ConLaw

speech, religion, assembly

bear arms

quartering soldiers

search and seizure

self incrimination and due process

trial by jury and grand jury indictment

civil jury

excessive bail and cruel and unusual punishment

"catchall" (unenumerated powers)

any powers not expressly given to congress, is reserved for the states

• Facts:
• Covert was the wife of a US soldier based in Britain
• Covert killed her husband
• Covert convicted by a military tribunal (court marshal - - - usually used to try military personnel)

• Issue:
• Covert challenging the conviction under the 5th Amendment
• Covert challenging the conviction under the 6th Amendment

• Argument: She did not receive a trial by a jury of her peers, as a US citizen she has a right to a jury under the constitution
• Question Presented: Can Covert invoke the fifth and sixth amendment when her actions took place abroad?

• Court's finding
• US constitution limits US actions against citizens abroad
• When the US government is taking action against one of its citizens, it is bound by the US constitution
• Citizenship is more important than location/territory
• Based on textual reading of sixth amendment, 'all persons' shall have a right to a jury trial in 'all criminal prosecutions'

the government cannot discriminate against someone b/c of his/her race, but an individual can so long as he is acting in his own personal capacity (i.e. he doesn't have to invite blacks into his house, he doesn't have to drive Mexicans in his car, etc.)

14th Amendment: "No state shall deny…"

Note: there are statutory regulations/protections when it comes to private sector corporations

• Exception:
• Private entities are carrying out a government function
• Private entity's actions are so entangled in government function/action that they should be treated like the government

• Government Function
• Private company doing something that the government would normally do
• Government heavily controlling acts of a private company
• Private entity is "standing in the shoes" of the government

• Smith v Allwright
• Terry v Adams
• Marsh v Alabama
• Jackson v Metropolitan Edison Co.

Jehovah's Witness convicted of trespass trying to distribute materials on city street b/c company owned title to entire city and they didn't want her distributing materials, reversed b/c an ordinary municipality could not bar her activities and the more an owner opens up his land for public use, the more his rights become circumscribed by those who use it (a corporation cannot buy a town and restrict the liberties of the citizens within) - - -company stood in the shoes of the state b/c it was functioning as the town gov't

• Power company (D) cut off power to p for nonpayment
• Claims she didn't receive notice, have a hearing, or an opportunity to pay

Was there a governmental function to the power company's actions? NO

• Argument for Yes
• Power monopoly provided by the state
• Company subject to heavy state regulation
• Power company provides and essential public service
• The state specifically authorized and approve the termination practice
• The company has given up many of the prerogatives generally associated with private companies in order to hold this monopoly provided by the government, thus it is more like a state actor than a private one

Argument for No

• The mere fact that an industry is highly regulated does not necessarily mean it is acting out a government function
• The state is not obligated to provide regulated utilities

Majority said NO

Test: Must be a close relationship (nexus) b/t the state and the actions of the corporations so the corporations is essentially acting as part of the state

• Blacks purchased houses subject to restrictive covenants from whites
• By enforcing the covenants the court would be enforcing/encouraging discrimination
• But for the active intervention of the courts, the sales have been consummated
• Simply obtaining court aid in a private action does not and cannot make the action a state action

Prior to the 14th Amendment the Bill of Rights was not applicable to the state governments, only the federal government

• The state's had their own constitutions that provided many of the same general rights
• The 14th Amendment made all of the provisions of the Bill of Rights applicable to the states
• This theory was rejected by the supreme court initially in the Slaughterhouse Cases

• Some rights are more fundamental than others
• Which rights?

• Palko v Connecticut : Those rights which are implicit in the concept of ordered liberty
• Those w/ a natural law basis {Ordered Liberty Theory }

Duncan v Louisiana : Those rights deemed fundamental to the American scheme of justice {Fundamental Fairness Theory }

Rationale for Selective Incorperation

• Federalism
• Protect 14th Amendment's Independent significance
• History or precedent

• Speech (I)
• Religion (I)
• Assembly (I)
• So search and seizure (IV)
• 5th (V)
• Trial by jury (VI)
• Cruel and unusual punishment (VIII)
• Catchall (IX)
• States (X)

• Bear arms (II) - - - Supreme court considering this right now
• Quartering Soldiers (III)
• Grand Jury (VI)
• Civil jury (VII)
• Excessive Bail (VIII)

Rochin involuntarily had his stomach pumped to find evidence of his possession/consumption of illegal drugs

• Holding
• Violation of 14th Amendment
• Rochin was 'forced' to self incriminate (Justice Black's theory) - violation of 5th amendment rights

This action 'shocked the conscience'

Under selective incorporation theory, the 14th amendment has independent liberty rights

• State statute: Forbade employment in a bakery for more than 60 hours per week and 10 hours per day
• Statute invalid under 14th amendment b/c it interferes w/ the right of contract b/t employees and employers (violation of the 14th amendment)
• There are no reasonable grounds to justify state interference w/ free right to contract
• There is no evidence that bakers need protection from the state, they are capable of asserting their own rights w/ regard to their employment contracts
• There is no public health risks to bakers working long hours
• Being a baker is not a hazardous job that needs protection/regulation
• Such a limitation could seriously cripple a baker's ability to provide for his family
• The state is not completely banned from regulating hours, but there must be reasonable grounds to justify such regulation (risks, hazards, public safety, etc.)
• Liberty = right to contract
• This case is considered the 'birth' of the substantive due process doctrine
• "Footnote 4" Case

Overruled by Nebbia

• Plaintiff - grocery store owner
• New York enacted law setting price for milk sold in a store
• Plaintiff charged w/ selling milk below statutory amount
• Plaintiff's argument: he has a right to sell products in his store at whatever price he likes (free market)
• Purpose of statute: protect farmers, prior to the statute stores were price cutting to the point where farmers could not even break even with what they got paid for the milk

• Court's Opinion
• Liberty = right to property and right to contract
• Neither properly nor contract rights are absolute
• This industry is subject to regulation for the public interest (protecting farmers economically so they are able to continue producing for the rest of society)
• Legislature must have a legitimate, rational reason to justify their actions
• The court is not in the regular business of second guessing the legislature

"Overruled" Lochner

Note: since Nebbia, a court has never struck down a statute for a violation of substantive due process

• There is an efficiency argument for the court not reviewing every act the legislature passes
• How often does the legislature admit when they are wrong and repeal an act

The balance of powers encourages the separate branches of gov't to second guess each other

• Griswold - Director of Planned Parenthood
• Arrested for providing info on contraceptives to married couples

Issue: Constitutionality of Statute making the use of a contraceptive illegal and thus applying the accessory rule to anyone who provides assistance to someone who uses a contraceptive

• Court's Opinion (Douglas)
• State cannot regulate such a private act as what goes on in the marital bedroom
• Liberty = privacy
• Didn't use Lochner or Due Process Clause
• Mentioned 1st, 4th, 5th, and 9th amendments

• What is the ‘right’?
• The right to use contraceptives
• Is this right ‘privacy’ ?

• Where does the "right” in Griswold come from in the constitution?
• “Pnumbra” (Douglas)
• 9th amendment (Goldberg)
• 14th Amendment (Harlan/White)

• Harlan - Incorporation theory
• Harlan - 'careful' scrutiny
• White - there is no rational relationship b/t banning contraceptives in marriage and the arguable state interest in preventing/prohibiting illicit sex
• White - does not argue that this is a fundamental/important right b/c there is no connection and there must be some connection when states want to regulate anything
• White - 'arbitrary and capricious' standard

• Dissent - Black
• No unenumerated rights are protected under the constitution
• Formalist approach
• Once we open the door to unenumerated rights, the judges have too much discretion to say that 'everything' is a fundamental right protected under the constitution
• Unenumerated rights may still be important rights, they just don't come from the constitution, they come from somewhere else

• 1. Identify a "fundamental right"
• a. Explicitly enumerated in the constitution
• b. Implied in the constitution
• c. Tradition (Harlan)
• 2. Identify the source of constitutional protection
• a. Numerated, or
• b. Falls under 9th/14th amendment, and/or
•      c.  Pnumbra theory
• 3. Subject state purpose for regulating or restricting this right to scrutiny
• a. Does the state have a compelling reason?
• b. Strict scrutiny

• Griswold's aftermath
• Individual's right to use contraception
• Minor's right to contraception
• Went beyond the right of privacy in marriage

new standard: undue burden

• Challenging a Georgia statute that criminalized consensual sodomy
• Court of Appeals held that the statute was a violation of the 9th amendment b/c the homosexual activity engaged upon in this situation is a private and intimate association

• Plurality Opinion (White)
• Reversed

• What is the right at issue?
• The right of homosexuals to engage in consensual acts of sodomy
• The right of individuals to engage in consensual acts of sodomy
• The right to private and intimate associations

• What source does the right come from?
• History and tradition

• States have long outlawed sodomy
• It was a crime at the common law

• No fundamental right to engage in sodomy
• The Georgia Statute is not unconstitutional

Issue: Constitutionality of Texas statute making "deviate sexual intercourse, namely anal sex, with a member of the same sex" illegal

• Majority's Opinion (Kennedy)
• What right is at issue?
• Private intimate associations
• Court doesn’t really focus on the fundamental rights approach, look at liberties not rights
• "Liberty presumes an autonomy of self that includes freedom of thought, belief, expressions, and certain intimate conduct"
• Equal Protection does not come into play b/c even if both heterosexual and homosexual were prohibited from consensually sodomizing it would be an invasion of privacy
• Violates due process clause of 14th amendment
• Overruled Bowers

• Not all morals are shared by all Americans
• Must be some rational government interest
• Morality, alone, is insufficient to justify legislation

• History (Renquist)
• Right of Privacy (Souter)
• Liberty Interest (Kennedy - in Lawrence)

Substantive - Do I have a right? And can the state take away my right?

Procedural - What process do I have before the state can take a right away?

• What do you get if you win a procedural due process claim?
• A hearing or equivalent procedure
• Example: Goldberg v Kelly
• Right being taken away - welfare benefits
• Issue before court - is the individual entitled to a hearing before welfare benefits
• are taken away

• 1. Private interest that will be affected (how important is it)
• 2. Risk of an erroneous deprivation (what will happen if it is taken away)
• 3. Gov't interest (how much it costs to enforce)

Equal Protection Case

Law at issue: Illegal to advertize on any vehicle in NYC unless the advertisement is on a delivery vehicle used primarily for business purposes not primarily for advertisement

Purpose: limit distractions on NYC streets

• Appellant has 1900 trucks and sells the exterior space for advertisement
• Appellant convicted of violating law
• Appellant's equal protection argument

• He is prevented from placing advertisements on his trucks while others who only advertise their own business are not
• No matter who is doing the advertising, it is equally distracting

• Courts opinion
• Standard of review
• Rational basis
• Classification has to be relation to the goal they are trying to achieve
• Not equal protection violation
• There is no requirement that all evils of the same genus are eradicated or none at all
• By prohibiting certain vehicles from advertising the overall number of advertisements
• on the road would go down
• Those who are advertising their own business have a greater right to promote their
• livelihood than those who are simply selling their space to others to advertise

Law at issue: 1972 New Orleans banned pushcarts from French Quarter unless they had operated there for 8+ years

Purpose: " to preserve the appearance and custom valued by the Quarter's residence and attractive to tourists"

• Court's opinion
• Not an equal protection violation
• "When local economic regulation is challenged solely as violating the Equal Protection
• Clause, this Court consistently defers to legislative determinations as to the
• desirability of particular statutory discriminations. Unless a classification trammels
• fundamental personal rights or is drawn upon inherently suspect distinctions such as
• race, religion, or alienage, our decisions presume the constitutionality of the
• statutory discriminations and require only that the classification challenged be
• rationally related to a legitimate state interest."
• The two pushcart operators who were grandfathered in had become part of the charm
• of the French Quarter

• Fornication
• Immoral, but morality alone is insufficient
• State interest in preventing illegitimate children
• Rational basis that preventing sex before marriage will prevent illegitimate children
• Close call, society is becoming very accepting of fornication as a whole

• Adultery
• Immoral, but morality alone is insufficient
• State interest in protecting marriage
• Rational basis that preventing adultery would protect marriages
• Close call, society is condoning adultery more as a whole (i.e. married dating
• websites,swingers websites, etc.)

• Prostitution
• Immoral, but morality alone is insufficient
• State interest in spread of disease
• Rational basis that preventing prostitution would prevent spread of STDs
• Although there is a correlation b/t prostitution and the spread of STDs, it would be
• very hard to argue/prove that the end of prostitution would stop the spread of
• disease

• Gay marriage
• Immoral, but morality alone is insufficient
• No real rational basis / state interest in preventing gay marriage
• Good candidate, but it is hard to say what the Supreme Court would do

• Polygamy
• Immoral, but morality alone is insufficient
• Hard to find a rational basis / state interest in banning polygamy

• Smoking tobacco
• Immoral, but morality alone is insufficient
• State interest in protecting the health and safety of individuals

• Drinking alcohol
• Immoral, but morality alone is insufficient
• State interest in protecting the health and safety of individuals

• Using narcotics
• Immoral, but morality alone is insufficient
• State interest in protecting the health and safety of individuals

• Eating fatty foods
• State interest in protecting the health of individuals

• Right NOT to buy health insurance
• Not a moral issue
• State financial interest
• State interest in health of individuals

• Test
• Private interest that will be affected (how important is it)
• Risk of an erroneous deprivation (what will happen if it is taken away)
• Gov't interest (how much it costs to enforce)

• Is there a liberty or property interest that triggers procedural due process doctrine?
• Doesn’t have to be a fundamental right
• Is there a proper type of hearing?

"When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest."

So long as the court can find a plausible reason for the classification, the court will uphold the rule/law (does not have to be the gov't's stated purpose)

developed SEPARATE BUT EQUAL

• Seperate but equal is not good enough
• Separate is inherently unequal
• Separation creates a stamp of inferiority

Overruled Plessy

Basic Questions

• 1. What is the classification?
• Ex. Plessy: whites and non-whites
• Ex. Railway Express Agency: businesses advertising their own goods/services and
• businesses advertising other goods/services
• 2. What is the proper level of scrutiny?
• Race, religion, alienage or other inherently suspect classifications - Strict scrutiny
• All others - Rational basis
• 3. Does government action meet level of scrutiny?
• Look at government purpose

De jure statute—Statutes that on their face say that they’re classifying by race. Not very common today & very difficult to uphold.

De facto statute—much more common. Instead of actually using race as a factor, proxies for race are used w/the exact same result as a statute that explicitly classifies by race. Use rational basis

• right to travel
• right to privacy
• right to contract
• right to contraceptives
• right to bodily integrity
• right to vote
• right to marriage

• Establishment
• The government cannot fund a church / religion
• Government cannot declare a national religion

• Prohibiting Free Exercise
• Government cannot prevent people from choosing and practicing their own religion

• Statute must have a secular legislative purpose
• Principal or primary effect neither advances or inhibits religion
• No excessive entanglement (decision making)

• Lemon
• Endorsement (Alleghany)
• Coercion (Lee v Weisman)

• What is the effect on the viewers?
• What message does it send?
• Intent/purpose does not matter

Cannot place a Substantial burden on the practice of religion

Law must be neutral on its face (establishment clause)

• Test: belief vs. conduct
• Religious Belief gets strict scrutiny
• Law is not generally applicable
• Aimed at one religion
• Ex. all Americans must work on Saturday, everyone must eat beef, alcohol not
• allowed in church, etc.

• Religious Conduct gets rational basis test
• Law is generally applicable to everyone suggesting no discrimination based on
• religious belief
• Incidentally effects one religious group's practice of religion

• Free speech is considered a natural right
• Protect and promote the political process
• Create a 'marketplace of ideas'

• 1. It is not actually speech, so it is not protected
• Obscenities: Ex. Porn - it may be an expressive activity, but it is not actually speech
• Commercial speech - arguably viewed as not important speech, so it is not 'real'
• speech
• "Two Tier Theory"

• 2. It is speech, but it must give way to a gov't interest
• There is a right, but the gov't interest is important enough to override it
• Most used argument
• Congress can restrict/abridge speech when it presents a "clear and present danger"
• that the speech will bring about a substantial evil (Schenk) (advocacy of an illegal
• action)
• Intent, Imminence, & Likelihood (Brandenberg) (must be an imminent danger)

• Facts: fliers promoting draft resistance
• The character of the act depends on the circumstances
• Congress can restrict/abridge speech when it presents a "clear and present danger" that the speech will bring about a substantial evil

• KKK
• Test (free speech)
• Imminent Lawlessness - - - intent and imminence and likelihood

NY Times libel suit for ad containing allegedly libelous statements about Sullivan (an Alabama police Commissioner)

• Court's opinion
• - Don't want to 'shut off' an important outlet for the promulgation of information by
• persons who don't have access to publishing facilities
• - Allowed to criticize the official conduct of public officials
• - Debate on political issues should be open
• - In order to recover damages for a defamatory falsehood relating to official conduct
• must be proven to be made w/ "actual malice" (knowledge that it was false and/or
• reckless disregard of its falsity)
• - It is the citizens duty to criticize as much as it is the officials duty to administer
• - The NYT was at most negligent
• - Criticisms of gov't cannot be transmuted into personal criticisms of all pertinent gov't officials

• Note: private citizens get more protection against libel than public officials do
• Note: Speech about public officials is much more valuable than speech against individual persons

• The burden of proving all speech true is too high
• Media must have some leeway to ensure their continued
• The public gets conflicting information from all kinds of sources, it is their job to take in
• this information and make their own conclusions

Facts: speaking on a streetcorner about how gov't doesn't represent negros

Free speech does not sanction incitement of a riot

• "Fuck the Draft" T-shirt
• California statute: "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct"
• Cohen did not threaten anyone, there was no resulting violence

• Court's opinion
• - Underlying content of the message was not actionable
• - Cohen is entitled to his opinion about the draft
• - There was no proof of intent to incite disobedience
• - 'fuck' was not directed at anyone, general statement about gov't
• - General statements are less likely to lead to violence
• - "we are captives outside the sanctuary of the home and subject to objectionable
• speech"
• - Statute was too broad

• Dissent (Blackmun, Burger, Black)
• Cohen's immature antic was mainly conduct, not speech

• Private libelous speech
• Fighting words
• Obscenity
• Hate speech?

***Cannot regulate based on content

• Facts:
• - cross burning
• - Statute: "Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor"

• Court's opinion
• - "Content Discrimination"
• - Gov't cannot choose what content to ban
• - Statute unconstitutional b/c it prohibits speech solely based on the subject it addresses
• - Conduct itself was illegal and could/should have been prosecuted under those statutes
• - Can ban fighting words but not race based fighting words
• - Have to ban categories, not viewpoints

• Neutrality exceptions
• - Allowed where basis for content discrimination is the reason all such speech is proscribable (ex. Can ban threats against the president without banning threats against everyone, gov't interest in protecting the president)
• - Allowed to regulate secondary effects of speech (ban things that are caused by the speech; ex. Can ban the starting of a fire on someone else's property separate from statute above)

Obscene material is not protected by the first amendment

• Scope
• - Can only regulate "works which depict of describe sexual conduct"
• - State statutes must clearly define conduct
• - Limited to works which ""portray sexual conduct in a patently offensive way" w/ no literacy, artistic, scientific, or political value

• Guidelines
• - Whether the average person applying contemporary community standards would find the work to appeal to the prurient interest
• - Whether the work depicts/describes the offensive conduct specifically defined in the state statute
• - Whether the work as a whole lacks literacy, artistic, scientific, or political value

• Dissent (Douglas)
• Cannot actually define obscene
• Wrong to send people to jail for violating an indefinable standard