, freely think, associate, etc., though the Constitution doesn't specify them.
 * Privacy penumbra comes from 3rd, 4th, & 5th Amnds, which protect personhood & private zones from gov't intrusion (eg. 4th Amnd protection from illegal search & seizure

Goldberg (concurring): There must be unenumerated rights not found in the first eight, otherwise the 9th Amendment is ignored.
 *  Right to familial autonomy  is as important as others in Bill of Rights, therefore fundamental.
 * Rights ought to be declared fundamental based on their importance.

Harlan (concurring): 14th Amnd SDP  Right to familial autonomy  is fundamental, because it's rooted in American traditions
 * Gov't intrusion in family affairs is unbearable, would deter sacred nature of relationship.
 * To determine fundamental rights: Look at traditions, customs, value, pay proper respect to the states, but ultimately use reasoned judgment.
 * Potential interpretations of Harlan:
 * Right to privacy in marital decisions (perhaps too broad)
 * Right to (i) marital (ii) intimacy in (iii) home
 * Right to procreate/not have children, family planning

Eisenstadt v. Baird, H: State ban on contraception for unmarried people overturned for violation of ''' Equal Protection clause. ''' R: Griswold found privacy to be a right of the individual, not a family. Restriction of unmarried persons' access to contraception violates equal protection.
 * ...for all

Abortion
Roe v. Wade, H: Struck down anti-abortion law. Fundamental  right to privacy  exists & extends to a woman's  right to abort  her pregnancy  prior to viability  of fetus.
 * Roe's Viability Measure
 * 1st Tri → Individual fundamental right to decide whether or not (Strict Scrutiny)
 * 2nd Tri → Individual right, but state has compelling interest regarding health of mother
 * 3rd Tri → Viability of fetus, state has interest in protecting fetus life

Right to privacy is one of the Constitution's unenumerated implicit rights. Pregnancy is a great burden on a woman's personhood exclusively, thus the decision is hers. Right to privacy is not absolute, must be balanced against other interests, such as state’s protection over prenatal life. Planned Parenthood v. Casey, H: Affirms essential holding of Roe: State’s cannot prohibit abortion prior to viability. Trimester distinction overruled by new viability test. R: SDP protects a zone of privacy from gov't intrustion into one's most personal decisions (procreation, contraception, child-rearing, & education). Decision about whether or not to have a child is among the most profound decisions any human being can make, thus gov't cannot intervene. Protect Roe to preserve court’s legitimacy. Unlike, Plessy & Lochner, which were made intellectually obsolete by changes in perceptions & facts, the only thing that has changed since Roe is the USSC Justices. Responding to politics would undermines court's legitimacy. Fundamental right to abortion until 3rd trimester, prior to which state regulation is impermissible where it places undue burden on woman’s choice. State may inform or express preference so long as it doesn’t amount to undue burden.
 * Post-Roe Attempts at Regulation
 * 1) 24-hour Waiting Periods - Struck down because forced two trips, attenuated relation to woman's health, & burdens 1st trimester right w/o compelling interest.
 * 2) Informed Consent Requirements - Upheld as any other medical procedure until Casey
 * 3) Spousal Consent Requirements - Struck down because unnecessarily burdensome as woman gets final choice.
 * 4) Parental Notice/Consent Requirements - Upheld with condition of judicial bypass (minor could get judge's permission instead)
 * Substantive Due Process Argument
 * O'Connor's Equal Protection Arguments (Plurality):
 * 1) Burden is unique to women who have the right to shape their own destiny.
 * 2) Reliance interest: “Women have relied on Roe and Griswald…” forming relationships, making career & life decisions, knowing that abortion is an option. Blackmun: No justification to condemn women back to darkness by overturning Roe & Griswold
 * 3) There has been no evolution in law rendering previous decisions obsolete
 * 4) There have been no factual changes in circumstances
 * New Undue Burden & Viability Framework
 * 1) 24-hour Waiting Period: Requirement of two visits is an undue burden;
 * 2) Informed Consent Requirement: Mere information (ie. suggesting there is life inside her womb) is NOT an undue burden.
 * 3) Spousal notification: Potential risk of domestic violence or divorce (eg. spouse is not the father) poses an undue burden on the subset affected that outweighs the subset of husbands' interests.

O'Connor: "Just because it's hard to adjudicate these cases, doesn't mean we can't or shouldn't. We must use reasoned judgment, while not mandating our own moral code. The liberty & burden of pregnancy on women is too unique & intimate to be regulated by the law."

Consensual sexual intimacy
Bowers v. Hardwick, H:

Lawrence v. TX, H:

Right to Die
Cruzan v. MO Dept. of Health, H:

WA v. Glucksberg, H: Is this a right so traditional that to deny such liberty To determine whether a right is protected under SDP Clause, reasoned judgment is applied.

First Amendment
"Congress shall make no law...abridging the freedom of speech, or of the press..."

- 1st Amendment, U.S. Constitution

Subversive Speech

 * Normative Justifications for Protecting Subversive Speech
 * 1) As an end, speech is a desirable liberty (in & of itself) - Verbal autonomy
 * 2) Preserves the marketplace of free ideas
 * 3) Necessary for Democratic self-governance
 * 4) Repression more dangerous than openness
 * 5) Social safety valve - Release of frustration through speech, instead of violence

Legislative History of Subversive Speech
 Espionage Act of 1798  ("Alien & Sedition Act") - Criminalized the publishing of "false, scandalous, and malicious writing" against the U.S. government.  Espionage Act of 1917  (Shortly after entering WWI) - Criminalized the publishing of info with intent to interfere with the operation of armed forces.  Sedition Act of 1918  - During wartime, criminalized libel made with the intent to:
 * interfere with U.S. military success/promote enemies' victory
 * encourage insubordination or disloyalty of troops
 * obstruct recruitment/enlistment for draft

Early Convictions Under Sedition Act
Schenk v. U.S., F: Distributing pamphlets calling for citizens to "assert your right to oppose draft" H: Necessarily intend to encourage draft-dodging. 1st Amendment protection is unavailable here, because:
 * 1) Wartime presents unique circumstances (eg. (i) falsely; (ii) shouting "fire" in a theatre; (iii) causing panic)
 * 2) Speech creating "clear & present danger" of causing substantive harm is not protected.  Clear & Present Danger Test  Where words are used to create a clear and present danger such that they bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Imminent lawless action Charismatic authority

Frohwerk v. U.S., F: Printing pro-German, anti-war publications glamourizing draft riots, though unread by public. H: Potential for harm is sufficient for conviction by jury. Efforts amounting to "kindling a flame” qualify as clear & present danger (attempting to instigate a draft riot).

Debs v. U.S., F: Socialist party candidate speaking in support of jailed comrades & expressing abhorrence of war. H: Again "kindling a flame", now expanded to potentially include any generally, political opposition to the war as per se illegal.

Abrams v. U.S., F: During Russian revolution, Bolshevik-supporters organize a strike to protest U.S.'s alliance with White Army.

Whitney v. California, F: Whitney goes to Labor party convention, she remains a party member, but not her intention to follow party strategies– she argues change the political system through lawful means, engage in more extreme measures. Her association with the party gets her convicted even though she doesn’t agree with its means

Dissenting Views on Sedition Act
Appropriateness of analogy between fire-shouting and anti-war publication?
 * 1) FALSE statement v. OPINION
 * 2) FIRE v political organization
 * 3) CAUSING PANIC (“Fire!” provokes a dangerous survival-instinct; subversive publications provoke opinion-formation)

Holmes dissent in Abrams (rejecting his own opinion in Debs): Lacks intent urging a conviction. Something can be the result of your action without you actually intending it. HE adds an element of causation. Before, you just need intent- intend the consequence. Now he adds causation- it has to be close enough in order to be found guilty. He saw their intent to just get US out of Russia, NOT tightly enough connected to what 1918 amendments say. He analyzes the First Amendment: if you can prove that speech creates a clear and present danger protected by Congress, is that speech protected by the First Amendment- He accepts the test. Holmes -
 * "I believe that defendants had as much right to publish as the govt has to publish the Constitution of the US now invoked by them."

The Const. represents abstract ideas, doesn’t tell anyone to do anything at gunpoint and this is the same. Bc some popel took this document as agiants he war with Germany, this is their interpretation of it. Just because this is what one person reads into it, can’t alter its meaning.
 * “These defendants are being made to suffer not for what the indictment alleges but for the creed that they avow-

He sees that ideas that are being published are being punished not because of the danger they present, but because the message they hold, which is what the population disagrees with. They are being punished for what the public
 * “Persecution for the expression of opinions seems to me perfectly logical”

Sarcasm, It is logical to suppress view if you don’t agree with it- this doesn’t make that decision constitutional.
 * “Men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade of ideas”

Just because you don’t accept that idea, there should be a marketplace of ideas, and people should be able to adopt ideas of others. Metaphor of a market- if people don’t like the idea it’s going to fall out. Ideas like a marketplace, bad ideas like bad products will not be bought, but the only way to appreciate what is true and false is by seeing those ideas, accepting them, debating them, modifying them or rejecting them. Truth cannot survive where unpopular ideas are eliminated from the market. We’ve been wrong before, (thought world was flat) and the only way we get to truth is by free trade of ideas, allowing all ideas. Constitution is an experiment as all life is an experiment- strongest justification of the First Amendment- it produces the possibility of truth. And the only way to get to the truth is a free exchange of ideas, must face fact that ideas could be wrong, but this is the only way to get to truth. Court is utterly unanimous in criminalizing in innocuous speech by modern eyes. In 1919, Holmes switches his position, wants to reverse conviction of Abrams who published far more incendiary speech, calling for the end of US support of White Russia, much stronger advocacy. Holmes thinks this kind of speech deserves protection: Holmes writes most famous lines.

SO between Debs and Abrams, Holmes changes his mind. HE engages in correspondence with another judge, with much more broader interpretation of First Amendment. The consequences of this kinf od ruling would stifle all opposition to the war. Holmes simply changed his mind along with Brandeis, advocating robust, expansive view of First Amendment which becomes law.

BRANDEIS DISSENT in Abrams: Establishes distinction between punishing someone for lawlessness which is ok versus punishing someone for their mere beliefs which is not ok. Courts should be suspicious of legislatures saying they are punishing of lawlessness, just be- which is not ok Discovering Truth- marketplace for ideas where through competition in ideas, openness and debate the truth can be discerned. Ideas win through sheer merit not political suppression. The consequences could be grave- theory of Constitution, theory of all life has to be open to change. This is the nature of humanity and reason. Suggests he wants to moderate clear and present danger test- we shouldn’t punish opinions unless they so IMMINENTELY interfere with purposes of the law. (anything short of shouting fire in public theatre we cannot punish) In democracy, up to people to decide what is right and wrong. Only where threat is so imminent to harm.

WHITNEY Brandeis DISSENT: The mere fact that legislature says this conduct is illegal, doesn’t answer the question. We need to look at particular facts of the case and balance against First Amendment values. Unpacks first amendment values- these norms for free speech underger the cases thereafter.
 * First Amendment hasn’t been applied to states yet. Thus must use Due Process – act not repugnant to Due Process Clause.
 * The legislature of CA knows the extent of threats out there, and they have come to the conclusion that communist party is so threatening that mere membership in the party is enough to justify conviction. (applying some rational basis test here in context of first amendment)
 * “They value liberty both as an ends and a means”- free speech could be a means to find truth- we need free and open debate to uncover truth, public policy, etc. Being able to talk is secret of happiness- being able to use free speech is an ends. It it essential to personhood and dignity. It’s important to be able to utter as a person. Spread of political truth. The greatest menace to freedom is an inert people. – free speech is necessary in order to construct democratic citizens. Need to get people engaged in public life so they can think critically. The worst threat to democracy are people who are inert, who rely on their govt to tell them what to do.

Public discussion is a fundamental duty. Need people engaged and therefore, need to protect their freedom of speech. Fear of repression- order cannot be secured merely through fear of punishment for its infraction, fear breeds repression, repression breeds hate, that hate menaces a stable govt.Allow people to express themselves through words rather than through violence. What do you do about speech that you think is dangerous? What is the remedy? Repression will only cause violence to fester. General remedy- more speech If there be time to expose through discussion, avert evils through processes of education, the remedy for bad speech is MORE speech. (not silencing the speaker, but rather exposing and testing their ideas.) If you have confidence in your system of govt., you need to have confidence that they will choose the right words. Advocate for open govt. He suggests a new test: Imminence is heightened so there is no opportunity for speech to talk someone out of it. It also has to be serious. It has to be reasonably likely to be acted upon. Something akin to an emergency. How do you know if something is imminent? Look at context. Today, Holmes/ Brandeis test is adopted and it is incredibly difficult to prosecute someone for their speech.


 * New Clear & Present Danger Test
 * 1) Harm must be imminent
 * 2) Harm must be serious
 * 3) To be immediately acted on

Dennis v. U.S., Context: McCarthyism: leading crusade against people claiming to be members of the communist party; a period of great fear of the communist threat. A genuine fear about communist infiltration in the US, they could infiltrate our govt and take over. Smith Act: makes it unlawful to conspire, organize, advocate in favor of overthrowing govt by force or violence. Overthrow- implies use of violence. The COA has finding about communist party that would suggest even if you advocate for their standing in the govt, then everyone is on notice that you are advocating for overthrow of the govt. Great fear. Dennis organizes communist branch in the US and teaching communism. There was no allegation that they specifically called people to violence. They were knowingly and willfully advocating teaching – anyone who lives in this system of govt is corrupt, selfish, mercenary, and irresponsible and you have a duty to think about communism and work towards its acceptance in the US. They have taught abstract ideas that ultimately would lead to overthrow of govt. Court expressly adopts Holmes and Brandeis. Their test is better. How is this clear and present danger? Is this imminent? Evil that is presented and the reasonableness of the evil- they don’t even mention imminence. This is just such a much more serious of a problem. They ignore two parts of the Brandeis test and elevate the seriousness prong. The evil here is dso dramatic that even if it’s not imminent, that if they have their way in 20 yrs, that is the end of the US govt. This is a necessary component of their ideology. They are looking at THE GRAVITY OF THE EVIL. Start w/ seriousness of the harm – imminence= if that equation is still great then you have DOUGLAS DISSENT: "They aren’t teaching overthrow of the govt, but rather they are teaching from the books of communism. Addresses the notion of the imminence of communism- communism has been so thoroughly exposed, it has been crippled as a political force. Everyone knows that it’s bad- free speech has worked to discredit this idea and the reason they are ultimately worthless, their wares remain unsold."

Modern Deferential Views on Sedition
Bond v. Floyd, F: "we support men unwilling to respond to draft" H:

Watts v. U.S., F: "first man I want to get in my sights is LBJ" H:

Restrictions
Brandenburg v. OH, F: H:
 * Brandenburg Test (Charismatic Authority)
 * 1) Directed/intended to incite
 * 2) Imminent lawless action &
 * 3) Is likely to produce that action

Hess v. IN, F: H:

N.A.A.C.P. v. Claiborne Hardware, F: H:

Fighting Words
Punish words likely to provoke violent response?

Cantwell v. CT,
 * H:

Chaplinsky v. NH,
 * F: Jehova's witness addresses police officer as "a God-damned racketeer" & "a damned Fascist."
 * H:

Fighting words

Lewd & Indecent Speech
Cohen v. CA, F: "Fuck the Draft" jacket H:

Ancillary Free Speech
WV Bd of Ed v. Barnette, H: Compelled speech violates 1st Amnd. Unity insufficient justification & cannot prescribe justification.

Hostile Audiences
Terminello,

Feiner v. NY,

Black's Formula

Edwards v. SC, F: Angry townspeople gathering in response to protest group speech. Police ordered protesters to disperse, and upon refusal, were arrested for disturbing the peace.

Cox v. LA, F: Muttering group near peaceful protest cited as justification to arrest protesters.

Gregory v. Chicago, F: Chicago police ordered protesters to disperse "to prevent what they regarded as an impending civil disorder."

Permits
Statutes requiring permits prior to public gathering.

Kunz v. NY, F: Permits excluded to those intending "to ridicule or denounce any form of religious belief" or "expound atheism or agnosticism [in] any street."

Forsyth Cnty, GA v. Nationalist Movement, F: Permits require protesters to pay additional costs incurred by town in protecting their speech.

Libel
NYTimes v. Sullivan, F: MLK Jr. publishes ad in NYTimes containing libel. AL law shifts burden to DEF to prove truthfulness. H: USSC overturns for being overstrict & imposing self-censorship out of fear of being liable for a false statement. Under 1st Amend, no such thing as false idea.

Public Officials Test: (i) burden on officials, (ii) falsehood, (iii) actual malice (knowingly false/reckless disregard), and by clear & convincing evidence


 * Public Figures

No actual malice standard required - falsity enough
 * Private Figures But on Issue of Public Concern


 * Private Figures/Private Concern

Hate speech
Nat'l Socialist Party v. Skokie, H:

R.A.V. v. St. Paul, H:

WI v. Mitchell, H: Hate crimes may have increased punishments, 1st Amnd does not protect conduct

VA v. Black, H: True threats not protected by 1st Amnd, but "intent to intimidate" required.

Lewdness
Federal Communications Commission v. Pacifica Foundation, H: Must be played at age appropriate hour, broadcasting gets the least 1st Amnd protection

Reno v. ACLU, F: Lewd, indecent, & obscene material accessible by children on internet is criminal offense. Affirmative defense if age verification efforts used (such as credit card). H: Internet is different from broadcasting - Infinite in size, Affirmative steps necessary to access. Definitions are too broad where they prohibit the lewd, indecent, & obscene. You can't restrict adult access. Defenses are insufficient as they prevent adults w/o credit cards from access.

Overbreadth
Exception to Standing Rule - can challenge statute on its face even if own speech is not protected by constitution, as long as statute could be applied to stifle many other protected areas

Prior Restraint
Injunctions

Near v. MN, F:

Collateral Bar Rule

NYTimes v. U.S., F:

They have to have proof that it would actually cause harm, not mere conjecture

The Court stated it was simply applying a preexisting procedural rule, the collateral bar rule, which prevents individuals from raising any substantive challenge to a court order if they disobey it prior to bringing the challenge back to issuing judge.

Content-Neutral Laws
Restrictions on laws governing Time, Place, & Manner
 * 1) Content-Neutral
 * 2) Significant Gov't Interest
 * 3) Leave open Alt Channels / less restrictive means avail

Symbolic Conduct
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