Constitutional Law Outline Spring 2007 Prof. Kaczorowski Ways to justify SCt decisions 1.

textualism required by the text of the constitution; plain meaning of Constitution a. e.g. legislative vetoes are unconstitutional because the constitution requires acts of Congress to go through bicameralism and presentment b. see McCulloch below 2. originalism looks at original intent of the framers of the Constitution or particular amendment a. e.g. Congress cannot determine what rights are secured by the 14th Amendment because the framers did not intend Congress to have those powers b. contemporaneous exposition acts passed by representatives who were original framers of the Constitution, e.g. national bank was created in Congress by same people who drafted and ratified the Constitution c. non-originalism we should not be bound by the understanding of men who lived 225 years ago 3. traditions of ordered liberty a. e.g. the right of privacy is implied in the 5th and 14th Amendment due process clauses because a right of privacy was fundamental to our traditions of ordered liberty b. deeply rooted in the traditions and history of the US 4. precedent; in stare decisis analysis, look at reliance interest, unworkability, change in facts (see Casey v. Planned Parenthood below) 5. structuralism based on the structure of the government as defined in the Constitution a. e.g. Trumans seizure of the oil mills was unconstitutional because that kind of action was a legislative, not executive function Sep. of Powers 6. consensus regarding justice or social policy 7. natural law and natural rights a. see Calder v. Bull below 8. representation reinforcement and improvement of democratic processes a. see McCulloch below 9. interpretivism freedom of the court in interpreting issues of constitutionality are bound by the values and norms and language contained in the constitution 10. non-interpretivism court should not be bound by the values and rights found expressly in the constitution; freedom to interpret ambiguous language in the constitution on other bases, e.g. consensus, theories of federalism, liberty, natural law. a. E.g. womens rights advocates argue a substantive due process theory that is similar to natural law Types of legal reasoning (constitutional interpretation): 1. Formalism stating an a priori principle (executive order is like making law) and deducing to the conclusion (only Congress makes law, so president cannot so order). a. Formalists believe that separation of powers doctrine is governed by relatively clear rules that demarcate separate sphere of governmental authority

2. Functionalism looks at whether exercise of these powers furthers the interest at stake in separation of powers (function of branches) a. Functionalists believe in a more fluid approach that prohibits aggrandizement of power or undue mingling of functions, but that allows some overlap and is more receptive to changing the boundaries so as to deal with changing situations. b. Political practice (type of functional analysis) look to the history of the functioning of the federal republic to see if there were prior instances in which certain actions were taken, e.g. Printz v. US 3. Legal realism court looks at the effects of law in determining proper outcome; out of legal realism, some of the more popular and unpopular kinds of legal movements emerge, e.g. law and economics, feminist jurisprudence Constitution 1. Government of the United States established by men (adopted not by the states, but by the people organized within their states) to secure rights such as life, liberty, pursuit of happiness, in return for which we pledge allegiance. a. Established a republican form of government, not democracy (where people vote on everything) b. No bill of rights i. Federalists argued against inclusion because national government can exercise only those powers delegated to it, so if individual rights are not delegated to the government, they have no power to regulate them. ii. Antifederalists favored inclusion because government should be able to regulate individual rights unless expressly denied that right; government has no powers beyond those expressly delegated to it. c. Separation of Powers separation not absolute, power divided horizontally and vertically i. Legislature creates law 1. Has the power to change certain states laws, including taxing laws ii. Executive enforce law iii. Judicial interpret law 1. Only one court, the Supreme Court, created by the Constitution, with the possibility of lower courts, to be created by Congress d. Established a framework, with details to be worked out through the process of government 2. Arguments for and against adoption of the Constitution a. Federalists wanted to enhance the power of the central government and diminish the power of the states i. Supported adoption of the constitution b. Antifederalists preferred state sovereignty over federal power i. opposed adoption of the constitution 3. State sovereignty theory of federalism national governments power derives from the states, rendering its power subordinate to the states 4. Popular/national sovereignty constitution derives from the people, constitution established Congress, Constitution is supreme.

Judicial Review 1. of Congress Marbury v. Madison a. SCt does not have the power to review political questions, e.g. acts of executive discretion i. So Marbury had a right to the commission (commission had been signed and sealed) but SCt had no power to review the appointment and delivery of the appointment (presidential, political decision, not an act required by law). b. SCt has the power to declare acts of Congress unconstitutional i. Court does not have power to issue the writ of mandamus, as allowed by the Judiciary Act, because it conflicted with Constitutional authorization 1. SCJ Marshall read Constitution as not allowing Congress to add to original jurisdiction, and Judiciary Acts authorization of SCtissued writs as referring to original jurisdiction, thus Constitution trumps. 2. could also have read Judiciary Acts authorization as referring to appellate jurisdiction or Constitution as allowing Congress to add to SCts original and appellate jurisdiction any other combo makes issuing writ OK. c. Supremacy of the constitution in the event of a conflict between constitution and congressional statute, Court has the authority and duty to declare the statute unconstitutional and to refuse to enforce it. i. Nature of the constitution constitution is the word of the people, whereas statutes are the words of the representatives, who get their power from the constitution ii. Textualism Supremacy clause establishes Constituion as supreme iii. Structuralism interpretation of law is inherent judicial function d. Courts authority to interpret constitutionality of Congress acts is criticized because this is not stated in the constitution; but neither is it stated that Congress has final say 2. of States Martin v. Hunters Lessee (state statute conflicted with federal treaty) a. SCt has appellate jurisdiction over constitutional decisions by state courts i. Article III, 2 give SCt jurisdiction over all cases arising under the constitution (federal questions) arising under clause 1. all federal question cases must include those arising in state court, otherwise would not be all 2. most of these cases are appellate jurisdiction a. appellate jurisdiction may be regulated and limited as Congress provides (e.g. Judiciary Act of 1789) 3. some cases (ambassadors and public ministers, states as a party) are original jurisdiction Art III, 2(2) ii. Need for uniformity in constitutional decisions iii. States are not sovereign (as VA argued), because Constitution cut back on state sovereignty in many ways, so state not immune from SCt appellate jurisdiction in federal questions.

b. Cohens v. Virginia: SCt has appellate jurisdiction over constitutional decisions by state courts in criminal cases too. 3. SCt interpretations of Constitution are final and authoritative a. Cooper v. Aaron: Governor and Legislature of AK did not want to enforce Brown v. Board of Education. SCt says its interpretation of the Constitution is binding on state governments (legislature, executive, judicial). i. Departmental theory of constitution: each branch interprets the Constitution; constitution is separate from the interpretation. 1. e.g. constitution might invalidate some official action, even if SCt does not so hold because of need to defer to other branches (who interpret Constitution themselves); Constitution is not always equal SCt decision on constitutional issue. Sources of Judicial Review (see more above) 1. Text, reinforcement or improvement of democratic processes a. Congress powers are greater than that expressly stated in the Constitution McCulloch v. Maryland i. Necessary and proper clause (Art. I, 8) Congress may make all laws which shall be necessary and proper for carrying into execution the specific legislative powers granted by the Constitution. 1. Necessary means legitimate and within the scope of the constitution, and all means which are appropriate, not prohibited, and plainly adapted to that end are constitutional. 2. Congress had constitutionally-vested power to charter national Bank because it was incidental to the carrying out of one of the constitutionally-enumerated powers (power to raise revenue) a. larger power (taxing) does not necessarily include inferior powers, but includes powers required for its execution. 3. Impossible for Constitution to explicitly detail all powers of government a. 10th Amendment, which declares powers not delegated to the US, nor prohibited to the states, are reserved to the states or to the people does not say expressly delegated ii. States may not infringe upon its operation unconstitutional 1. powers of the national government come from the people via the constitution, not the states. 2. Maryland may not tax the agency that is representative of all the people, when (most of) the people have no check on Maryland legislature. Accountability issue. b. SCt gives deference to Congress trying not to invade their domain under separation of powers; only review when there is a clear abuse of power (usual review is by the people who elect Congress representation reinforcement). View of federalism- political process is a check in and of itself on the power of Congress. Acts as a restraint on the sweep of Congressional legislation. i. McCulloch may also be understood as the foundation of representationreinforcement as a justification of and guide for judicial action judicial

role is to make up for defects in the ordinary operation of representative government; source of judicial decision is breakdown in political process, i.e. abuse of power is remedied by political process 1. This is Kacz understanding of McCulloch, which is slightly different from traditional understanding that McCulloch stood for broad implied powers and judicial deference to Congressional decisions 2. Natural Law in constitutional interpretation a. Ex post facto laws do not apply to civil proceedings Calder v. Bull i. Justice Chase argued that natural law is enforceable against the states even though not expressly written in the Constitution 1. Legislatures do not possess unlimited powers they are limited by the nature and ends of the powers, both of which are decided by the people. ii. Justice Iredell believes that the very fact of a written Constitution is authority against the position that courts may call on principles of natural justice; SCt is limited in its decisions to the Constitution and the principles inherent in the Constitution. 1. If an act violates constitutional provisions, it is unquestionably void, regardless of whether it is contrary to natural justice. If legislature passes a law within their constitutional power but contrary to natural justice, court cannot declare it void. iii. Ex post facto law law that has retroactive punitive effect (e.g. law that alters the definition of a crime, so that acts that were not previously illegal now are); OK in civil setting Limits on the power of the courts 1. exceptions clause Constitution confers appellate jurisdiction with such exceptions and under such regulations as Congress shall make a. Ex parte McCardle dealt with Congress power to modify jurisdiction of federal courts, especially Supreme Court i. Power to limit SCts and federal courts appellate jurisdiction pretty much unlimited (through exceptions clause and power to create inferior federal courts) ii. While McCardle appealed denial of his habeas corpus motion, Congress repealed SCts habeas corpus jurisdiction. SCt upheld Congress restriction of SCts jurisdiction. So SCt does not have appellate jurisdiction over habeas cases (still original jurisdiction though). 1. But does this imply that SCt can review Congress power to limit jurisdiction, i.e. power might not be unlimited? 2. power of appointment a. appointments clause (Art. II, 2) President has power to appoint federal officers, by and with the advice and consent of the Senate, such as Ambassadors, SCt judges and all other officers of the United States. i. Always true for principle officers (Cabinet and ambassadors) ii. Might not be true for inferior officers

iii. Appointment power removal power 3. power of amendment people may amend Constitution Jurisdiction of the Supreme Court 1. set out in Article III 2. two principal routes to SCt a. appeal mandatory; abandoned in 1988 except in rare cases b. certiorari discretionary i. some reasons for granting cert 1. when circuit court makes a decision conflicting with another circuit court, conflicting on a federal question with a state supreme court, or when circuit court exceeds the accepted and usual course of judicial proceedings 2. when a state supreme court decides a federal question conflicting with another state supreme court or a circuit court 3. when a state court or a federal court has decided an important question of federal law which has not been, but should be, settled by this Court, or has decided a federal question in a way conflicting with decisions of SCt ii. denial of cert has no precedential value 3. SCt does not have jurisdiction to hear a case when the decision below rests on adequate and independent state grounds Separation of Powers and Checks and Balances 1. Presidents powers a. Express powers enumerated in Article II, 2, e.g. Commander-in-Chief, treatymaking power b. Implied powers i. Vesting clause executive power shall be vested in a president (Art. II 1) ii. Take care clause president shall take care that the laws be faithfully executed (Art. II 3) iii. Emergency powers as Commander-in-Chief - during the theater of war, president may set policy. c. Power derived from statutes or treaties d. President may not make laws, only carry them out Youngstown Sheet & Tube v. Sawyer i. President may not seize the steel mills and operate them under federal direction in order to avert a strike. 1. seizure was a usurpation of congressional lawmaking power a. take care clause clearly says president executes the laws (not makes them) b. Trumans executive order prescribes public policy and thus does congress constitutional job (structuralism, formalism) ii. taking of private property to keep labor disputes from stopping production of war material too far removed from theater of war

iii. Frankfurters concurrence: Congress had previously, and repeatedly, explicitly rejected plant seizure as a means of handling labor disputes, by rejecting Taft-Hartley Act which would give president power to stop the strike. 1. functionalism OK for president to do this if presidents have done this before (a gloss on executive power must be OK if allowed, because otherwise would have been checked by Congress) iv. Jacksons concurrence: framework for analyzing Presidents actions in relation to his and Congress powers; presidents (implied) power fluctuates depending on its disjunction or conjunction with Congress powers (functional analysis) 1. When acting under authority of Congress, presidential powers at a maximum b/c powers then include all he possesses in his own right plus all Congress can delegate 2. When acting in absence of Congressional grant or denial, president can only rely on his independent powers, although they may have some concurrent powers a. Independent powers those derived from Constitution 3. When president acts in contradiction to express or implied will of Congress, his power is at its lowest b/c he can only use his inherent powers minus any that overlap with Congress. e. Congress may impliedly acquiesce in the Presidents exercise of power Dames & Moore v. Regan i. Since Congress had a long history of acquiescing in similar presidential conduct (e.g. approving the use of executive agreements between President and foreign powers to settle claims), it similarly impliedly acquiesced in carters agreement to suspend all private claims against Iran as part of the Iran Contra deal ii. Rehnquist sees Jacksons three categories of executive actions as a continuum ranging from explicit congressional authorization to explicit prohibition. iii. Does not follow Youngstown? iv. Limited holding: where such settlement is necessary to the resolution of a major foreign policy dispute AND Congress has acquiesced in that type of presidential action, action will be deemed within the Presidents constitutional authority. 1. implied acquiescence is not dispositive of presidents constitutional authority. 2. acquiescence only viewed as a validation of presidential exercise of power in theater of war 2. Executive Privilege a. President has a qualified executive privilege not to disclose confidential information US v. Nixon i. Privilege derives from the supremacy of each branch within its own assigned area of constitutional duties.

ii. Evidentiary privileges are designed to protect weighty and legitimate competing interests 1. Balance purpose of invocation of privilege (e.g. need to protect military, diplomatic, or sensitive national security secrets, not claimed here) against whos asking for the privileged materials and for what purpose (constitutional right to production of all evidence at criminal trial). iii. Court has power to interfere in intra-branch dispute (special prosecutor under AG contesting Presidents invocation of executive privilege) because of judicial interpretation of legal rights (right to fair trial). b. do not confuse with immunity, which limits liability to civil suits (no immunity from criminal prosecution) c. Executive privilege may not extend down to other executive officers a case found cabinet member did not have executive privilege, but may have been based on the facts of that case. 3. Executive Civil Liability a. President has absolutely immunity from civil liability for his official acts because of several interests: distracting him from his job, causing him to take potential suits into account when making presidential decisions Nixon v. Fitzgerald b. President (or any other official) has no immunity from civil suits for actions that the President engages in unrelated to his official duties Clinton v. Jones. c. Presidential immunity does not extend to presidential aides Harlow v. Fitzgerald i. But this suit was brought after Nixon left office, so rationales for immunity might not apply. 4. Impeachment sanctions for misbehavior a. Applies to President, VP, all civil officers of the US (including federal judges) b. Procedure: i. House has sole power to impeach, by simple majority Art. I, 2, Cl. 5 ii. Senate has sole power to try impeachments; 2/3 vote of Senators who are present is required to convict Art. I, 3, Cl. 6 1. President of Senate (VP) presides unless impeaching President, in which case Chief J of SCt presides. iii. Resignation or pardon do not bar impeachment proceedings. c. Impeachable offenses high crimes and misdemeanors i. Criminal acts, although offense does not have to be criminal, nor do all criminal acts require impeachment ii. Abuse of power or abuse of the trust of the people 1. Clinton obstruction of justice d. Punishment: will not extend further than removal from office and disqualification from holding any federal office (does not have to extend this far) Art. I, 3, Cl. 7 i. Government reserves the right to pursue independent criminal charges e. Appeal: one cannot appeal an impeachment i. Court has no role to play in an impeachment, except that Chief J presides over presidential impeachment ii. Traditionally, Congress has sole and exclusive control over impeachment

f. Nature of impeachment quasi-legal, quasi-political i. Legal in the sense that Constitutional provides for it, procedure similar to grand jury indictment and criminal trial ii. Political in the sense that theres no requirement for the House to impeach (although Senate bound to try after impeachment); votes often highly political 5. Presidents power of removal: a. President has sole power to terminate an executive officer Myers v. U.S. i. Congress may not limit Presidents authority by statute that allowed president to appoint and remove postmasters with the advice and consent of the Senate. Art. II places executive power in the president. ii. Postmaster is considered a principle officer b. See Administrative Agencies below. 6. Legislative Veto a. One-house legislative veto is unconstitutional because it violates bicameralism and presentment requirements INS v. Chadha i. Congress had delegated to AG authority to suspend deportation of aliens in certain situations, but retained veto (resolution passed by either house) over each decision. 1. SCt says this veto power is legislative power. (structuralism) ii. Presentment clause (Art. I, 7, Cl. 2) every bill must be presented to the president for his signature, so he has the opportunity to veto it. iii. Bicameralism (Art. I, 1 and 7) both houses must pass a bill before it can become law. iv. Congress can constitutionally act alone in only 4 circumstances: 1. Houses power to initiate impeachments 2. Senates power to conduct trials following impeachment 3. Senates power over presidential appointments 4. Senates power to ratify treaties v. Once Congress enacts legislation, its participation ends. Congress can thereafter control execution of its enactment only indirectly by passing new legislation. 7. Administrative Agencies a. Congress power: i. Congress has power to create independent agencies governmental agencies free from presidential removal power and (to some uncertain degree) free from presidential supervision and control of decisions ii. Congress may not delegate to federal agencies their lawmaking power (nondelegation doctrine) Panama Refining Co. v. Ryan 1. more and more, this has been relaxed generally, the more precise the standards laid down by Congress to guide the executive branch or administrative agencies, the less likely it is that excessive delegation will be found. 2. also different in international affairs (see Curtiss-Wright below)

iii. But Congress may delegate regulatory authority to administrative agency, as long as it specifies the standards that direct the manner in which the authority is used. 1. Intelligible directives iv. Ways Congress can retain control over Administrative Agencies: 1. oversight hearings Congress calls executive officials before them and questions them about past and future conduct 2. appropriations rider an attachment to an authorization of expenditure of federal funds that prohibits the agency from engaging in certain courses of conduct a. Congress may increase or decrease an agencys budget during annual appropriations process. 3. sunset legislation providing that agency authority will terminate after a certain period unless Congress reenacts the substantive statute 4. repeal or rewrite statutes v. Congress may not appoint executive federal officers Buckley v. Valeo 1. Federal Election Commission, established by statute, where most members were to be appointed by the President Pro Tem of the Senate and Speaker of the House, violates appointments clause (Presidents job to appoint principle officers of the US). 2. The most Congress may do is, in the case of inferior officers, prescribe the procedures by which the executive or judicial branch shall make appointments 3. Commission, established by Congress, may undertake investigative and informative powers, such as allowed to Congressional committees, but not more substantial powers, e.g. enforcement (executive power) or rule-making or funding vi. Congress may not reserve to itself the power to remove an executive officer (except impeachment) Bowsher v. Synar. 1. Comptroller General of US is a legislative officer because Congress has right to remove him from office, and a. Dissent says CG is legislative officer because his duties are directed at and benefit Congress. 2. CG has executive powers to execute law (he has ultimate authority to determine budget cuts, directing President to carry out the cuts Gramm-Rudman Act). 3. Congress may not enforce their own statute (i.e. congressional veto through authority to remove CG from office). a. Had Congress given budget-cutting job to an executive (not legislative officer), then majority would probably have found legislation constitutional Congress would not have power to remove him from office. 4. Congress may not invest itself or its members with executive or judicial power.

vii. Congress may limit Presidents right to appoint and remove inferior executive officer Morrison v. Olson 1. Statute required AG to investigate high-level executive wrongdoing and apply to a special federal court (Special Division) for appointment of a special prosecutor he had reasonable grounds to believe further investigation warranted. Once appointed by judicial branch, can only be removed by AG for good cause. a. Independent counsel is an executive officer (independent counsel) under the control of executive and judicial branches. b. Independent Counsel is inferior officer because he can be removed from office by AG, authorized to perform only certain limited duties, office is limited in jurisdiction and tenure. 2. Excepting clause (Art. II, 2 , Cl. 2) Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. 3. Thus president does not have complete control over investigation and prosecution of violations of law b. Presidents power: i. President may not remove quasi-legislative federal officers (e.g. FTC officer) unless Congress has explicitly conferred the right of removal Humphreys Executor v. US ii. President may not remove quasi-judicial officer (member of War Claims Commission) where Congress has been silent on the matter Wiener v. US 8. Judges Serving on Commissions a. Judges may serve on a sentencing commission Mistretta v. United States. i. Intelligible principle test Congress had given the commission sufficiently detailed guidance as to the purposes its guidelines were to serve and the considerations the commission was to take into account. ii. Some judicial rule-making is permissible because sentencing is part of what the judiciary does and because it doesnt threaten the integrity or autonomy of the judiciary. 9. Legislators Serving on Agencies a. Members of congress may not veto actions of a board set up by statute Metropolitan Washington Airport Authority v. CAAN i. Board of Review (made up of 9 members of Congress) has power to veto actions of Airports Authority set up by Congress. ii. Whether Airport Authority performs executive or legislative powers, this veto power violates separation of powers 1. if executive powers, congress may not exercise executive powers (Bowsher) 2. if legislative powers, congress may not exercise legislative power without bicameralism and presentment (Chadha)

iii. Court did not consider the ineligibility clause (Art. I, 6 members of Congress may not hold any federal office) or the appointments clause (presidents power to appoint federal officers) 10. Treaty Power a. Treaty power is divided between two branches of government president may make a treaty, but it must be ratified by 2/3 of the Senate (Art. II, 2) i. Unlike constitution, does not have to be ratified by the states. b. Ratified treaty is the equivalent of a federal statute, i.e. when conflict arises between treaty and statute, whichever was enacted later controls. i. Differences: 1. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution; treaties are the supreme law of the land (binding on the states) when made under the authority of the US a. Pursuance of the Constitution not required because framers wanted treaties made under Articles of Confederation to remain in effect. b. Still, treaties cannot contravene the Constitution see Covert. 2. Treaties must be matters of the sharpest exigency for the national well-being; Acts of congress are not so limited. c. Power to ratify treaties is an enumerated legislative power, so even though a subject area might not otherwise be within congressional control, if it falls within the scope of an otherwise valid treaty, it will be valid as a necessary and proper means (Art. I, 8) of exercising the treaty power Missouri v. Holland i. Even though Congress might not be empowered to regulate killing of migratory birds in US (b/c 10th Amend), Congress powers expanded by treaty powers, whereby Congress may ratify treaty prohibiting the killing or capture of certain birds within US. 1. 10th Amendment rights of individual states not abridged because Congress may exercise the power if its not prohibited to the federal government or reserved to the states or people. a. This is use of political process to interpret 10th Amendments scope? b. Today, 10th Amendment generally means the opposite if power is not expressly granted to the federal government, it is reserved for the States. 2. Treaty power thus expands power of government, but only in limited circumstances (national interest). d. Treaty may not violate any distinct constitutional prohibitions or guarantees Reid v. Covert i. No agreement with a foreign nation can confer power on Congress or any other branch of Government, which is free from the restraints of the Constitution. ii. All of Congress powers, including its power to regulate the armed forces, are limited by the bill of rights. 5th Amendment prohibits trial without

jury, so Congress may not act in violation of this (cannot allow civilian to be tried in military court to a tribunal). 11. Foreign Affairs Power a. Powers are fissured some belong to president, some to Congress, some to President and Senate, some to either President or Congress, some require joint authority of both. b. Presidential Foreign Affairs Power: i. Art. II, 2 enumerated powers: 1. Commander-in-Chief 2. treaty-making power 3. right to appoint ambassadors ii. Congress may delegate some legislative powers in foreign affairs to the President US v. Curtiss-Wright Export Corp. 1. SCt upheld joint resolution of Congress that authorized President to ban sale of arms to countries engaged in a particular conflict. 2. President alone has power to speak or listen as a representative of the nation. This power used together with delegated legislative power is not unconstitutional in foreign affairs. 3. President better able than Congress to determine which countries in conflict. iii. War-making see legislative war power below c. Legislative Foreign Affairs Power: i. Power to regulate commerce with foreign nations ii. Financial power over the army iii. Power to declare war 1. Congress has power to declare war Art. I, 8 a. Rationale: representative government, Congress is deliberative, need consensus, concern with too much power in individual President, who might use it for posterity or personal gain. 2. President is Commander-in-Chief of the Armed Forces (power to make war) Art. II, 2 a. Rationale: efficiency, speed, President has access to intelligence, nature of war has changed due to technology, so need faster response time. b. president has power to repel sudden attacks, understood narrowly as attacks on US 3. Notion of Congress declaring war and President making war was very blurred, so Congress enacted War Powers Act in 1973 to try to accommodate each branchs role. a. The War Powers Resolution (1973) i. President is authorized to send troops into areas where hostilities are occurring or imminently occurring, provided he submits a report to Congress within 48 hours

ii. If president introduces forces into hostilities, he must recall them within 60 days, unless Congress agrees to extend by 30 days. 1. not much of a check once troops there, Congress unlikely to decline appropriations to support troops iii. President may defend the security of the US from foreign attack preemptive action b. Most commentators agree resolution has been ineffective in constraining executive discretion. Congress has never formally enacted a resolution pursuant to War Powers Resolution and Presidents have regularly ignored it. 4. Courts have been silent on constitutionality of Presidents committing armed forces to military action without declaration of war. Congress has generally acquiesced (not brought suit). Federalism and Judicial Review (switch from horizontal to vertical constitutional framework) 1. Judicial Deference to Political Process a. In Garcia v. San Antonio Metropolitan Transit Authority, SCt gave Congress broad authority to regulate states i. States bound to follow federal minimum wage laws under Fair Labor Standards Act. ii. Federal governments power over state sovereignty is not unlimited; state sovereign interests are protected by procedural safeguards inherent in the structure of the federal system. 1. e.g. members of Congress elected by the States (17th Amend. replaced election of senators by state legislators with direct election); states role in presidential elections; ours is state-based political system, so danger is more that states will overpower federal government than other way around; states have militia (no standing federal army during peacetime) 2. these political process safeguards are more consistent (and proper) than judicially-determined limitations of federal power; i.e. states dont need courts to police Congressional regulations of the states because of political process a. Kramer argues that political process in the form of structural checks has been replaced by political process in the form of political parties national party system is grounded in local constituency, and the party maintains the checking function of the states on the federal government. 2. Judicial Enforcement of States Rights/Limits on Congress Power (cutting back on Garcia) a. Federal Government may not compel a state to enact or enforce a particular law or type of law (federal government v. state legislature) New York v. US i. Statute that forced state legislatures to adopt a federal program for the disposal of low-level radioactive waste, which required states to take title

for any waste not disposed of within a certain amount of time is unconstitutional. ii. Reasons: 1. Constitution does not confer on Congress the power to require the states to govern according to Congress instructions; 10th Amendment does not allow Congress to act on states in corporate capacity. a. But Martin v. Hunters Lessee SCt regulation of states 2. Accountability people of the state would not know who was accountable for any particular provision iii. Permissible ways for Congress to urge state to adopt a legislative program (residents of the states still retain ultimate decision whether to comply): 1. spending power - attach conditions on the receipt of federal funds, e.g. requiring schools to desegregate or withhold funds 2. Commerce Clause where Congress has the authority to regulate private activity, it may offer states the choice of regulating that activity according to federal standards or have state law preempted by federal regulation a. Could have argued this is interstate commerce issue b. Federal Government may not compel state or local officials to perform federally specified administrative tasks (federal government v. state executives) Printz v. US i. Statute that forced the chief legal enforcement officer (executive officer) of certain counties to run background checks on people buying handguns is unconstitutional 1. accountability people would not be able to identify if state or federal government was responsible for this program 2. framers did not intend federal government to have the power to use state officers to implement federal law a. might not be right Souter has research that shows this may have been intended to reduce size of federal govt b. political practice type of functionalist legal analysis 3. unfunded federal mandate state funds state officers and this may not be the states priority; takes officers away from other tasks Equal Protection 1. History a. Dred Scott: Blacks cannot be US citizens (even if they are state citizens) because this was not the intent of the framers (originalism), who secured property right of slaveholders in the 5th Amend (1st time substantive due process), and Congress had never defined US citizenship otherwise. So even free blacks who had been recognized as citizens of their resident states are not and can never be US citizens. b. 13th Amendment (1865): i. 1: neither slavery nor involuntary servitude shall exist in the US except as punishment for crime.

ii. 2: Congress was allowed to enforce the provision with appropriate legislation. c. Civil Rights Act of 1866 enacted over Presidents veto by same Congress that drafted 14th amendment, so key to interpreting original intent i. 1: confers citizenship on all persons born in US and not subject to foreign power, excluding Indians not taxed. As such, every citizen shall have the same right to form contracts, hold, lease, inherit and convey property, sue, give evidence, to the full and equal benefit of all laws and proceedings for the protection of liberty and property as whites enjoy and shall be subject to the same pains, punishments, penalties for crime, any state law, regulation or ordinance notwithstanding. 1. Allowing blacks to be citizens contradicts Dred Scott. 14th Amendment confers citizenship constitutionally. 2. as whites enjoy because women, minors, insane, felons did not have same rights as everyone else; these statutory and CL discriminations preserved ii. 2: made it a crime for anyone to violate any rights secured in 1, in violation of state law, custom, or out of racial animus 1. states ordinary criminal jurisdiction preserved 2. framers intended to compel state officers, particularly judges, to enforce the act iii. 3: enormous expansion of federal court jurisdiction 1. conferred exclusive jurisdiction on federal courts to try any violation arising under this federal statute, civil or criminal 2. conferred on federal circuit courts original jurisdiction to try any civil or criminal cause whenever a party to the cause is unable to enforce or is denied a 1 right. a. E.g. where state law prohibits blacks from testifying, cases were tried in federal court b. SCt upheld constitutionality in US v. Rhodes c. Blyew v. US (set aside in 1873): Criminal cases limited to where black is a party, not just victim; remedial structure and jurisdiction upheld. d. Authorizes federal court to try state cases under federal code (!) under theory that Congress has power to define rights of US citizens 3. authorized military personnel, federal and state officers, and individual prosecuted for Civil War actions to remove their cases to federal courts. th d. 14 Amendment (1868) i. 1: confers US and state citizenship; no state shall deprive any person of life, liberty or property without due process of law. ii. 5: Congress has power to enforce this article by appropriate legislation e. 15th Amendment (1870): i. 1: right of US citizens to vote shall not be denied based on race, color, or previous conditions of servitude

f.

g.

h.

i.

ii. 2: Congress has power to enforce this article by appropriate legislation Enforcement Act of 1870 established more direct federal system of criminal justice i. 1-5: imposes civil liability and criminal penalties on any state officer with responsibility for registering or qualifying citizens to vote or for counting votes, who fails to perform his duties 1. enforced 15th Amends guarantee of racially impartial suffrage ii. 4-5: civil liability and criminal penalties for infringing right to vote because of race, color, violence, economic harassment iii. 6: criminal penalties imposed on anyone who goes on highways in a disguise to deprive anyone of a constitutional right iv. 7: adds to 6 penalties for corresponding crime committed in while violating 6 KKK Act (1871) extended criminal liability to individuals who conspired to interfere with witnesses in federal cases, to deny an individual equal protection of the laws, deprive an individual of any constitutional right; imposed civil liability for any act taken in furtherance of that. i. 6: imposes 3rd party liability on anyone aware of a conspiracy to deprive someone of a constitutional right, was in a position to prevent it or to inform authorities but failed to do so. ii. Together with 1870 Enforcement act, established federal criminal and civil justice. Civil Rights Act of 1875 (declared unconstitutional): first public accommodation statute, outlawed discrimination in hotels, restaurants, theaters, etc., but not cemeteries and schools. i. 1-2 civil and criminal liability against discriminating proprietors; subsequently declared unconstitutional. Relevant SCt Cases (moving away from deference to Congress, activist judicial review): i. Slaughterhouse cases (1813): eliminated a substantial portion of constitutional authority for Congress direct enforcement of constitutional rights by holding fundamental rights as part of state, not US citizenship. ii. US v. Reese (1875): 15th Amend does not guarantee right to vote, but is a guarantee against state denying the right to vote on the basis of race, etc. 1. invalidated 2-4 of Enforcement Act because no jurisdiction over individuals acting in private capacity to deny right to vote iii. US v. Cruikshank (1875): state action must be shown for federal jurisdiction under the 14th Amend, even though no racial qualification to its guarantee iv. US v. Harris (1883): indictments against 2 people who beat up 2 black prisoners (violating KKK act) because not acting under color of state law v. Civil Rights Cases: 14th Amendment applicable only to state action. Congress has remedial power to authorize federal courts to provide protection of fundamental rights that state does not provide, if state fails to enforce or infringes on fundamental rights.

1. SCt (1997, 2000): Congress remedial powers limited to legislation with respect to states as states or states actors. Probably not consistent with original intent. 2. Today, can only challenge state action as unconstitutional. Individual actors violations of constitutional rights cannot be sued upon or prosecuted in federal courts. vi. Sct undercuts Congress out of concern of federalism. If Congress has plenary authority to enforce civil rights, states lose much power (Congress concurrent authority would trump States b/c supremacy clause.) Shift from constitution as protector of states power from federal power to constitution as protecting individuals against state interference through assertion of federal power. j. Separate But Equal i. Plessy v. Ferguson (1896): SCt upheld separate but equal train accommodations. Did not violate equal protection because of natural law (people self-segregate and the law is just tracking nature, which does not imply inferiority, just social preference). Provided authority for Jim Crow laws. ii. Cummins v. Board of Ed (1899): SCt deferential to how school board disperses tax money. It cannot act with racial animus; court does not find they acted out of unmistakable disregard for safeguarding rights. Ps cannot get injunction against paying taxes to support separate but equal schools, with no black high school (assumed not necessary). iii. McCabe v. Atchison (1914): State-authorized RR that has dining car for whites, but not blacks, violates equal protection. Right to equal protection is individual right (Plessy said group right). Economic efficiency insufficient justification for denying individual rights. 1. Definition of right to equal protection as a group or individual right affects both what an individual has to show to show an equal protection violation and what a proper remedy for the violation is. k. Rejection of Separate But Equal i. Types of segregation: 1. de jure by law or governmental policy a. prohibited by 14th Amend (state action) and 5th Amend due process clause (federal action) 2. de facto by private ordering a. not protected by 14th Amendment b/c no state action ii. Missouri ex rel. Gaines v. Canada: MO cannot satisfy Gaines right to a legal education in MO by financing his legal education in some other state because state thus denies black applicants opportunities based solely on their color. Irrelevant what opportunities available in other states. MO has to establish a separate law school equal to white-only law school. iii. Sweatt v. Painter: Court ordered admission of black student to white law school in TX b/c separate law school for blacks not equal in tangible (physical plant, library, faculty, financial resources) and intangible ways (reputation, alumni, faculty prestige and teaching ability).

iv. McLaurin v. OK: P admitted into white Ph.D. education program, but given special seat in classroom and library, not allowed to eat w/ whites in cafeteria. Restrictions unconstitutional b/c impair ability to study, engage in discussions and exchange views w/ other students, to learn profession. v. Brown v. Board of Ed I: In education, separate but equal is inherently unequal and violation of 14th Amendment equal protection. Broad principle: cannot segregate any schools, regardless of whether equal. 1. Did not overturn Plessy b/c this is about education only. Ps lawyers changed strategy from arguing for equal facilities there to arguing that separate but equal is inherently unequal here. 2. Not a principled decision. Grounded in factual premise that black students do better in integrated schools (not supported by subsequent studies). Maybe court intervened b/c blacks shut out of political process. Unprincipled decision = raw judicial power. a. Probably not necessarily original intent of 14th Amend. 3. Public education is not a constitutional right. But once you provide it, must provide it for everyone. vi. Bolling v. Sharpe: Same as Brown, but in DC. Separate but equal education not OK, under due process clause of 5th Amendment (equal protection component read into clause). vii. Remedy for Segregation: 1. Brown v. Board of Ed II: SCt provides remedy cases remanded to local district courts to effectuate desegregation with all deliberate speed and as soon as is practicable. a. Unclear whether remedy is process remedy (assign students, draw district lines, appropriate resources raceneutrally) or result remedy (achieve racial balance in the schools, which requires race-conscious decisions). i. Affirmative action is result-oriented remedy. b. Although right described as individual right, remedy is a group remedy reshuffle the kids (race-consciously). 2. Swann v. Charlotte Board of Ed: Federal courts have broad equitable powers to remedy segregated schools (as broad as constitutional violation). E.g. ordering school to bus kids to school, redistricting, creating magnet schools. a. But remedies thus limited to de jure segregation (product of official state policies or law). i. Milliken v. Bradley: Detroit cannot bus suburban white kids to inner city black schools and vice versa b/c suburban schools segregated de facto and inner city schools segregated de jure. Courts remedial powers limited to de jure segregation. 1. formalistic de jure/de facto distinction thus defeats purpose of making distinctions (to remedy segregation by state) viii. Civil Rights Act of 1964

1. prohibited racial discrimination in places of public accommodation 2. prohibited racial discrimination in any program receiving federal financial assistance. ix. National Defense Education Act of 1965: allowed withholding of federal funds from segregated schools. 1. This finally brought about desegregation, not SCts ruling 9 years earlier. 2. Standards of Review (means/ends analysis) a. Rational Basis i. Use for economic and social affairs ii. Requirements: 1. legitimate government interest in adopting the classification AND 2. classification must bear a rational relationship to the legitimate government interest iii. most lenient standard b. Strict Scrutiny i. Use for: 1. suspect classes: race, ethnicity, national origin, religion, sometimes alienage 2. certain fundamental rights: speech, press, not privacy after Casey ii. Requirements: 1. compelling government interest in adopting the classification AND 2. classification must be most narrowly tailored to achieve the compelling government interest iii. most stringent standard c. Intermediate Scrutiny i. Use for gender discrimination ii. Requirements: 1. important government interest in adopting the classification AND 2. classification must bear a substantial relationship to the important government interest d. Problems: i. Court often doesnt use this terminology, or uses the terminology but really applies stricter or more lenient standard ii. Hard to categorize classifications, e.g. statute that requires everyone, sighted or blind, to take a written exam can be read as discriminatory or nondiscriminatory. 3. Race-Specific Classifications (i.e. explicitly draws racial lines or racially motivated; use strict scrutiny) a. Framers of the 14th Amendment intended to protect against discrimination on the basis of race by States. i. Strauder v. West Virginia: WV statute that prohibits blacks from serving on juries b/c of their color is unconstitutional b/c 14th Amendment intended to ensure blacks all civil rights enjoyed by whites.

1. Does not mean that blacks have to be on juries; states still free to qualify jurors on other bases (e.g. gender, landholders, education), just not race or color. b. Racial classifications immediately suspect (apply strict scrutiny) and facially racially discriminatory laws are almost always unconstitutional. i. Korematsu v. US: SCt applies strict scrutiny and upholds constitutionality of military exclusion order b/c based on public necessity and military, not racial antagonism. Court often very deferential to military, plus action had already happened and military probably wouldnt have followed contrary ruling anyway. ii. Strict scrutiny b/c history of past discrimination, pervasiveness and subtleness of racial discrimination, discrete and insular minority. c. Facially neutral statutes that have an invidious purpose (i.e. discriminatory intent) are unconstitutional (apply strict scrutiny). i. Loving v. Virginia: SCt applies strict scrutiny and holds VA statute that prohibits marriages between whites and colored people unconstitutional b/c legislative purpose is to preserve white supremacy, which leads to racial discrimination (contrary to intent of 14th Amend), and it was adopted on the basis of racial stereotype. 1. Statute is facially neutral b/c applies to blacks and whites equally. d. When invidious racial discrimination at issue i. P has burden of making out a prima facie case of invidious intent ii. D must then show by a preponderance of the evidence that there was no invidious intent 4. Disparate Impact (use rational basis review) a. Discriminatory purpose can be inferred from totality of relevant facts, including disparate impact, although it is not sufficient. i. Washington v. Davis: DC Police Depts test that results in disproportionate numbers of blacks failing does not violate equal protection under 5th Amendment b/c statistics not so disparate as to require inference of invidious discrimination, test has legitimate purpose (officers need basic skills). ii. However, extremely disparate impact (shown by statistics) is prima facie evidence of discriminatory purpose. b. Absent a stark pattern of discriminatory impact, impact alone is not determinative of discriminatory purpose. Other factors to consider are: i. Village of Arlington Heights v. MHDC: P challenged villages denial of their re-zoning application based on equal protection. Court does not find equal protection violation (say they use rational basis, really higher). In addition to disparate impact, court considers: 1. Historical background of the decision 2. Specific sequence of events leading up to challenged decision 3. departures from normal procedural decision 4. substantive departures from the norm, e.g. factors usually considered important to decision-maker actually favor opposite result

5. legislative or administrative history c. Burden of proof: i. P makes out prima facie case of disparate impact ii. Burden then shifts to D to show that policy was adopted in spite of (not because of) that disparate impact on a disadvantaged group iii. Mt. Healthy School District v. Doyle: Even though it was found that P was fired b/c he engaged in conduct protected by 1st Amendment, he does not necessarily get reinstatement or back pay b/c D must first fail to prove that school would have fired him anyway. 1. P shows Ds action was motivated by violation of the right 2. Burden then shifts to D to show that D would have taken that action anyway (i.e. motivation was not but for cause of action) d. Facially racially neutral regulations and laws, if applied in a racially discriminatory manner, violate equal protection. i. Yick Wo: Statute that had legitimate health and safety purpose (license required to operate laundry) violates equal protection because administered in racially discriminatory manner (all but 2 white applicants get license, 0 Chinese applicants get license). Does not invalidate statute; just its administration is unconstitutional. ii. Jury selection: A well-developed line of authority reverses convictions where it is shown that facially neutral jury selection statutes are administered in discriminatory fashion, including use of peremptory challenges by prosecutors to remove individual jurors on the basis of race. 1. Cannot peremptorily strike members of opposite sex from jury b/c assumption that they would be biased for or against D is based on stereotype. JEB v. Alabama 2. General assumption that juries are fair-minded regardless of race a. D lost appeal based on disparate impact of capital murder statute (more blacks w/ white victims get death than other combos) b/c D did not prove his jury was prejudiced. McClesky v. Kemp 3. OK to challenge Spanish-speaking jurors (D was Puerto Rican) b/c since much testimony had to be translated into English for most jurors, Spanish-speaking jurors hearing different case. Hernandez v. NY. e. Discriminatory purpose alone does not violate equal protection if there is no disparate impact. i. Palmer v. Thompson: City closed municipal pools rather than desegregate them. SCt says closing does not violate equal protection even if racially motivated b/c no disparate impact. ii. So probably both discriminatory purpose and disparate impact needed to trigger strict scrutiny. 5. Affirmative Action and Race a. History: i. Bakke upheld principle of affirmative action, but struck down this particular quota plan. Unclear what standard of judicial review applies.

b. Strict scrutiny used to evaluate any race-based programs adopted by States and governments, whether allegedly affirmative or invidious (i.e. attempting to subordinate or disadvantage minorities). i. City of Richmond v. Croson: Government argues compelling state interest is remedying government discrimination. Government must show past discrimination. Even assuming there was past discrimination, 30% setaside plan giving jobs to minority contractors fails b/c 1. not the most narrowly tailored plan: a. No goal that it is attempting to satisfy, i.e. no end point b. No identified discrimination; the statistics presented are not on point. c. No investigation of race-neutral strategies. 2. policy concern about danger of stigmatic harm, i.e. program, even if well-intentioned, may harm minorities by imposing stigma ii. Proving past discrimination comes into play when government says compelling state interest is remedying government discrimination. c. Right to equal protection is an individual right, not a group right. It is equally applicable to all races, majority and minority. d. Affirmative action programs evaluated with strict scrutiny because: i. Skepticism: any preference based on racial or ethnic criteria must necessarily receive a most searching examination ii. Consistency: same principle should apply regardless of racial group that is involved (i.e. majority whites or minority blacks) iii. Congruence: standard of review in equal protection cases should be congruent with equal protection analysis under 5th Amendment (principle of federalism) iv. Adarand Constructors v. Pena: SCt never really decided whether the federal program was constitutional b/c Congress changed the plan before court review. But SCt articulates law under which such programs are evaluated. e. Grutter v. Bollinger: Student body diversity is a compelling state interest that justifies the use of race in law school admissions (a plus awarded to minorities) where the use is narrowly tailored (no quota system, program will end when diversity achieved, individual consideration of each application). i. Extremely lenient and deferential strict scrutiny standard used. ii. Broadens compelling state interest beyond remedying past discrimination; beneficiary is law school, rather than minorities (as in Croson, Adarand). iii. Narrow tailoring does not require exhaustion of every conceivable raceneutral alternative, but serious, good faith consideration of alternatives. iv. Second time in history that SCt has applied strict scrutiny and upheld state action (first was Korematsu). f. Gratz v. Bollinger: Although student body diversity is a compelling state interest, use of race in law school admission is not justified where 20 points are automatically given to minorities and not every application is looked at before points are given. 6. Gender

a. History: i. In early 1970s, SCt became more receptive to constitutional attacks on gender classifications. 1. Before, natural law (separate spheres, cult of true womanhood) was reason for differences. 2. Early challenge to law prohibiting women from getting license to practice law under privileges or immunities clause failed b/c right to be a lawyer is not a right enjoyed as federal citizen. ii. Contrary to race, SCt seems to allow classification based on real differences between men and women, but problems identifying real differences from culturally and socially created differences. iii. 14th Amendment not written to protect, and specifically excluded, women. b. Statutory classifications that distinguish between males and females are subject to scrutiny under the Equal Protection Clause. i. Reed v. Reed: ID statute giving preference to males over females when determining administrator of estate violated equal protection b/c although objective of reducing workload of cts (eliminating one class of contestants) was legitimate, means was irrational and arbitrary. Based on stereotype that was no longer acceptable. c. Gender is usually not a relevant factor in relation to the ability of people to function in society. i. Frontiero v. Richardson: Federal law granting male soldiers automatic benefits for dependent spouses but requiring female soldiers to demonstrate their spouses were in fact dependent violates equal protection component of 5th Amend. SCt divided on appropriate std. of review, strict or rational. d. Gender classifications evaluated with intermediate scrutiny; requires important governmental objectives and means must be substantially related to achievement of those objectives. i. Craig v. Boren: Although states purpose of enhancing traffic safety is important, OK statute prohibiting males under 12 and females under 18 from purchasing non-intoxicating beer violates equal protection b/c statistics do not support conclusion that gender-based distinction serves to achieve that objective. 1. Regulation is based on stereotype (women more disgraced by arrest, men party more) and itself furthers a stereotype. e. Separate but equal education for men and women may be OK, but standard of review might be higher than intermediate. i. US v. Virginia: VMI all-male military college must admit women b/c attempted remedy, Mary Balwin VWIL program, does not cure equal protection violation. Not every single-sex system violates equal protection, but this one does b/c schools designed to turn out different students (predicated on separate spheres ideology/stereotype). 1. SCt says they use intermediate scrutiny, but then require exceedingly persuasive justification for gender-based action.

2. Brown based on fact that racial discrimination subordinates minority children; here, ruling based on principle of equal opportunity for women. 3. Scalia dissent emphasizes political sovereignty; court should stay out of culture war (province of legislature and political process) 7. Sexual Orientation a. Rational basis review used for sexual orientation b/c not a suspect class and not a fundamental right. i. Romer v. Evans: SCt finds COs 2nd Amendment that does not allow State to give special protection based on sexual orientation violates Equal Protection Clause. CO argues state interest is freedom of association and conserving resources (much litigation of sexual orientation discrimination), but SCt finds real reason is invidious identification by a single trait to broadly deny protection. 1. Court actually uses a more heightened std of review than rational. 2. Implicit in opinion: making a moral judgment of gays and basing public policy on that moral judgment is impermissible. 3. How to reconcile Bowers? CO amendment targets group of people, not specific behavior. 4. can this be understood as disparate impact case? National Fundamental Rights 1. Privileges or Immunities Clause (14th Amendment, Section 1) a. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States b. Rights in the bill of rights are not privileges or immunities of citizens of the US, and since thus not applicable to the states via 14th Amend. P/I clause, which only protects US citizens from P/I of citizens of the US. i. Slaughter-House Cases (1873): Right to run a slaughterhouse is not a P/I of citizens of the US, so SCt cannot protect P from state making all butchers use a state-run slaughterhouse b/c literal text says P/I of citizens of US. Originalism and federalism to hold otherwise would take to much power from the states. 1. rights of US citizens are those expressed in the constitution navigable waters, protection from fed gov while abroad 2. rights such as life, liberty, property all rights enjoyed as state citizens, not US a. SCt had no power to enforce states violation of rights enjoyed as state citizens. b. Federal government still could not infringe rights in Bill of Rights (would go against constitution) 3. effectively eviscerates the P/I clause c. As a result of the Slaughterhouse Cases, SCt has to turn to the Due Process Clause to protect US citizens from state infringement of fundamental rights i. Bill of rights and implied fundamental rights protected by substantive due process.

2. Incorporation of the Bill of Rights into Substantive Due Process a. History: i. Bill of Rights enforceable against federal government but not the states. 1. Barron v. Baltimore (1833): P claimed the city ruined his wharf, depriving him of property without just compensation under 5th Amend. SCt says 5th Amend limits fed action, not state, b/c people adopted constitution for their own government, not that of individual states. ii. Before 14th Amend due process, SCt interpreted 5th Amend due process consistent with due process under Magna Charta (English law) Murray v. Hoboken Land. iii. Certain rights could be enforced against national and state action, if denial of them would be a denial of due process of law, regardless of whether they were part of the Bill of Rights. 1. Twining v. NJ: State Ct may authorize jury to draw negative inference from Ds failure to testify b/c regardless of whether right against self-incrimination can be enforced against the State, it is not fundamental to due process. (Subsequently overruled.) b. Incorporation debate: i. Total incorporation (Black): Bill of rights should be completely incorporated into 14th Amendment b/c this was the intent of the framers of the 14th Amend and b/c selective incorporation invites justices to read their own personal values into the Constitution ii. Selective incorporation (Frankfurter) Bill of rights should be incorporated on principles of ordered liberty to avoid federal government intruding too deeply into jurisdiction of states; also unpersuaded that original intent favors total incorporation. c. Now most, but not all, rights in the Bill of Rights have been incorporated. 3. Incorporation of Implied Fundamental Rights into substantive due process a. How to determine which rights to incorporate: rights that are so fundamental to our concept of ordered liberty that justice simply could not exist if that right were not protected (theory of natural law) i. Palko v. CT: CT statute permitting state to appeal criminal conviction did not violate 14th Amend due process b/c these rights are not the very essence of a scheme of ordered liberty; fair justice system possible w/o it. ii. Adamson v. CA: CA allowed prosecution in state proceeding to comment on Ds failure to testify. SCt said it is not protected by 14th Amend due process. (Subsequently overruled.) iii. Duncan v. LA (1968): SCt incorporates 6th Amend right to jury trial into 14th amend due process. Enforceable against states. 1. By then, other rights in bill of rights had been incorporated: right to compensation for property taken by State; 1st Amend freedoms of speech, press and religion; 4th Amend right against unreasonable search and seizures, right to have illegally seized evidence excluded from trial; 5th Amend right against self-incrimination; 6th

Amend right to counsel, speedy and public trial, confrontation of opposing witnesses, compulsory process for obtaining witnesses. 4. Economic Substantive Due Process a. Expansion of substantive due process first happened with economic rights (esp. right to property and right to contract); SCt privileged Constitutional rights found in 14th Amend due process over congressional control. i. Allegeyer v. LA: SCt struck down LA statute which prohibited anyone from obtaining insurance on LA property from any non-LA company b/c violated freedom of contract, part of liberty protected by due process. 1. Same right as in Slaughterhouse (not found there in P/I clause) found in due process clause. ii. Lochner v. NY: SCt struck down statute that set minimum hours for bakery workers as violative of liberty of contract, part of due process. 1. Test: end must be appropriate and legitimate, act of police power must have real and substantial relation to that end. a. States stated end of health regulation is legitimate, readjustment of economic power is not. Means is not real and substantial relation to the end. b. Court not very deferential to legislature and its findings of fact w/ regard to health of bakers. 2. Laissez-faire economic theory: maximum economic efficiency and growth achieved with minimum government intervention; part of natural law 3. Formalism starts with a priori principle (liberty of K part of due process) and reason deductively to that result (statute violates liberty of K, thus due process) b. SCt gradually abandoned Lochner-style substantive due process review of economic regulation (after depression, FDR), giving more deference to legislative regulation of business, economic, and social affairs. i. Government may regulate private property rights of businesses affected with the public interest. 1. Nebbia v. NY: SCt upheld statute that set max and min prices for milk produced or sold in state b/c interference w/ individual liberty to use property OK when state is promoting public health (milk essential to health and welfare). a. SCt very deferential to legislature will not overrule state legislature unless palpably in excess of legislative power. ii. West Coast Hotel v. Parrish: SCt upholds minimum wage for women under due process. Regulation reasonable in relation to its subject and is adopted in interests of community (protects women from exploitation, community from having to subsidize women who cant make ends meet). Deprivation of freedom of K not arbitrary or capricious. 1. Legal realism court looks at the effects of law in determining proper outcome; moves away from laissez faire. 2. Assumption that women need protection of the law; reinforces stereotypes.

iii. US v. Carolene Products: SCt upheld Congressional Act prohibiting any person to ship filled milk in interstate commerce. 1. Standard: where legislative judgment is drawn into question, legislation is constitutional when there is any state of facts know or which could reasonably be assumed to support it. 2. Extremely deferential standard of review iv. Eventually, SCt finds economic legislation constitutional as long as there is a plausible reasoning to uphold the statute 1. Williamson v. Lee Optical: SCt upheld OK law requiring prescription from ophthalmologist to get glasses from optician (thus maintaining monopoly). Up to legislature, not courts, to balance advantages and disadvantages of new requirement. 2. Ferguson v. Skrupa: SCt upheld KS law making it unlawful for any person to engage in business of debt adjusting, putting P out of business. States have power to legislate against what are found to be injurious practices in internal commercial and business affairs, just cannot violate any specific constitutional prohibition. 5. Substantive Due Process in Personal Liberties a. After becoming deferential to state and federal legislature in the area of economic rights, SCt becomes activist in the area of personal rights, i.e. rights protected by the Bill of Rights, then elaborated from there (e.g. exclusionary doctrine) b. Privacy i. Griswold v. CT: CT statute that prohibits use of contraceptive devices violates right to privacy, part of freedom of association bet. H and W (thus marital right. SCt found several Bill of Rights guarantees protect privacy interests and create a penumbra (zone) of privacy, within which falls use of contraceptives by married people. 1. Decision really based on subjective beliefs. Framers probably did not intend to extend enumerated instances of right to privacy more generally. 2. Douglas attempted to distance himself from Lochner-style subs. due process w/ penumbra including privacy, but actually invokes subs. due process principles, right to marital property within liberty protected by 14th Amend. ii. Eisenstadt v. Baird: Statute that prohibits distribution of any contraceptive drug or device to unmarried persons violates equal protection b/c it treats married and unmarried people differently, and fornication statute not being enforced, so unreasonable to enforce here with pregnancy and childbirth. 1. SCt said they used rational basis review, but really higher scrutiny b/c fundamental right involved. 2. Marital right to privacy in procreative decisions transformed to individual right. a. Individual rights slowly being given more importance. c. Abortion i. Right to privacy limits legislatures freedom to proscribe or regulate abortion; state may not prohibit abortion entirely.

1. Roe v. Wade: SCt uses strict scrutiny to determine that the right to privacy includes a womans right to choose (described as physicians decision in consultation with patient) whether to have an abortion in trimester framework: a. 1st trimester: state interest (discouraging illicit sexual conduct, promoting health of women, protecting potential human life) is low b/c risk of abortion low compared to risk in childbirth. i. State may not regulate right to choose. b. 2nd trimester: state has greater interest in protecting health of mother (mortality rate from abortion higher) i. state may regulate abortion to protect health of the mother only, not potential life of fetus c. 3rd trimester (viability): state has compelling interest in potential human life, small interest in health of mother (high mortality rate from abortion then) i. state may ban abortions completely, except to protect health of mother ii. states interest in potential human life compelling at viability b/c baby could be sustained outside womb. Then, that interest trumps womans interest in choosing whether to terminate pregnancy, but womans health always trumps fetus right to life. d. Right to choose abortion probably not really a fundamental right, b/c historically prohibited. Notions of fundamental rights can change, but probably by legislature, not courts. i. Plurality in Casey might have better notion of right protected in Roe right of individual to determine own destiny, rather than right to choose abortion. ii. Due process does not require government to ensure that all persons have financial resources to do what the government may not prohibit, e.g. abortion, private schooling. 1. State may refuse to provide Medicaid funding for non-therapeutic abortions. a. Maher v. Roe: State has broad power to encourage alternative activity and make value judgment by allocating public funds to supporting pregnancy rather than funding abortions. No unqualified constitutional right to abortion; rather, right to protection from unduly burdensome interference with right to choose. i. Financial need alone does not identify a suspect class for equal protection. ii. State does not have to remove obstacles it did not create.

2. State or federal government may refuse to provide Medicaid funding even for medically necessary (but not life-threatening) abortions. a. Harris v. McRae: Federal statute that prohibits use of federal Medicaid for abortions except where life of mother is endangered or except where necessary for victims of rape or incest is OK. Regardless of womans right to choose, constitutional entitlement to financial resources to avail herself of choices does not follow. b. Formalistic, rather than realistic, analysis. c. Result would change if there was right to abortion (positive right) b/c then gov would be obligated to afford procedure to everyone. i. Negative right entitles individuals to freedom from government restraint ii. Positive right entitles individuals to affirmative action from government. iii. States may restrict abortion so long as they do not place undue burdens on a womans right to choose 1. Planned Parenthood v. Casey: SCt upholds PA statute that requires informed consent (MD to give patient anti-abortion literature), 24-hour waiting period between abortion consultation and procedure and recordkeeping (as long as for maternal health and does not violate confidentiality), but not requiring Hs notification. Woman still has right to choose, this right trumps states interest in protecting mother or potential life. After viability, state may prohibit right to choose except when health of mother at stake. a. Protected right shifted from right to privacy to right to control ones own destiny or right of personal autonomy, which is guaranteed in Bill of Rights b. Standard of review: undue burden state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus is not constitutional c. Compared to Roe: Trimester framework and abortions status as a fundamental right overturned; allows state to regulate even in 1st trimester (although not to the point of absolutely prohibiting choice) d. Stare decisis analysis i. Roe decision has not proven unworkable ii. Reliance: For 2 decades, people have organized intimate relationships and made choices in reliance on availability of abortion should contraception fail. iii. Change in facts or law: Evolution of legal principle has not left Roes reasoning weaker than when it was decided.

iv. Also, reluctance to overrule under fire. d. Family Privacy i. Moore v. East Cleveland: City ordinance limiting occupancy of any dwelling unit to members of the same family, where family narrowly defined a including only a few categories of related individuals is violation of due process clause b/c it protects freedom of choice in matters of marriage and family life (part of liberty freedom of association). 1. No specific standard of review articulate, but state may not lightly deny this right. 2. Result would have been different if no family relationship. 3. Dissent: right of association protected for political purposes only. e. Right to Marry i. Zablocki v. Redhail: Statute prohibiting any resident who had a court order to support a child not in his custody to get judicial determination that support had been met before being permitted to marry is unconstitutional on equal protection grounds (but fundamental rights analysis very important). States interest (providing for children) is legitimate and substantial, but means do not ensure that children will actually be provided for (means/ends test) and fundamental right to marry is unnecessarily interfered with. 1. Right to marry is fundamental interest (SCt does not say right), but strict scrutiny only applies when regulation significantly interferes with the right, otherwise rational basis review. 2. This is after court in Maher v. Roe said financial need alone does not identify a suspect class for equal protection? Class defined as fathers with child support debts rather than poor people? 3. Indigence or wealth only gets rational basis review (Maher), but in Zablocki standard of review raised b/c fundamental right to marry implicated. f. Parental Rights i. Michael H v. Gerald D: Statute that a child born to a married woman living with her husband is conclusively presumed to be a child of the marriage is constitutional. Right of an adulterous father to an illegitimate child is not a fundamental liberty interest nor one traditionally protected by our society. 1. Scalia takes a narrow view of the fundamental interest, whereas Brennan (dissenting) wanted broader definition (right of parenthood). a. Broad, general definitions leave judges room to dictate, rather than discern, societys view. b. Narrow definition does not allow for change, just reinforces status quo. c. But whether one defines the tradition narrowly or broadly, discretion is still involved in that definition. g. Sexual Autonomy

i. Bowers v. Hardwick: Georgia statute prohibiting consensual homosexual sodomy is upheld b/c no fundamental right to engage in homosexual sodomy and it is not deeply rooted in concept of ordered liberty. 1. Even though statute prohibits all sodomy, here interpreted as applied to homosexuals. 2. Dissent wants to define right as right to self-determination (how we define ourselves in intimate relationships) ii. Lawrence v. Texas: SCt overturns Bowers, holding right to liberty includes autonomy of sexual relations. Statute furthers no legitimate state interest. Right to sexual autonomy (1st time recognized) is fundamental and may not be regulated merely on moral objections (even though this is traditionally within state police power). 1. Majority used rational basis review even though fundamental right. a. Might be compromise between justices; door still open. st 2. 1 time right to sexual autonomy recognized 3. Stare decisis analysis: Bowers did not induce reliance, international human rights law contrary to Bowers, Bowers incorrectly decided 4. Gay marriage a. Arguments for: i. Argue marriage, like intimate contact, is another key element of bond between people, so cannot be proscribed. ii. Equal protection argument iii. Erosion of association of sex for procreation and marriage makes it hard to find basis to regulate intimacy 1. might try for nonsectarian, non-moral state interests, e.g. genetic problems with incest, psychological effects of bigamy on women b. Arguments against: i. Fundamental rights tradition of marriage is heterosexual ii. Scalia says these questions are for states to decide through democratic processes iii. Rational basis review legitimate state interest suffices iv. Banning gay marriage criminalizing gay behavior, like Lawrence situation. h. Right to Die i. Competent adult has 14th Amend liberty interest (right to bodily integrity) in not being forced to undergo unwanted medical procedures, including life-sustaining measures. ii. State has important interest in preserving life. iii. State may prohibit family from deciding whether to take incompetent person off life support.

1. Cruzan v. Missouri Dept of Health: Missouri requirement that treatment not be withdrawn unless clear and convincing evidence of incompetent persons wishes is constitutional b/c due process protects liberty interest in refusing unwanted medical treatment. States allowed, but not required, to rely on family decision making. a. Not a right to decide case (assumed here), but a right to have family decide. b. Rational basis review c. Missouri has imbalanced burden of proof: must show clear and convincing evidence that it is patients wish to be taken off, but no evidence required to show that it is patients wish to remain on life support. iv. No generalized right to commit suicide. v. State may prohibit physician-assisted suicide (may also permit assisted suicide). 1. Washington v. Glucksberg: SCt upholds WA statute that prohibits the aiding or causing of suicide. No historical right to assisted suicide, liberty to commit suicide not a fundamental right. a. States interests in regulating assisted suicide (to preserve human life, integrity of medicine, protect vulnerable groups) are legitimate. b. 5 justices suggest there may very well be a right of physician-assisted suicide to be free of pain and to control manner of death (if terminally ill), but they dont have to decide here b/c palliative care available in this case (if not, maybe physician-assisted suicide OK) i. Fundamental rights analysis: i. Is the right deeply rooted in the Nations history and tradition? ii. Is the right so fundamental to our system of ordered liberty that without it, neither liberty nor justice could exist? The Commerce Clause 1. Original Understandings a. Gibbons v. Ogden: NY conferred monopoly on NJ ferry company (right to navigate waters of the US between NY and NJ). SCt found that a ferry running from NY to NJ was interstate commerce and subject to Congress regulation. b. Sweeping interpretation of Commerce clause and commerce i. Interstate commerce = commercial intercourse in all of its dimensions, among and even into the states and its interiors. ii. Congress and States have exclusive and overlapping areas of power. 1. Exclusively Congress: completely interstate aspects of interstate commerce, commerce between US and foreign nations a. Congress power to regulate is complete and may be exercised to its utmost extent, limited only by Constitution and constituents.

i. Sovereignty of Congress has always been understood as limited to specified objects, not powers; plenary as to these objects 2. Exclusively States: commercial activity that is completely intrastate, local, and internal a. beyond Congress regulation; regulated by state police powers 3. Overlap: activity that is local in nature, but nevertheless has an effect on interstate commerce a. Dormant commerce clause: areas of interstate commerce that Congress has not yet regulated, that the States may regulate unless Congress does act and regulate that area. b. E.g. inspection laws, quarantine and health laws 2. New Deal a. Schechter Poultry v. US: Statute allowing President to approve codes of fair competition developed by boards from various industries is unconstitutional. Although 80% of chickens came from interstate commerce, court finds they came to rest in NY and is no longer part of interstate commerce, just production, which is a local activity. i. Separation of Powers: 1. Nondelegation doctrine Congress may not delegate to the President its lawmaking power (power to establish industrial boards regulating wages, hours, production quantities) ii. Commerce Clause: Manufacturing, farming, mining are all local production activities and do not constitute interstate commerce. Congress can regulate transaction of the products interstate, not hours and wages of local production. 1. Transactions that directly affect interstate commerce are regulated by Congress 2. Transactions that indirectly affect interstate commerce are within states power iii. Formalism (very narrow view of what is interstate commerce), activist judicial review. b. Carter v. Carter Coal: Congress does not have power to regulate wages and collective bargaining in coal mining by setting up local coal boards b/c coal mining (intercourse for the purposes of production) is not interstate commerce (disposal of coal). For this formalistic court, issue is not the effect of activity (mining) on interstate commerce, but the nature of activity (production vs. trade). i. Cardozos dissent argued legal realism should not ignore the great affect this intrastate activity has only interstate commerce. ii. Court holds that Congress power is limited not to objects, ends, and purposes, but to its enumerated powers. Otherwise, statute would infringe on states police power (federalism concern). 3. Modern Trend: a. Any activity, commercial or not, that has a substantial effect on interstate commerce may be regulated by Congress.

i. NLRB v. Jones & Laughlin Steel: Court abandons the idea that production is a local activity and only indirectly effects interstate commerce. National Labor Relations Act that regulates labor and management relations is constitutional b/c these activities have a close and substantial relationship to interstate commerce (D had ships sailing great lakes among MN, MI, PA, mines and quarries in PA, etc.). ii. Wickard v. Filburn: SCt upholds Agricultural Adjustment Acts quota for wheat production, even for growers that grew wheat only for their own use, b/c even this production would disturb the supply of wheat that the act was trying to regulate. 1. Effect, not the nature, of the activity is what matters. 2. Cumulative effect of activity among many actors may have a substantial effect on interstate commerce even though any particular individual may have negligible effect. b. Congress may choose means for regulation that are reasonably adapted to the attainment of the permitted end. i. US v. Darby: SCt upholds Fair Labor Standards Act, setting minimum wages and maximum hours for production of goods for interstate commerce and making it a crime not to violate these standards, b/c it is within Congress discretion to choose the means to achieve its policies (motive is irrelevant). 1. Recognizes Congressional police power under the Commerce clause. 2. 10th Amendment does not affect courts conclusion b/c of its attitude towards 10th Amendment, that it is no limitation on the powers of Congress; power of Congress over interstate commerce can neither be enlarged nor diminished by exercise of state power. c. Using the commerce clause to protect personal, rather than economic, rights. i. Heart of Atlanta Motel v. US: SCt upheld Title II of Civil Rights Act, which required places of public accommodation not to discriminate, as valid exercise of the power to regulate interstate commerce b/c racial discrimination has disruptive effect on commercial intercourse. 1. cannot use 14th Amendment because no state action. ii. Katzenbach v. McClung: SCt upheld Congress power to regulate discrimination in a family-run restaurant that only allowed black to takeout, not eat in, under the Commerce clause. Substantial effect on interstate commerce is that discrimination as a principle affects travel, location of businesses, places where people will move. 1. Ps single restaurant by itself does not significantly affect interstate commerce (only 46% of food comes from out of state, not near interstate highway), but aggregated with others, it does. d. Three areas which Congress may regulate under its commerce power: i. use of channels of interstate commerce, e.g. highways, RR ii. instrumentalities, persons or things in interstate commerce, even though the threat may come only from intrastate activities, e.g. objects, goods, hotels, restaurants

iii. commercial or economic activities that have a substantial relation to (i.e. substantially affect) interstate commerce e. In the absence of a stated particular level of review, the court will determine (de novo) whether the regulated activity is regulating commerce, regardless of what Congress found. Relates to separation of powers principle that it is the courts function to say what the law is. i. US v. Lopez: SCt invalidated Gun-Free School Zones Act of 1990, which made it a federal offense to knowingly possess a firearm that one knows or should know is a school zone, b/c it did not regulate commercial activity nor was it connected to interstate commerce; gun possession here doesnt satisfy 3rd area b/c having a gun is not a commercial or economic activity and education and crime are traditionally state functions. 1. Courts standard for reviewing Congress regulation is de novo: court determines itself whether violence in the schools substantially affects interstate commerce. a. Increases judicial power relative to congressional; congress exercises its power subject to judicial review. b. Dissent wanted rational basis, which would ask whether congress could rationally have found that violence in the schools affected interstate commerce ii. US v. Morrison: SCt strikes down federal statute that prohibits crimes of violence motivated by gender b/c the activity is essentially non-economic, despite detailed findings by Congress that such crimes do affect travel and interstate business. Otherwise, Congress could regulate any crime. 1. Congress remedy is limited to the state; not within Congress 5 powers to reach purely private conduct, even if that conduct interferes with 14th Amend rights. 2. Since only state action can give rise to 14th Amendment violation, the Act was not a congruent and proportional response to state action (it allowed individual perpetrators to be sued). 4. Congress Remedial Power to Enforce the 14th Amendment i. Katzenbach v. Morgan: SCt upholds statute that allows any person who has completed 6th grade in a Puerto Rican School to vote, even if instruction was in Spanish and the person cannot read or write English. It is Congress role to assess the need to vote and whether it warrants federal intrusion upon the state interests served by the literacy requirement, as long as Congress might have enacted the statute to prevent invidious discrimination (deferential to Congress). b. Under the 14th Amend, 5, Congress has remedial power to enforce 14th Amendment violations, including violations by a state, but not to determine what constitutes a constitutional violation. i. Thus Congress has power to suspend state sovereign immunity. c. Test for determining when Congress has gone beyond its remedial powers. i. Congruence and Proportionality test: there must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.

ii. City of Boerne v. Flores: Religious Freedom Restoration Act of 1993, which imposed strict scrutiny on states regulating exercise of religion (after SCt held only undue burden), is unconstitutional b/c although Congress power to remedy violations of 14th Amendment rights extends to state violations, there must be a congruence between the means used and the ends to be achieved. Means here expands the scope of the free exercise clause, rather than merely enforcing that clause. 1. Court conclusorily says Katzenbach does not conflict b/c it does not stand for the proposition that Congress can enact legislation to expand rights protected by the 14th Amendment (Sec. 1). d. Doctrines of state sovereign immunity i. 11th Amendment immunity 1. Facially, Congress may not authorize a citizen of one state to sue the government of a different state, nor can Congress authorize a citizen or subject of another country to sue a state 2. Congress may not authorize citizens to sue their own states. (Amendment is given broad interpretation). Hans v. LA. 3. Seminole Tribe v. FL: Under Art. I, Congress does not have the power to suspend state sovereign immunity (i.e. overrule broad reading of 11th Amendment), no matter how explicitly it tries. 4. 13-15th Amendments are only area where Congress may abrogate 11th Amendment and authorize suit by private individuals against states, but such remedy must be congruent and proportional. a. FL Prepaid v. College Savings Bank: SCt declared unconstitutional a federal patent law authorizing damages against states that violated patent holders rights b/c although Congress is remedying a 14th Amendment right, which might be OK despite 11th Amendment, the remedy is not congruent and proportional (no evidence that the states had engaged in widespread infringement of patent rights). ii. CL state sovereign immunity 1. States are not immune from civil suits filed by federal government 2. States are not immune from civil suits filed by individuals for prospective relief, e.g. suit to enjoin a state from continuing violations of federal law 3. Individuals may sue state officials engaged in unconstitutional behavior but state official may have a defense that the action was not clearly unconstitutional at the time they acted. Freedom of Expression 1. History a. Clear and present danger test: speech could be punished if it created a clear and present danger of an illegal act (even if it never actually occurred) Shenck v. US. b. Bad tendency test: utterances that have a bad tendency to bring about harm may be proscribed Abrams v. US.

c. State may punish those who abuse their right to speak by utterances tending to incite crime, threaten peace, etc. This banned certain types of speech, regardless of the substantive dangers posed by it. i. Whitney v. CA: Whitney convicted for being a member of the Communist Labor Party b/c the organization advocated use of violence for political change, even though Whitney herself did not. ii. Dennis v. US: SCt upheld prosecution for being an officer in the communist party, regardless of the fact that communists never stood a chance of actually taking over, violently or not. 2. Dangerous Ideas a. Speech advocating use of force or illegal acts may only be proscribed when: i. Speaker has intent to incite or produce imminent lawless action, AND ii. The speech is likely to incite or produce such action iii. Brandenburg v. Ohio (overruling Whitney): OH statute that prohibits advocating violence and assembling with such an organization is therefore unconstitutional under 1st and 14th Amendments. 3. False Statements a. Generally, defamation is not protected by the 1st Amendment. b. However, there are some limits: i. Statements about public officials relating to their official conduct cannot be proscribed unless he proves the statement was made with actual malice, i.e. knowledge that it was false or reckless disregard of whether it was false or not NY Times v. Sullivan. 1. Reasons: public official assumes risk of criticism, compromise between protection of reputations of public officials and encouraging them to serve and permitting political activists and news media freedom to report the news as they see it. ii. Distinction is made between high value speech (more protected) and low value speech 1. High value speech contributes to public discourse in politics, science, literature or arts 4. Fighting Words and Offensive Speech a. Fighting words are words which tend to incite immediate breach of the peace (an act of violence). They are unprotected by 1st Amendment b/c not part of any dialogue or exposition of ideas i. Chaplinsky v. NH: SCt upholds NH statute that prohibits offensive, derisive or annoying speech that tends to inflict injury or incite immediate breach of peace b/c statute is narrowly drawn and limited to only this language, and low value speech is outweighed by social interest in order and morality. 1. Fighting words in Chaplinsky also included words that by their very utterance tend to inflict injury now dealt with differently (see Cohen). b. Offensive speech, words which by their very utterance inflict injury, are generally protected by 1st Amendment.

i. Cohen v. CA: SCt reversed Ds conviction for disturbing the peace by wearing a Fuck the Draft jacket on 1st Amendment grounds. Language offensive, but not intended to insult a specific individual; generalized expression of political viewpoint. Ds intent not relevant. 1. words were not obscenity b/c not erotic 2. words were not fighting words b/c did not tend to incite immediate act of violence 3. no expectation of privacy in a public place ii. Protected speech is subject to strict scrutiny. 5. Hate Speech a. Content-based regulation of even unprotected speech (e.g. fighting words) is impermissible. i. RAV v. St. Paul: MN statute that prohibits bias-motivated fighting words (including acts, e.g. cross burning here) is unconstitutional b/c even though fighting words are not protected, State cannot prohibit some fighting words on the basis of content and not others. 1. Concurrence thought Scalias opinion was overbroad statute prohibited speech arousing anger, alarm and resentment (concurrence did not feel bound by MN SCts interpretation to mean fighting words, unlike Scalia). So expression was protected, but still cannot proscribe content. 2. Generally, cannot prohibit content itself, e.g. viewpoint of hate without fighting words; peaceful Nazi parade OK 3. Exception: content based on the very reason for proscription of class, i.e. prohibiting the worst examples of a type of unprotected speech, is OK. a. e.g. statute that prohibits only the most dangerous fighting words or most obscene obscene images is constitutional. 6. Obscenity and Pornography a. An area where content is not protected b. Miller g. CA: State may only regulate obscene materials that depict or describe sexual conduct. Conduct must be specifically defined by the applicable state law, as written or authoritatively construed. i. Test for whether material may be banned as obscene: 1. The average person, applying contemporary community ( national) standards would find that the work, taken as a whole, appeals to the prurient interest, 2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, AND 3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value. c. Protection of children as subjects of pornography: i. State may ban the distribution of materials showing children engaged in sexual conduct, whether or not material is legally obscene b/c of states compelling interest in preventing sexual exploitation of children, both as a class and individually (the photographed children) NY v. Ferber.

1. Test for whether material is legally obscene is not needed. State just has to adequately define the prohibited conduct. ii. However, state may not ban non-obscene virtual child pornography, e.g. computer-generated images of children having sex or young-looking adults posing as minors, b/c no actual harm to minors in making the material Ashcroft v. Free Speech Coalition.

1. Make chart of each branches power and its checks on other branches. 2. Look at different ways acts can be unconstitutional, e.g. Metropolitan Washington Airports Authority courts view, ineligibility clause, appointments clause; also argue taking in Korematsu? 3. Look at different clauses and situations in which they are used, e.g. necessary and proper in Missouri v. Holland and McCulloch v. Maryland, 10th Amendment in Missouri v. Holland and NY v. US In deciding cases, consider: intent, text, precedent, consensus Administrative Agencies sometimes executive and sometimes legislative? Why this categorization for all the cases here? Seems like need to ask what is the nature of the agencys power (e.g. executive or legislative), then is that branch overseeing its own job? Also, does it follow the requirements of that branch (e.g. bicameralism and presentment for Congress)? Reorganize into each branches powers and each branches restraint on other branches powers. Scalia requires an individualized wrong on the basis of equality or gender. But even he is concerned with using race and status as a basis for group remedy b/c it might harm majority whites who were not responsible for the discrimination Why doesnt this apply to Maher? Court held that the government was not interfering with her choice to have an abortion. In zablocki, government was interfering. in zablocki, the regulation was not related to the states interest.