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Year : 2002
School : Harvard University Law School
Book : Fallon
Professor : Fallon
Subject : Constitutional Law
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Constitutional Law

Constitutional Law Course Outline

Professor Richard Fallon

Fall 2002

Purpose of Government

A well-constructed union can “break and control the violence of faction.” Under the Articles, measures were “too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and over-bearing majority.” The causes of factions cannot be removed, because they will exist whenever people possess varying amounts of property, so government must control their effects. The way to do this is through representative rather than direct democracy, in which “the great and aggregate interests” are the responsibility of the national government, while “the local and particular” are the responsibility of the local. The larger the representative units, the better. The Federalist No. 10: Madison. Materials 5.

Ideally, separation of powers would be ensured by removing any branch's power over the others. Because this is impossible, “[a]mbition must be made to counteract ambition.” Because the legislature is in many ways dominant, it should be divided. Furthermore, the executive should have a veto. The states will also control the national government, and vice versa. Society should be divided into so many different pieces that it will be difficult for a majority coalition to oppress the minority. [Does this conflict with the idea of large representative units in Federalist No. 10?] The Federalist No. 51: Madison. Materials 11.

Judicial Review

“It is emphatically the province and duty of the judicial department to say what the law is.” One purpose of the Constitution is to define and limit the powers of the government; those definitions and limitations must be superior to legislative acts if they are to have meaning. The Court's role is to enforce the Constitution and invalidate the law when the two conflict. However, the Supreme Court cannot decide questions that are “in their nature political.” Marbury v. Madison (1803). 1.

“The root difficulty is that judicial review is a counter-majoritarian force in our system.” Alexander Bickel. 19. Traditionally, this fact is explained by analogy to Ulysses binding himself to the mast to prevent himself from answering the call of the Sirens. This theory fails for both intertemporal reasons (we, today, have not bound ourselves to anything; we should not be captive to the “dead hand of the past”) and intratemporal reasons (when the Court declares something unconstitutional, it cites no previously-agreed-to limitation; a notice problem). Four approaches attempt to address the problem: (1) pluralist democratic (courts should be deferential unless they have cause to distrust democratic process, in which case they can overrule a legislative act yet protect democracy); (2) originialist [This approach depends on the “level of abstraction” applied in the analysis. Is the question, did the Framers intend for this statute to be constitutional, or is it, did the Framers intend for the relevant government body to have authority of the type embodied in this statute?]; (3) liberal moralist (courts should protect the moral values incorporated in the Constitution); (4) common-law constitutionalism. Fallon. Lecture.

The Constitution grants the federal government certain enumerated powers, plus the ability to make “all laws which shall be necessary and proper, for carrying into execution the foregoing powers…” U.S. Const. art. I, § 8, cl. 18. “[A] government, intrusted with such amble powers [as those enumerated in the Constitution] … must also be intrusted with ample means for their execution.” The word “necessary” is not a limiting word; it means only “convenient, or useful, or essential.” This is demonstrated by the use elsewhere in the Constitution of the phrase “absolutely necessary,” and the placement of the clause with the powers rather than with the limits on those powers. The national government can therefore establish a national bank. McCulloch v. Maryland (1819). 58. Charles Black described this argument as based on “structure and relationship.” Fallon.

Unwritten limits on the legislature: “The purposes for which men enter into society will determine the nature and terms of the social compact; and as they [and not only the Constitution] are the foundation of the legislative power, they will decide what are the proper objects of it.” Calder v. Bull (1798) (opinion of Chase, J.). 275. For two centuries “substantive due process,” based on a variety of theories, has “recogniz[ed] unenumerated substantive limits on governmental action.” Washington v. Glucksberg (1997) (Souter, J., concurring). 276. The correct view that the Court applies values not articulated in the Constitution “tacitly underlies” much of the doctrine the court developed roughly during the Warren Court. This approach makes the Court “the expounder of basic national ideals of individual liberty and fair treatment.” The Court often pretends to use due process or equal protection for support when it plays this role. This type of review falls into three categories: creation of rights with no textual guidance (e.g., privacy, contract), generalization of norms that appear more specific in the text (e.g., application of the Bill of Rights to the states), and extension of principles beyond their original content (e.g., Brown). Questions about this theory include the institutional competence of judges, separation of powers, and legal authority. Thomas C. Grey. Materials 15. Statutes enacted under a state's police power will be void if they are “a palpable invasion of rights secured by the fundamental law.” Mugler v. Kansas (1887) (nonetheless upholding a state prohibition of alcohol). 286. Judges from 1890 - 1937 believed in three spheres: federal, state, and citizen. Note. 287. A statute barring employment in a bakery for more than 60 hours a week or ten hours a day is unconstitutional because it violates the right of contract, which is part of the liberty protected by the Fourteenth Amendment. In cases such as this, “the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?” Lochner v. New York (1905). 287. “[T]he word `liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Lochner v. New York (1905) (Holmes, J., dissenting). 291.

The Supreme Court's jurisdiction is established in 28 U.S.C. §§ 1254, 1257. 40. Congress has the authority to withdraw from the Court jurisdiction over particular subject matter. Ex parte McCardle (1869). 41. This power is “the rock on which rests the legitimacy of the judicial work in a democracy.” Charles L. Black. 47.

Congress may also limit the jurisdiction of the lower federal courts, in part because it was never required to create them. Sheldon v. Sill (1850). 45. Some argue that the Constitution's language and structure require that some sort of federal court remain available in which federal rights can be claimed. E.g., Martin v. Hunter's Lessee (1816). 46.

Federal Legislative Power

Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” U.S. Const., art. I, § 8, cl. 3. “Commerce” “describes the commercial intercourse” between parties, including navigation. Commerce “among the several states” includes elements of that commerce within individual states. A federal law granting a license to operate a steamboat supercedes a state law assigning another exclusive rights in state waters. Gibbons v. Ogden (1824). 65. However, a state may regulate an interstate insurance business because “issuing a policy of insurance is not a transaction of commerce” and insurance contracts “are not articles of commerce.” Paul v. Virginia (1869). 68. Congress may bar state motor vehicle agencies from disclosing or selling personal information obtained through licensing drivers and registering cars. The action is valid under the commerce clause because the information is an article of commerce. The action is not barred by sovereign immunity because, rather than the commandeering barred in Printz v. United States (1997), 136, the required inaction amounts to compliance with federal standards frequently required of “a State wishing to engage in certain [regulated] activity.” Furthermore, the regulation applied to private resellers as well as state entities. Reno v. Condon (2000). 143. Where several parties are involved in the transport of goods for interstate commerce, all parties, including those operating only within a single state, are subject to federal regulation under the commerce clause. The Daniel Ball (1871). 68. Does the commerce clause require a business or commercial purpose? Note. 69. The carriage of lottery tickets is regulable commerce. Perhaps because the tickets “harm the public morals,” Congress may prohibit such carriage completely. The Lottery Case (Champion v. Ames) (1903). 69. Alternatively, the power to “regulate” commerce does not include the power to prohibit. Randy E. Barnett. 70. Congress's power includes “the power to foster and protect interstate commerce” from state actions to burden commerce, even if those actions function only intrastate, such as establishing railroad shipping rates that discourage interstate commerce. Houston, East & West Texas Ry. v. United States (Shreveport Case) (1914). 72. Congress may similarly combat burdens on interstate commerce in passengers. Wisconsin R.R. Comm'n v. Chicago (1922). 73. A state cannot forbid sale of milk bought outside the state at a price lower than the minimum established for in-state producers. Baldwin v. Seelig (1935). 76.

Overall scheme of commerce clause law: The Commerce Clause gives Congress authority to regulate three categories of activity: (1) “the use of the channels of interstate commerce,” as in Heart of Atlanta and Darby, (2) “the instrumentalities of interstate commerce, or persons and things in interstate commerce, even though the threat may come only from intrastate commerce,” as in Shreveport, and (3) “activities that substantially affect interstate commerce,” as in Jones & Laughlin. A federal statute barring the possession of a firearm in a school zone does not fit these categories and is therefore invalid, because of “the noneconomic, criminal nature of the conduct at issue,” the lack of an “express jurisdictional element” connecting the prohibited possessions to interstate commerce, the lack of congressional findings concerning effects on interstate commerce, and the “attenuat[ion]” between gun possession and interstate commerce. The Court rejected arguments about “cost of crime” and “national productivity” as proving too much. United States v. Lopez (1995), 95 - 95, as characterized in United States v. Morrison (2000). 93. Similarly, a federal statute providing a federal civil remedy for victims of gender-motivated violence was unconstitutional because the arguments in its favor would allow federal regulation of “any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption.” United States v. Morrison (2000). 93. The Founders believed in dual sovereignty, or dual federalism, in which Congress and the states had separate, non-overlapping spheres. Today we might say that government is best that governs least, or that government is best that governs closest to the people. The latter point assumes that state majoritarianism is superior to national majoritarianism. (The latter point contradicts Madison in the Federalist No. 10. Also, it could lead to a race to the bottom when states consider issues such as minimum wage, though this criticism assumes that such a race is not simply economic efficiency.) Fallon. Lecture.

Regulating intrastate production: The Fair Labor and Standards Act is valid because the “power of Congress to regulate interstate commerce extends to the regulation [of] activities intrastate which have a substantial effect on the commerce or the exercise of the Congressional power over it.” United States v. Darby (1941). 80. Earlier law:

  • Manufacture is not included within commerce, even if that manufacture, for example, of liquor, is solely for export to other states, and therefore is subject to state regulation. Kidd v. Pearson (1888). 68.

  • Congress may not prohibit the interstate transportation of products manufactured with child labor, because “the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power.” Hammer v. Dagenhart (1918). 74. Explicitly overruled in Darby.

Regulating intrastate commerce: “[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at earlier time have been defined as `direct' or `indirect.'” The “effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop.” Furthermore, “it supplies the need of the man who grew it which would otherwise be reflected by purchases in the open market.” Consumption of homegrown wheat is therefore regulable. Wickard v. Filburn (1942). 85. Earlier law:

  • Congress may regulate local buying and selling in stockyards via a “current of commerce” concept, under which it may regulate acts it “reasonably fear[s] that such [acts] will probably [constitute] a direct and undue burden on” interstate commerce. Stafford v. Wallace (1922). 74.

  • Congress may not regulate trade practices in the poultry industry when it includes a slaughterer who buys and sells only in intrastate commerce, because the slaughterer's actions had no “direct” effect on interstate commerce. Schechter Poultry Corp. v. United States (1935). 77.

  • Whether activity has a direct or indirect effect on interstate commerce “turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about.” “The word `direct' implies that the activity or condition invoked or blamed shall operate proximately - not mediately, remotely, or collaterally - to produce the effect. It connotes the absence of an efficient intervening agency or condition. Thus the production of coal has no direct effect on interstate commerce and cannot be regulated by Congress. Carter v. Carter Coal Co. (1936). 77.

  • The production of steel by a company with facilities throughout the country does have a direct effect, apparently because “stoppage of those operations through industrial strife would have a most serious effect upon interstate commerce.” NLRB v. Jones & Laughlin Steel Corp. (1937). 79.

Protecting other interests via commerce: Congress may require that a motel that attracts interstate guests serve blacks through the Civil Rights Act of 1964, because exclusion of blacks limits blacks' interstate travel and therefore damages interstate commerce. “That Congress was legislating against moral wrongs … rendered its enactment[] no less valid.” Heart of Atlanta Motel, Inc. v. United States (1964). 89. Congress may require that a restaurant that serves only intrastate customers serve blacks through the Civil Rights Act of 1964, because half of the food the restaurant serves moves through interstate commerce, and the fewer customers the restaurant serves, the less of this interstate food it will buy. Also, such discrimination discourages professional and skilled people from moving into the area. “Where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” Katzenbach v. McClung (1964). 90. Regulation will be upheld where Congress has a “rational basis” for concluding that the regulated activity has “substantial effects” on interstate commerce. Hodel v. Virginia Surface Mining and Reclamation Ass'n (1981). 93.

Federal sovereign immunity from state taxes: The federal government is immune from special taxes levied by the state, where those taxes are “on the operation of an instrument employed by the government of the Union to carry its powers into execution.” This theory is based on the supremacy clause. Therefore, Maryland cannot specifically tax the national bank. McCulloch v. Maryland (1819). 124. Originally, this theory meant that a state could not tax the salary of a federal officer, Dobbins v. Commissioners (1842), 125, or royalties from a federal patent. Long v. Rockwood (1928). 126. Since 1938, however, the Court has refused to use sovereign immunity to shield private taxpayers. Helvering v. Gerhardt (1938). 126. It continues to bar state taxes laid “directly upon the United States.” This means, however, that government contractors whose tax costs are passed on to the federal government are not immune. United States v. New Mexico (1982). 128.

State sovereign immunity from federal taxes: States' “instrumentalities,” such as the salary of a state judge, are immune from federal taxation under the Tenth Amendment. Collector v. Day (1871). 125. More recently the Court has upheld federal taxes on a state's sale of water, New York v. United States (1946), 126, and a federal airplane registration tax as applied to state police planes. Massachusetts v. United States (1978). 127. Neither case produced a majority opinion. The plurality in Massachusetts, per Brennan, said immunity should be limited because when enlarged, its burden falls on the national government without any corresponding promotion of Constitutional values, and because the political process should balance the demands of national revenue and state sovereignty.

State sovereign immunity from direct federal regulation: This principle restrains Congress only where the Court finds “possible failings in the national political process.” This is because the “political process ensures that [federal] laws that unduly burden the States will not be promulgated.” Under this approach, the Fair Labor and Standards Act may be applied to a municipally-owned and operated mass transit system. Garcia v. San Antonio Metropolitan Transit Authority (1985). 130. Similarly, the “national political process did not operate in a defective manner” when Congress banned certain state bonds based on purely anecdotal evidence that the bonds were used to conceal income. South Carolina v. Baker (1988). 135. However, the Age Discrimination in Employment Act cannot apply to a state judge because, “If Congress intends to alter the `usual constitutional balance between the States and the Federal Government' it must make its intention to do so unmistakably clear in the language of the statute.” This theory is based on Eleventh Amendment cases. Dissenters here claimed the decision “directly contravene[d] our decision in Garcia.” Gregory v. Ashcroft (1991). 135. Congress may not require state law enforcement offers to participate in administering a federal program, as it attempted to do in the Brady Handgun Prevention Act. Congress may not commandeer state government, regardless of whether it does so by requiring merely ministerial tasks or whether it requires state actors to make policy. Nor may it reduce the power of the executive branch by transferring its powers to administer the law to state governments. Printz v. United States (1997). 136. Printz is distinguishable from Garcia because it involves a regulation that applied only to state governments and not the public at large. Fallon. Lecture. This is a meaningful distinction in the context of the theory of Garcia because “political checks on Congress' power to regulate private activity provide vicarious protection for state interests” when Congress attempts to enact regulations of general applicability. No such vicarious protection exists where regulation applies only to state action. D. Bruce La Pierre. 142. This approach bars Congress from imposing minimum wages on state officials who have no private counterparts, such as legislators and judges. Ronald D. Rotunda. 143. In spite of Printz, Congress may bar state motor vehicle agencies from disclosing or selling personal information obtained through licensing drivers and registering cars. The action is valid under the commerce clause because the information is an article of commerce. The action is not barred by sovereign immunity because, rather than the commandeering barred in Printz, the required inaction amounts to compliance with federal standards frequently required of “a State wishing to engage in certain [regulated] activity.” Furthermore, the regulation applied to private resellers as well as state entities. Reno v. Condon (2000). 143. Earlier law:

  • The status of the regulated activity as either a “traditional government function” or not does not, per se, resolve the question of immunity. United States Transportation Union v. Long Island (1982), 130, as characterized in Garcia v. San Antonio Metropolitan Transit Authority (1985). 130.

  • A state is immune where the federal statute (1) regulates “the `States as States,'” (2) “address[es] matters that are indisputably `attribute[s] of state sovereignty,'” (3) “directly impair[s] [the States'] ability `to structure integral operations in areas of traditional government functions,” and (4) the relation of state and federal interests must be such that “the nature of the federal [interest] justifies state submission.” National League of Cities v. Usery (1976), 130, as characterized in Hodel v. Virginia Surface Mining (1981), 130, as characterized in Garcia v. San Antonio Metropolitan Transit Authority (1985). 130.

  • The Fair Labor and Standards Act applies to state schools and hospitals because it interferes with state functions merely to by requiring state actors to meet the same standards private actors must meet. Maryland v. Wirtz (1968). 128. Explicitly overruled by Usery:

  • Congress may not regulate wages, hours, and overtime of state actors employed “to carry out [states'] governmental functions.” National League of Cities v. Usery (1976). 129. Explicitly overruling Wirtz.

Congressional spending power is limited in five ways: (1) it must pursue the “general welfare,” (2) conditions on receipt of funds must be unambiguous, (3) “conditions on federal grants might be illegitimate if they are unrelated `to the federal interest in particular national projects or programs,'” (4) other constitutional provisions may independently bar spending, and (5) “financial inducement offered by Congress might be so coercive as to pass the point at which `pressure turns into compulsion.'” South Dakota v. Dole (1987). 117.

(1) “The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…” U.S. Const. art. I, § 8, cl. 1. Congress has discretion to determine the meaning of “general Welfare,” “unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation.” Social Security's national old age pension supports the general welfare because if such pensions differed from one state to another, they would encourage people to move to the state with the best system. Helvering v. Davis (1937). 116. The phrase “general Welfare” requires Congress to tax and appropriate “for the common benefit as distinguished from some mere local purpose.” United States v. Gerlach Live Stock Co. (1950). 117.

(2) When Congress places conditions on States' receipt of federal funds, it “must do so unambiguously, [enabling] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Penhurst State School and Hospital v. Halderman (1981), 118, as characterized in South Dakota v. Dole (1987). 117.

(3) “[C]onditions on federal grants might be illegitimate if they are unrelated `to the federal interest in particular national projects or programs.'” Massachusetts v. United States (1978) (plurality opinion) (affirming federal airplane registration tax of general applicability as applied to state police planes, where the revenues from the tax supported federal air navigation systems), 118, as characterized in South Dakota v. Dole (1987). 117.

(4) Other constitutional provisions: Though the Twenty-First Amendment prohibits Congress from enacting a national minimum drinking age, Congress may condition 5% of federal highway grants on states' imposition of a particular minimum drinking age. Limits on Congress's spending power are “less exacting than those on its authority to regulate directly.” South Dakota v. Dole (1987). 117.

(5) State sovereign immunity from federal regulation through spending: Congress may not, in an effort to raise prices, contract with farmers to reduce their acreage in certain commodities. Such an action “is a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the states.” United States v. Butler (1936). 111. However, Congress may give employers federal payroll tax breaks if they join a state unemployment compensation plan approved by the federal government, because the “tax will be abated upon the doing of an act that will satisfy the fiscal need, the tax and the alternative being approximate equivalents.” The result would be different if “the conduct to be stimulated or discouraged [were] unrelated to the fiscal need subserved by the tax in its formal operation, or to any other end legitimately national.” In that case the Congressional action would be impermissible coercion. Steward Machine Co. v. Davis (1937). 114. Congress may condition a small portion of federal highway grants on states' imposition of a particular minimum drinking age. The amount of money involved is too small to constitute coercion. South Dakota v. Dole (1987). 117.

Executive Power

Power delegated by Congress: The president may not order the seizure of steel mills to prevent labor disputes from stopping production. He may not do so under U.S. Const. art. II as the holder of “executive Power,” as one who “shall take Care that the Laws be faithfully executed,” or as commander in chief; ordering such a seizure would be lawmaking, a task reserved for the legislature. Furthermore, Congress had specifically declined to grant the president this power in the Taft-Hartley Act. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952). 146. Presidential authority may exist in three basic ways: (1) “pursuant to an express or implied authorization of Congress,” [e.g., Yakus, Clinton v. New York,] at which point he holds the maximum authority of both himself and whatever Congress may delegate, (2) “in absence of either a congressional grant or denial of authority,” [e.g., United States v. Belmont (1937), 186, United States v. Pink (1942), 186, (in both cases presidents entered agreements with foreign nations independent of Congress)] at which point he acts on his own authority, including “a zone of twilight” in which he and Congress have concurrent authority; and (3) “incompatibl[y] with the expressed or implied will of Congress,” at which point he has only his own powers “minus any constitutional powers of Congress over the matter.” This is a more functionalist approach than the majority opinion. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952) (Jackson, J., concurring). 146. Where Congress specifically authorizes presidential action, that action “is `supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion … rest[s] heavily upon any who might attack it.'” (quoting Youngstown (Jackson, J., concurring)). In fact, because “Congress cannot anticipate and legislate with regard to every possible” future situation, the “enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to `invite' `measures on independent presidential responsibility.'” (quoting Youngstown (Jackson, J., concurring)). Therefore, where a statute authorizes the president to nullify transactions involving foreign property over which the United States has jurisdiction, the president in an emergency may vacate court-ordered attachment of foreign bank assets when a treaty requires it. Dames & Moore v. Regan (1981). 152. Inferring “legislation” from either total or partial Congressional silence is dubious because such legislation is not generally accountable to the public and is not subject to veto, those being the normal checks and balances on legislation. Laurence H. Tribe. 154. Congress may authorize the president to appoint a price administrator to regulate maximum prices to carry out purposes established by Congress: stabilizing prices and protecting people with fixed incomes. Such a delegation is “an exercise by Congress of its legislative power. In it Congress has stated the legislative objective, has prescribed the method of achieving that objective …, and has laid down standards to guide [administration].” The constitution “does not require Congress to find for itself every fact upon which it desires to base legislative action.” Yakus v. United States (1944). 156. Similarly, Congress may delegate to the EPA in the Clear Air Act the power to set air quality standards “the attainment and maintenance of which [are] requisite to protect the public health” with “an adequate margin of safety.” These guidelines stated an “intelligible principle.” Whitman v. American Trucking Ass'ns Inc. (2001). Supp. 3. “[I]f Congress has explicitly left a gap for [an executive] agency to fill,” that agency's interpretations of the governing statute are valid “unless they are arbitrary, capricious, or manifestly contrary to the statute.” Delegation is problematic because it removes deliberation and accountability from the decision-making process. Cass R. Sunstein. 158. Alternatively, delegation enhances accountability by allowing the branch responsible to “the general electorate” rather than that composed of representatives of particular groups, to make decisions for the general good. Jerry L. Mashaw. 159. The interests of efficiency and expertise also favor delegation. Martin Redish. 159. Rather than invalidating statutes that appear to delegate too much authority, courts should construe them otherwise. Cass R. Sunstein. 160.

Separation of powers may be addressed either formally or functionally. A formalist approach assumes that all functions are either legislative, executive, or judicial, and that the classification of a proposed action determines which branch may carry it out. A functionalist approach defines the functions of the separation as “(i) maintaining a system of checks and balances, (ii) preventing the concentration of excessive power in a single branch, (iii) protecting individual liberty, and (iv) allowing - subject to check - a cooperative ebb and flow of power among the branches to promote effective government.” Consideration of these factors then determines which branch may carry out a particular action. Note. 155. The Ethics in Government Act of 1978 does not violate the separation of powers because the procedures for the appointment of an independent counsel are not an attempt by the legislature “to increase its own powers at the expense of the Executive Branch,” nor does it “work[] any judicial usurpation of properly executive functions.” The discretion permitted the attorney general prevents the statute from impermissibly undermining the executive branch. Morrison v. Olson (1988). 177.

Foreign affairs and war powers: “[T]he President alone has the power to speak or listen as a representative of the nation.” The president makes treaties with the advice and consent of the Senate, but the president alone negotiates them. The president is better informed than Congress about foreign affairs. As a result, Congress may authorize the president to declare an embargo against particular countries if he believes doing so will contribute to peace between them. United States v. Curtiss-Wright Export Corp. (1936), 184. It is unclear what constitutes war and what would therefore trigger the president's responsibilities under the War Powers Resolution and the War Powers Clause. As a result, a declaration of war is not really necessary. Campbell v. Clinton (D.C. Cir. 2000) (Silberman, J., concurring). A common view is that Congress possesses exclusive power to initiate war, except for the president's ability to repel sudden attacks. Note. 191.

Veto power: Where Congress delegates power, it may not reserve for individual houses the power of a legislative veto. Such action impermissibly circumvents the general requirement that laws be made by passage by both houses and presentment to the president. Therefore, Congress may not authorize the Attorney General to suspend deportation of aliens under certain circumstances but reserve the right to each house independently to overrule individual suspensions. INS v. Chadha (1983). 160. This result forces Congress to take responsibility for programs it enacts and to make public its policy views to encourage general application in the manner they support. Laurence H. Tribe. 165. The president may not hold “unilateral power to change the text of duly enacted statutes.” Such power would allow him to replace Congress's policy judgments with his own. Congress may not authorize the power to issue a line item veto against an enacted law of (1) any dollar amount of discretionary budget authority, (2) any item of new direct spending, or (3) any limited tax benefit. Clinton v. New York (1998), 165. The line-item veto would have transferred accountability for decision-making from Congress to the president. Laurence H. Tribe. 170.

Appointments: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … all other Officers of the United States….” U.S. Const. art. II, § 2, cl. 2. “[A]ny appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States,' and must, therefore, be appointed in the manner prescribed by [the Appointments Clause].” Legislators may not, therefore, appoint members of the Federal Election Commission. Buckley v. Valeo (1976) (per curiam). 173. Congress cannot assign executive power to an official of the legislative branch, because “Congress cannot grant to an officer under its control what it does not possess.” Because Congress can remove the Comptroller General from office, he is an officer of the legislature. Where the Balanced Budget and Emergency Deficit Act of 1985 set up a procedure in which the Comptroller General was to create a report detailing budget overruns, specify necessary reductions, and instruct the president to put those reductions into effect, the Act invests him with executive powers. This is unconstitutional. This is a formalist conclusion. Bowsher v. Synar (1986). 174. The president may appoint federal judges to serve on the U.S. Sentencing Commission because, even though executive duties may not be imposed on such judges, the task of the sentencing commission is consonant with the judiciary's traditional role in sentencing. Such appointments fit into the twilight zone identified by Jackson. Mistretta v.United States (1989). 182. Congress and Virginia may not agree to establish a review board of members of Congress to oversee Reagan and Dulles airports. If the board's powers are executive, members of Congress cannot wield them. If the powers are legislative, the board represents an expansion of legislative authority prohibited in Chadha. Metropolitan Washington Airports Authority v. Citizens for the Abatement of Airport Noise, Inc. (1991). 183. An inferior officer, who may be appointed by an executive officer other than the president and does not require the advice and consent of the Senate, is one who has some other superior above him but below the president. The Secretary of Transportation (rather than the president with advice and consent of the Senate) may appoint civilian members of the Coast Guard Court of Criminal Appeals, where the Judge Advocate General can remove those members without cause, and they are therefore inferior officers. Edmond v. United States (1997). 183.

Removals: The question of whether the president must hold full authority to remove an official does not turn on whether that official's duties are executive, quasi-legislative, etc. Instead, “the question is whether [a statute's] removal provisions are of such a nature that they impede the President's ability to perform his constitutional duty [i.e., his “exercise of the `executive power' and his constitutionally appointed duty to `take care that the laws be faithfully executed'”].” Under this approach, the Ethics in Government Act of 1978, establishing for the appointment of an independent counsel removable by the attorney general (and through him by the president) only upon a showing of “good cause” is constitutional, because the counsel has “limited jurisdiction and tenure and lack[s] policymaking or significant administrative authority” and therefore the president's control over him is not “so central to the functioning of the Executive Branch” to require him to be terminable at will. Morrison v. Olson (1988). 177. The removal power over the independent counsel is not crucial because the president may always pardon whoever the independent counsel targets. Akhil R. Amar. 181. Alternatively, the president may not pardon himself, so this remedy is insufficient. Furthermore, the removal power is especially important here because the counsel is appointed by persons who are not politically accountable. Laurence H. Tribe. 181. Earlier law:

  • The president has the independent authority to remove executive officers, including those whose appointment is subject to the advice and consent of the Senate. Congress therefore cannot establish four-year terms for postmasters, subject only to removal for cause by the president with the advice and consent of the Senate. Myers v. United States (1926). 170.

  • However, Congress may limit the president's power to remove officials from quasi-legislative or quasi-judicial agencies, such as commissioners of the Federal Trade Commission. They should be independent of the executive. They are distinguishable from postmasters, because the latter perform purely executive functions. Humphrey's Executor v. United States (1935), 171.

Executive privilege: Executive privilege can be divided into three categories: (1) protection of military or diplomatic objectives, (2) protection of informants, and (3) protection of deliberations. Laurence H. Tribe. 195. Generalized claims of executive privilege, based on separation of powers, the need for confidentiality to encourage honest decision-making, “must yield to the demonstrated, specific need for evidence in a pending criminal trial,” which is supported by the constitutional need for due process and confrontation of witnesses, where the materials can be examined in chambers before public release. Therefore, Nixon could not claim privilege against the subpoena of documents in the Watergate cases. United States v. Nixon (1974). 193. Due process does not require that the government “prosecute every possible defendant using every possible scrap of evidence.” Akhil R. Amar. 196. The Court has never determined whether the president has a privilege against a Congressional subpoena of records. Note. 197. However, public interest in a historical record, in improving the judicial process, and in restoring public confidence outweighed executive privilege when Congress established an administrator to sort through Nixon's papers and return to him the private ones. Nixon v. Administrator of General Services (1977), 197.

Executive immunity: A president carries absolute immunity from “damages liability predicated on his official acts.” The president must deal honestly with sensitive matters, without fear of liability. The immunity extends to “acts within the `outer perimeter' of his official [responsibility].” Therefore Nixon could not be sued for firing a whistleblower. Nixon v. Fitzgerald (198). 198. Executive immunity may create a situation in which rights (such as to damages) do not have a remedy. Richard H. Fallon Jr. and David J. Meltzer. 199. The president is also immune from injunctions prohibiting him from enforcing a law, because that act is “purely executive and political.” Mississippi v. Johnson (1867). 199. Presidents are subject, while in office, to suits for prior actions performed prior to entering office. If the courts can burden the president by investigating his official conduct, “it must follow that the federal courts have power to determine the legality of his unofficial conduct.” Considering the infrequency of such suits, the Court concluded it was unlikely that, because of this rule, “a deluge of such litigation will ever engulf the Presidency.” The district court can stay a suit if necessary, but the president must prove that it is necessary. Therefore Paula Jones could sue Clinton for sexual harassment. Clinton v. Jones (1997). 200. Executive officials other than the president hold only qualified immunity from suit. Harlow v. Fitzgerald (1982). 201.

State Power

Explicit Congressional preemption of state authority: Congress has the power to preclude state law by (1) express preemption, (2) “occupy[ing] the field,” or (3) conflicting directly with state law. Crosby v. National Foreign Trade Council (2000). 206.

Dormant Commerce Clause: The Commerce Clause prohibits economic protectionism by states, “that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. When a state statute clearly discriminates against interstate commerce, it will be struck down unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.” Wyoming v. Oklahoma (1992). 207. However, “[w]here [a state statute] regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc. (1970). 207. The Constitution “was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” A state may not “set a barrier to traffic between one state and another as effective as … customs duties.” The issue of direct or indirect effects is irrelevant “when the avowed purpose of the obstruction, as well as its necessary tendency, is to suppress or mitigate the consequences of competition between the states.” Therefore, New York may not prohibit sales within the state of milk bought outside the state at prices lower than the regulated price within the state. Baldwin v. G.A.F. Seelig, Inc. (1935). 218. Though decided before the current balancing test was established, Baldwin remains an oft-cited case. Note. 220. Two approaches characterize attempts to employ this balancing test. Note. 217. Process-based theories, based on footnote four of United States v. Carolene Products, 217, hold that state statutes should be upheld unless they disproportionately burden out-of-staters. In such cases, “courts should assess whether the desire to advantage in-state interests by shifting burdens onto or otherwise disadvantaging out-of-state interests was a substantial factor motivating the enactment of a regulation of commerce. If so, the regulation should generally be invalidated. Independent balancing of costs and benefits should occur only when there is no discriminatory intent. Note. 217. Alternatively, under anti-protectionist theories, the Court should only invalidate protective tariffs and similar statutes. Donald H. Regan. 218. Cases decided since the adoption of the balancing test in Southern Pacific Co. v. Arizona (1945), 216, organized by role of government:

Regulator of transportation:

  • In “considering the effect of … [a] safety measure, [the] decisive question is whether in the circumstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which might seriously impede it.” Where Arizona limits the length of trains to 70 cars, the Court concluded that safety benefits did not outweigh efficiency costs, because “if the length of trains is to be regulated at all, national uniformity [is] practically indispensable to the operation of an efficient and economical national railway system.” Southern Pacific Co. v. Arizona (1945). 249.

  • A “State which insists on a design out of line with the requirements of almost all the other States may sometimes place a great burden of delay and inconvenience on” interstate carriers. “Such a new safety device … may be so compelling that the innovating State need not be the one to give-way.” Where the Court held that Illinois's mudflap regulations for trucks was out of line but based on merely “inconclusive” evidence of increased safety, its requiring them is unconstitutional. Bibb v. Navajo Freight Lines (1959). 254.

  • Iowa may not generally ban trucks larger than a particular length, while granting exceptions that benefit Iowans, when doing so burdens interstate commerce without “any significant countervailing safety interest” and may in fact shift dangers from Iowa to other states. Kassel v. Consolidated Freightways Corp. (1981) (plurality opinion). 250.

Conservator of environmental resources:

  • “Whatever [a state's] ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” Therefore, New Jersey may not bar from its landfills all waste originating outside the state but not that originating within the state. Philadelphia v. New Jersey (1978). 235.

  • A “State's interest in maintaining the ecological balance in state waters by avoiding the removal of inordinate numbers of minnows may well qualify as a legitimate local purpose.” However, a state may not conserve minnows “in the way that most overtly discriminates against interstate commerce.” Therefore, Oklahoma may not ban transporting “minnows for sale outside the state which were seined or procured within the waters of this state.” Hughes v. Oklahoma (1979). 243.

  • Where a “statute does not discriminate between interstate and intrastate commerce, the controlling question is whether the incidental burden imposed on interstate commerce [is] `clearly excessive in relation to the putative local benefits.'” (quoting Pike v. Bruce Church, Inc. (1970). 207.) Therefore, Minnesota may prohibit nonreturnable milk containers made of plastic while allowing nonreturnable containers made of other materials, even though the plastic originated out of state and the other materials originated locally, because “the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems” outweighs the burden on the out-of-state plastics industry. Minnesota Clover Leaf Creamery Co. (1981). 239.

  • Nebraska may not require denial of a permit to withdrawn and transport water for use in an adjoining state unless that state grants reciprocal rights. Such a statute is “facially discriminatory,” and the state must justify it by demonstrating “a close fit between [it] and its asserted local purpose.” It must be based the “strictest scrutiny.” Sporhase v. Nebraska (1982). 244.

  • A “State must make reasonable efforts to avoid restraining the free flow of commerce across its borders, but it is not required to develop new and unproven means of protection at an uncertain cost.” Therefore, Maine may prohibit importation of live baitfish from other states to protect its own wildlife from foreign parasites where no alternative such as testing is definitely available. Maine v. Taylor (1986). 239.

Market Participant:

  • “Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.” Therefore, Maryland may subsidize recycling automobiles in a way that favors local processors (i.e., requiring more title documentation from out-of-state processors). Hughes v. Alexandria Scrap Co. (1976). 255.

  • Where a state participates in a market by, in this case, selling cement, “the general rule of Alexandria Scrap plainly applies.” A state seller's decision to sell only to its own residents “is `protectionist' only in the sense that it limits benefits generated by a state program to those who fund the state treasury and whom the State was created to serve.” Therefore, where South Dakota sells cement and does not prohibit private parties or other states from selling cement within its borders, it may restrict sales to its own residents. Reeves, Inc. v. Stake (1980). 255.

  • The “market-participant doctrine permits a state to influence `a discrete, identifiable class of economic activity in which [it] is a major participant.'” This market must be “narrowly defined.” “The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market.” Therefore, where Alaska sells timber it may not contractually require buyers to process it before shipping it out of the state, therefore favoring local processors, because the state is a participant only in the timber market and not in the timber processing market. The fact that the state could find other ways to achieve the same end without violating the Commerce Clause is irrelevant. South-Central Timber Development, Inc. v. Wunnicke (1984). 258.


  • “The Commerce Clause does not prohibit all state action designed to give its residents an advantage in the marketplace, but only action of that description in connection with the State's regulation of interstate commerce. Direct subsidization of domestic industry does not ordinarily run afoul of that prohibition; discriminatory taxation of out-of-state manufactures does.” Therefore, even though Indiana may grant a subsidy to local ethanol producers, Ohio may not provide a tax credit to users of ethanol produced in Ohio or any other state that granted a reciprocal credit to its local users of Ohio-produced ethanol. New Energy Co. of Indiana v. Limbach (1988). 226. Justifications for this distinction are that simple subsidies may be less likely to lead to retaliation, and that subsidies impose costs directly on local taxpayers and therefore may not be based solely on discriminatory motives. Note. 226. Also, “By compensating firms for the positive externalities they confer on society, subsidies can function as efficient tools for states to encourage the optimal level of production.” Note. 229.

  • Even though direct in-state subsidies and nondiscriminatory taxes are constitutional independently, combining them such that the proceeds from a tax on all producers finances a subsidy to local producers is unconstitutional because “a state's political processes can no longer be relied upon to prevent legislative abuse, because one of the in-state interests which would otherwise lobby against the tax has been mollified by the subsidy.” Therefore, Massachusetts cannot tax sales by all milk wholesalers and use the proceeds to subsidize local milk wholesalers. West Lynn Creamery, Inc. v. Healy (1994). 227.

Guardian of public health:

  • Before adopting a statute that “in practical effect” burdens interstate commerce, a state or locality must attempt “reasonable and adequate alternatives” if any are available. Therefore, Madison, Wis., may not prohibit sale of milk not processed at approved plants within five miles of the city when it could instead charge producers for the added cost of conducting inspections of plants farther away. Dean Milk Co. v. Madison (1951). 220.

  • Where state legislation “furthers matters of legitimate local concern, even in the health and consumer protection areas,” but at the same time conflicts with “the Commerce Clause's overriding requirement of a national `common market,'” the Court must “effect[] an accommodation of the competing national and local interests.” A state must justify disparate impact of a facially neutral statute “in terms of the local benefit flowing from the statute and the unavailability of nondiscriminatory alternatives.” North Carolina may not bar closed apple containers bearing any grade marking other than those of the U.S.D.A., because doing so “prohibit[s] Washington growers and dealers from marketing apples under their State's grades,” which have established a valuable reputation, and thereby “has a leveling effect which insidiously operates to the advantage of local apple producers.” Hunt v. Washington State Apple Advertising Comm'n (1977). 223.

Corporate regulator:

  • A restraint on interstate trade that does not burden out-of-state parties more than in-state parties or subject activities to inconsistent regulations does not violate the Commerce Clause. Therefore, Indiana may provide that a purchaser who acquires “control shares” of an Indiana corporation may not acquire voting rights without the approval of a majority vote of pre-existing stockholders, even though purchasers and stockholders may live in different states. CTS Corp. v. Dynamics Corp. (1987). 244. [This statute did not burden the interstate nature of the trade. Is that was is the Commerce Clause prohibits?]

  • A state may not toll the statute of limitations when foreign corporations fail to appoint a local agent to accept process for the exercise of general judicial jurisdiction. Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988). 224.


  • “When there is a reasonable basis for legislation to protect the social, as distinguished from the economic, welfare of a community, it is not for this Court because of the Commerce Clause to deny the exercise locally of the sovereign power of [a state].” Therefore, a state may forbid door-to-door salesmen to protect the social interest in residential privacy, even though doing so may have a disparate effect on out-of-state companies. Breard v. Alexandria (1951). 222.

  • Impermissible “[e]conomic protectionism is not limited to attempts to convey advantages to local merchants; it may include attempts to give local consumers an advantage over consumers in other States.” Such practices effectively project legislation into other states. Therefore, New York may not require liquor distillers to sell at the lowest price they were charging in any other state. Brown-Forman Distillers Corp. v. New York State Liquor Authority (1986). 248.

Earlier law:

  • The Commerce Clause grants Congress exclusive power over areas that “are in their nature national, or admit only of one uniform system, or plan of regulation.” “[L]aws for the regulation of pilots and pilotage” do not fit this description. Therefore, in the absence of federal legislation, Pennsylvania can require ships using the port at Philadelphia to receive a local pilot.” Cooley v. Board of Wardens (1851). 210.

  • Regulation of transportation and exchange of commodities does fit this description. Therefore, even in the absence of federal legislation, a state cannot require only peddlers of out-of-state merchandise to carry a license and pay a tax. Welton v. Missouri (1876). 211.

  • Similarly, an Iowa alcohol prohibition law cannot apply to alcohol from another state when sold in its original package. Leisy v. Hardin (1890). 212.

  • However, a state's prohibition on the sale of butter-colored margarine can apply to sales of out-of-state margarine in the original package, because of the dominance of the state's police power and its power to protect residents from deception in the sale of commodities. Plumley v. Massachusetts (1894). 212.

Congress may waive claims under the dormant Commerce Clause by enacting a rule declaring certain items, such as alcohol, not subjects of interstate commerce and thereby allowing state regulation of them. Wilkerson v. Rahrer (1891). 212. Similarly, Congress may declare that state taxation on insurance that would otherwise be deemed to burden interstate commerce is permissible. Prudential Ins. Co. v. Benjamin (1946). 213. However, “Congress must manifest its unambiguous intent before a federal statute will be read to permit or to approve” state legislation that would otherwise violate the Commerce Clause. Wyoming v. Oklahoma (1992). 214. Congress may waive dormant Commerce Clause objections to state discrimination, but it may not waive individual equal protection rights. Under these, a state tax on out-of-state insurance was held unconstitutional. Metropolitan Life Ins. Co. v. Ward (1985). 214. Congress's ability to waive the dormant Commerce Clause is consistent with Marbury if the dormant doctrine is a form of federal common law derived from the Constitution. In that case, judge-made rules would be subject to legislative revision. Henry P. Monaghan. 215. Alternatively, dormant Commerce Clause doctrine establishes merely default rules that are subject to legislative revision. Laurence H. Tribe. 215.

Privileges and Immunities Clause: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2, cl. 1. The clause does not protect corporations. Paul v. Virginia (1869). 264. Some distinctions between residents and non-residents are acceptable. “Only with respect to those `privileges' and `immunities' bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.” Baldwin v. Montana Fish and Game Comm'n (1978). 260. “Rather than placing a statute completely beyond the [Privileges and Immunities] Clause, the State's ownership of the property with which the statute is concerned is a factor - although often the crucial factor - to be considered in evaluating whether the statute's discrimination against noncitizens violates the clause.” However, Alaska may not require that all employment related to development of state-owned oil and gas resources prefer residents because of the “ripple effect” that such a requirement has beyond Alaska's own projects to private employers throughout the state. Hicklin v. Orbeck (1978), 261, as described in United Building & Construction Trades Council v. Mayor of Camden (1984). 260. The Clause applies equally to municipalities and to states. The constitutionality of a city's requirement that at least forty percent of employees of contractors and subcontractors in public works projects be local residents depends on “whether an out-of-state resident's interest in employment on public works contracts in another State is sufficiently `fundamental' to the promotion of interstate harmony so as to `fall within the purview of the Privileges and Immunities Clause.'” United Building & Construction Trades Council v. Mayor of Camden (1984). 260. These fundamental rights are not the same as the fundamental rights that receive heightened protection under due process and equal protection. Note. 263. When “confronted with a challenge under the Privileges and Immunities Clause to a law distinguishing between residents and nonresidents, a State may defend its position by demonstrating that `(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective.'” This test is not met by a New York statute effectively denying nonresident taxpayers an alimony deduction available to residents. Lunding v. New York State Tax Appeals Tribunal (1998). 263.

First Amendment: Unprotected Speech

“Congress shall make no law … abridging the freedom of speech, or of the press.” U.S. Const. amend. I. There are at least four approaches to free speech, in an order of increasingly broad protection: consequences/harms (Schenck, Debs), democracy (Hand in Masses), democracy and distrust (John Hart Ely: we should distrust legislatures' and judges' attempts to limit political speech because they are prone to overestimate its dangers), and marketplace of ideas (Holmes in Abrams). Class Notes. Overall scheme for analyzing application of a regulation under Free Speech Clause:

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Advocacy of illegal action: “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy [1] is directed to inciting or producing imminent lawless action and [2] is likely to incite or produce such action.” Therefore, a KKK leader cannot be convicted under an Ohio criminal syndicalism statute for making racist and anti-Semitic remarks at a rally. Brandenburg v. Ohio (1969) (per curiam) (overturning Whitney). 603. This test is consistent with a concern for autonomy because the speech it allows to be prohibited “does not appeal to our thought processes. Rather, it disrespects our rationality and is designed to elicit an unthinking, animalistic response.” Christina Wells. 605. Under this test “probability of harm is no longer the central criterion for speech limitations.” Instead, the language of the speaker is central. Gerald Gunther. 606. Applying Brandenburg, a protester cannot be convicted for telling a police officer that protesters will “take the fucking street later [or again],” because there was “no evidence” that “his words were intended to produce, and likely to produce, imminent disorder.” Hess v. Indiana (1973) (per curiam). 607. Indiana may not deny a political party a place on the ballot because it refuses to file an affidavit that it “does not advocate the overthrow of local, state or national government by force or violence” because the statute prohibits parties “not because [they] urge[] others `to do something now or in the future [but] merely to believe in something.'” (second emphasis added) (quoting Yates) Communist Party of Indiana v. Whitcomb (1974). 608. Similarly, where appeals to violent action in fact “do not incite lawless action, they must be regarded as protected speech.” If they do incite such action, a “substantial question” arises. NAACP v. Claiborne Hardware Co. (1982). 607. Brandenburg may not overturn Yates, if the latter applies to group speech and the former only to the individual speaker. Harry Kalven. 608.

Earlier law:

  • If “one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation.” A document that criticizes the draft and praises those who do not comply with it does not meet this test. Masses Publishing Co. v. Patten (S.D.N.Y. 1917) (Learned Hand, J.) (rev'd). 574.

  • Speech is not protected when the words in question “are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Where defendants print and distribute 15,000 copies of a document to people in a position to follow its urgings and break the law, the Court will draw the inference that the document was “intended to have some effect,” that effect being “to influence” the recipients to break the law. The First Amendment does not “protect a man in falsely shouting fire in a theatre and causing a panic.” Defendants can be convicted of attempting to cause insubordination in the armed services by printing and distributing leaflets encouraging noncompliance with the draft to men accepted to military service. Schenck v. United States (1919). 570.

  • A defendant can be convicted for encouraging violation of the law only if “the words used had as their natural tendency and reasonably probable effect to [prompt the violation of the law]” and “the defendant had the specific intent to do so in his mind.” A defendant can be convicted if such purpose was merely “one purpose of the speech, whether incidental or not does not matter.” A political figure speaking at a party convention can be convicted for encouraging obstruction of the draft. Debs v. United States (1919). 572.

  • “Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.” Therefore, authors of a leaflet supporting Russia over the United States and urging workers to unite in a general strike can be convicted, even in the absence of evidence that workers responded. Abrams v. United States (1919). 576.

  • Alternatively, “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” Therefore, the leafleters' convictions should be reversed. Abrams v. United States (1919) (Holmes, J., dissenting). 576. Alternatively, “when the wealthy have more access to the most potent media of communication than the poor, how sure can we be that `free trade in ideas' is likely to generate truth?” Laurence H. Tribe. 579.

  • A state “cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent or immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.” New York can therefore enforce a criminal anarchy statute barring the “advocacy, advising or teaching the duty, necessity or propriety of overthrowing or overturning organized government by force or violence.” Gitlow v. New York (1925). 582.

  • A state may prohibit “combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods,” because “such united and joint action involves even greater danger to the public peace and security that the isolated utterances and acts of individuals.” Therefore, California may prohibit organizing or joining any group “organized or assembled to advocate, teach or aid and abet criminal syndicalism.” Whitney v. California (1927). 585.

  • Alternatively, free speech is important because the Founders “valued liberty both as an end and as a means.” Also, “public discussion is a political duty.” Whitney v. California (1927) (Brandeis, J., concurring). 585. This liberty could refer to either the speaker's or the listener's. Cass R. Sunstein. 590. This liberty is the true value of free speech, rather than the marketplace of ideas theory. Martin Redish. 590. Alternatively, neither conception is useful. Frederick Schauer. 590.

  • Participation in a meeting called by the Communist Party cannot be made a crime, because the right of peaceable assembly is “cognate to those of free speech and free press and is equally fundamental.” DeJonge v. Oregon (1937). 591.

  • The clear and present danger test means courts “must ask whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” This test is met when Communists are convicted of violating the Smith Act, which declares it unlawful “to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government.” Dennis v. United States (1951) (plurality opinion). 592. The First Amendment should not protect groups that, if successful in their endeavors, would destroy democracy. Carl Auerbach. 601.

  • For advocates to be convicted, such as under the Smith Act, “those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.” Yates v. United States (1957). 602.

  • Under the membership clause of the Smith Act, to be convicted defendants must be know that their organization engages in the prohibited activities and must hold the specific intent to bring about the violent overthrow as soon as possible. Scales v. United States (1961), 603, and Noto v. United States (1961). 603.

Libel: “[T]he libelous … are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” When evaluating specific instances of libel, the clear and present danger test need not be applied because the speech is not protected at all. Beauharnais v. Illinois (1952). 609. “The guarantee given by the First Amendment is not … assured to all speaking. It is assured only to speech which bears, directly or indirectly, upon issues with which voters have to deal - only, therefore, to the consideration of matters of public interest.” Alexander Meikeljohn. 618. Alternatively, the Framers intended to the First Amendment “to embrace the whole realm of thought.” However, “they took for granted the limitations which had been customarily applied in the day-to-day work of colonial courts.” Zechariah Chafee Jr. 620. “It may be that the Court has refused to adopt the Meiklejohn `public issues' test not because it believes that private speech (i.e., speech unrelated to public issues) is as important as public speech but rather because it doubts its ability to distinguish unerringly between the two.”

Group libel: A state may prohibit libel against a group where the speech would be libel if directed at a person and the prohibition is not “a wilful [sic] and purposeless restriction unrelated to the peace and well-being of the State.” In light of a history of racial and religious strife, prohibiting “false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented” is permissible. This logic would not apply to prohibiting libel against political parties. A defendant may be convicted of libeling a group for distributing a petition addressed to the mayor and city council demanding that blacks be kept out of Chicago and listing evils they would allegedly bring. Beauharnais v. Illinois (1952). 609.

Libel of public officials: “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.” “[E]rroneous statement is inevitable in free debate, and [it] must be protected if the freedoms of expression are to have the `breathing space' that they `need [to] survive.'” “Even a false statement may be deemed to make a valuable contribution to the public debate, since it brings about `the clearer perception and livelier impression of truth, produced by its collision with error.'” (quoting John Stuart Mill). Therefore, a “public official” may not recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or [not].” Therefore, a police commissioner cannot obtain damages from the New York Times for running a paid advertisement that suggested that he had harassed civil rights demonstrators, where the facts show merely “negligence in failing to discover misstatements.” New York Times Co. v. Sullivan (1964). 613. This standard requires a “high degree of awareness of probable falsity.” It applies to “anything which might touch on an official's fitness for office,” including conduct outside office. Garrison v. Louisiana (1964). 615. The New York Times rule might apply to the supervisor of a publicly owned ski resort, because it applies at least to those who “appear to the public to [have] substantial responsibility for control over the conduct of government affairs.” Rosenblatt v. Baer (1966). 624. Publishing while “in fact entertain[ing] serious doubts about the truth of the publication” meets this standard. St. Amant v. Thompson (1968). 615. The New York Times standard applies to a news column describing a candidate as a “former small-time bootlegger.” Monitor Patriot Co. v. Roy (1971). 624. One sued for defamation cannot escape liability by claiming the contested statement was “opinion.” Milkovich v. Lorain Journal Co. (1990). 626. “[D]eliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity [unless] the alteration results in a material change of meaning conveyed by the statement.” Masson v. New Yorker Magazine, Inc. (1991). 615.

Libel of public figures: The New York Times rule applies to public figures as well as public officials because, absent the constraints of the political process, free public debate is the public's only avenue for controlling public figures. Curtis Pub. Co. v. Butts and Associated Press v. Walker (1967) (Warren, C.J.). 624. For a plaintiff to be considered a public figure “for all aspects of his life,” a defendant must provide “clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society.” Serving as an officer of local civic groups, writing books and articles, and becoming well known “in some circles” is insufficient. However, “[i]t is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.” One who “plainly did not thrust himself into the vortex of [a] public issue, [or] … engage the public's attention in an attempt to influence its outcome” does not meet this test. Gertz v. Robert Welch, Inc. (1974). 625. People are not public figures in relation to specific issues unless they have “`thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.'” A divorce proceeding involving one of America's wealthiest families and concerning the parties' extramarital sex does not involve a public controversy “even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public.” Filing a divorce suit and holding press conferences “to satisfy inquiring reporters” does not qualify as publicizing the issues to influence the outcome. Time, Inc. v. Firestone (1976). 633. “[P]rotection of the cult of personality in the Court's speech doctrine only serves to fuel the fires of self-interested, mean-spirited public life.” Marie A. Failinger. 634. “[I]f we take the libel suit too seriously, we are in danger of raising our collective cultural sensitivity to reputation to unhealthy levels.” Rodney Smolla. 634.

Libel of private individuals involved in public affairs: New York Times does not apply to defamation of private individuals involved in public affairs. Such individuals do not have the “access to the channels of effective communication” that public officials enjoy and therefore need greater protection from defamation. Therefore the standard does not protect a publication accusing a lawyer of framing a police officer. Where there is no showing of “knowledge of falsity or reckless disregard for the truth,” plaintiffs cannot obtain presumed or punitive damages, because allowing them to do so “unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms [and] invites juries to punish unpopular opinion….” Actual injury, however, includes “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Gertz v. Robert Welch, Inc. (1974). 625.

Material can be found obscene only if it “depict[s] or describe[s] sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works [1] which, taken as a whole, appeal to the prurient interest in sex, [2] which portray sexual conduct in a patently offensive way, and [3] which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” [Appealing to the prurient interest and being patently offensive contradict each other. The explanation could be either Freudian assumptions or an assumption that the views are held by two different people. Kathleen Sullivan. Class Notes.] The Court rejected a standard referring to works “utterly without redeeming social value” and one referring to “social importance.” The standard does not depend on national “community standards.” A state may require jurors to evaluate materials with reference to “contemporary standards of” the state. This mean the judgment of “the average person, applying contemporary community standards,” which means the material will be judged “by its impact on an average person, rather than a particularly susceptible or sensitive person - or indeed a totally insensitive one.” Miller v. California (1973). 657. [The definition of obscenity is variable, however, so that the state can prohibit distribution to children of books that are not obscene under the definition applying to adults. Ginsberg v. New York (1968). 660.] The Court “categorically disapprove[s] the theory [that] obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.” There are “legitimate state interests in stemming the tide of commercialized obscenity.” These interests “include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.” The government need not prove that exposure to obscene materials harms society: “It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself.” [Does this conflict with Stanley v. Georgia?] Obscenity “by definition lacks any serious literary, artistic, political or scientific value as communication.” “The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger public safety, or to jeopardize, in Mr. Chief Justice Warren's words, the States' `right [to] maintain a decent society.'” Therefore, the government may enjoin the showing of obscene films at a theater that does not admit minors and warns the general public of the nature of its films. Paris Adult Theatre I v. Slaton (1973). 653. A distributor of an advertising collage of pictures of sexual acts may be convicted if it is proven that he “had knowledge of the contents of the materials [and] that he knew the character and nature of the materials.” Hamling v. United States (1974). 666. “The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value[,] but whether a reasonable person would find such value in he material taken as a whole.” Pope v. Illinois (1987). 666. Earlier law:

  • “We hold that obscenity is not within the area of constitutionally protected speech or press.” Prohibitions on obscenity were accepted at the time of the adoption of the First Amendment. Obscenity is “utterly without redeeming social importance.” “Obscene material is material which deals with sex in a manner appealing to prurient interest,” that is, “material having a tendency to excite lustful thoughts.” Other sexual material is not obscenity. The question is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Roth v. United States and Alberts v. California (1957). 646.

  • The First Amendment protects the advocacy of ideas, including “the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax.” Therefore, New York may not deny licenses to show films whenever a film “portrays acts of sexual immorality [as] desirable, acceptable or proper patterns of behavior.” Kingsley Int'l Pictures Corp. v. Regents (1959). 649.

  • The First Amendment protects the “right to receive information and ideas, regardless of their social worth.” There is “little empirical basis” for the assertion that exposure to obscenity leads to crimes of sexual violence. More importantly, “in the context of private consumption of ideas and information we should adhere to the view that `[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations.'” “[T]he First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.” This holding does not disturb Roth and its progeny, which dealt with public distribution of obscenity, which includes the danger that the material might reach children or “intrude upon the sensibilities or privacy of the general public.” Therefore a defendant may not be convicted for possession in his home of three reels of adult films. Stanley v. Georgia (1969). 651. [The Court later declared that Stanley did not protecting mailing obscene materials to consenting adults, United States v. Reidel (1971), transporting obscenity for private use, United States v. Orito (1973), or importing obscenity for private use. United States v. 12 200-Ft. Reels (1973). 655.]

  • “Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic.” Cohen v. California (1971). 676.

Fighting words: Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” A statute is permissible if it “does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee….” “Argument is unnecessary to demonstrate that the appellations `damn racketeer' and `damn Fascist' are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Chaplinsky v. New Hampshire (1942). 671. Alternatively, “Is it not a mark of individuality to be able to cry out at a society viewed as crushing the individual? Under this analysis, so-called `fighting words' represent a significant means of self-realization, whether or not they can be considered a means of attaining some elusive `truth.'” Martin Redish. 672. If such speech is directed at a police officer, as it was in Chaplinsky, should it be viewed as political speech addressed to the government? Note. 673. A word that might sometimes be used as a fighting word, e.g., fuck, is not a fighting word when “clearly not directed to the person of the hearer.” Cohen v. California (1971). 676. Though fighting words “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content … they are [not] … entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content.” Therefore, St. Paul may not enforce and ordinance that, as construed, bans fighting words that incite violence “on the basis of race, color, creed, religion or gender.” R.A.V. v. St. Paul (1992). 785. Alternatively, this logic is a sort of “underbreadth” doctrine. White's Dissent in R.A.V. v. St. Paul (1992). 785. However, a sentence for aggravated battery may be enhanced because the victim was chosen because of his race, because, unlike the ordinance in R.A.V., the enhancement was aimed at conduct, not speech. Wisconsin v. Mitchell (1993). 796.

First Amendment: Protected Speech

Pornography sexualizes rape, battery, sexual harassment, prostitution, and child sexual abuse; it thereby celebrates, promotes, authorizes, and legitimizes them.” Catherine MacKinnon. 696. Alternatively, by “defining sexually explicit images of women as subordinating and degrading to them, the [Dworkin-MacKinnon anti-pornography] ordinance [at 692] reinforces the stereotypical view that `good' women do not seek and enjoy sex. … [T]he ordinance perpetuates a stereotype of women as helpless victims, incapable of consent, and in need of protection.” Nan Hunter and Sylvia Law. Brief Favoring Unconstitutionality of the Ordinance in Hudnut. 697. “[S]exual discourse needs to be free-wheeling and uncontrolled because of the hotly contested nature of issues concerning sexuality.” Carlin Meyer. 698. “If the answer to the problem, as Professor MacKinnon describes it, is government suppression of sexual expression that contributes to female subordination, then the net of restraint has to be cast on a nearly limitless scale.” Thomas Everson. 698. The ordinance impermissibly discriminates on the basis of a point of view. Its supporters “maintain that pornography influences attitudes, and the statute is a way to alter the socialization of men and women rather than to vindicate community standards of offensiveness. … We do not try to balance the arguments for and against an ordinance such as this. … The state may not ordain preferred viewpoints in this way.” The court reaches this conclusion despite “accept[ing] the premises of this legislation[, that] [d]epictions of subordination tend to perpetuate subordination[; that t]he subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. … Yet this simply demonstrates the power of pornography as speech.” American Booksellers Ass'n v. Hudnut (7th Cir. 1985), aff'd, (1986). 699. Alternatively, “[r]acist and sexist values cannot participate in the shaping of political obligations because the legal obligations they generate do not have morally binding force.” Alon Harel. 700. Low-value speech is that which is (1) “far afield from the central concern of the first amendment, which, broadly speaking, is effective popular control of public affairs,” (2) “has purely noncognitive appeal,” (3) is not intended “to communicate a message,” and (4) addresses areas in which “government is unlikely to be acting for constitutionally impermissible reasons or producing constitutionally troublesome harms.” Cass Sunstein. 704.

Hate speech: “[P]ublic expression of ideas may not be prohibited merely because the ideas are themselves offensive to some listeners.” Therefore, where a racial slur ordinance prohibits dissemination of material promoting and inciting racial or religious hatred, and the ordinance is not based on fear of responsive violence in the vein of Brandenburg, Feiner, and Chaplinsky, but instead on the allegation that the prohibited speech will “inflict[] psychic trauma,” the ordinance is unconstitutional. Collin v. Smith (7th Cir. 1978), cert. denied. 705. Alternatively, “Surely it is not enough for societies that claim to be committed to the ideals of social and political equality and respect for individual dignity to remain neutral and passive hen threats to these values exist. Sometimes the State must take steps to protect democracy itself, which may involve repressing speech.” Sionaidh Douglas-Scott. 707. “[O]ur unconscious racism causes us (even those of us who are the direct victims of racism) to view the first amendment as the `regular' amendment - an amendment that works for all people - and the equal protection clause and racial equality as a special interest-amendment important to groups that are less valued.” Charles Lawrence. 708.

Vagueness and overbreadth: A resolution banning all “First Amendment activities” in Los Angeles International Airport is overbroad, Board of Airport Commissioners v. Jews for Jesus (1987), 667, but not vague. 667. A state statute will not be vague or overbroad if it is “readily subject to a narrowing construction by the state courts.” Young v. American Mini Theatres, Inc. (1976). 668. Furthermore, in such inquiries the Court reads “the [state] statute as though it read precisely as the highest court of the State has interpreted it.” Wainwright v. Stone (1973). 668. “Unexpected” and “unforeseeable” constructions are not permitted as violations of due process. Marks v. United States (1977). 668. A litigant challenging a statute for overbreadth even though his own conduct is not protected must demonstrate “substantial” overbreadth. Brockett v. Spoke Arcades, Inc. 669. Congress may not prohibit the knowing transmission over the internet of indecent messages to anyone younger than 18, or the knowing sending to anyone younger than 18 any “image or other communication that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” (This was the Communications Decency Act.) Among other reasons, the statute does not define indecent or require that the prohibited material “lack serious literary, artistic, political, or scientific value.” This may or may not prevent a vagueness problem, but it “undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.” Reno v. American Civil Liberties Union (1997). 956. “[T]he Child Online Protection Act's (“COPA”) requirement that prurient interest to children and patent offensiveness for children be determined by reference to `community standards' [does] not by itself render the statute substantially overbroad.” [Casebook description]. Ashcroft v. American Civil Liberties Union (2002). Supp. 72.

Hostile audiences: A “function of speech is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Therefore a statute may not define breach of the peace to include speech that “stirs the public to anger, invites dispute [or] brings about a condition of unrest.” Terminiello v. Chicago (1949). 673. “When clear and present danger of riot, disorder, interference with traffic upon the public street or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” Therefore, police can arrest a speaker when it appears that he will provoke a crowd to riot against him. [This is called the heckler's veto.] Feiner v. New York (1951). 673. Alternatively, under such a situation, police are obligated to protect the speaker. Black's dissent in Feiner v. New York (1951). 673. Where the audience does not actually threaten violence, police may not arrest the speaker. Edwards v. South Carolina (1963). 675. How do or should the elements in Brandenburg (advocacy of illegal action) relate to those in Feiner (incitement to riot)?

Offensive words: Where a defendant wears a jacket emblazoned with the words, “Fuck the Draft,” in a courthouse, his actions will be considered simply speech, rather than conduct or some combination of speech and conduct. A statute prohibiting “offensive conduct” will not be presumed to make distinctions between certain locations. A word that might sometimes be used as a fighting word, e.g., fuck, is not a fighting word when “clearly not directed to the person of the hearer.” Though a statute banning offensive words in the presence of a captive audience might be constitutional, a statute not specifically so narrow will not be. “Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” “[M]uch linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.” Therefore, a defendant may not be convicted for wearing a jacket emblazoned with the words, “Fuck the Draft,” in a courthouse. Cohen v. California (1971). 676. Alternatively, such speech “constitutes an assault.” Alexander Bickel. 680. The First Amendment protects vulgar or offensive speech. A statute punishing “opprobrious language” was therefore overbroad because it reached more than only fighting words. Lewis v. New Orleans (1974). 680.

Child pornography: The “prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” “The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.” The state's “particular and more compelling interest in prosecuting those who promote the sexual exploitation of children” justifies limiting a broader class of speech than that reached by the Miller definition of obscenity. Sales of child pornography provide an economic motive for the production of it. The value of permitting live performances of lewd sexual conduct by children is “exceedingly modest, if not de minimis.” Therefore, a state may prohibit traffic in child pornography, defined as obscenity involving children, except that a “trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.” Such pornography must “involve live performance or photographic or other visual reproduction of live performances.” New York v. Ferber (1982). 682. The “State has a compelling interest in compensating victims from the fruits of the crime, but little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime.” Therefore, a state may not require that income from works admitting crime be used to compensate the victims. Simon & Schuster v. Members of New York State Crime Victims Bd. (1991). 687. While a state may not prohibit possession of obscenity, Stanley, it may prohibit possession of child pornography, “because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley.” Osborne v. Ohio (1990). 689. The federal government may not outlaw images that “appear to be, of a minor engaging in sexually explicit conduct” or are marketed in a manner that “conveys the impression” that it depicts “a minor engaging in sexually explicit conduct.” Such a prohibition would ban speech “despite its serious literary, artistic, political, or scientific value.” The fact that pedophiles may use virtual child pornography to seduce children does not change the result because pedophiles could use any number of things for that purpose. Furthermore, “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” The fact that the possibility of producing virtual child pornography makes it difficult to prosecute real child pornography does not change the result because “[t]he government may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition (2002). Supp. 32.

Expressive conduct: “[W]e think it clear that a government regulation is sufficiently justified [1] if it is within the constitutional power of the government; [2] if the governmental interest is unrelated to the suppression of free expression; and [3] if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.” A statute barring all destruction of draft cards meets this test. United States v. O'Brien (1968). 711. “The guiding principle must be to determine which element is predominant in the conduct under consideration,” the expression or the conduct. “The answer, to a great extent, must be based on a common-sense reaction, made in light of the functions and operations of a system of free expression.” Thomas Emerson. 715. Alternatively, “[B]urning a draft card to express opposition to the draft is an undifferentiated whole, 100% action and 100% expression.” Trying to decide which one “predominates” is impossible. “The critical question would therefore seem to be whether the harm that the state is seeking to avert is one that grows out of the fact that the defendant is communicating … or rather would arise even if the defendant's conduct had no communicative significance whatsoever.” John Hart Ely. 715 - 16. Free speech analysis proceeds along one of two tracks. If a regulation “is aimed at the communicative impact of an act,” track one analysis calls for unconstitutionality unless the government can show a clear and present danger or the communication fits into one of the unprotected categories. If a regulation “is aimed at the noncommunicative impact of an act,” track two analysis calls for constitutionality unless the regulation “unduly constrict[s] the flow of information and ideas.” Laurence H. Tribe. 716. The result in O'Brien is not offensive under a marketplace of ideas or a town hall theory of free speech, but under an Emersonian theory that dissenters should be protected. Steven Shiffrin. 717 - 18. Congress may not permit an actor portraying a soldier to wear the correct uniform only “if the portrayal does not tend to discredit that armed force.” Schacht v. United States (1970). 721. In considering whether conduct implicates the First Amendment, the Court has considered whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” The Court has not held that this is the correct test, however. Spence v. Washington (1974). 719. “[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment … applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive.” This obligation creates a burden greater than “the advancement of a plausible contention” that conduct is expressive. Clark v. Community for Creative Non-Violence (1984). 729. Where expressive conduct did not actually provoke a disturbance of the peace, the government may not cite an interest in preventing such disturbances to justify regulation. Burning a flag is not an expression of fighting words. Where the state asserts an interest in “preserving the flag as a symbol of nationhood and national unity,” it asserts an interest related to the suppression of expression and therefore fails the O'Brien test. Where a statute does not “protect[] the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others,” the statute is content-based. “National unity [is] an end which officials may foster by persuasion and example,” but they may not compel it by prohibiting flag desecration. Texas v. Johnson (1989). 718. Similarly, Congress may not prohibit “knowing mutilation, defacement, burning, maintaining on the floor or ground, or trampling upon any flag of the United States.” United States v. Eichman (1990). 727. An Indiana statute requiring otherwise nude dancers to wear pasties and G-strings pqasses the O'Brien test. The government interests in question are in order and morality. Barnes v. Glen Theatre Inc. (1991) (plurality opinion). 748. Similarly, a similar ordinance in Erie, Pennsylvania, meets the O'Brien test. Nude dancing is expressive conduct, though “[b]eing `in a state of nudity' is not an inherently expressive condition.” The Court “will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive.” [In this sense the second prong of the O'Brien test looks at purpose and interest but not actual motive. Class Notes.] Therefore, an argument that the city had an illicit motive, demonstrated by city's assurances that the ordinance will not be used against “legitimate” productions, will not change the outcome. If the ban alters the erotic message by denying total nudity, “[a]ny effect on the overall expression is de minimis.” Though the ordinance “may not greatly reduce” the secondary effects of “crime and other public health and safety problems,” “O'Brien requires only that the regulation further the interest of combating such effects.” Erie v. Pap's A.M. (2000) (plurality opinion). 749.

“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided [1] that they are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information.” A generally applicable National Park Service ban on sleeping in Lafayette Park meets this test when applied to demonstrators who would sleep in the park to call attention to the problem of homelessness. The governmental interest in question is “in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence.” Clark v. Community for Creative Non-Violence (1984). 729. Alternatively, “a similar argument could be applied to prohibit leafleting (or all demonstrations for that matter) in Lafayette Park. … I do not believe that a ban on leafleting in Lafayette Park would be as cavalierly upheld by the Court as the ban on camping, however.” Alan E. Brownstein. 730. A zoning ordinance prohibiting adult movie theaters within 1,000 feet of any residential zone, church, park, or school is a time, place, manner restriction. The ordinance is considered content-neutral because the “City Council's `predominate concerns' were with the secondary effects of adult theaters, and not with the content of adult films themselves.” [This is a functionalist approach, based on the idea that the regulation is not about the effect on the listener of the speech's ideas.] These secondary effects include crime, injury to retail trade, decreased property values, and general quality of life. Renton v. Playtime Theatres, Inc. (1986). 743. “[T]he Court had never before Renton suggested that the absence of a constitutionally disfavored justification is in itself a justification for treating an expressly content-based restriction as if it were content-neutral.” Geoffrey Stone. 746. Not only is the restriction in Renton not content-neutral, it is not even viewpoint-neutral, because the “speech suppressed by restrictions such as [these] … will almost invariably carry an implicit, it not explicit, message in favor of more relaxed sexual mores.” Geoffrey Stone. 747. A statute may prohibit, within 100 feet of a health care facility, anyone from knowingly approaching within eight feet of another person, without that person's consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” Hill v. Colorado (2000). 867. Secondary effects doctrine justifies a prohibition on more than one adult entertainment business, such as a bookstore and a video arcade, in the same building. Los Angeles v. Alameda Books (2002). Supp. 41.

Commercial speech: A four-part test for regulation of commercial speech: “At the outset, we must determine [1] whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must [a] concern lawful activity and [b] not be misleading. Next, we ask [2] whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine [3] whether the regulation directly advances the governmental interest asserted, and [4] whether it is not more extensive than is necessary to serve that interest.” A state regulation banning all promotional advertising by electric utilities fails the fourth prong of this test. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n (1980). 771. The federal government may permit only broadcasters in states with legal lotteries to air advertising for lotteries. “The statute was designed to regulate advertising about an activity that had been deemed illegal in the jurisdiction in which the broadcaster was located.” United States v. Edge Broadcasting Co. (1993), 774, as characterized in 44 Liquormart, Inc. v. Rhode Island (1996) (opinion of plurality B). 771. Rhode Island may not prohibit liquor vendors from advertising prices or the news media from carrying such advertisements. 44 Liquormart, Inc. v. Rhode Island (1996). 771. Such a ban cannot be justified by “any conclusion that elimination of the ban would significantly increase alcohol consumption” because such a conclusion “would require … the sort of `speculation or conjecture' that is an unacceptable means of demonstrating that a restriction on commercial speech directly advances the State's asserted interest.” 44 Liquormart, Inc. v. Rhode Island (1996) (opinion of plurality A). 771. The Court “reject[s] the assumption that words are necessarily less vital to freedom than actions, or that logic somehow proves that the power to prohibit an activity is necessarily `greater' than the power to suppress speech about it.” 44 Liquormart, Inc. v. Rhode Island (1996) (opinion of plurality B). “The Justices are beginning to detach the First Amendment from democracy and graft it onto property, moving from free speech to free markets.” Akhil Reed Amar. 778. Advertising restrictions on compound drugs not subject to FDA approval fail the fourth prong of the Central Hudson test. Thompson v. Western States Medical Center (2002). Supp. 42. To pass the third prong of the Central Hudson test, “a governmental body … must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” The Court does not, however, “require that empirical data come accompanied by a surfeit of background information.” (internal quotation marks and alterations omitted). The Court has “permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and simple common sense.” (internal quotation marks omitted). Under the fourth prong of the Central Hudson test, “`the least restrictive means' is not the standard; instead, the case law requires a reasonable fit between the legislature's ends and the means chosen to accomplish those ends, a means narrowly tailored to achieve the desired objective.” (internal quotation marks omitted). Regulations on outdoor advertising of smokeless tobacco and cigars fails the fourth prong, because the regulations would bar advertisements 87% to 91% of Boston, Worchester, and Springfield. A restriction on point-of-sale advertising for the same products, restricting the height of indoor advertising, fails the third and fourth prongs. Regulations of sales practices that require the product be placed behind a counter pass the test. Lorillard Tobacco Co. v. Reilly (2001). Supp. 43. Earlier law:

  • “[T]he particular consumer's interest in the free flow of commercial interest … may be as keen, if not keener by far, than his interest in the day's most urgent political debate.” “[S]ociety may also have a strong interest in the free flow of commercial information.” “It is a matter of public interest that [private economic] decisions, in the aggregate, be intelligent and well-informed.” Regulation is likely permissible to address false or misleading advertising. However, Virginia may not prohibit the advertising of prices of prescription drugs. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976). 757. Under this approach, “The listener's interest in receiving information, a private interest, thus prevails over a more republican vision of politics, in which political discussion is, at least on the level of public norms, `keener by far' than private interest.” Mark Tushnet. 758 - 59.

  • The Arizona Supreme Court may not prohibit lawyers from advertising themselves. Attorney price advertising is not inherently misleading, though claims about quality of services may be. Bates v. State Bar (1977). 765.

First Amendment: Prior Restraint of Speech

True prior restraint: Speakers have an interest in anonymity. Therefore, a village cannot require door-to-door advocates or distributors of literature to register in advance with the mayor. Furthermore, such an ordinance would limit spontaneous speech, would entirely prevent those with religious objections to the licenses from speaking, and is not tailored to the stated interests of preventing fraud, protecting privacy, or preventing crime. Watchtower Bible & Tract Socitey v. Stratton (2002). Supp. 53. Any prohibition on the distribution of handbooks, advertising, or literature within a town is impermissible, “[w]hatever the motive which induced its adoption,” because “it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.” Such a statute “cannot be saved because it relates to distribution and not to publication,” because “without the circulation, the publication would be of little value.” Lovell v. Griffin (1938). 798. Prior restraint is undesirable because “[i]t is likely to bring under government scrutiny a far wider range of expression; it shuts off communication before it takes place; suppression by a stroke of the pen is more likely to be applied than suppression through a criminal process; the procedures do not require attention to the safeguards of the criminal process; the system allows less opportunity for public appraisal and criticism; the dynamics of the system drive toward excesses, as the history of all censorship shows.” Thomas Emerson. 799. The government may not require licenses in advance of soliciting membership in organizations that require fees, Staub v. Baxley (1958), 799, or of attempting to obtain charitable or religious contributions, Cantwell v. Connecticut (1940), 799, or of placing newsracks on public property, Lakewood v. Plain Dealer Publishing Co. (1988). 799 - 800.

Injunctions: A statute may not allow an injunction halting the publication of a “malicious, scandalous and defamatory newspaper,” even if the statute allows the publisher to block the injunction by showing the truth and good faith of the publication. This is considered a form of prior restraint. Near v. Minnesota (1931). 800. Alternatively, while the statute is objectionable as “a repackaged version of the law of seditious libel,” it is not prior restraint because “the decision to suppress was made by a judge (not a bureaucrat), after adversarial (not ex parte) proceedings, to determine the legal character of what had been (and not what might be) published.” John Jeffries. 802. Is the Court's approach a way of dealing with the collateral bar rule, under which an order such as an injunction must be obeyed until it is set aside rather than violated and then challenged constitutionally as a defense to the violation? Stephen Barnett. 803.

First Amendment: Public Forum for Speech

Traditional public fora: “[T]he purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. … There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.” “[T]he streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Therefore, the government may not prohibit leafleting on the streets. Schneider v. Irvington (1939). 850. However, a state may require application for parade permits, at least where the licensing authority may consider only “time, place and manner so as to conserve the public convenience.” The legitimate purposes of such a procedure may be to “afford opportunity for proper policing” and “to prevent confusion by overlapping parades, [to] secure convenient use of the streets by other travelers, and to minimize the risk of disorder.” A municipality may exact a fee “incident to the administration of the [licensing] Act and to the maintenance of public order in the matter licensed.” (internal quotation marks omitted). Cox v. New Hampshire (1941). 851. However, “speech cannot be financially burdened for expenses associated with hostile audience in a licensing context.” (characterization in casebook). Forsyth County v. The Nationalist Movement (1992). 852. Prohibiting distribution of printed materials at a fairground except from a licensed booth is a permissible time, place, and manner restriction. Heffron v. International Soc. for Krishna Consciousness (1981). 852. As in the O'Brien test, a “regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate content-neutral interests but [it] need not be the least restrictive or the least-intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied `so long as [the] regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. … Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward v. Rock Against Racism (1989). 852. “[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities.” Therefore, Chicago may not ban all picketing within 150 feet of a school building during school hours except “the peaceful picketing of any school involved in a labor dispute.” The distinction cannot be defended on a prediction that nonlabor picketing is more prone to violence than labor picketing. Chicago Police Dept. v. Mosley (1972). 853. “The Court has explicitly adopted the principle of equal liberty of expression. [The] principle requires courts to start from the assumption that all speakers and all points of view are entitiled to a hearing, and permits deviation from this basic assumption only upon a showing of substantial necessity.” Under this theory, even a ban on all picketing within 150 feet of a school would be impermissible because it would result in “differential impact” on “those who have something to communicate to the school [population].” Kenneth Karst. 854 - 55. However, such a statute was upheld in Grayned v. Rockford (1972). 855. A “speaker has the autonomy to choose the content of his own message.” Therefore, the organization running the St. Patrick's Day Parade in Boston may exclude a local gay group. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995). 966. Earlier law:

  • “[T]he right to absolutely exclude all right to use [public property], necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Therefore, Boston may require that speakers in Boston Common obtain permits from the mayor before delivering public addresses. Massachusetts v. Davis (1897) (dictum). 849.

  • “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Therefore, Jersey City may not require a permit for an open air meeting in a public place. Hague v. CIO (1939). 850.

Nontraditional public fora: A city may ban political advertisements in city-operated buses, even where it permits other advertising, to minimize “chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience.” Lehman v. City of Shaker Heights (1974) (plurality opinion). 865. A school district may limit access to an internal mail system. Perry Education Association v. Perry Local Educators' Association (1983). 856. A school cannot exclude religious groups from school property for after-school meetings where it permits other groups. Lamb's Chapel v. Center Moriches Union Free School Dist. (1993). 856. Government property fits into three categories: (1) traditional public fora, where regulation of speech receives “the highest scrutiny,” (2) designated public fora, which can be either limited (as to student groups, Widmar v. Vincent (1981), 857, or school board business, Madison Joint School District v. Wisconsin Public Employment Relat. Commission (1976), 857) or unlimited, but are otherwise treated identically to traditional public fora, or (3) “all remaining public property, where regulations of speech “need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view.” Airport terminals are not public fora because they “have only recently achieved their contemporary size and character.” Analogies to rail stations, bus stations, etc. are inappropriate to the analysis because those locations have generally been privately owned and because the relevant category is airport terminal rather than “transportation node.” Therefore, a ban on solicitation in a publicly owned airport terminal must be merely reasonable, which it is. International Society for Krishna Consciousness, Inc. v. Lee (1992). 856. Alternatively, “Like the fourth amendment, the first amendment protects people, not places. Constitutional protection should depend not on labeling the speaker's physical location but on the first amendment values and governmental interest involved in the case.” Daniel Farber and John Nowak. 864. The area within 100 feet of a polling place is a public forum, but the government may prohibit solicitation of voters and distribution of campaign literature there, even though the regulation is content-based, because the regulation is necessary and narrowly drawn to achieve the compelling state interest of preventing voter intimidation and election fraud. Burson v. Freeman (1992). 866. “[V]iewpoint-based restrictions are [not] proper when [a state] University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” Therefore the University of Virginia may not subsidize printing for a variety of student organizations but refuse to subsidize printing for religious activities. Rosenberger v. University of Virginia (1995). 887.

First Amendment: Government Support of Speech

Government as subsidizer: The tax code may grant deductions for contributions to veterans' organizations that lobby even if it denies deductions for contributions to other groups that lobby. Regan v. Taxation with Representation of Washington (1983). 879. The government may not impose a sales tax on general interest magazines while exempting newspapers and other media. Arkansas Writers' Project, Inc. v. Ragland (1987). 879. The “Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time finding an alternate program which seeks to deal with the problem in another way.” Such funding does not constitute viewpoint discrimination. Therefore, the government may withhold federal grants from family-planning agencies that provide advice concerning abortion, as long as it withholds them from projects rather than from grantees (i.e., allows the grantee to engage in the unfunded conduct outside the context of the project.) This withholding is “a case of the Government refusing to fund activities, including speech, which are specifically excluded from the scope of the project funded.” Rust v. Sullivan (1991). 878. Two characteristics might make a condition unconstitutional: it is not germane to the subsidy, or it goes beyond the program for which the subsidy is granted. Class Notes. “Public discourse must be distinguished from [`managerial'] domains. … Viewpoint discrimination occurs within managerial domains whenever the attainment of legitimate managerial objectives requires it.” Robert C. Post. 885. “[E]xtending the capacity of government to control speech beyond the narrow confines of the government itself - that is, beyond the agencies of government, individuals who are elected members of the government, or employees of the government speaking on the government's behalf - is neither necessary to the process of governing nor consistent with the democratic premise that no government can use its general policymaking authority to suppress or overwhelm its opposition….” Steven C. Gey. 886. “[V]iewpoint-based restrictions are [not] proper when [a state] University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” Therefore the University of Virginia may not subsidize printing for a variety of student organizations but refuse to subsidize printing for religious activities. Rosenberger v. University of Virginia (1995). 887. However, where government funding is distributed through a competitive process, the government may establish criteria for the competition “that would be impermissible were direct regulation of speech or a criminal penalty at stake.” Therefore, Congress may instruct the chairperson of the NEA to “ensure that … artistic excellence and artistic merit are the criteria by which applications [for funding] are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American people,” where this instruction does not mandate particular decisions but amounts instead to a guideline. National Endowment for the Arts v. Finley (1998). 888. A program “designed to facilitate private speech, not to promote a governmental message,” may not be funded under viewpoint-based restrictions. These restrictions will be especially suspect when they “in effect insulate its own laws from legitimate judicial challenge.” Therefore, the federal government may not condition funding of Legal Services Corp. lawyers for the indigent seeking welfare benefits on those lawyers' forgoing challenge of the constitutionality or statutory validity of welfare laws. Legal Services Corp. v. Velazquez (2001). Supp. 68.

Government as educator: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” “[W]here there is no finding and no showing that the exercise of the forbidden right would `materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained.” Therefore, a school may not prohibit high school students from wearing black armbands to protest the war in Vietnam when doing so “was entirely divorced from actually or potentially disruptive conduct.” “[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines School District (1969). 900. One justification for this case might be that the schools should teach children the democratic tradition of free speech; alternatively, the case recognizes children's free speech rights. Class Notes. “A school need not tolerate student speech that is inconsistent with its `basic educational mission,'” and therefore may discipline a student for giving a “sexually explicit” speech that was not obscene. Bethel School District No. 403 v. Fraser (1986). 905. When school officials sponsor a student newspaper, they are creating a limited forum, the purpose of which is to create “a supervised learning experience for journalism students.” “[T]he standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood School District v. Kuhlmeier (1988). 905. “The first amendment must [protect] not only individual writers, but newspapers; not only religious persons, but churches; not only individual students and teachers, but schools.” Bruce Hafen. Earlier law:

  • A teacher's “right … to teach and the right of parents to engage him … to instruct their children” are among those protected by due process. Therefore, Nebraska may not prohibit the teaching of languages other than English in grades below high school. “The desire of the Legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. … But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to the plaintiff in error.” Meyer v. Nebraska (1923). 898.

  • A statute requiring students to attend public schools through eighth grade “interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” It thereby violates the substantive due process rights of the parents and the private schools to which they might send their children. Pierce v. Society of Sisters (1925). 896. “A general State education is a mere contrivance for moulding people to be exactly like one another.” John Stuart Mill. 898. Pierce “assures that children will get their basic education not from multiple sources, but rather from their parents or their parent's agents alone.” Abner S. Greene. 898.

Government as employer: “We hold that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.” “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Where an ADA distributes a survey “touch[ing] upon matters of public concern in only a most limited sense,” she may be fired. A survey asking whether ADAs “feel pressured to work in political campaigns” is a matter of public interest. Questions about transfer policy, office morale, a grievance committee, and confidence in supervisors are instead “employee grievance[s] concerning internal office policy.” Connick v. Myers (1983). 976. Even if employee did not express the offending statement, he may be fired if employer reasonably thought he did. Waters v. Churchill (1994). 977.

First Amendment: Distinguishing Media

The overall picture is that airwaves are essentially unique. Cable turns out to be more like a newspaper than like television. So will the rest of the doctrine eventually overwhelm the airwaves doctrine, such that airwaves become less regulable, or will the airwaves doctrine take over, such that the other media become more regulable? Class Notes.

Newspapers: Florida may not require any newspaper that “assails” the personal character or official record of an election candidate to print for free, on demand, and with equivalent play, a reply. Such a “right of reply” statute “exacts a penalty on the basis of the content of a newspaper,” in the cost of printing the reply, and in deterring publication of controversial stories. Miami Herald Pub. Co. v. Tornillo (1974). 916. Without acknowledging doing so, the Court placed the press clause above the speech clause here. Melville Nimmer. 920. Alternatively, “I think the result would be no different if the case involved a compulsion to speak. If a state statute required any candidate who spoke falsely about another to make a corrective speech, would it survive challenge under the first amendment?” Anthony Lewis. 920.

Radio: “Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied….” The government allocates a limited number of frequencies. “There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.” “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. [It] is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.” “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.” Therefore, the Federal Communications Commission may require (1) political editorialists endorsing or opposing a candidate to notify the opponent of the endorsee or the candidate opposed and give them a “reasonable opportunity” to respond, and (2) broadcasters to notify and provide an opportunity to respond to any person or group whose honesty, character, or integrity is attacked “during the presentation of views on a controversial issue of public importance.” Red Lion Broadcasting Co. v. FCC (1969). 917. “[The] scarcity rationale [articulated in Red Lion does not] explain why what appears to be a similar phenomenon of natural monopolization within the newspaper industry does not constitute an equally appropriate occasion for access regulation.” Lee Bollinger. 919. “What may have been lost is a willingness to risk the partisanship of licensees as catalysts and as active advocates with a freedom to exhort, a freedom that dares to exclaim `Fuck the draft,' and not be made to yield by government at once to add, `but on the other hand there is also the view, held by many.'” William Van Alstyne. 921. Broadcast media receive less First Amendment protection than other media because they “have established a uniquely pervasive presence in the lives of all Americans,” and they are “uniquely accessible to children, even those too young to read. FCC v. Pacifica Foundation (1978). 936. The First Amendment may protect some “references to excretory and sexual organs and activities,” but “they surely lie at the periphery of First Amendment concern.” Furthermore, a “requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.” It “is a characteristic of speech such as this that it both its capacity to offend and its `social value' … vary with the circumstances.” Therefore, the FCC may penalize a radio station for playing George Carlin's “Filthy Words” monologue in the early afternoon of a weekday. FCC v. Pacifica Foundation (1978) (plurality opinion). 936.

Cable television: Congress may, in a content-neutral fashion, prevent cable operators from exploiting their economic power to the detriment of broadcasters, and thereby ensure that all Americans, especially those unable to subscribe to cable, have access to free television programming - whatever its content.” Therefore, Congress may require cable television systems to dedicate some of their channels to local broadcasters, both commercial and public, as long as it can show that absent such regulation, a large number of broadcast stations would not be carried. Turner Broadcasting System, Inc. v. FCC (1994) (plurality opinion). 931. After a remand so showed, the Court applied the O'Brien test and upheld the regulation. The government interests at stake were the preservation of the benefits of local broadcast television, the promotion of widespread dissemination of information from many sources, and promotion of fair competition. Turner Broadcasting System, Inc. v. FCC (1997) (plurality opinion). 932. Where Congress requires cable operators to reserve channels for commercial lease and public access, it may allow them to prohibit broadcast of material that the operators “reasonably believe[] describes or depicts sexual or excretory activities or organs in a patently offensive manner” on leased channels. Analogies to common carriers and to private bookstores are inappropriate because “they import law developed in very different contexts into a new and changing environment, and they lack the flexibility necessary to allow government to respond to very serious practical problems without sacrificing the free exchange of ideas the First Amendment is designed to protect.” The interests of the cable operator require some First Amendment protection. The regulation “protect[s] children from exposure to patently offensive depictions of sex [and] … accommodat[es] … the interests of programmers in maintaining access channels and … of cable operators in editing the contents of their channels” It is similar to Pacifica and is flexible. Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) (opinion of plurality A). 946. The same regulation is impermissible when applied to public access channels, however, because “these are channels over which cable operators have not historically exercised editorial control,” so the regulation “does not restore to cable operators editorial rights that they once had.” Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) (opinion of plurality B). 946. Congress may not require cable operators who do not prohibit such material to place it in a separate channel that is either blocked or segregated and allow its viewing only on written request. The regulation is neither a least restrictive alternative nor narrowly tailored to the compelling interest of protecting children. Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) (opinion of plurality C). 946. “The deeper message of the plurality opinion … is that no matter how technology evolves, Pacifica's contextual approach - not the law of rules - will continue to guide content-based regulation of media that feel like television.” Jonathan Weinberg. 954. A regulation requiring cable operators to block channels “primarily dedicated to sexually-oriented programming” from 6 a.m. to 10 p.m., because simple scrambling the channels for non-subscribers does not eliminate the problem of “signal bleed,” is impermissible. The regulation fails strict scrutiny. First, signal bleed may not be sufficiently significant to endanger children. Second, the government did not demonstrate that blocking on request, a less restrictive regulation, would be insufficient. “Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.” United States v. Playboy Entertainment Group (2000). 954.

Telephone: Congress may not ban “indecent” interstate commercial telephone messages, that is, dail-a-porn, because (in contrast to Pacifica) the regulation is “a total ban,” “there is no `captive audience' problem,” and Congress did not issue findings concluding that there were no less restrictive means available. Sable Communications v. FCC (1989). 945.

Internet: Congress may not prohibit the knowing transmission over the internet of indecent messages to anyone younger than 18, or the knowing sending to anyone younger than 18 any “image or other communication that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” (This was the Communications Decency Act.) “[N]either the parents' consent - nor even their participation - in the communication would avoid the application of the statute.” The statute is not limited to commercial transactions. The statute does not define indecent or require that the prohibited material “lack serious literary, artistic, political, or scientific value.” This may or may not prevent a vagueness problem, but it “undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.” “[T]he internet is not as `invasive' as radio or television.” “[T]he Internet can hardly be considered a `scarce' expressive commodity.” Because of the difficulty of age verification over the internet, it is likely that the statute will in effect limit adult-to-adult communication. Reno v. American Civil Liberties Union (1997). 956. “[T]he Child Online Protection Act's (“COPA”) requirement that prurient interest to children and patent offensiveness for children be determined by reference to `community standards' [does] not by itself render the statute substantially overbroad.” [Casebook description]. Ashcroft v. American Civil Liberties Union (2002). Supp. 72.

First Amendment: Establishment Clause

“Congress shall make no law respecting an establishment of religion….” U.S. Const., amend. I. “Jefferson believed that the integrity of government could be preserved only by erecting `a wall of separation between church and state. … Madison shared this view, but also perceived church-state separatism as benefiting religious institutions.” Note. 1034. The Amendment was “made applicable to the states” by the Fourteenth Amendment. Everson v. Board of Educ. (1947). 1035. Interpretations of the clause range from religionism through neutrality and separationism to secularism. Class Notes.

Aid to religion, including religious schools: A statute must pass a three-part [now two-part] test under the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an `excessive government entanglement with religion.'” [The third prong of the Lemon test “is simply one criterion relevant to determining a statute's effect,” and is therefore merely part of the second prong. It is to be evaluated without presuming that government must supervise to prevent diversion. The other criteria to be used in evaluating the second prong are whether the statute results in religious indoctrination by the government or defines its recipients by reference to religion. Agostini v. Felton (1997), 1042, as characterized in Mitchell v. Helms (2000) (plurality opinion). 1041.] Salary supplements to teachers of secular subjects in parochial schools fail this test, because all subjects taught in such schools are, or at least could, be permeated with religion. Enforcing the limit on the supplements would therefore require a “comprehensive, discriminating, and continuous state surveillance,” in violation of the test's third prong. The supplements also risked “divisive political potential” along religious lines. Lemon v. Kurtzman (1971). 1039. Though Lemon is still the official test (and Stevens, Breyer, Souter, and Ginsburg use it), some justices functionally apply more of a coercion test (Rehnquist, Scalia, Thomas), though some (Kennedy) weaken this test in the school context, while others (O'Connor) apply more of an endorsement test. This leaves O'Connor as the decision-maker, based on whether she believes a reasonable, objective observer would see government endorsement of religion. Class Notes. The reference in the original statement of the second to inhibition of religion is incorrect: “Regulation that burdens religion … is simply not establishment,” though it may violate the free exercise clause. Douglas Laycock. 1040. The second and third prongs conflict, because the only way a state can promise to meet the second is by violating the third. White's Dissent in Lemon v. Kurtzman (1971). 1039. “[S]tates may reimburse parochial schools for the cost of routine recordkeeping and administering state-prepared texts.” (Casebook description). Committee for Pub. Educ. v. Regan (1980). 1041. A state may grant an income tax deduction for educational expenses incurred at any nonprofit elementary or secondary school. Mueller v. Allen (1983), 1043, as characterized in Mitchell v. Helms (2000) (plurality opinion). 1041. A state may “include[e] within a neutral program providing tuition payments for vocational rehabilitation a blind person studying at a Christian college to become a pastor, missionary, or youth director.” Witters v. Washington Dept. of Servs. for Blind (1986), 1043, as characterized in Mitchell v. Helms (2000) (plurality opinion). 1041. A state can “as part of a federal program for the disabled, provide a sign-language interpreter to a deaf student at a Catholic high school.” Zobrest v. Catalina Foothills School Dist. (1993), 1042, as characterized in Mitchell v. Helms (2000) (plurality opinion). 1041. “[T]he Establishment Clause does not require a public university to exclude a student-run religious publication from assistance available to numerous other student-run publications.” Rosenberger v. Rector and Visitors of Univ. of Va. (1995), 1042, as characterized in Mitchell v. Helms (2000) (plurality opinion). 1041. “[T]he proportion of aid benefiting students at religious schools pursuant to a neutral program involving private choices” is “irrelevant to the constitutional inquiry.” Congress may “provide[] public employees to teach remedial classes at private schools, including religious schools.” Agostini v. Felton (1997), 1042 - 43, as characterized in Mitchell v. Helms (2000) (plurality opinion). 1041. “In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality [in government distribution of benefits].” “[I]f numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment.” A federal statute lending educational materials, which may not “supplant funds from non-Federal sources and must be “secular, neutral and nonideological,” to public, non-parochial private, and parochial elementary and secondary schools does not result in religious indoctrination by the government or define its recipients by reference to religion. Therefore, where litigants do not challenge lower-court holding that statute has a secular purpose and agree that it does not create an excessive entanglement, the statute is constitutional. Mitchell v. Helms (2000) (plurality opinion). 1041. A majority of the Court apparently believes that the Establishment Clause does not prohibit aid to religious schools that is “divertable” to religious purposes. Mitchell v. Helms (2000) (plurality opinion) (Thomas, J., joined by Rehnquist, C.J., and Scalia and Kennedy, JJ.), 1041; O'Connor's Concurrence in Judgment in Mitchell v. Helms (O'Connor, J., joined by Breyer) (2000). 1041. The Court has not determined whether the Establishment Clause prohibits actual diversion to religious use. Compare Mitchell v. Helms (2000) (plurality opinion) (de minimis diversion does not), 1041, with O'Connor's Concurrence in Judgment in Mitchell v. Helms (2000) (it does). 1041. The “Establishment Clause question [in the case of a voucher program that parents can use toward public, private non-parochial, and parochial schools] is whether [the state] is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options….” The program is constitutional. Zelman v. Simmons-Harris (2002). Supp. 76. Earlier law:

  • “[W]e must be careful, in protecting the citizens of [a state] against state-established churches, to be sure that we do not inadvertently prohibit [that state] from extending its general State law benefits to all its citizens without regard to their religious belief.” The First Amendment “requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.” A township's reimbursing parents for the cost of sending their children to school, including private and religious schools, on public buses does not violate the Establishment Clause, because the township “does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” This is the case even if the reimbursement allows some students to attend religious schools who otherwise would not. Everson v. Board of Educ. (1947). 1036.

  • A state may grant a tax exemption for “real or personal property used exclusively for religious, educational or charitable purposes.” The exemption is constitutional for three reasons: it applies to religious institutions “within a broad class of property” including other non-profits, taxing churches would require valuation of property that might constitute “an excessive government entanglement with religion,” and the practice is longstanding. Walz v. Tax Comm'n (1970). 1038.

  • Taxes reduce discretional spending by individuals. “To the extent that the tax revenues thus collected may not be spent by government to support religious enterprises … the net effect, arguably, is to reduce the relative supply of funds available to religion.” William W. Van Alstyne. 1039. A state may not grant a tax exemption solely to religious literature. Texas Monthly, Inc. v. Bullock (1989). 1039.

Religion in public schools: Posting the Ten Commandments on the wall of every public classroom in the state, with the notation, “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States,” is unconstitutional because, “The Ten Commandments is undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that [fact].” Stone v. Graham (1980) (per curiam). 1065. In applying the first prong of the Lemon test, “it is appropriate to ask whether government's actual purpose is to endorse or disapprove of religion.” (internal quotation marks omitted). Where there is unchallenged legislative history suggesting that the purpose was to endorse religion, and the state offers no secular purpose, a statute will be struck down. Therefore, where an Alabama statute setting aside a minute of silence in public schools “for meditation” is amended to indicate that the minute is “for meditation or voluntary prayer,” the amendment is unconstitutional. “The addition of `or voluntary prayer' indicates that the State intended to characterize prayer as a favored practice.” Wallace v. Jaffree (1985). 1056. A state statute requiring that creation science be taught whenever evolution was taught is unconstitutional because it has “no clear secular purpose,” in light of the fact that it “does not advance academic freedom.” Edwards v. Aguillard (1987). 1066. “In democratic societies, elected officials have an excellent secular reason to accommodate (or at least to avoid offending) groups and individuals who are religious, as well as groups and individuals who are not.” Phillip E. Johnson. 1068. “[I]t is only when religious purpose is coupled with threatened impairment of religious freedom that government action should be held to violate the Establishment Clause.” Jesse H. Choper. 1068. Congress may prohibit public schools from denying equal access to student groups “on the basis of the religious, political, philosophical, or other content of the speech at [their] meetings” when decided which groups to allow to use school facilities outside of class time. This statute does not have a primary effect of advancing religion because there “is a crucial difference between government speech endorsing religion … and private speech endorsing religion,” because school officials' actions at such meetings are restricted and the meetings occur outside of classtime, and because “the fact that Westside students are free to initiate and organize additional student clubs counteract any possible message of official endorsement of or preference for religion or a particular religious belief.” Board of Educ. v. Mergens (1990) (plurality opinion). 1069. “The idea of brainwashing in religious schools only makes sense if it is contrasted with a supposed condition of free choice in secular public education. [But principles] of secularism and secular humanism, that the child should be able to choose among ultimate values on the basis of individual rational choice (as that faculty gradually matures) now seems just as much a value position and a value choice by parents and society as the opposite view that certain values have absolute priority and should be strongly socialized in to the child's value system.” William H. Clune. A public school may not invite clergy to offer invocation and benediction ceremonies at graduation ceremonies, because the “district's supervision and control of a high school ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” “A school rule which excuses attendance is beside the point. … [F]or absence would require forfeiture of these intangible benefits which have motivated the student through youth and all her high school years.” Lee v. Weisman (1992). 1084. “If the Allegheny County citizen is not coerced by being required to respectfully pass by the religious display, why is the Providence student coerced by respectfully remaining silent during a one-minute prayer?” Steven G. Gey. 1084. A school district may not authorize a student election (1) to determine whether to have a student “delivery a brief invocation and/or message [at] varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for competition,” and (2) to select “a student volunteer who is [to] decide what statement or invocation to deliver, consistent with the goals and purposes of this policy. Any message and/or invocation delivered by a student must be nonsectarian and nonproselytizing.” The Court concluded that, based on the history of the practice, “the specific purpose of the policy was to preserve a popular `state-sponsored religious practice.'” “[T]he majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. [This] encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause.” Though the coercion is less than at a graduation ceremony, it is still present. Even though it is possible that students will not offer prayers, “Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail.” Santa Fe Ind. School Dist. v. Doe (2000). 1086. Pre-Lemon cases:

  • A program in which privately employed religious teachers held classes at public schools for students whose parents signed request cards, is unconstitutional for two reasons: “the state's tax-supported public school buildings [are] used for the dissemination of religious doctrines,” and the “State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the state's compulsory public school machinery.” McCollum v. Board of Educ. (1948). 1062.

  • A program in which students are released from public school for religious classes in church buildings is constitutional. “We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. [When] the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, [it] respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would [be] preferring those who believe in no religion over those who do believe.” Zorach v. Clauson (1952). 1062.

  • A statute barring the teaching of evolution in public schools violates both the establishment clause and the free exercise clause because “fundamentalist sectarian cnviction was and is the law's reason for existence,” as evidenced by newspaper advertisements and letters on the subject, and the fact that the statute “selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine.” Epperson v. Arkansas (1968). 1065.

Government acknowledgment of religion: The legislature may begin its sessions with prayer, in part because Congress authorized it to do so at the same time that it adopted the Bill of Rights. Marsh v. Chambers (1983). 1074. “The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from `making adherence to a religion relevant in any way to a person's standing in the political community.'” (quoting Lynch v. Donnelly (1984) (O'Connor, J., concurring)). A crèche placed on the Grand Staircase of the Allegheny County Courthouse violates the Establishment Clause. Nothing in the display detracts from its religious message, and it is placed so prominently that “[n]o viewer could reasonably think that it occupies this location without the support and approval of the government [which] has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message….” “However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.” (footnote omitted). “A secular state establishes neither atheism nor religion as its creed.” The crèche is not an accommodation of religion because accommodations “must lift an identifiable burden on the exercise of religion.” (internal quotation marks omitted). A Chanukah menorah, a Christmas tree, and “a sign saluting liberty,” placed together outside the city-county building, do not violate the Establishment Clause. Allegheny County v. ACLU (1989). 1072. The question regarding the menorah, tree, and sign is whether the display “has the effect of endorsing both Christian Jewish faiths, or rather simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. Of the two interpretations of this particular display, the latter seems far more plausible….” The use of the menorah “is not a case in which the city has reasonable alternatives that are less religious in nature.” In such a case, when the government chooses the more religious symbol, “an observer reasonably might infer from the fact that the government has chosen to use the religious symbol that the government means to promote religious faith.” While “an adjudication of the display's effect must take into account the perspective of one who is neither Christian nor Jewish, as well as those who adhere to either of these religions, the constitutionality of its effect must also be judged according to the standard of a `reasonable observer.' When measured against this standard, the menorah need not be excluded from this particular display.” This analysis does not address the purpose or entanglement prongs of the Lemon test. Brennan's Opinion in Allegheny County v. ACLU (1989). 1072. Permitting the KKK to place a Latin cross on Capitol Square, where it had also permitted other religious and non-religious displays, was permissible. “The State did not sponsor respondents' expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups.” Capitol Square Review & Advisory Bd. v. Pinette (1995). 1088. “Is the objective observer (or average person) a religious person, an agnostic, a separationist, a person sharing the predominate religious sensibility of the community, or one holding a minority view? Is there any `correct' perception?” William P. Marshall. “[If] the establishment clause is to prohibit government from sending the message to religious minorities or nonadherents that the state favors certain beliefs and that as nonadherents they are not fully members of the political community, its application must turn on the message received by the minority or nonadherent.” Harv. L. Rev. Note. 1090. “Any alienation felt by [majority] groups, although perfectly sincere, should be disregarded because their dissatisfaction results not from particular governmental actions but rather from the very meaning of the establishment clause.” Steven D. Smith. 1090 - 91.

First Amendment: Free Exercise Clause

“Congress shall make no law … prohibiting the free exercise [of religion]…” U.S. Const., amend. I. “Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. [Free exercise] embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. [The] freedom to act must have appropriate definition to preserve the enforcement of that protection [although] the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” The Free Exercise Clause applies to the states via the Fourteenth Amendment. Cantwell v. Connecticut (1940). 1092.

“[I]f a State has prohibited through its criminal laws certain kinds of religiously motivated conduct without violating the First Amendment, it certainly follows that it may impose the lesser burden of denying unemployment compensation benefits to persons who engage in that conduct.” “[I]f prohibiting the exercise of religion … is not the object of [a regulation] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. The Sherbert test[, that governmental actions that substantially burden religion can be justified only by a compelling governmental interest. Sherbert v. Verner (1963), 1093, as characterized by Hobbie v. Unemployment Appeals Comm'n (1987),] does apply to claims asking for exemption from a generally applicable criminal law, because in this case it would produce “a constitutional anomaly.” “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them.” A Native American is not entitled under the Free Exercise Clause to an exception to a state law barring peyote use, or to unemployment benefits if he loses his job as a result of such use. Employment Div. v. Smith (1990). 1099. “[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral … and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.” Therefore, a city cannot specifically bar ritual animal sacrifice. Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993). 1109. Earlier law:

  • Public schools may not compel students to salute the flag if their religion prohibits doing so. West Virginia State Bd. of Educ. v. Barnett (1943). 1092.

  • “[A] mother [can] be prosecuted under the child labor laws for using her children to dispense literature in the streets, her religious motivation notwithstanding.” Prince v. Massachusetts (1944). 1100.

  • To “strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.” Therefore, Sunday closing laws do not violate the free exercise rights of Sabbatarians. Braunfeld v. Brown (1961). 1095.

  • “Governmental imposition of [a choice between observing religion and forfeiting benefits and abandoning religion and working] puts the same kind of burden upon the free exercise of religion as would a fine….” Therefore, South Carolina may not refuse unemployment benefits to a Sabbatarian who refuses to work on Saturday. Under this case, governmental actions that substantially burden religion can be justified only by a compelling governmental interest. Sherbert v. Verner (1963), 1093, as characterized by Hobbie v. Unemployment Appeals Comm'n (1987). 1093.

  • “The conscription laws [are] not designed to interfere with any religious ritual or practice, and do not work a penalty against any theological position. The incidental burdens felt by [those “who oppose a particular war on grounds of conscience and religion”] are strictly justified by substantial governmental interests that relate directly to the very impacts questioned.” Therefore, the Free Exercise Clause does not forbid conscripting such people. Gillette v. United States (1971). 1097.

  • A federal statute granting educational benefits to veterans who served active duty but not to conscientious objectors who performed alternate service “involves only an incidental burden upon [objectors'] free exercise of religion - if, indeed, any burden exists at all.” Johnson v. Robison (1974). 1097.

  • “Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.” Therefore, a state may not deny unemployment benefits to a Jehovah's Witness whose employer closed his department and transferred him to a division fabricating tank turrets, a task his religion forbade him from doing. Thomas v. Review Board (1981). 1093.

  • “The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest [and] mandatory participation is indispensable to” the project, in this case the fiscal vitality of the social security system. Therefore the Free Exercise Clause does not require an exemption from Social Security taxes for the Amish, even though their religion bars both paying the tax and receiving any benefit from the program. United States v. Lee (1982). 1096.

  • “[T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education [which] substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.” Therefore, the IRS may deny tax-exempt status to a private school that practices racial discrimination based on religious beliefs. Bob Jones Univ. v. United States (1983). 1097 - 98.

  • “The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in the ways that comport with the religious beliefs of particular citizens.” Therefore, Congress may assign a Native American child a social security number even though doing so would “ `rob the spirit' of [their] daughter and prevent her from attaining greater spiritual power.'” Bowen v. Roy (1986). 1098.

  • The Sherbert test does not apply to military dress regulations forbidding the wearing of yarmulkes. Goldman v. Weinberger (1986). 1101.

  • A state may not deny unemployment benefits to an employee who refuses to work certain hours because of religious beliefs adopted after beginning employment. The state cannot “single out the religious convert for different, less favorable treatment.” Granting the benefits does not violate the establishment clause because it is an accommodation of religious practice. Hobbie v. Unemployment Appeals Comm'n (1987). 1093.

  • “A broad range of government activities - from social welfare programs to foreign aid to conservation projects - will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion.” Therefore the federal government may build a road through a forest, where doing so will “virtually destroy the Indians' ability to practice their religion.” Lyng v. Northwest Indian Cemetery Protective Ass'n (1988). 1098.

  • The Free Exercise Clause does not prohibit imposing a sales and use tax on a religious organization's sale of religious materials. “[T]o the extent that imposition of a generally applicable sales tax merely decreases the amount of money appellant has to spend on its religious activities, any such burden is not constitutionally significant.” Jimmy Swaggert Ministries v. Board of Equal. (1990). 1096.

First Amendment: Conflict between Establishment and Free Exercise

A state statute requiring employers to grant days off to any Sabbath day observed by any employee, no matter the trouble caused to the employer, is unconstitutional, because it “arms Sabbath observers with an absolute and unqualified right not to work on whatever day they designate as their Sabbath [and thus] goes beyond having an incidental or remote effect of advancing religion.” Thornton v. Caldor, Inc. (1985). 1134. The Lemon test's purpose requirement does not require that a regulation be unrelated to religion. Instead, it bars the government “from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.” Under Lemon, “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” “A law is not unconstitutional simply because it allows churches to advance religion, which is their purpose. For a law to have forbidden `effects' under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence.” If a statute that “is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion” passes the Lemon test, it is constitutional. Therefore, a section of the Civil Rights Act of 1964 exempting religious organizations from the prohibition of discrimination in employment on the basis of religion is constitutional. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987). 1126. “[T]he establishment clause [should] be read to prohibit aid which has as its motive or substantial effect the imposition of religious belief or practice. … The availability of preferential aid to religious exercise may, to be sure, induce false claims of religious belief, but the establishment clause is not concerned with false claims of belief, only with induced belief.” Alan Schwarz. 1132. “In a democracy, laws inevitably will reflect the majority's values, and consequently, laws will tend to burden minority religions but not majority ones. Therefore, majority religions generally have a kind of inherent exemption from the force of law.” James D. Gordon III. 1136. Alternatively, “If Jews are a relatively small minority in New York State but a sizable minority or majority in some New York City area suburbs, may the state close public schools on Yom Kippur while the suburb is forbidden from doing likewise? May Pennsylvania accommodate Mormon traditions, while Utah may not?” Ira C. Lupu. 1136.

Equal Protection Clause: Non-suspect Classifications

“… nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV. “No person … shall be … be deprived of life, liberty, or property, without due process of law…” U.S. Const., amend. V. The due process clause of the Fifth Amendment holds the federal government to the same standard set out for the states by the equal protection clause of the Fourteenth. Bolling v. Sharpe (1954). 1137. The only exception to this is the case of aliens, who receive less protection from the federal government than from the states. Note. 1137.

Regulations upheld: “We do not sit to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom.” “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.” Therefore, the Court will not overturn New York's ordinance prohibiting trucks from carrying advertisements for anyone other than their owners, said to be aimed at reducing visual clutter, because the “local authorities may well have concluded that those who advertised their own wares on their trucks do not present the same traffic problem….” Railway Express Agency v. New York (1949). 1138. “Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged [1] be rationally related [2] to a legitimate state interest.” “Legislatures may implement their program step by step in … economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.” Therefore, New Orleans may ban all food vendors from the French Quarter except those who had been there for eight or more years, because “the city could rationally [decide] that newer businesses were less likely to have built up substantial reliance interests … and that” the older ones had “become part of the distinctive character and charm” of the area. New Orleans v. Dukes (1976). 1140. Under this doctrine, individuals cannot claim they personally have been treated unequally as long as the class of which they are a part is reasonably treated. Note. 1141. If the doctrine did not allow step-by-step remedies, states would be unable to take any measures until they could afford the ultimate measure or to experiment with untested policies. Harv. L. Rev. Note. 1142. “[A]lmost all, if not all, groups [in] American political process are `minorities.'” Jesse H. Choper. 1142. “[T]he requirement that laws be equal rests upon a theory of legislation quite different from that of pressure groups - a theory which puts forward some conception of a `general good' ….” Joseph Tussman and Jacobus tenBroek. 1143. Where litigants challenge a regulation subject to only rational basis review, those “challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Therefore, the Foreign Service may enforce a mandatory retirement age of 60, even though the policy is “to some extent both under- and over-inclusive.” Vance v. Bradley (1979). 1144. A policy subject to only rational basis review may be premised on a “legitimate inference” about the classification in question. Therefore, the Transit Authority may ban all drug users, including users of methadone, on the inference “that as long as a treatment program (or other drug use) continues, a degree of uncertainty persists.” New York City Transit Authority v. Beazer (1979). 1144. Courts should be more deferential to overinclusive classifications than to underinclusive ones, because the former “pose[] less danger … at least from the viewpoint of political accountability, for overinclusiveness does not ordinarily exempt potentially powerful opponents from a law's reach.” Laurence H. Tribe. 1146. “Where … there are plausible reasons for Congress's action, our inquiry is at an end. It is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision, because this Court has never insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislature must necessarily engage in a process of line drawing.” (internal quotation marks omitted). Therefore, Congress may structure retirement benefits for railroad workers such that workers on the job during the year the regulations were revised receive benefits while those who were not, but who were otherwise eligible, do not, because Congress “could property conclude” that the workers on the job “had a greater equitable claim,” or “Congress could assume” that the members of the former group “were more likely … to be among the class of persons who pursue careers in the railroad industry, the class for whom the Railroad Retirement Act was designed.” United States R.R. Retirement Bd. v. Fritz (1980). 1146. “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Therefore, Congress may exempt cable facilities that service one or more buildings under common ownership from regulation while applying that regulation to facilities that serve separately owned and managed buildings, because Congress could believe that regulating the former companies would be less valuable, because customers of companies in the former category carry greater power on their own, or that the latter companies posed a greater threat of monopoly. FCC v. Beach Communications, Inc. (1993). 1149. If “rationality is to be a meaningful standard of review the court must conceive of its task as identifying the legislature's probable goals based on the available evidence.” Scott H. Bice. 1151. “[T]he rationality requirement may [be] understood precisely as a requirement that regulatory measures be something other than a response to political pressure.” Cass R. Sunstein. 1151. [Phillip E. Johnson, 1068, talking about another issue, reveals the illogic of this proposal.] “If the Court were to require an articulation of purpose from an authoritative state source … there would at least be indirect pressure on the legislature to state its own reasons for selecting particular means and classifications [and thus] improve the equality of the political process….” Gerald Gunther. 1151. [Is this a proper judicial function? It may be the only proper judicial function, considering Bickel.]

Regulations struck down: Congress may not withhold food stamps from “any household containing an individual who is unrelated to any other member of the household.” The rule “is clearly irrelevant to the stated purposes of the Act [to] raise levels of nutrition among low-income households.” Legislative history indicates that the purpose was to prevent hippie communes from using food stamps. But equal protection “at the very least mean[s] that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” United States Dept. of Agriculture v. Moreno (1973). 1151. A state violates equal protection when it accidentally schedules a hearing on an employment discrimination complaint for after the end of the statute of limitations on such complaints. Logan v. Zimmerman Brush Co. (1982). 1153. A county may not assess real property on the basis of purchase price while making “only minor modifications in the assessments of land which had not been recently sold.” Allegheny Pittsburgh Coal Co. v. County Comm'n (1989). 1154. However, such a policy survives rational basis review when it “rationally furthers the State's [legitimate] interests in neighborhood stability and the protection of property owners' reliance interests.” Nordlinger v. Hahn (1992). 1154.

Equal Protection Clause: Race and Ethnicity

A slave born in slavery in Virginia, who travels to the free state of Illinois, then to the free territory of Wisconsin (so declared by the Missouri Compromise), then to Missouri (a slave state) does not thereby attain freedom. He is incapable of becoming a citizen of Missouri and thus cannot invoke diversity jurisdiction, because slaves are not citizens in the term of the Constitution. “No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” The Missouri Compromise was unconstitutional, and regardless of his status in Illinois, he is governed by Missouri law in Missouri, because the government does not have the right to deny a slave owner his property. Dred Scott v. Sandford (1857). 1155. The equal protection clause overturned this definition of citizen. Class Notes.

Foundational cases: “[T]he true spirit and meaning” of the Civil War Amendments, including the Fourteenth, was “securing to a race recently emancipated [the] enjoyment of all the civil rights that under the law are enjoyed by [whites].” Therefore a black defendant's conviction for murder will not stand in a state that forbids blacks from serving on petit or grand juries. Strauder v. West Virginia (1880). 1158. “The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.” Therefore, Louisiana may establish “equal but separate accommodations for the white, and colored races.” “We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. It this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Plessy v. Ferguson (1896). 1158. Strauder and Plessy may be reconciled on the ground that the Court was capable of easily enforcing the former, but not the latter. In this way the Court may have compromised in the face of public opinion. Michael Klarman. 1161. “[A]ll legal restrictions which curtail the rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” Under this standard, the government is entitled, in light of “apprehension by the proper military authorities of the gravest imminent danger to the public safety,” to relocate and detain American citizens of Japanese descent and Japanese aliens following Pearl Harbor. Korematsu v. United States (1944). 1162. Where the University of Texas Law School is superior - in faculty, courses, size of student body, library, and activities - to a recently established school for blacks, the state must admit black applicants to the former. Sweatt v. Painter (1950). 1168. “[E]xhaustive[]” evaluation of circumstances surrounding the adoption of the Fourteenth Amendment “are inconclusive” as to whether the amendment was intended to eliminate segregation in public schools. “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation.” Even where schools are equal, segregated public schools deprive minorities of “equal educational opportunities.” “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority…. The impact is greater when t has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. … Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children….” Footnote 11 cited sociological research supporting this stance. Plessy is therefore reversed. “We conclude that in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal.” Brown v. Board of Educ. (1954). 1167. “[T]he equal protection clause [has] a moral principle as its content,” and courts should implement this rather than any specific original intent. Ronald Dworkin. 1172. “It is one thing to use the current scientific findings, however ephemeral they may be, in order to ascertain whether the legislature has acted reasonably in adopting some scheme of social or economic regulation; deference here is shown not so much to the findings as to the legislature. It would be quite another thing to have our fundamental rights rise, fall, or change along with the latest fashions of psychological literature.” Edmund Cahn. 1172. “[R]ather than stating a racial classification rule, Brown elevated education to the level of other fundamental rights with regard to which the Equal Protection Clause forbade racial discrimination.” Michael Klarman. 1172. Both segregation and integration implicate the right to free association, with neither one holding an apparently stronger position. Herbert Wechsler. 1173. Integration requires solving many local problems. “School authorities have the primary responsibility for elucidating, assessing, and solving [them]; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.” “[T]he courts will require that the defendants made a prompt and reasonable start toward full compliance….” Courts will therefore retain jurisdiction. The cases are remanded “to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Brown v. Board of Educ. (1955). 1175. This result assumes that “Negroes (unlike whites) possess rights as a race rather than as individuals, so that a particular Negro can rightly be delayed in the enjoyment of his established rights if progress is being made in improving the legal status of Negroes generally.” Louis Lusky. 1176. A state may not require that the race of candidates be listed on ballots, because such listing “induces racial prejudice at the polls.” Anderson v. Martin (1964). 1179. Statutes containing racial classifications cannot be considered on a rational basis standard. The fact that such classifications apply equally to the various races “does not immunize [them] from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” The statements of the Framers of the Amendment regarding contemporaneous laws “pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment.” To be upheld, racial classifications “must be shown [1] to be necessary to the accomplishment [2] of some permissible state objective….” (emphasis added). A miscegenation law prohibiting only interracial marriages involving whites must be “designed to maintain White Supremacy,” which is not a permissible state objective. Furthermore, “[m]arriage is one of the basic civil rights of man.” (internal quotation marks omitted). Therefore such laws are invalid. Loving v. Virginia (1967). 1176. Florida may not deny custody to a white mother because her new husband is black, even through the child will be subject to unusual pressures. The “effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.” Palmore v. Sidoti (1984). 1179.

Disparate impact: Where the “facts shown establish an administration [of a regulation] directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied [with] a mind so unequal and oppressive as to amount to a practical denial by the State of [equal protection],” the regulation cannot stand. Therefore, an equal protection violation exists where an ordinance prohibiting unlicensed wooden laundries is enforced only against Chinese immigrants, though others make up one fourth of the violators. Yick Wo v. Hopkins (1886). 1180.

Requiring intent: “Disproportionate impact [s]tanding alone [does] not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.” Therefore, where four times as many whites as blacks fail a police officer application test, but the “test is neutral on its face and rationally may be said to serve a purpose the government is constitutionally empowered to pursue,” no violation will be found. Washington v. Davis (1976). 1180. Alternatively, strict scrutiny should apply to “those government acts that, given their history, context, source, and effect, seem most likely not only to perpetuate subordination but also to reflect a tradition of hostility toward an historically subjugated group, or a pattern of blindness or indifference to the interests of that group.” Laurence H. Tribe. 1184. Alternatively, because disparate impacts are often the “consequence of prior governmental action that was constitutionally or ethically offensive,” regulations that produce them should “trigger a heavier burden of justification than that required of a truly neutral disadvantage.” That burden would take the form of intermediate scrutiny, in which courts would consider “(1) the degree of disproportion in the impact; (2) the private interest disadvantaged; (3) the efficiency of the challenged law in achieving its objective and the availability of alternative means having a less disproportionate impact; and (4) the government objective sought to be advanced.” Michael J. Perry. 1184 - 85. Alternatively, concern with prior action would require inquiry over wide spans of time and addressing aggregate behavior rather than the behavior of individuals. Owen M. Fiss. 1185. “On the question of whether racial discrimination is tied to intent, [or] whether it can be unconscious or accidental, blacks and whites are sharply divided.” David Crump. “Traditional minorities may suffer at least two types of disadvantage in the political and legislative processes. One is hostility. The other is a relative dearth of sympathy, empathy, or concern. [The Court's approach ignores the latter and] “reflect[s] at most a thin, minimalist conception of the democratic processes to which courts are [asked] to defer.” Richard H. Fallon Jr. 1186. “To forbid all legislation that disadvantages [minorities] would give them the gains from political bargaining without the losses.” Robert W. Bennett. 1186.

Defining intent: No prima facie case is made where a Philadelphia Nominating Panel for school board members contains two blacks and eleven whites, even though one third of the city's population is black and 60 percent of its public school students are black. Such “simplistic percentage comparisons” are insufficient, particularly where panel members must meet certain qualifications. Mayor of Philadelphia v. Educational Equality League (1974). 1194. “When there is proof that a discriminatory purpose has been a motivating factor in a decision, … judicial deference is no longer justified.” “The historical background is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. … Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached. The legislative or administrative history may be highly relevant….” Without evidence in these forms, however, a village's refusal to rezone to allow racially integrated housing does not violate equal protection. Arlington Heights v. Metropolitan Housing Dev. Corp. (1977). 1190. “[S]ubstantial underrepresentation of [a] group constitutes a constitutional violation … if it results from purposeful discrimination.” To prove such discrimination in the case of selection of grand jurors, litigants must prove underrepresentation, “by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. [If] a disparity is sufficiently large,” the state must provide contrary evidence to prevent the court from “conclud[ing] that racial or other class-related factors entered into the selection process.” Castaneda v. Partida (1977). 1192. In assessing a disparate impact case, “`[d]iscriminatory purpose,' … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group.'” Therefore, an employment benefit granted veterans does not violate equal protection even though it disparately advantages men over women. Personnel Administrator v. Feeney (1979). 1187. This approach probably applies in cases of racial disparate impact as well as gender. Note. 1187. Where local “procedures followed in making [a] decision were fair and were not affected by any racial or other impermissible factors,” the Thirteenth Amendment is not violated when a municipality closes a street that effectively prevents blacks from using the most efficient route, one through a white neighborhood, to a city center. Memphis v. Greene (1981). 1187. A defendant may make out a prima facie case of purposeful discrimination in jury selection “solely on evidence concerning the prosecutor's exercise of peremptory challenges.” The state must then present a neutral explanation, which “need not rise to the level of justifying exercise of a challenge for cause,” but may not be based on the assumption or judgment that the jurors would be partial to the defendant because of their shared race. Batson v. Kentucky (1986). 1194. This doctrine applies as well to civil litigants, Edmonson v. Leesville Concrete Co. (1991), 1194, and to peremptory challenges by criminal defendants, in the latter case to prevent undermining of public confidence in criminal justice. Georgia v. McCollum (1992). 1194. The trial court's conclusion on discriminatory intent is a finding of fact entitled to great deference on appeal. Hernandez v. New York (1991). 1193. To make a prima facie case of racially selective prosecution, “the claimant must show that similarly situated individuals of a different race were not prosecuted.” Where such evidence is not produced, a claimant is not entitled to discovery. Evidence that all defendants in closed crack cocaine cases were black, while a representative of a drug treatment center alleges that half of the users are white, is insufficient. United States v. Armstrong (1996). 1193. This rule prevents claimants from “obtaining discovery of information that would help prove discriminatory intent when it does exist.” Angela J. Davis. 1193. “While it appears true that the enhanced penalties for crack cocaine more often fall upon black defendants, the legislature's action might also have been a laudatory attempt to provide enhanced protection to those communities - largely black … -- who are ravaged by abuse of this potent drug.” Kate Stith. 1194.

Affirmative action in education: In the area of higher education admissions, “the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” However, a program reserving places in an entering class for members of minority groups is impermissible. Regents of Univ. of California v. Bakke (1978). 1221. Affirmative action programs should be subject to strict scrutiny, even though the disadvantaged people are white, because the white majority includes minorities who have been persecuted, preferential programs may reinforce stereotypes, and “there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making.” “It is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background.” If the school's “purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid.” The state has not “compelling justification” for “aid[ing] persons perceived as members of relatively victimized groups at the expense of other innocent individuals” absent specific violations. The state cannot claim that an affirmative action program is intended to “improv[e] the delivery of health care services to communities currently underserved” without evidence that such a program “needed or geared to promote that goal.” “[I]n arguing that its universities must be accorded the right to select those students who will contribute the most to the `robust exchange of ideas,' petitioner invokes a countervailing constitutional interest, [and] must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission. … Ethnic diversity, however, is only one element in a range of factors a university properly ma consider in attaining the goal of a heterogeneous student body.” A program in which “race or ethnic background [is] deemed a `plus' in a particular applicant's file, yet … does insulate the individual with all [others]” may be permissible. Such a program does not have the “facial infirmity” of a quota system. Regents of Univ. of California v. Bakke (1978) (opinion of Powell, J.). 1221. Immediately after the Fourteenth Amendment was framed, Congress passed statutes specifically favoring blacks. Therefore, supporters of original understanding cannot “categorically condemn color-based distribution of government benefits.” Jed Rubenfeld. 1231. “It is equally clear that the fourteenth amendment was not intended to prohibit school segregation either.” Lino Graglia. 1231. “The genuine moral goal associated with race is to end race-based oppression. Colorblindness may sometimes accomplish this moral goal, but it is not the goal itself. Therefore, color-blind principle [must] be seen as a policy argument and not a moral precept.” Jerome M. Culp Jr. 1231. “When the group that controls the decision making process classifies so as to advantage a minority and disadvantage itself, the reasons for being unusually suspicious, and, consequently, employing a stringent brand of review, are lacking.” John H. Ely. 1231. Alternatively, “in American politics majorities [typically] are coalitions of minorities which have varying [interests]. … [T]here is no reason to suppose that the costs of such policies are borne equally by sub-groups within the white population. To the extent that they are not, the discrimination - though nominally against a majority - is in reality against those sub-groups.” Terrance Sandalow. 1232. Affirmative action can be defended for backward-looking reasons (as remedying past discrimination or as compensating for societal discrimination) and for forward-looking reasons (as creating proportionality and thus removing racial classes, or as recognizing where race is a form of merit, as a prophylactic). Note. 1232 - 34. “Despite assertions by whites that race-conscious programs `stigmatize' beneficiaries, blacks remain overwhelmingly in favor of affirmative action. Would we not expect blacks to the be the first to recognize such harms and therefore to oppose affirmative action if it produced serious stigmatic injury?” T. Alexander Aleinikoff. 1235. “[If] blacks are indeed uniquely disadvantaged, does the `lesser' history of discrimination against Latinos and Asians entitle them to a lesser remedy, or no remedy at all?” Deborah Ramirez. 1236. “[To] devote prodigious efforts to devising the correct racial categorizations of American citizens is about as divisive an enterprise as it is possible to imagine. [The] more diverse America becomes, the more compelling the color-blind idea remains.” J. Harvie Wilkinson III. 1236. Under Powell's diversity rationale in Bakke, “there is a strong society interest in [the] equal participation of blacks … whenever a `black [can] bring something that a white person cannot offer.'” Robert A. Sedler. 1240.

Affirmative action in employment: A private employer may contract with a union to set aside openings for black employees. United Steelworkers v. Weber (1979), 1252. A school board may not, in accordance with a contract with a teachers' union, lay off senior white teachers rather than junior minority teachers. Wygant v. Jackson Bd. of Educ. (1986). 1239. Race-based preferences are evaluated according to strict scrutiny. The government has no compelling interest in remedying “societal discrimination.” Even if specific prior discrimination were present, its burden on “innocent parties” would make it impermissible. Wygant v. Jackson Bd. of Educ. (1986) (plurality opinion). 1239.

Affirmative action in government contracts: While “there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts in Richmond, Virginia.” Absent “identified discrimination in the Richmond construction industry,” the city does not have “a compelling interest in apportioning public contracting opportunities on the basis of race.” Therefore, requiring public contractors to dedicate 30 percent of their subcontracting work (by dollar amount) to minority-owned business. In dicta concerning the narrow tailoring prong, the Court noted that “there does not appear to have been any consideration of the use of race-neutral means to increase minority business participation in city contracting,” and that the 30 percent figure appears arbitrary. Richmond v. J.A. Croson Co. (1989). 1241. “Classifications based on race carry a danger of stigmatic harm. Unless they are reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.” Strict scrutiny therefore applies regardless of the race of those burdened and benefited, though in this case the city is 50 percent black. Richmond v. J.A. Croson Co. (1989) (plurality opinion). 1241. “[T]he Court's preference for race-neutral remedies is inconsistent with its demand for narrow tailoring, since a remedy for discrimination against racial minorities can be more narrowly tailored if only minorities benefit.” Ian Ayres (as characterized by casebook). 1251. “[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups.” Therefore, affirmative action is subject to strict scrutiny in both the federal and state context. Adarand Constructors, Inc. v. Pena (1995). 1252. “Education is different - special - because it teaches Americans how to become full citizens in a heterogeneous, pluralistic scheme of democratic self-government. … Adarand-like set-asides[, in that case, in federal contracting,] set us apart, but Bakke-like affirmative action [in education] brings Americans together.” Akhil Reed Amar and Neal Kumar Katyal. 1260.

Equal Protection Clause: Gender

Standard of review: To defend a gender-based classification, the government must show that it is (1) “substantially related to the achievement” of (2) “important governmental objectives.” (3) The action must have an “exceedingly persuasive justification.” “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Such classifications “may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” Virginia may not justify VMI's ban on women on the ground that it promotes diversity of educational choices when the state “has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State.” However, speaking generally, “We do not question the State's prerogative evenhandedly to support diverse educational opportunities.” Though “it is uncontested that women's admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets[,] … [t]he notion that admission of women would downgrade VMI's statute, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other `self-fulfilling prophecies' once routinely used to deny rights or opportunities.” Therefore, Virginia may not limit the VMI experience to women. Virginia also may not start a separate, similar school exclusively for women, because the latter program “ `deemphasizes' military education, and uses a `cooperative method' of education `which reinforces self-esteem.'” The women's school also lacks the resources and prestige of the men's school. United States v. Virginia (1996). 1269. Scholars dispute whether the “exceedingly persuasive justification” language strengthens intermediate scrutiny. Cass R. Sunstein (yes), 1275; Denise C. Morgan (no), 1275. Earlier law:

  • “[C]lassifications based upon sex [are] inherently suspect and must therefore be subjected to close judicial scrutiny.” “[I]n part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, on the job market and, perhaps most conspicuously, in the political arena.” Sex is also, like race, “immutable.” “And what differentiates sex from such non-suspect statuses as intelligence or physical disability [is] that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Therefore, where the government “offers no concrete evidence” to prove that the program saves money, a federal statute granting men in the military an automatic dependency allowance for their wives but requiring women in the services to prove that their husbands are dependent is unconstitutional. Frontiero v. Richardson (1973) (plurality opinion). 1262. One critical distinction between sexism and racism is that “[t]he ideology of sex, as opposed to the ideology of race, is a good deal more complex and confusing.” Richard A. Wasserstrom. 1264. Also, women and men interact so much that “[o]nce women's own consciousness was awakened to the unfairness of allocating opportunity and responsibility on the basis of sex, education of others - of fathers, husbands, sons as well as daughters - could begin, or be reinforced, at home. When blacks were confined by law to a separate sector, there was no similar prospect for educating the white majority.” Ruth Bader Ginsburg. 1263 - 64.

  • To “withstand constitutional challenge, previous cases establish that classifications by gender must [1] serve important governmental objectives and [2] must be substantially related to achievement of those objectives.” “[A]dministrative ease and convenience” are not “sufficiently important objectives to justify gender-based classifications.” Statistics demonstrating that 0.18% of females and 2% of males between 18 and 20 years old were arrested for DUI are insufficient to justify the gender-based classification of a statute prohibiting sales of a particular beer to males under 21 and females under 18. Craig v. Boren (1976). 1265.

Real and imagined differences: Pregnant teachers may not be forced to go on leave under an “irrebuttable presumption” that they are unable to teach. Cleveland Bd. of Educ. v. LaFleur (1974). 1276. California may exclude “disability that accompanies normal pregnancy and childbirth” from its disability insurance system because the regulation is not sex-based: the “program divides potential recipients into two groups - pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.” Geduldig v. Aiello (1974). 1275. Women prison guards may be excluded from “contact positions” in men's prisons because a “woman's relative ability to maintain order in a male, maximum-security, unclassified penitentiary could [be] directly reduced by her womanhood.” Dothard v. Rawlinson (1977). 1276. A statutory rape law may punish the male party but not the female party, because “[w]e are satisfied not only that the prevention of illegitimate [teenage] pregnancy is at least one of the `purposes' of the statute, but that the State has a strong interest in preventing such pregnancy.” Though the claimant argues that the purpose of the statute is to protect female chastity, the Court “will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” [United States v. Virginia apparently overturns this doctrine in gender cases.] Punishing only the male is logical because he “by nature, suffers few of the consequences of his conduct.” This gender classification “is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” Michael M. v. Superior Court (1981). 1276. “That `the sexes are not similarly situated' in such cases as Michael M. and Dothard would not, to anyone less mesmerized [than the Court] by the ideal of law as a mirror of nature, be thought to justify a gender discrimination as noninvidious; it would instead raise the question whether such discrimination formed part of the law's systemic support for male supremacy.” Laurence H. Tribe. 1278. “[Reliance] on `real difference' [has] often done more to reflect sex-based inequalities than to challenge them.” Deborah Rhode. 1280. Feminist scholarship has moved through three stages: articulating women's claims to the same rights and privileges as men, advocating respect and accommodation for differences between the sexes, and rejecting the preoccupation with these differences. Martha Minow. 1280. An antisubordination approach would establish that the “only question for litigation [was] whether the policy or practice in question integrally contributes to the maintenance of an underclass … because of gender.” Catharine A. MacKinnon. 1280. Congress may authorize the president to require selective service registration of men and not women because the draft would “be characterized by a need for combat troops,” who do not include women. Rostker v. Goldberg (1981). 1281.

“Benign” discrimination: A property tax exemption may be granted to widows but not widowers to “further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden.” Kahn v. Shevin (1974). 1287. Congress may grant women naval “line” officers 13 years, as opposed to men's 9, before requiring their discharge, because Congress may “quite rationally have believed that women line officers had less opportunity for promotion than did their male counterparts, and that a longer period of tenure for women officers would, therefore, be consistent with the goal to provide women officers with `fair and equitable career advancement programs.'” Schlesinger v. Ballard (1975). 1287. The “mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.” Therefore, Congress may not grant payments to the wife, but not the husband, of a deceased wage earner with minor children because an the policy is based on an “archaic and overbroad generalization” (internal quotation marks omitted). Weinberger v. Wiesenfeld (1975). 1287. “Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as … an important governmental objective.” Therefore, Congress may give women a chance for higher old-age benefits than men “to compensate for particular economic disabilities suffered by women.” Califano v. Webster (1977). 1286. Alabama may not provide that only husbands are required to pay alimony. Because hearings on need occur regardless of the statute, “[t]here is no reason … to use sex as a proxy for need.” Orr v. Orr (1979). 1288. A state university nursing school's policy of admitting only women “is not substantially related to an important objective.” Mississippi claims that the purpose of the school is to compensate for discrimination against women. However, “Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field” when the school opened. The policy “tends to perpetuate the stereotyped view of nursing as an exclusively woman's job,” a fact that some argue reduces nurses' wages. The school's policy of allowing men to audit classes undermines any claim that women are adversely affected by their presence.” Mississippi Univ. for Women v. Hogan (1982). 1288. “Public single-sex schools for women and girls can be justified, even if such schools for men and boys cannot. [The] existence of such schools is substantially related to important governmental objectives of preparing girls and women for success, engaging their abilities, and encouraging them to become leaders.” Amy H. Nemko. 1291. The “important governmental objective in denying boys access to girls' athletic teams has been articulated as: `maintaining, fostering, and promoting athletic opportunities for girls' and `redressing past discrimination against women in athletics and promoting equality of athletic opportunity between the sexes'; in short, `redressing the disparate opportunities available to males and females.' Most courts addressing the issue have found a substantial relationship between excluding boys from girls' teams and providing equal opportunities for females. Hence, exclusion is considered a permissible means of achieving this objective.” Ohio St. L. J. Note. 1291. “[P]rotection for physical disabilities associated with pregnancy with no similar protection for disabilities unrelated to pregnancy is neither inconsistent with nor preempted by federal antidiscrimination statutes.” California Federal Savings & Loan Ass'n v. Guerra (1987), 1292, as characterized in Casebook.

Early decisions, applying rational basis review: Oregon may prohibit women from working in factories for more than ten hours each day because, “as healthy mothers are essential to vigorous offspring, the physical well-being of a woman becomes an object of public interest and care.” Muller v. Oregon (1908). 1261. A statute may deny bartending licenses to most women. Goesaert v. Cleary (1948). 1261. A state statute placing women on jury lists only when they ask to be placed on them is permissible, because “woman is still regarded as the center of home and family life.” Hoyt v. Florida (1961). 1261. A statute may not prefer men to women in appointing the administrator of an estate because “reducing the workload on probate courts by eliminating one class of contests” is an insufficient purpose. The Court claimed to apply rational basis review. Reed v. Reed (1971). 1261.

Equal Protection Clause: Other Classifications

State discrimination based on alienage: “[A]liens as a class are a prime example of a `discrete and insular minority,'” so classifications based on alienage require “close judicial scrutiny.” Under this standard, states may not deny aliens welfare benefits. Graham v. Richardson (1971). 1293. Though a state may be able to require citizenship of some public officials, such as those “who participate directly in the formulation, execution, or review of broad public policy formation,” it may not require citizenship of all public employees hired through competitive examination. Such a rule “sweeps indiscriminately” beyond the state's “substantial purpose” of “defin[ing] its political community.” Sugarman v. Dougall (1973). 1293. The state may not prohibit aliens from the practice of law, because “holding a license to practice law [does not] place one so close to the core of the political process as to make him a formulator of government policy.” In re Griffiths (1973). 1293. New York may exclude aliens from its police force. This policy survives rational basis review, which apparently is applicable because Sugarman said exclusion of aliens from some positions was permissible. Foley v. Connelie (1978), 1294, as characterized in Ambach v. Norwick (1979). 1294. “In determining whether, for purposes of equal protection analysis, teaching in public schools constitutes a governmental function, we look to the role of public education and to the degree of responsibility and discretion teachers possess in fulfilling that role.” The Court concluded that teaching was such a function, and therefore applied rational basis review, determining whether a regulation barring from teaching aliens who are eligible for citizenship but refuse to seek naturalization “bears a substantial relationship to” the state's interest in furthering the educational goals of “prepar[ing] … individuals for participating as citizens [and] preserv[ing] the values on which our society rests.” The Court held the regulation constitutional. Ambach v. Norwick (1979). 1294. Alienage is not an immutable trait. Aliens do not vote. Laurence H. Tribe. 1296. Illegal aliens are not a suspect class because status as illegal “is not irrelevant to any proper legislative goal. Nor is [it] an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action.” However, Texas may not deny public education to illegal alien children, because they can “affect neither their parents' conduct nor their own status” and because of “the importance of education,” especially in light of the fact that many of these children will remain in the United States. Plyler v. Doe (1982). 1298. “[S]tate regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress.” Therefore, the University of Maryland may not deny in-state tuition to nonimmigrant aliens with particular visas, where Congress has explicitly chosen not to prevent them from acquiring domicile. Toll v. Moreno (1982). 1297. “[T]he political-function exception [from strict scrutiny] must be narrowly construed.” Therefore, Texas may not bar an alien from becoming a notary public. Bernal v. Fainter (1984). 1297. Earlier law:

  • States could discriminate against aliens in killing wild game, Pastone v. Pennsylvania (1914); working on public construction projects, Crane v. New York (1915); owning land, Terrace v. Thompson (1923); and operating pool halls. State of Ohio ex rel. Clarke v. Deckebach (1927). 1292.

  • Congress's “broad constitutional powers in determining what aliens shall be admitted to the United States,” combined with the Fourteenth Amendment's “general policy” of “equality” mean that California may not deny commercial fishing licenses to legal aliens. Takahashi v. Fish & Game Comm'n (1948). 1292 - 93.

Federal discrimination based on alienage: The “reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” “Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others.” Under this standard, Congress may deny Medicare benefits to aliens “unless they have (i) been admitted for permanent residence and (ii) resided for at least five years in the United States.” (as characterized by Casebook). Matthews v. Diaz (1976). 1299. “[C]ourts have wrongly assumed that every federal regulation based on alienage is necessarily sustainable as an exercise of the immigration power.” T. Alexander Aleinikoff. 1299. “When the Federal Government asserts an overriding national interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest.” “[A]dministrative convenience” may be a rational basis for a rule of the Civil Service Commission, “the only concern of [which] is the promotion of an efficient federal service.” However, where there “is nothing [to] indicate that the Commission actually made any considered evaluation of the relative desirability of a simple exclusionary rule on the one hand, or the value to the service of enlarging the pool of eligible employees on the other,” the Commission may not bar all resident aliens from all civil service employment. Hampton v. Mow Sun Wong (1976). 1300.

Illegitimacy: Classifications based on legitimacy merit intermediate scrutiny, under which “a statutory classification must be substantially related to an important objective.” Therefore, a statute requiring that child-support actions for illegitimate children be brought before the child turns six is unconstitutional. Clark v. Jeter (1988). 1304. In part because of the deference given Congress over immigration matters, the Immigration and Naturalization Act may grant automatic naturalization to illegitimate children born abroad to American women but withhold it from such children born to American fathers. The plurality concluded that the statute involved discrimination based on gender rather than legitimacy. Miller v. Albright (1998) (plurality opinion). 1305. Earlier law:

  • “[N]o child is responsible for his birth and penalizing the illegitimate child is an ineffectual - as well as an unjust - way of deterring the parent.” Weber v. Aetna Casualty & Surety Co. (1972). 1301.

  • A state may not limit eligibility for a welfare program to families of married couples because the classification “[in] practical effect [operates] almost invariably to deny benefits to illegitimate children while granting benefits to those children who are legitimate.” New Jersey Welfare Rights Org. v. Cahill (1973). 1304.

  • “[T]he legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual's ability to participate in and contribute to society.” However, “perhaps in part because the roots of the discrimination rest in the conduct of the parents rather than the child, and perhaps in part because illegitimacy does not carry an obvious badge, as race or sex do,” discrimination against illegitimates is less severe than that against women and blacks. On balance, distinctions based on legitimacy do not require strict scrutiny. Therefore, the Social Security Act's requirement that some illegitimate prove their dependence on a deceased parent or guardian, while others and legitimate children do not, before obtaining benefits, is constitutional because it is rationally related to the purpose of “administrative convenience.” Mathews v. Lucas (1976). 1301.

Parentage of illegitimate: Louisiana may not bar a parent from recovering for the wrongful death of her illegitimate child. Glona v. American Guar. & Liab. Ins. Co. (1968). 1304. A state may not limit eligibility for a welfare program to families of married couples because the classification “[in] practical effect [operates] almost invariably to deny benefits to illegitimate children while granting benefits to those children who are legitimate.” New Jersey Welfare Rights Org. v. Cahill (1973). 1304. “Congress could reasonably conclude that a woman who has never been married to the [deceased] wage earner is far less likely to be dependant upon the wage earner at the time of his death.” Therefore, Congress may grant “mother's benefits” to a deceased's widow or divorced wife while withholding them from the mother of his illegitimate child. Califano v. Boles (1979). 1305. In part because of the deference given Congress over immigration matters, the Immigration and Naturalization Act may grant automatic naturalization to illegitimate children born abroad to American women but withhold it from such children born to American fathers. The plurality concluded that the statute involved discrimination based on gender rather than legitimacy. Miller v. Albright (1998) (plurality opinion). 1305. In a subsequent case, the Court applied heightened scrutiny, and held that the statute survived because it was substantially related to the governmental interests in “assuring that a biological parent-child relationship exists” and “ensur[ing] that the child and the citizen parent have some demonstrated opportunity or potential to develop [a] relationship [that] consists of real, everyday ties….” Nguyen v. INS (2001). Supp. 92.

Classifications based on mental retardation are subject to rational basis review and “must be rationally related to a legitimate governmental purpose.” Such classifications do not receive strict scrutiny because those who are retarded “have a reduced ability to cope with and function in the everyday world,” and “are thus different, immutably so, in relevant respects, and the states' interest in dealing with and providing for them is plainly a legitimate one.” Also, lawmakers' actions “belie[] a continuing antipathy or prejudice” toward the retarded, they are not politically powerless, and if they were a suspect class, why not the aging, the disabled, the mentally ill, or the infirm? A city may not deny a permit for the operation of a group home for the mentally retarded where “requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.” Cleburne v. Cleburne Living Center, Inc. (1985). 1306.

The aged have not experienced “a history of purposeful unequal treatment,” and are not a discrete and insular group because “each of us will reach [it] if we live out our normal span.” Therefore, a law discriminating against the aged is subject to rational basis review. A state may require its police officers to retire at age 50. Massachusetts Bd. of Retirement v. Murgia (1976). 1323. The federal Foreign Service may require retirement at 60. Vance v. Bradley (1979). 1324. A state may require judges to retire at 70. Gregory v. Ashcroft (1991). 1324.

Poverty: California may require, through its constitution, that all low-rent housing projects be approved by referendum, because “[p]rovisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.” James v. Valtierra (1971). 1324. “[P]overty is not absolutely unalterable for all those afflicted by it.” Most legislation has helped rather than hurt the poor. “[T]o the extent low income is related to low productivity - and it is to a large extent - poverty is not entirely unrelated to individual merit.” Ralph K. Winter Jr. 1325.

Fundamental Rights: Voting

Denial or qualification of right to vote: Texas may not bar members of the military stationed in Texas from voting while in the military, because “`[f]encing out' from the franchise a sector of the population a sector of the population because of the way they may vote is constitutionally impermissible.” Carrington v. Rash (1965). 1326. Where fundamental rights and liberties are asserted under equal protection clause, classifications “must be closely scrutinized and carefully confined.” Voting is a “fundamental political right” and wealth, like race, creed, and color, is irrelevant to one's ability. Virginia's $1.50 poll tax violated equal protection because “once the franchise is [granted] lines may not be drawn which [violate equal protection].” Harper v. Virginia State Bd. of Elec. (1966). 1325. There is no constitutional principle “which either expressly or impliedly dictates the method a state must use to select its governor. A method which would be valid if initially employed is equally valid when employed as an alternative.” Therefore, Georgia may require that if no candidate receives a majority of the popular vote, the state legislature will elect the governor. Fortson v. Morris (1966). “[I]f a [state] grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others” the Court must apply strict scrutiny. The reason is that rational basis review assumes that the government fairly represents all the people; discrimination in granting the franchise undermines that assumption. New York State's statute limiting the franchise in certain school districts to those who own or lease real property or who are parents or custodians of students attending the district's schools was not narrowly tailored to purpose of limiting franchise to those “primarily interested in school affairs” because it is both under- and over-inclusive of those people. The Court did not consider whether that interest was compelling. Kramer v. Union Free Sch. Dist. (1969). 1327. States may restrict suffrage through a literacy test, Lassiter v. Northampton County Bd. of Elec., (1959) [Does this holding survive Harper?], age, Oregon v. Mitchell, (1970), and felon status, Richardson v. Ramirez, (1974), and nonresidency, even where nonresidents receive benefits and pay reduced fees. Holt Civic Club v. Tuscaloosa. (1978). 1329. A referendum on the issuance of municipal bonds may not be limited to property taxpayers. Cipriano v. Houma (1969). 1330. A referendum on issuing general obligation bonds for municipal improvements may not be limited to real property owners. Phoenix v. Kolodziejski. (1970). 1330. A restriction limiting suffrage in water storage districts to landowners and apportioning votes based on assessed value of real property is valid unless it is “wholly irrelevant to achievement of the regulation's objectives” because the water storage district government holds “relatively limited authority.” The statute meets that standard. Salyer Land Co. v. Tulane Lake Basin Water Storage Dist. (1973). 1330.

Vote dilution: Georgia may not create congressional districts such that some districts have twice as many voters as others, because “[t]he command of Art. I, § 2, that representatives be chosen `by the people of the several states' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.” Wesberry v. Sanders (1964). 1331. Voting rights are individual and personal, and infringement of them must survive strict scrutiny. All voters' votes must count equally - that is, one person, one vote, though “mathematical exactness” is not required. The federal Senate is not based on population because it represents previously sovereign states; that logic does not apply in state legislatures. The remaining purpose of bicameralism in a state legislature is to slow decision-making. Therefore, state legislature election districts may not be apportioned such that 25.1% of the population elected a majority of the Senate and 25.7% elected a majority of the House, because seats in both houses of a bicameral state legislature must be apportioned on a population basis. Reynolds v. Sims (1964). 1330. West Virginia may require political subdivisions to obtain a supermajority vote before incurring bonded indebtedness, because there is “no independently identifiable group or category that favors bonded indebtedness over other forms of financing.” Gordon v. Lance (1971). 1336. Democrats and Republicans may agree to redistricting that maintains their current relative strength. Gaffney v. Cummings (1973). 1346. Multimember state legislative districts are not unconstitutional per se. They would be unconstitutional “if their purpose were to minimize or cancel out the voting potential of racial or ethnic minorities.” Such must be proven by demonstration of actual intent; demonstration of discriminatory effects alone is not sufficient. This approach matches the approach to equal protection in cases involving employment, zoning, public schools, and jury selection. This case is different from White v. Regester, in which actual intent was found. Past discrimination is not sufficient. Therefore, the city of Mobile may be run by a three-member commission, all three members of which are elected by the city at-large. Mobile v. Bolden (1980) (plurality opinion). 1338. An election system, even if not adopted invidiously, may not be “maintained for invidious purposes. Intent is a factual issue, and the Court should be reluctant to disturb lower courts' conclusions on it when those courts agree. A Georgia county board of commissioners policy of election on an at-large basis was unconstitutional. Rogers v. Lodge (1982). 1344. “By eliminating the local bases of voting power of, respectively, urban working-class ethnics and freed slaves, the turn-of-the-century reformers hoped to centralize political power through the use of at-large and multimember election devices.” Samuel Issacharoff. 1345. Political gerrymandering is justiciable. Plaintiffs must prove “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” However, as “long as redistricting is done by a legislature, it should not be very difficult to prove that the political consequences of the reapportionment were intended.” The Constitution does not require proportional representation. The “power to influence the political process is not limited to winning elections.” Without proof, the Court will not presume that an elected representative is ignoring the interests of voters who did not support him. A finding of unconstitutionality “must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” “Relying on a single election to prove unconstitutional discrimination is unsatisfactory.” A violation exists only “where a history (actual or projected) of disproportionate results appears in conjunction with [“strong indicia of lack of political power and the denial of fair representation.”]” Political gerrymandering is not present where Indiana's 1981 reapportionment of state house and state senate districts favored the controlling party (Republicans) such that the opposition party was apparently incapable of winning control of either house of the legislature. Davis v. Bandemer (1986). 1346.

Benign racial gerrymandering, VRA § 2: Section 2 of the Voting Rights Act “provides a cause of action for claims of minority vote dilution.” In 1982 the act was amended “to establish that discriminatory results may prove a violation of § 2, even in the absence of proof of discriminatory intent.” Note. 1359. Plaintiffs may prove a violation of § 2 by establishing that (1) a minority community is large and compact enough to constitute the majority in a voting district, (2) the minority community is politically cohesive, and (3) the majority has engaged in racially polarized voting practices. Thornburg v. Gingles (1986) 1360. Regardless of race, a voter who lives within a challenged district has standing, while a voter who lives outside it does not. United States v. Hays (1995) 1367 n.a. If racial block voting is present, the few white people in districts gerrymandered to be majority-minority are intentionally “denied the opportunity to elect `one of their own.'” This would be harmless if there were “no disadvantage whatsoever in being represented by someone not of one's own race,” but the premise of benign racial gerrymandering is the reverse. John Hart Ely. 1367. [What if the premise is the reverse, but only as applied to historical minorities?] “Under a modified at-large system, each voter is given the same number of votes as open seats, and the voter may plump or cumulate her votes to reflect the intensity of her preferences.” This system would be superior to gerrymandering. Lani Guinier. 1368. Strict scrutiny does not apply to all plans to create majority-minority districts. Strict scrutiny was appropriate where Texas redrew is congressional districts both to protect incumbents and to create majority-minority districts, because race had predominated over legitimate districting considerations: i.e., “the State substantially neglected traditional districting criteria such as compactness, … it was committed from the outset to creating majority-minority districts, and … it manipulated district lines to exploit unprecedentdely detailed racial data.” The plurality assumed without deciding that compliance with Section 2 of the VRA could be a compelling interest. It concluded that the districts were not narrowly tailored because the statute does not require creation of non-compact districts. Bush v. Vera (1996) (plurality opinion). 1370. “Dominant purpose tests aren't simply vague and manipulable: they are incoherent,” because it is impossible to determine the dominant purpose. John H. Ely. 1372. Earlier law:

  • New York State may create a majority-minority district by dividing a Hasidic community among several state legislative districts, splintering that group's majority, because the plan “represented no slur or stigma” and there was no discrimination against white voters “as long as whites[,] as a group, were provided with fair representation.” United Jewish Organizations v. Carey (1977). 1360.

Benign racial gerrymandering, VRA § 5: “Section 5 of the VRA imposes an additional requirement that any proposed districting changes in covered jurisdictions should not be `retrogressive' with respect to the representation of racial minorities.” Note. 1360. An oddly shaped district intended to give a particular group control encourages elected officials to consider itself a representative of only that group. All redistricting is race-conscious, but that alone does not invalidate it. Racial and political gerrymanders are not necessarily subject to the same scrutiny - racial gerrymandering probably deserves stricter scrutiny. Where North Carolina enacted a U.S. House district reapportionment under which only one of 12 districts was majority-black and then, under pressure from the U.S. Attorney General, citing section 5, created a second majority-black district, such that both districts were extraordinarily tortured, Plaintiffs challenging the second districting plan stated a claim of action “by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.” The plaintiffs do not claim that white voting strength has been diluted. They claim “that the deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a `color-blind' electoral process.” The Court did not determine how such a challenge could succeed if the state produced a race-neutral explanation. Shaw v. Reno (1993). 1360. “The plaintiff's burden is to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that [the] legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations.” The government's mere assertion that remedial action is required is not sufficient to defeat such a showing; the government must bring “a strong basis in evidence of the harm being remedied.” The VRA alone is not enough. Where, after the Justice Department refused under Section 5 of the VRA to approve Georgia's districting plans that called for first one and then two majority-minority congressional districts out of the state's 11, the state created a third, the plan violated equal protection because “race was the predominant factor motivating the drawing of the eleventh district.” Miller v. Johnson (1995). 1368. “[W]here racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at least [1] that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show [2] that those districting alternatives would have brought about significantly greater racial balance.” These requirements were not met where an oddly shaped district was established subsequent to Shaw v. Reno. Hunt v. Cromartie (II) (2001). Supp 93. “If race-conscious districting is effectively permissible when done by courts but not by legislatures, does this turn the Court's original reluctance to enter the political thicket on its head?” Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes. 1373.

Federal law imposes essentially seven substantive constraints on the apportionment process. Under the Fourteenth Amendment's Equal Protection Clause, a plan must (1) comply with one person, one vote; (2) avoid purposeful discrimination against racial minorities; (3) avoid excessive political gerrymandering; and (4) not “subordinate [] traditional race-neutral districting principles” to racial considerations. Under the Voting Rights Act of 1965, as amended, a plan cannot (5) result in a dilution of minority voting strength (section 2) or (6) reduce minority voting strength relative to prior levels (section 5). Finally, federal law requires, at least regarding a state's congressional delegation, that a plan (7) use single-member districts. Pamela Karlan. 1373.

Equality in counting and recounting votes: Florida Supreme Court ordered manual recount of one county's “undervotes” - but not overvotes - ordering election officials and local judges to determine “the will of the voter.” The order to determine “the intent of the voter” is “unobjectionable as an abstract proposition and starting principle. The problem inheres in the absence of specific standards to ensure its equal protection.” As a result, the standards for accepting or rejecting a ballot may vary from one recount team to another. Furthermore, overvotes aren't counted at all. “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Recount must be halted because its imprecise standard violates equal protection and state law does not allow enough time to create a better one. Bush v. Gore (2000). 1356.

Fundamental Rights: Travel

“[I]n moving from State to State or to the District of Columbia appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.” “[I]nhibiting immigration by needy persons into the State is constitutionally impermissible,” as is inhibiting the immigration of those seeking higher welfare benefits. State services may not be apportioned based on length of residence and thereby amount contributed to the system over time. “The records … are utterly devoid of evidence” that the policy was used to predict the number of people who will need welfare and thereby facilitate budget predictability. Less drastic means are available to prevent fraud and to determine who needs aid. Shapiro v. Thompson (1969). 1374. Shapiro did not involve “the interest in freedom of travel” but “only the narrower interest in freedom of interstate migration.” Edward Barrett. 1378. Minnesota may deny a university student the opportunity to demonstrate in-state residency until he has lived in the state for one year. Starns v. Malkerson (1971). 1380. “States have the power to require that voters be bona fide residents of the relevant political subdivision,” but they may not impose an “additional durational residents requirement.” Therefore, Tennessee may not require voters to live in the state for one year and in the county for three months before registering. The “record is totally devoid of any evidence” that the requirement is necessary to prevent fraud. Dunn v. Blumstein (1972). 1379. Arizona may impose a 50-day residence requirement before voting in an election because it is “necessary to permit preparation of accurate voter lists.” Marston v. Lewis (1973) (per curiam). 1379. “Just as the Privileges and Immunities Clause, Art. IV, § 2, protects persons who enter other States to ply their trade, so must it protect persons who enter Georgia seeking the medical services that are available there.” Therefore, state law may not require abortion patients to be state residents. Doe v. Bolton (1973). 1379. A state may not presume conclusively than a student applying to its universities from out of state will remain a non-resident for tuition purposes throughout his education. Vlandis v. Kline (1973). 1380. “[I]t is at least clear that medical care is as much `a basic necessity of life' to an indigent as welfare assistance.” Therefore, Arizona may not require one year's residence in a county before indigents can receive state-financed nonemergency health care. Memorial Hospital v. Maricopa County (1974). 1380. “With consequences of such moment [as child custody and property rights] riding on a divorce decree issued by its courts, Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the State” required by a one-year residency requirement before filing. Sosna v. Iowa (1975). 1380. An ordinance requiring city employees to live in the city does not violate the right to travel. McCarthy v. Philadelphia Civil Service Comm'n (1976). 1378. Alaska may not distribute revenue from state-owned oil reserves to residents based on length of residence, because rewarding residents for contributions to the state over time is impermissible. Zobel v. Williams (1982). 1381. A “school district generally would be justified in requiring school-age children or their parents to satisfy the traditional, basic residence criteria - i.e., to live in the district with a bona fide intention of remaining there - before it treated them as residents.” Therefore, Texas may deny free public education for children who, apart from their parents, resident in the school district “for the sole purpose of attending” the public schools. Martinez v. Bynum (1983). 1379. Strict scrutiny is applied to “a state rule that discriminates against one of its citizens because they have been domiciled in the State for less than a year.” The “`right to travel' discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Under the third component, California may not limit the welfare benefits available to residents of less than 12 months to those available in the states from which they came. Saenz v. Roe (1999). 1382. The “holding of Saenz reflected the Court's vision of governmental design in a federal union of equal states, and not primarily the Court's perception of a personal right ineluctably flowing from constitutional text or deeply rooted tradition.” Laurence H. Tribe. 1387. The regulation in Saenz should be unconstitutional because “it involves discrimination in a means-tested redistributive program … [and therefore] is likely to be rooted in cultural animosity rather than fiscal self-defense. Such cultural animosity is impermissible [because it is] so threatening to our sense of national citizenship.” Roderick M. Hills Jr. 1388.

Fundamental Rights: Access to the Courts

Criminal court: “[B]oth equal protection and due process emphasize [that in] criminal trials a state can no more discriminate on account of poverty than on account of religion, race, or color.” Though a state is not constitutionally required to allow appeals, “that is not to say that a state that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.” Therefore, a state must provide an indigent criminal with a free trial transcript if necessary for “adequate and effective appellate review.” Griffin v. Illinois (1956). 1388. California must appoint counsel for an indigent for an appeal granted by statutory right. It may not appoint counsel only when the appellate court “determine[d] it would be of advantage to the defendant or helpful to [the] Court.” Douglas v. California (1963). 1389. The “duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant, [but] only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process.” Therefore a state is not required to provide an indigent with counsel for discretionary state reviews or for cert. petitions. Ross v. Moffitt (1974). 1390.

Family court: “[M]arriage involves interests of basic importance in our society. … [Due] process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.” Therefore, a State may not deny a divorce to a couple because of their inability to pay approximately $60 in court fees. Boddie v. Connecticut (1971). 1390. “[I]ndigents involved in proceedings aimed at the termination of parental rights [are] entitled to a case-by-case determination of their need for appointed counsel.” (as characterized by Casebook). Lassiter v. Department of Social Servs. (1981). 1391. A requirement that appellants in parental-rights termination proceedings pay record preparation fees, in this case of $2,352.36, applies “to all indigents and do[es] not reach anyone outside that class.” Parental status proceedings are different from other domestic matters because they “wor[k] a unique kind of deprivation.” Therefore, Mississippi may not dismiss an indigent appellant's appeal because of inability to pay the fee. M.L.B. v. S.L.J. (1996). 1390.

Civil court: A “constitutional requirement to waive court fees in civil cases is the exception, not the rule,” so the government may require fees of $50 to secure a discharge in bankruptcy. United States v. Kras (1973), 1391, as characterized in M.L.B. v. S.L.J. (1996). 1390. Oregon may require civil appellants to pay a $25 fee. Ortwein v. Schwab (1973). 1391.

Fundamental Rights: Welfare

“[S]tate regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights,” such as welfare regulations, does not violate equal protection if it is “rationally based and free from invidious discrimination.” Therefore, Maryland's ceiling no AFDC benefits, which are otherwise based on need, is permissible. Dandridge v. Williams (1970). 1393.

Fundamental Rights: Education

A school financing system under which local school districts are supported by taxing the property of their residents, such that wealthy districts can raise more money with a lower tax rate than poor districts, is different from other types of wealth discrimination because those discriminated against here are not “completely unable to pay for some desired benefit, and as a consequence, … absolute[ly] depriv[ed] of a meaningful opportunity to enjoy that benefit.” The discrimination here would be “against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.” “[T]he importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. … Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.” There is not. The Court will not accept the argument that education “bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution,” which it characterizes as a “nexus theory,” because it would have unclear “logical limitations.” [It would likely reach health care, housing, etc.] Furthermore, the Texas system is “affirmative and reformatory” rather than a regulation that “`deprived,' `infringed,' or `interfered'” with some fundamental right. Therefore the system is subject to rational basis review. If “local taxation for local expenditure is an unconstitutional method of providing for education then it may be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes….” The system is permissible. San Antonio Ind. School Dist. v. Rodriguez (1973). 1395. “If we want to know why the Court has recognized a fundamental right to free association but not to effective public education, the explanation surely involves the Court's belief that the federal judiciary can sensibly enforce the former but not the latter.” Richard H. Fallon Jr. 1405. The harms alleged in Dandridge and Rodriguez are for “minimum protection” rather than “equal protection.” Frank I. Michaelman. 1405. It is possible that the Court is simply incapable of enforcing some constitutional norms, because of either limits on its expertise or political obstacles to federalization. The other branches may nonetheless have an obligation to observe these norms. Gene Sager. 1406. Alienage is not an immutable trait. They do not vote. Laurence H. Tribe. 1296. Illegal aliens are not a suspect class because status as illegal “is not irrelevant to any proper legislative goal. Nor is [it] an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action.” However, Texas may not deny public education to illegal alien children, because they can “affect neither their parents' conduct nor their own status” and because of “the importance of education,” especially in light of the fact that many of these children will remain in the United States. The state's claims that it illegal aliens in general are a burden on the state, illegal alien children are a burden on the schools, and illegal alien children are likely to leave the state, are false. Plyler v. Doe (1982). 1406.


Pre-Roe: Reproduction is “one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. … We mention these matters [in] emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.” Therefore, Oklahoma may not authorize sterilization of persons convicted and imprisoned two or more times for crimes “amounting to felonies and involving moral turpitude,” while exempting such felonies as embezzlement. Skinner v. Oklahoma (1942). 358. “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. [A Connecticut statute barring the prescription and use of contraceptives to prevent conception], however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.” “Various guarantees [in the Bill of Rights] create zones of privacy. The right of association contained in the penumbra of the First Amendment is one…. The Third Amendment in its prohibition against the quartering of soldiers `in any house' [is] another facet of that privacy. The Fourth Amendment [is another]. The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: `The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'” The above-described statute “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” Therefore, the statute is invalid. Griswold v. Connecticut (1965). 360. “Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause?” Richard Posner. 369. Griswold demonstrates that a “talented textualist judge has as much freedom as a talented nontextualist, whether the nontextualist is an originalist, an ethicist, or a process theorist.” Mark Tushnet. 369. “[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make-up. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Because of the many exceptions to a Massachusetts statute barring the distribution of contraceptives to unmarried persons, its aim cannot be deterring premarital sex. The statute “violates the rights of single persons under the Equal Protection Clause.” Eisenstadt v. Baird (1972). 370. Eisenstadt, by dropping any argument based on marriage, must create a new rationale for Griswold. Harry Wellington. 371. Because Eisenstadt cannot rely on protecting the privacy of anyone's bedroom (because the statute barred only distribution), it “unmasks Griswold as based on the idea of sexual liberty rather than privacy.” Richard Posner. 371.

Roe: “[A]t common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, [a] woman enjoyed a substantially broader right to terminate pregnancy than she does in most States today.” Criminal abortion statutes have been explained in three ways: as an expression of Victorian opposition to illicit sex, as protection against dangerous procedures, and as “protecting prenatal life.” Only the third concern is relevant today. “[O]nly personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy.” “The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty [as] we feel it is, [or] in the [Ninth Amendment], is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” “[T]he word `person,' as used in the Fourteenth Amendment, does not include the unborn.” The Court is not in a position to decide when life begins. “[T]he State does have an important and legitimate interest in preserving and protecting the potentiality of human life.” The state has a compelling interest in protecting the health of the mother, “in the light of present medical knowledge,” beginning at the end of the first trimester, the point after which mortality in abortion becomes equal to or greater than mortality in normal childbirth. [Should this point move later in the pregnancy as medicine advances?] From that point, “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” The state has a compelling interest “in potential life” beginning at viability, which is apparently at the end of the second trimester. “This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb.” The State “may go as far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother.” This “decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” Roe v. Wade (1973). 374.

Post-Roe, Pre-Casey: Missouri may define viability as “that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.” Planned Parenthood v. Danforth. (1976). 377. “[W]here a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it must be narrowly drawn to express only those interests” that are compelling. Therefore, a New York statute allowing only pharmacists to sell non-medical contraceptives to people over 16 was impermissible. Carey v. Population Services Intern. (1977). 372. Evaluating a New York statute barring the sale of non-medical contraceptives to people younger than 16, the Court should apply a test “apparently less rigorous than the `compelling state interest' test applied to restrictions on the privacy rights of adults.” The statute would be valid “only if [it] serve[d] any significant state interest [that was] not present in the case of an adult.” (internal quotation marks omitted). The statute was invalid. Carey v. Population Services Intern. (1977) (plurality opinion). 372. The determination of viability is “a matter for medical judgment.” Viability is reached “when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support.” No legislature or court can proclaim a single factor such as fetal weight as the marker of viability. Colautti v. Franklin (1979). 378.

Casey: “After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe should be retained and once again reaffirmed. … Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict each other; and we adhere to each.” “Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause. [The] controlling word in the case before us is `liberty.' Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years [the] Clause has been understood to contain a substantive component as well, one `barring certain government actions regardless of the fairness of the procedures used to implement them.'” “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” “[T]he Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, as well as bodily integrity.” “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. [These] matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” “[When] this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.” The critical factors are workability, reliance, other legal developments' making the ruling a vestige, and changed facts. In the reliance analysis, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” “[A]dvances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, and advances in neonatal care have advanced viability to a point somewhat earlier. But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” “[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” “[The] country can accept some correction of error without necessarily questioning the legitimacy of the Court. In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first [a] limit to the amount of error that can plausibly be imputed to prior courts. … [Second,] [w]here, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. … [W]hen the Court does act in this way[, as it has done recently in only Roe and Brown,] its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and thwart its implementation.” A statute defining a medical emergency as “[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function,” when this definition is construed as “intended to assure that compliance with [the] abortion regulations would not in any way pose a significant threat to the life or health of a woman,” is permissible. A statute cannot require that a married woman notify her husband of plans to have an abortion, even if it allows exceptions for women who have charged their husbands with sexual assault, who assert that he is not the father, or who believe he or someone else will harm her. “[V]ictims of spousal sexual assault are extremely reluctant to report the abuse to the government; hence, a great many spousal rape victims will not be exempt from the notification requirement….” Furthermore, “Women do not lose their constitutionally protected liberty when they marry.” Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). 412. “The woman's liberty is not so unlimited … that from the outset the State cannot show its concern for the life of the unborn….” It is not the case that “any regulation touching upon the abortion decision must survive strict scrutiny.” “The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” A “law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability” is unconstitutional. “Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose.” “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” A statute may require a physician to inform a woman of the availability of information provided by the state about childbirth. “[To] the extent that Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the `probable gestational age' of the fetus, those cases go to far, are inconsistent with Roe's acknowledgment of an important interest in potential life, and are overruled.” A statute may require a 24-hour waiting period before an abortion, even though for “those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be `particularly burdensome.'” Under “the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.” A statute may require a minor to obtain parental consent as long as it grants a judicial bypass. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (joint opinion). 412. A state may require reporting of various data about abortions, except spousal notice. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (opinion of joint justices plus Stevens). 412. “By virtue of the Necessary and Proper Clause, Congress has enumerated legislative power to pass a statute abrogating stare decisis [in abortion cases], as an enactment appropriate to the carrying into execution of the judicial power. … Such a statute would merely direct courts to decide such cases in conformity with the Constitution and not to apply precedents to the contrary if they are persuaded that a precedent decision is not a sound interpretation of the Constitution.” Michael Stokes Paulsen. 438. “Brown represented a judicial invalidation of a law contributing to second-class citizenship for a group of Americans defined in terms of a morally irrelevant characteristic (race) - and Roe represented exactly the same thing (with respect to gender).” Cass Sunstein. 439.

Post-Casey: A state may not bar, except where “necessary to save the life of the mother,” a medical procedure in which a doctor “deliberately and intentionally deliver[s] into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure [that] will kill [and] does kill the unborn child,” (emphasis added), because it “lacks any exception `for the preservation of the health of the mother,'” and “imposes an undue burden on the woman's ability to choose [one form of] abortion, thereby unduly burdening the right to choose abortion itself.” Stenberg v. Carhart (2000). 441.

Family Rights

The right to marry is fundamental. If the “right to procreate means anything at all, it must imply some right to enter the only relationship in which [the state] allows sexual relations legally to take place.” Therefore, any “classification [that] significantly interferes with the exercise of” the right to marry is subject to “critical examination.” Therefore, such classification “cannot be upheld unless it [1] is supported by sufficiently important state interests and [2] is closely tailored to effectuate only those interests.” The statute does not serve the interest of encouraging support payments because, “with respect to [those] unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the [children].” The statute does not serve the interest of protecting payment by preventing the parent from incurring other obligations because it is “grossly underinclusive” as well as “substantially overinclusive,” because a new spouse may bring more money. Therefore a Wisconsin statute, under which a person under court order to support a minor child not in that person's custody, who could not prove (1) compliance with the support order and (2) that the child was not then and would not become a public charge, was prohibited from marrying, was unconstitutional. Zablocki v. Redhail (1978). 455. “Once the liberty to marry is recognized as fundamental, doctrines requiring clear and imminent danger to state interests and confining the discretion to make that determination [of whether a child will become a public charge] should play as critical a role as they traditionally do in speech cases.” Ira Lupu. 458. A prison may not permit inmates to marry only when there are “compelling reasons” to do so. Turner v. Safley (1987). 461.

Parental rights: Georgia may establish that if a natural father has not legitimated an illegitimate child, only the child's mother's permission is required for the child's adoption, in this case by her husband. Where “the result of the adoption … is to give full recognition to a family unit already in existence [rather than to break one up], a result desired by all concerned, except [the natural father],” the state law is valid if the state finds it is in the best interests of the child. Quilloin v. Walcott (1978). 452. California may establish a presumption, rebuttable only in very limited circumstances, that “a child born to a married woman living with her husband, who is neither impotent nor sterile,” is a child of the husband. (Casebook). Michael H. v. Gerald D. (1989). 459. Due process protects only fundamental liberty interests that have been “traditionally protected by our society.” “[O]ur traditions have protected the marital family … against the sort of claim” brought by a man who claims that a child claimed by a married couple is in fact his. To obtain protection such a man would have to establish that our society “has traditionally accorded such a father parental rights, or at least has not traditionally denied them.” Michael H. v. Gerald D. (1989) (plurality opinion). 459. The Court must consider tradition as to fathers in such a situation, rather than fathers in general, because it should “refer to the most specific level [of generality] at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.” Michael H. v. Gerald D. (1989) (opinion of Scalia, J., joined by Rehnquist, C.J.). 459. “[W]hat is most troubling about Justice Scalia's call for respecting the most specific tradition available is that our most specific historical traditions may often be opposed to our more general commitments to liberty or equality. Curiously, then, different parts of the American tradition may conflict with each other [such as the Fourteenth Amendment and segregation and miscegenation laws, and the separation of church and state and national Christmas trees.” Jack Balkin. 463. “Freedom not to conform” cannot be a fundamental right, as the dissent in Michael H. implied, because if it is, “all law abridges this freedom, and a judge may deem insufficient the justification asserted by the state for any rule at all.” Frank Easterbrook. 464. “[T]he interests of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests protected by this Court.” The Fourteenth Amendment protects this right. Therefore, a Washington statute that allows any person to petition for visitation rights at any time, and allowing the courts to grant visitation whenever they deem such rights to be in the best interests of the child, is invalid as applied to a woman who would prefer that her child's paternal grandparents (after the father's death) visit the children less often than the state court ordered. The “Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a `better' decision could be made.” Troxel v. Granville (2000) (plurality opinion). 452.

Gay rights: Previously suggested definitions of fundamental rights - those “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937), 467, and those “deeply rooted in this Nation's history and tradition,” Moore v. City of East Cleveland (1977) (opinion of Powell, J.), 467 - “would [not] extend a fundamental right to homosexuals to engage in acts of consensual sodomy.” “There should be … great resistance to expand the substantive reach of [the Due Process Clause], particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.” The claimed right “to engage in homosexual sodomy” falls far short of overcoming this resistance.” Stanley cannot be read to immunize all otherwise illegal conduct when it takes place in the home; that case depended on the First Amendment. If sodomy is permitted, there is nothing to prohibit adultery, incest, and “other sexual crimes” when committed in the home. The law cannot be invalidated on the argument that it is based purely on morality, because the argument would prove too much. The Court did not consider Ninth Amendment, Equal Protection, or Eighth Amendment arguments. Therefore, a state may ban sodomy, as applied to homosexuals. Bowers v. Hardwick (1986). 466. Colorado may not amend its constitution to, as construed by the state supreme court, “repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation” and prohibit the enactment of similar statutes. “The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” The amendment fails rational basis review, because it “identifies persons by a single trait and then denies them protection across the board.” The inevitable implication of the amendment is that it was “born f animosity toward the class of persons affected,” which is an impermissible purpose. Romer v. Evans (1996). 1312. Bowers and Romer are reconcilable on the theory that due process looks backward favorably at tradition while equal protection looks unfavorably on stereotypes. Cass R. Sunstein. 1319. The “pariah principle” would forbid “the government from designating any societal group as untouchable, regardless of whether the group in question is entitled to some special degree of judicial protection, like blacks, or to no special protection, like left-handers….” Daniel Farber and Suzanna Sherry. 1320. Discrimination against homosexuals should be viewed as gender discrimination, and therefore subject to intermediate scrutiny: “If a business fires Ricky, or if the state prosecutes him, because of his sexual activities with Fred, while these actions would not be taken against Lucy if she did exactly the same things with Fred, then Ricky is being discriminated against because of his sex.” Andrew Koppelman. 1320. The Court should not go too far too quickly in validating gay rights, because of the danger of a backlash, possibly including a constitutional amendment. An incremental approach, like that of Romer, is better. Cass R. Sunstein. 1322.

Zoning: A village may restrict land use to one-family dwellings (i.e., barring more than two unrelated people from living together), because the police power gives it the right to exclude “boarding houses, fraternity houses, and the like.” The ordinance is economic and social legislation that is permissible if it “bears a rational relationship to a [permissible] state objective.” (internal quotation marks omitted). The ordinance does not “trench[] on the newcomers' rights of privacy.” Belle Terre v. Boraas (1974). 448. However, an ordinance may not limit occupancy to single families where it bars a woman from living with her grandsons. “[O]n its face [the ordinance] selects certain categories of relatives who may live together and declare that others may not. [When] a city undertakes such intrusive regulation of the family [the] usual judicial deference to the legislature is inappropriate,” because “freedom of personal choice in matters of family life” is protected by due process. The goals of preventing overcrowding, minimizing congestion, and avoiding financial strain on its school system are legitimate but the ordinance serves them “marginally at best.” “[Ours] is by no means a tradition limited to respect for [the] nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children … has roots equally venerable and equally deserving of constitutional recognition.” Moore v. East Cleveland (1977). 448. The purpose of the ordinance may in fact have been “to exclude from a middle-class, predominantly black community, that saw itself as socially and economically upwardly mobile, other black families most characteristic of lower-class ghetto life. Perhaps the Court did not see this purpose or, if it did, considered this an `illegitimate goal,'…. The Court in Moore myopically saw the case as a dispute between `a family' and `the state' rather than as a dispute among citizens about the meaning of `family.'” Robert Burt. 451.

Right to Die

Refusing treatment: “[The] principle that a competent person has a constitutionally protected liberty interest [under the Due Process Clause of the Fourteenth Amendment] in refusing unwanted medical treatment may be inferred from our prior decisions.” However, the state has legitimate interests in “the protection and preservation of human life” and in “safeguard[ing] the personal element of this choice.” The state may “decline to make judgments about the `quality' of life that a particular individual may enjoy.” When a patient's wishes are unknown, a state may err on the side of maintaining treatment rather than ending it, because only the former is reversible. Therefore, assuming the Constitution grants a right to refuse “lifesaving hydration and nutrition,” Missouri may “establish[] a procedural safeguard to assure that the action of the surrogate [of an incompetent patient] conforms as best it may to the wishes expressed by the patient while competent,” and require evidence “of the incompetent's wishes as to the withdrawal of treatment to be proved by clear and convincing evidence.” Missouri may refuse to grant judgment to relatives, even when the patient is incompetent and her will is unknown. Cruzan v. Director, Missouri Dept. of Health (1990). 480.

Physician-assisted suicide: “Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition.' … Second, we have required in substantive-due-process cases a `careful description' of the asserted fundamental liberty interest.” This country carries “a consistent and almost universal tradition that has long rejected the asserted right [“to commit suicide which itself includes a right to assistance in doing so”], and continues explicitly to reject it today, even for terminally ill, mentally competent adults.” Cruzan can be distinguished as being based on a right to freedom from a form of battery; such a right does not imply a right to demand a battery. “[That] many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected….” Therefore, the asserted right is not a fundamental right. Therefore, the ban on assisted suicide must “be rationally related to legitimate government interests.” Those interests are “the preservation of human life” - the weight of which need not depend on the “medical condition and the wishes of the person whose life is at stake,” because a state may, under Cruzan, decline to make judgments about quality of life - protection of people who may be depressed, protecting the integrity of the medical profession, protecting the poor, elderly, and disabled who may be coerced by their families or others, and avoidance of the slippery slope toward euthanasia. The ban is reasonably related to these legitimate interest and therefore does not violate the Fourteenth Amendment, either on its face or “as applied to competent terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.” Washington v. Glucksberg (1997). 486. “Every one of us at some point may be affected by our own or a family member's terminal illness.” Therefore, there is no reason to distrust the political process on this issue. Washington v. Glucksberg (1997) (O'Connor, J., concurring). 486. A state may bar assisted suicide even if it allows refusal of lifesaving medical treatment, without violating the Equal Protection Clause. The distinction does not burden a fundamental right or target a suspect class, so it is subject to rational basis review. “Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.” Therefore, the statutes do not treat anyone differently from anyone else. The distinction between the two categories is rational, because of differences in, in each case, the biological cause of death and the doctor's intent. Vacco v. Quill (1997). 501. With Glucksberg and Vacco, “the constitutional methodology under which Roe was decided has been repudiated. The era of judicial supremacy epitomized by Roe is over.” Michael McConnell. 503. “Providing medical medication to terminally ill people knowing that it will have a `double effect'—reduce the patient's pain and hasten death—is widely accepted by the medical profession.” Note. 503.

Freedom of Association

Under the First Amendment, Alabama may not compel the NAACP to produce its membership lists. The opinion referred repeatedly to “freedom of association,” “elevat[ing] freedom of association to an independent right, possessing an equal status with the other rights specifically enumerated in the first amendment.” Thomas Emerson. 961.

Right not to be associated with a particular idea: “The freedom of thought protected by the first amendment [includes] both the right to speak freely and the right to refrain from speaking at all.” A requirement that a resident use a license plate carrying the state motto, “Live Free or Die,” like requiring a student to pledge allegiance to the flag, “forces an individual as part of his daily life … to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” The statute “in effect requires that appellees use their private property as a `mobile billboard' for the State's ideological message….” The state's interest in facilitating the identification of in-state rather than out-of-state license plates does not require that the plates bear the motto “Live Free or Die,” and its interest in “communicat[ing] an `official view' as to history and state pride or to disseminat[ing] any other `ideology' … cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message.” Therefore, New Hampshire may not require a Jehovah's Witness to display the motto on his license plate. Wooley v. Maynard (1977). 962. Because the statute required the motto, it could not be construed by those who saw it as speech. “[B]y requiring the state to give people the option whether or not to have its motto displayed on their license plates, the Wooley court forced people into a symbolic expression. [An] adequate constitutional analysis cannot ignore the impact on social meaning of the Court's own action.” Laurence Tribe. 964. The government may require a shopping center to allow individuals to solicit signatures for a petition on its premises because, since the property is used by many people and not only the owner, the solicitors' views “will not likely be identified with those of the owner;” no specific message is dictated or prohibited by the state; and the owners can expressly disavow any connection with the solicitors. Pruneyard Shopping Center v. Robins (1980). 964. A public utilities commission may not require that a private utility company include with its bills materials from a public interest group that criticized the company. Pacific Gas & Electric Co. v. Public Utilities Comm'n (1986). 965. A “speaker has the autonomy to choose the content of his own message.” Therefore, the organization running the St. Patrick's Day Parade in Boston may exclude a local gay group. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995). 966.

Intimate association and expressive association: The Constitution protects two types of freedom of association: “freedom of intimate association” and “freedom of expressive association.” The first protects “choices to enter into and maintain certain intimate human relationships,” because individuals have a fundamental right to make those choices. The second, which includes the freedom not to associate, protects “the right to associate for the purpose of engaging in those activities protected by the First Amendment,” which is thereby “an indispensable means of preserving other individual liberties.” The policy of the United States Jaycees, deemed by the state supreme court to be a public accommodation, of admitting women as only nonvoting members does not merit protection under freedom of intimate association, because affiliations so protected are “distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.” The Jaycees do not fit this description. The group's policy does not merit protection under freedom of expressive association because that right “is not … absolute,” and infringements on it “may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Barring gender discrimination in public accommodation is such a regulation. Furthermore, the regulation works no more than an “incidental abridgement of the Jaycees' protected speech,” because the group's message will not be significantly altered by the inclusion of women. “[T]he Jaycees have failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association.” Therefore, the state may require the Jaycees to admit women. Roberts v. United States Jaycees (1984). 987. “The intrinsic value of association cannot be exclusively confined to close, intimate, or personal relationships, any more than pleasure or experience or adventure is found only in such relationships.” George Kateb. 991. “To determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether the group engages in `expressive association.' The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.” Where the Boy Scouts of America has demonstrated that one of its purposes is to instill values, including the value that homosexuality is wrong, the group possesses the right to expressive association. “We must then determine whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not `promote homosexual conduct as a legitimate form of behavior.' As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression.” Dale's presence would “force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” “The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.” “The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association.” Therefore, the state may not prohibit the Scouts from expelling Dale. Boy Scouts of America v. Dale (2000). 992.

Regulation of Elections

Candidates' access to the ballot: California may deny ballot positions to “independent candidates who had voted in the immediately preceding primary elections or had a registered party affiliation at any time during the year before the same primary elections.” Storer v. Brown (1974), 1002, as characterized by Timmons v. Twin Cities Area New Party (1997). 1000. Connecticut may not require voters in party primaries to be registered party members, because doing so would violate a party's associational rights, Tashjian v. Republican Party of Conn. (1986), 1000, but nor may California require parties to permit citizens to vote in their primaries regardless of party affiliation. California Democratic Party v. Jones (2000). 1000. California may not prohibit parties from endorsing candidates in party primaries. Eu v. San Francisco County Democratic Central Comm. (1989). 1000. Hawaii may ban write-in voting. Burdick v. Takushi (1992). 1002. Congress may require delegates to a state nomination commission to pay a fee. The requirement does not violate freedom of association rights. Morse v. Republican Party of Va. (1996). 1000. “The First Amendment protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas.” At the same time, “States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” When “deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weight the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs' rights must [1] be narrowly tailored and [2] advance a compelling state interest. Less burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify [1] reasonably, [2] nondiscriminatory restrictions.” (internal quotation marks omitted). A state law barring candidates from appearing on ballots as candidates of more than one party do not severely burden a party's associational rights because it “is free to convince” candidates to appear as its candidate rather than another's. Though the law also limits a party's ability to communicate its support of a candidate to the public and its ability to demonstrate its strength to a candidate, “ballots serve primarily to elect candidates, not as fora for political expression.” The law is justified by state interests “in avoiding voter confusion, promoting candidate competition (by reserving limited ballot space for opposing candidates), preventing electoral distortions and ballot manipulations, and discouraging party splintering and `unrestrained factionalism,'” as well as in maintaining its ballot-access regime and promoting “the stability of … [its] political system[].” A state “need not remove all of the many hurdles third parties face in the American political arena today.” Therefore, the statute is valid. Timmons v. Twin Cities Area New Party (1997). 1000.

Campaign finance: Regulations on campaign contributions and expenditures are not regulations of conduct like those in O'Brien, or time, place, or manner restrictions. “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” A law limiting expenditures by any non-candidate or non-party “relative to a clearly identified candidate” to $1,000 per year, expenditures of a candidate's own money to varying amounts depending on the type of race, and total campaign expenditures to varying amounts depending on the type of race “represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech.” If “relative to” is construed as meaning expressly advocating the election or defeat of a clearly identified candidate, the statute is not unconstitutionally vague, but it becomes underinclusive, allowing people “to spend as much as they want to promote the candidate and his views” as long as they do not expressly advocate his election. Also, expenditures do not contain the threat of corruption that contributions do. “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment,” so the limits cannot be justified by an “interest in equalizing the relative ability of individuals and groups to influence the outcome of elections.” Neither voting rights cases nor the FCC fairness doctrine cases support that argument. “[I]t is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate” them, so limits on candidates' own spending is especially problematic. Therefore, the expenditure limits are impermissible. A law limiting individual contributions to candidates to $1,000 per election cycle involves “little direct restraint on [an individual's] political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” “Even a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” The purpose of “limit[ing] the actuality and appearance of corruption resulting from large individual financial contributions” is sufficient to justify the limit. The limit “focuses precisely on the problem,” leaving people “free to engage in independent political expression, to associate actively through volunteering their services.” Therefore, the contribution limits are permissible. Buckley v. Valeo (1976) (per curiam). 1005. Massachusetts may not, under the First and Fourteenth Amendments, bar by criminal statute banks and businesses from making contributions and expenditures to influence the outcome of certain ballot initiatives. Such speech “is no less [indispensable in a democracy] because the speech comes from a corporation rather than an individual.” If there was evidence that “corporations are wealthy and powerful and their views may drown out other points of view,” the Court would consider it. Absent such evidence, the limitations are invalid. Expenditures and contributions on behalf of referenda do not suggest the corruption that such spending on behalf of candidates does. First Nat'l Bank v. Bellotti (1978). 1020. The city of Berkeley may not limit contributions to committees supporting or opposing ballot initiatives to $250. Citizens Against Rent Control v. Berkeley (1982). 1022. Congress may prohibit corporations and unions from making contributions or expenditures in connection with federal elections, while allowing them to establish segregated funds for this purpose, for which they can solicit only stockholders and their families and executive and administrative personnel. FEC v. National Right to Work Comm. (1982). 1031. This case is based on the assumption that “in return for the special advantages that the State confers on the corporate form, individuals acting jointly through corporations forgo some of the rights they have as individuals.” FEC v. National Conservative Political Action Comm. (1985). 1031. Expenditures on behalf of a candidate that are not coordinated with that candidate cannot be restricted. FEC v. National Conservative Political Action Comm. (1985). 1010. “[G]overnment is responsible for inequalities in access to the means of communication because it has created the system of property rights that makes such inequalities possible. Therefore, it is not only wrong but also incoherent for opponents of campaign finance reform to contend that the government should not regulate access to the political process. Government already regulates access to the political process - the first amendment simply demands that it do so fairly.” J.M. Balkin. 1017. Congress may not apply to an ideological non-profit corporation a prohibition on corporations from using treasury funds to influence any election. Such a corporation is “formed for the express purpose of promoting political ideas, and cannot engage in business activities,” lacks shareholders or other who will have an economic disincentive to disassociate from it even if they oppose its political activities, and it was not established by, and has a policy of not accepting money from, business corporations. FEC v. Massachusetts Citizens for Life, Inc. (1986). 1023. Colorado may not make it a felony to pay people to circulate initiative or referendum petitions, in an effort to ensure that such petitions have genuine support. Meyer v. Grant (1988). 1022. Michigan may bar corporations, both for-profit and non-profit, from making contributions to or expenditures on behalf of or opposed to candidates when it at the same time allows corporations to solicit contributions to a segregated fund that may be used for such spending. “[T]he political advantage of corporations is unfair because the resources in the treasury of a business corporation [are] not an indication of popular support for the corporation's political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.” (internal quotation marks omitted). “The Act does not attempt to equalize the relative influence of speakers on elections; rather, it ensures that expenditures reflect actual public support for the political ideas espoused by the corporations.” (internal quotation marks omitted). “[T]he act is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views.” Corporations “receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process.” The act is not underinclusive and therefore in violation of the Equal Protection Clause because it excludes from the definition of expenditure any news story or editorial, because of “the unique role that the press plays in informing and educating the public, offering criticism, and providing a forum for discussion and debate.” Austin v. Michigan State Chamber of Commerce (1990). 1023. Congress may not limit independent expenditures by political parties. Colorado Republican Fed. Campaign Committee v. Federal Election Comm'n (1996). 1017. “It has [been] plain ever since Buckley that contribution limits would more readily clear the hurdles before them [than expenditure limits]. Missouri may restrict contributions to lower levels than those approved in Buckley. Nixon v. Shrink Missouri Government PAC (2000). 1018. “[I]t is worth considering to what extent we in fact support … restrictions because of tacit assumptions about the contents of the views held by the rich, who would obviously feel most of the burden of the restrictions. If both political views and the propensity to spend money on politics were distributed randomly among the entire populace, it is hard to see why anyone would be very excited about the whole issue of campaign finance.” Sanford Levinson. 1022. Congress may prohibit party? expenditures coordinated with the candidate. “Coordinated expenditures of money donated to a party are tailor-made to undermine contribution limits.” FEC v. Colorado Republican Federal Campaign Comm. (2001). Supp. 74.

Congressional Enforcement of Civil Rights

Attributes of citizenship: The Fourteenth and Fifteenth Amendments bar only “state action” and do not allow congressional legislation punishing “private individuals” for violating other individuals' rights. Civil Rights Cases (1870s). 1469. However, Congress can “secure against interference by [private] individuals … rights which arise from the relationship of the individual and the Federal Government. The right of citizens to vote in congressional elections [including primaries, United States v. Classic (1941), 1469], for instance, may obviously be protected by Congress from individual as well as State interference.” This principle also applies to “the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances” and the “constitutional right to travel from one State to another,” these being “attributes of national citizenship.” Therefore, Congress may prohibit, in 18 U.S.C. § 241, the Civil Rights Act of 1870, conspiracies against the rights of citizens. United States v. Williams (1951). 1469.

Civil action: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the person injured in an action of law, suit in equity, or other proper proceedings for redress.” 42 U.S.C. § 1983. 1468. “Custom or usage” under this statute “requires state involvement and is not simply a practice which reflects long-standing social habits, generally observed by the people in a locality.” It “must have the force of law by virtue of the persistent practices of state officials.” Adickes v. S.H. Kress & Co. (1970). 1469.

Thirteenth Amendment - private action: “§ 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. § 2. Congress shall have power to enforce this article by appropriate legislation.” U.S. Const. amend. XIII. (1865). Section 1 of the Thirteenth Amendment abolished slavery, and § 2 clothed “Congress with the power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” This power includes the power to enact laws “direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not.” Civil Rights Cases (1870s). 1471. “Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.” Identifying restraints on the right to “inherit, purchase, lease, sell and convey property” equally with white citizens as badges and incidents of slavery is rational. Therefore, the Civil Rights Act of 1866, 42 U.S.C. § 1982 (as amended, “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property.”), may prohibit “all discrimination against Negroes in the sale or rental of property - discrimination by private owners as well as discrimination by public [authorities].” Jones v. Alfred H. Mayer Co. (1968). 1470. By including contemporary discrimination among the badges of slavery, Jones suggests that a “victim's people need not have been enslaved in order to invoke [the Thirteenth Amendment's] protection. He need only be suffering today under conditions that could reasonably be called symptoms of a slave society….” Note. Colum. L. Rev. 1474. Badges and incidents of slavery may be either practices the prohibition of which Congress finds “will help to prevent slavery,” or practices constituting “the persistent legacies of the past condition of slavery.” Jesse H. Choper. 1475. Similarly to Jones, 42 U.S.C. § 1985, (as amended, “(3) If two or more persons … conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws,” the injured party may sue for damages), 1468, is valid and may reach defendants who terrorized black victims to prevent them “and other Negro-Americans [from] seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws.” The statute does not impermissibly create a general federal tort because “there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” The statute is also valid as protecting the constitutional right to travel. Griffin v. Breckenridge (1971). 1473. Similarly, 42 U.S.C. § 1981 (as amended, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”), also part of the Civil Rights Act of 1866, may and does bar private schools open from refusing to accept black students. Runyon v. McCrary (1976). 1472. An “alleged conspiracy to infringe First Amendment rights” does not violate § 1985 unless “the state is involved in the conspiracy or … the aim of the conspiracy is to influence the activity of the state,” because, unlike the rights at issue in Griffin, First Amendment rights are not constitutionally protected against private encroachment.” Carpenters, Local 610 v. Scott (1983). 1474. Section 1985 does not apply to private conspiracies obstructing access to abortion clinics because abortion is a right protected only against state interference. Bray v. Alexandria Women's Health Clinic (1993). 1474.

Thirteenth amendment - joint state and private action: The fact that a defendant's actions violated state law is not a defense under 18 U.S.C. § 242. “Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” United States v. Screws (1945). 1475. “[P]rivate persons, jointly engaged with state officials in the prohibited action, are acting `under color' of law for purposes of [§ 242]. To act `under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” Therefore, the statute may be applied to three Mississippi police officials and 15 private people for conspiring, all with the same degree of active participation, to kill civil rights workers. United States v. Price (1966). 1475. A “public defender does not act under color of law when performing traditional adversarial functions as appointed counsel.” (casebook). Polk County v. Dodson (1981). 1476.

Federal regulation of state actors - Fifteenth Amendment: “§ 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. § 2. The Congress shall have power to enforce this article by appropriate legislation.” U.S. Const. amend. XV. (1870). “Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” The formula of the Voting Rights Act of 1965 establishing remedies for areas meeting a formula based on literacy and other voting qualification tests is rational, as demonstrated by the fact that no areas “in which the record reveals recent rational discrimination involving tests and devices” are excluded. The fact that other areas are excluded “for which there is evidence of voting discrimination by other means” does not change the result. “Legislation need not deal with all phases of a problem in the same way, so long as the distinctions drawn have some basis in political experience.” South Carolina v. Katzenbach (1966). 1478. The Voting Rights Act may bar an electoral system that has a discriminatory effect even though it is not discriminatorily motivated and therefore does not violate the Fifteenth Amendment. “Congress could rationally have concluded that, because electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.” Rome v. United States (1980). 1491.

Federal regulation of state actors - Fourteenth Amendment: “§ 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV. “By including § 5 the draftsmen sought to grant to Congress [the] same broad powers expressed in the Necessary and Proper Clause. … Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” When considering federal legislation under this section, it “is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Therefore, Congress may, in the Voting Rights Act of 1965, provide that no one who has complete sixth grade in a Puerto Rican school can be denied the right to vote because of a lack of English proficiency, thereby precluding New York election laws requiring an ability to read and write English, on the basis that voting power “will be helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community,” and thus enforce the Equal Protection Clause of the Fourteenth Amendment. The judiciary need not determine in that the New York law violates the Equal Protection Clause before Congress may enact this legislation. Katzenbach v. Morgan (1966). 1479. The Privileges and Immunities Clause of the Fourteenth Amendment, combined with § 5 of that amendment, is “an authorization of Federal legislation to prohibit private racial discrimination if the states did not.” Louis Lusky. 1484. Where Congress “never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation,” it may not enact the Age Discrimination in Employment Act, which, “[m]easured against the rational basis standard of our equal protection jurisprudence [addressing classifications based on age,] … plainly imposes substantially higher burdens on state employers [at] a level akin to our heightened scrutiny cases under the Equal Protection Clause.” “The Act, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard.” The statute is therefore “`so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.'” (quoting Boerne v. Flores (1997)). Kimel v. Florida Bd. of Regents (2000). 1495. “[T]he Fourteenth Amendment, by its very terms, prohibits only state action,” as held in the Civil Rights Cases, so Congress may not establish under § 5 a civil remedy to victims of gender-motivated violence, despite Congressional findings that state justice systems do not respond adequately to such violence, where the civil remedy “is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.” The statute is also problematic because, though “the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States,” the statute applies nationwide - unlike the statutes in Morgan and Katzenbach that were geographically limited. United States v. Morrison (2000). 1499. “Congress would … have a rational basis for finding domestic violence to be an instrument of domination analogous to enslavement” and could therefore justify this statute under the Thirteenth Amendment. Ira C. Lupu. 1501.

Federal regulation of state actors - First Amendment: “Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States.” (internal quotation marks omitted). “Congress can enact legislation under § 5 [of the Fourteenth Amendment] enforcing the constitutional right to the free exercise of religion.” However, “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation.” Otherwise, “Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.” “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” While the Voting Rights Act was enacted in the face of evidence of widespread state and local regulations based on racism, there was no similar evidence prompting the passage of the Religious Freedom Restoration Act, prohibiting government from “substantially burden[ing]” a person's exercise of religion, even through laws of general applicability, unless the government can demonstrate that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (The statute was passed in response to Employment Div. v. Smith.) At the same time, while the Voting Rights Act included termination dates and geographic restrictions, the RFRA did not. “[L]imitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5.” “RFRA [is] so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Therefore, RFRA is invalid. Boerne v. Flores (1997). 1485. One argument in favor of congressional interpretation is that Supreme Court interpretations are essentially permanent and constructed without state input; “When Congress interprets the Fourteenth Amendment for purposes of statutory enforcement, by contrast, its interpretations are subject to amendment at any time by majority vote, and its deliberations structurally reflect the interests of the states.” David Cole. 1490. Another is that the “democratic values underlying the doctrine of judicial restraint do not apply to Congress. [Its] decision to adopt a more robust, freedom-protective interpretation of the Free Exercise Clause did not `alter' the Constitution or create `new' rights. Rather, RFRA merely liberated the enforcement of free exercise rights from constraints derived from judicial restraint.” Michael McConnell. 1490. Also, “Unlike enactments under the Commerce Clause or most other sources of congressional power, interpretations of the Bill of Rights under Section Five limit the powers of Congress and the federal government to precisely the same extent that they limit the powers of the states. … [Rather] than aggrandizing federal power at the expense of the states, legislation like RFRA constrains the power and discretion of federal and state governments alike.” Michael McConnell. 1490.


Is the regulated activity speech or non-speech conduct?


Is the regulation content-neutral? (Consider secondary effects doctrine under Renton.)

Non-speech conduct

Is the conduct expressive, under Johnson?


Conduct the rest of the time, place, manner test, under Clark.


Apply strict scrutiny, via Brandenburg or similar test.


Is the regulation unrelated to the suppression of expression?


No First Amendment violation.


Conduct the rest of the O'Brien test.


Apply strict scrutiny, via Brandenburg or some other test.
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