Constitutional Law Outline Srg10

Constitutional Law I Prof.
Barrett
Spring 2010
The major areas of Constitutional Law:
1. Judicial ReviewA federal court may only hear a case if it involves a “case or controversy”
under Art III of the Constitution.
2. Separation of PowersA Separation of Powers question involves the relationship between
or among branches of the federal government.
3. Federalism Federalism question involves the relationship between the federal government
and the states.
4. Individual RightsThese questions typically involve a gov’t, fed or state, taking some action
which abridges the right of an individual. An analysis should include the following steps: (i)
Determine which gov’t is acting, (ii) identify the interest that has been abridged, (iii) place
the abridged interest in the Con, (iv) ascribe constitutional weight to the interest abridged,
and (v) set the appropriate level of scrutiny.
Judicial Function:
 Art. III, §1: Provides the basis for and the scope of federal judicial power: The
judicial power of the US shall be vested in one Supreme Court, and in such inferior courts as
the Congress may from time to time ordain and establish…” Note: Establishes S.Ct. not the
whole system (thru subsequent Congressional acts).
 Art. III, §2: The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the US, and treaties made, or which shall be made, under
their authority…” Note: Lays out judicial powerall cases under Constitutionlanguage that grants
judiciary cases under Constitution textual support for judicial review, but no clear statement.
 Original Jurisdiction: The Supreme Court has original jurisdiction “in all cases
affecting ambassadors, other public ministers and consuls, and in those in which a
State shall be a party…”
o Under present statutes, the S.Ct. has exclusive original jurisd only when a state sues
a state; in all other cases involving the S.Ct’s original jurisd, Congress, under its
power to ordain and establish inferior federal courts, has conferred concurrent
original jurisd on fed dist cts. The original jurisd of the S.Ct can neither be expanded
nor diminished by statute.
o Note: How Marshall relies on for ultimate decision in M v. Mno original jurisd for
writ of mandamus.
 Appellate Jurisdiction: In all cases other than those listed under its Art III original
jurisd, the S.Ct has appellate jurisd, with such exceptions and regulations as Congress
shall make.
o Under this grant of app jurisd, the Court has app jurisd over all cases coming from
lower fed cts, and from cases coming from state courts, as long as state court cases
involve a fed ques.
Judicial Review: Marbury v. Madison

 Marbury: Establishes the authority of the Sup. Ct to interpret the Const. It is the
foundation of judicial review of congressional laws.
Note: Marshall establishes judicial review in a very crafty way. Lost the smaller battleno jurisd for
writ of mandamus, but wins the bigger battlecreates broad power of S.Ct to interpret the
Constitution. There are other ways he could have gone.
Marshall’s ingenuity: He attacked the constitutionality of § 13 of the Judiciary Act of 1789, under
which Marbury sought the mandamus. By this tactic he could establish the S. Ct’s authority to
review the constitutionality of a laws enacted by Congress, drop Marshall diplomatically and
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Spring 2010
censure Jefferson. To do this, hwr, he had to reverse the order of the issues. Instead of deciding
jurisd first, which would have defeated his purpose, for it would have meant the dismissal of the
case without the need for further comment, he considered the merits of Marbury’s case instead.
Issues: (i) Has the applicant the right to the commission he demands? Yes, Marbury had a vested
right in the office, his appointment was non-revocable and protected by the laws of the country; (ii)
If he has a right, and that right has been violated, do the laws of the country afford him a remedy?
Yes, Marbury has a right to the commission, a refusal to deliver was a plain violation of that right,
for which the laws of his country afford him a remedy. Marshall makes it clear that delivery was a
legally mandated act and not political question of an executive officer performing a duty in which
there was discretion; (iii) If they do afford him a remedy, is it a mandamus issuing from this Court?
NO, a mandamus was the right remedy, but it could not be issued by the Court.
 § 13 of the Judiciary Act of 1789 granted the Court the authority to issue writs of mandamus.
Marshall reasoned that the Constitution conferred original and appellate jurisd on the S. Ct and
its original jurisd only extended to ambassadors, etc and to those in which a state was a party.
Congress, by law, could only grant appellate jurisd to the Court. To Marshall the issuance of a
writ of mandamus was the same in effect as an original action and therefore belonged to
original jurisd and  § 13 was unconstitutional. Tool of constructionplain meaning b/c the
Constitution enumerates original jurisd, it is a finite list & clearly defined so Congress can’t try
to expand.
 By this maneuver, Marshall could develop his main point that the SCt had the authority to
declare laws of Congress invalid when in violation of the Consit. He expounded the doctrine of
judicial review: It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must decide on the operation of each.
Judicial Supremacy:
Art. VI, cl.2: This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.
Constitutional Interpretation:
1. Textual: look at the written text of the Const.
2. Historical Argument:
a. Originalism: determining the original drafter’s intent or established the
original meaning of its text
b. Vectors of history: look at the way the const. has changed over time. The
const. is not static, it evolves contantly.
3. Structural Argument: meaning can be derived from the structure of gov’t. It can
be used to add meaning to a textual provision that is otherwise ambiguous, or
they may be employed independent of any textual provision as a source of
meaning of their own. Common when the underlying issue is federalism: Proper
allocation of power b/w federal and state gov’ts or separation of powers: b/w
the different branches of gov’t.
4. Doctrinal Argument: Stare Decisis: rule of precedent: Asserts principles derived
from precedent and sometimes judicial or academic commentary on precedent.
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5. Prudential: Advancing particular doctrines according to the practical wisdom of
using the courts in a particular way.
6. Cultural: rooted in widely shared cultural norms, such as nontextual sources as
moral concepts of justice, theories of human autonomy, and cultural
assumptions about fairness.
Tiers of Review:
1. Rational Basis: The action must be rationally related to achieving a
legitimate state objective and completely arbitrarily. The first
requirement is satisfied if the government is pursuing practically any
type of health, safety, or general welfare goal. The second requirement
will be satisfied unless the government has acted completely arbitrarily.
2. Intermediate Scrutiny: The actual purpose of the regulation is
important and it is substantially related to an important government
objective.
3. Strict Scrutiny: To pass strict scrutiny, the law or policy must satisfy
three prongs:
1. Compelling governmental interest;
2. The law must be narrowly tailored to achieve that goal or
interest.
a. If the government action encompasses too much (over-
inclusive) or fails to address essential aspects of the
compelling interest (under-inclusive), then the rule is not
considered narrowly tailored.
3. The law must be the least restrictive means for achieving that
interest.
a. More accurately, there cannot be a less restrictive way to
effectively achieve the compelling government interest, but
the test will not fail just because there is another method
that is equally the least restrictive.
 The Const. does give Congress and the states one obvious method of rejecting and
reversing SCt decisions they dislike: Art V that permits amendment of almost every
provision.
 States judges are obligated to apply federal law as superior to state law. They bound by the
constitution, their interpretations is subjected to the Sup. Ct interpretations of what the
const. is.
o Allowing multiple interpretations will be chaos: There is a need for uniformity in
federal law throughout the United States within the Const.
o States interpreting their own const. can expand the liberty beyond the quarantees of
the Const, with the result that its citizens should enjoy greater liberty that citizens of
other states But, they cannot extend such greater right to its citizens beyond that
which is given by the Const.
o Review of State Judgments: Martin v. Hunter’s Lessee stands for the proposition
that the Sup. Ct has the power under Art. III to review the final decisions of state
courts in cases involving questions of federal law.
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 Adequate & Independent State ground decisions: The Sup. Ct cannot
review state courts ruling on issues of state law. Both is needed to insulate
the state court from judicial review.
 Adequate: A state ground of decision is adequate if it fully supports
the result and does not conflict with the Const., federal statute, and
federal treaty. However, a state decision will be deemed not
adequate if a state decision has attempted to take away rights
protected by the Const., laws, or treaties of the U.S.
 Independent: is one that is not based on the state court’s
understanding of federal law. A mistake by the state court in its
understanding of federal law would undermine both the federal and
state decision. Put simply, state decision must be independent of
federal law. It must reach its own conclusion.
o Michigan v. Long: rests on the principle that state court’s
interpretation of the Const. must exactly match that of the
Sup. Ct. States are prohibited from construing the Const. to
give ind. fewer rights or more rights than the Sup. Ct has
prescribed but they can impose greater/less restrictions
under their own constitution.
Limits of Judicial Review:
 Direct Political Controls:
1. Amendment: the Const. may be amended to reverse constitutional decisions of the
court; rare but “full merge baptism” Have seen it done.
Basic modes of Amendment: Art. V
1. Amendment may be proposed either by a two-thirds vote of each house
of congress or by a const. convention called by congress upon the
application of two-thirds of the states.
2. In either case, a proposed amendment must be ratified by three-fourths
of the state legislatures or state ratification conventions (whatever
congress specified)
3. Appointment: Presidential constitutional power to appoint Sup. Ct justices
4. Impeachment: Art. II, §4: provides that “all civil officers of the U.S. shall be removed
from office on impeachment for, and conviction of, Treason, Bribery, or other high
crimes and misdemeanors.” Art. I, §2: vests the House of Rep. with the “ sole power
of impeachment.” Art. I, §3: gives the Senate the “sole power to try all
impeachment” and stipulates that conviction and removal from office occurs if two-
thirds of the Senators present and voting concur in the House’s articles of
impeachment.
 Congressional Power:
1. Art. II itself suggests that Congress may place certain limits both on the Supreme
Court’s appellate jurisdiction and on the jurisdiction of the lower federal courts
2. Congress has the general power to decide what types of cases the Supreme Court may
hear, so long as it doesn’t expand the Supreme Court’s jurisdiction beyond the federal
judicial power.
3. Congress also may decide what lower federal courts there should be, and what cases
they may hear. Again, the outer bound of this power is that Congress can’t allow the
federal courts to hear a case that is not within the federal judicial power. Congress
does not have unlimited power to tamper with the Supreme Court’s appellate
jurisdiction.
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a. Any jurisdictional limitation must be neutral; that is, Congress may not decide
the merits of a case under the guise of limiting jurisdiction .
 Justifiability Doctrines: refers to a body of judicially created doctrines that define and
limit the circumstances under which Art. III federal court may exercise its const. authority,
including its authority to engage in judicial review.
o Court in Madison says the judicial review is an unavoidable aspects of the courts’
obligation to decide cases b/w adverse parties with real rights at stake when the
resolution of such cases requires determination of the const. validity of the
legislation
o Article III, §2: provides that the “judicial power shall extend to certain
enumerated categories of “case of controversy.” This requirement forbids courts
from invalidating legislative or executive action merely because it is
unconstitutional. The courts may only rule in the context of a constitutional case .
1. in which there is an actual dispute involving the legal relations of an
adverse parties, and
2. For which the judiciary can provide some types of effective relief.
1. Advisory Opinions: opinions issued outside the context of a

justifiable case or controversy.
3. Constitutional & Prudential requirement
1. Standing: The Supreme Court will not decide a constitutional
challenge to a government action unless the person who is
challenging the government action has “standing” to raise the
constitutional issue.
1. By “standing”, we mean that the  must have a significant
stake in the controversy – a concrete or particularized
interest in the case. The Court has broken down standing
limitations into constitutional and prudential limits. A court
can raise standing sua sponte.
2. Organization standing:An association may have standing
to assert the rights of its members under the following
circum’s: (i) The assoc can only represent members who
have not filed suit on their own behalf, (ii) any member who
is represented must have suffered an injury-in-fact, (iii)
joinder of the individual members is not necessary to the
disposition to the lawsuit; and (iv) the interests of the
members is germane to the purposes of the organization.
Constitutional minimum of standing contains three elements.

1. First, the  must have suffered an "injury in fact," an
invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not
"conjectural" or "hypothetical."
2. Second, there must be a causal connection between the
injury and the conduct complained of, the injury has to be
fairly traceable to the challenged action of the , and not the
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result of the independent action of some third party not
before the court.
3. Third, it must be "likely," as opposed to merely
"speculative," that the injury will be "redressed by a
favorable decision."
Prudential Considerations:
(a) 3rd Party Standing: The plaintiff generally must assert his own
legal rights and interests and cannot rest his claim to relief on
the legal rights or interest on 3rd parties. Only difficulty is when
you have parties that stand in some parental or professional
relationship to some party.
3. To waive 3rd Party standing, there must be
 Substantial or special relationship b/w the claimant
and third party;
 Proof of impossibility or impracticality of the 3rd P
asserting his or her own rights;
 Risk that the rights of the 3rd P will be diluted or lost
unless claimant is allowed to assert such rights.
(b) Zone of Interest: The plaintiff’s complaint must fall within the
zone of interests to be protected or regulated by the statute or
constitutional guarantee in question. Even when the plaintiff has
alleged redressable injury sufficient to meet Article III’s
requirement, the Court refrains from adjudicating abstract
questions of wide public significance which amount to
generalized grievances, pervasively shared and most
appropriately addressed in Congress.
Mootness/Ripeness/Political Question:
Mootness: The mootness doctrine prevents courts from hearing cases when
events subsequent to the institution of the lawsuit have deprived the plaintiff of a
stake in the action. Voluntary cessation of allegedly unlawful conduct does NOT
moot the case. Mootness (after the case is started); Redressability (when the case is
brought).
Ripeness: The ripeness doctrine bars a court from deciding cases that are
premature—too speculative or remote to warrant judicial intervention. For
example, a challenge to a criminal statute before a prosecution is initiated. Ask:
maybe there’s injury, but have enough things happened to place the plaintiff in
harm’s way now?
Political Questions: The Court will not decide political questions. Political
questions are:
a. Those issues textually or structurally committed by the Constitution to
another branch of government; or
1. “A textually demonstrable constitutional commitment of the issue to a
coordinate political department” Baker
b. Those inherently incapable of resolution and enforcement by the judicial
branch.
1. “A lack of judicially discoverable and manageable standards for
resolving an issue” Baker.
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2. These questions ought to be avoided to prevent judicial embarassment.
o The Political Question doctrine originated in Marbury.
1. Did the Court have any business messing with the President’s
appointments?
o Other political questions include:
1. The validity of the constitutional amendment process.
2. Foreign relations
In Baker v. Carr (1962): the Court listed several factors, at least one of which must be
present in order to find a non-jusiticiable political question. Each of these factors relates in
some way to the separation of powers. Furthermore, there was precedent that such
Guaranty Clause actions presented classic political questions.
1. Commitment to Another Branch—A textually demonstrable constitutional
commitment of the issue to a coordinate political department.
2. Lack of Standards—A lack of judicially discoverable and manageable standards for
resolving the issue.
3. Unsuitable Policy Determination—The impossibility of deciding the issue without
an initial policy determination of a kind clearly for non-judicial discretion.
4. Lack of Respect for Other Branches—The impossibility of a court’s undertaking
independent resolution without expressing lack of respect due coordinate branches
of government.
5. Political Decision Already Made—An unusual need for unquestioning adherence
to a political decision already made.
6. Multiple Pronouncements—The potential for embarassment from multiple
pronouncements by various departments on one question.
1. Hot Potato Doctrine: The Court uses the political question
doctrine as an escape hatch, so it doesn’t it have to decide “hot
potato” political issues.
Government Powers in a Federal System (Federalism)

The U.S. has a federal system. The national government and the government of each of the
states coexist. The most important principle in this whole area is that the federal government is one
of limited, enumerated powers. In other words, the three federal branches (Congress, the
executive branch, and the federal courts) can only assert powers specifically granted to them by
the United States Constitution.
Principle of Federalism  the Constitution allocated powers among nations and states.
The power that Congress might exercise are specified (most notably Art. 1, § 8) while the 10th Am
emphasizes that undelegated powers were reserved to the States and the people. Also, the less
than total powers given to the national gov’t were diffused among three separate branches of gov’t,
separately delineated in the first three Articles of the Constitution (Separation of Powers).
 On the other hand, each state has a general police power, i.e., the ability to
regulate solely on the basis that the regulation would enhance the welfare of the
citizenry. But there is no general federal police power, i.e., no right of the federal
government to regulate for the health, safety or general welfare of the citizenry.
McCulloch v. Maryland (1819) (Introduction)
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The Second Bank of the US, chartered by Congress, issued notes w/o complying w/ state law that
sought to impose a tax upon such notes.
Issues: Does Congress have the power to incorporate the bank & could the state tax? Although,
among the enumerated powers, we do not find the word ‘bank’ or ‘incorporation,’ we find the great
powers to law and collect taxes; to borrow money; to regulate commerce; to declare and conduct
war; and to raise and support armies. The sword and the purse, all the external relations, and no
inconsiderable portion of the industry of the nation are entrusted to its gov’t. Government
entrusted with such ample powers, must also be entrusted with ample means for their execution.
 Necessary and Proper Clause: (Art 1, § 8, cl. 18): Expand the enumeration of powers by
adding that Congress has the power to “make all laws which shall be necessary and proper
for carrying into execution the foregoing powers vested by this constitution, in the gov’t of the
US, or in any dept thereof”
 “Necessary”To employ the means necessary to an end, is generally understood as
employing any means calculated to producing the end, and not as being confined to
those single means, w/o which the end would be entirely unattainable. Does not
mean “absolutely necessary.”
 Held: Congress has the power to establish the Bank b/c necessary and proper to carrying out
enumerated powers, implied power to carry out express power.
 Held: The state may not tax the Bank b/c the power to tax is the power to destroy
and the states don’t have the power to control the operation of constitutional laws of
Congress to carry into execution the powers vested in the general government (The
great principle is, that the constitution and the laws made in pursuance thereof are
supreme).
 Important language of means-ends relationship: Let the end be legitimate, let it be w/i the
scope of the constitution, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consistent with the letter and spirit of the constitution,
are constitutional.
 Language of pretext (will see again): Should Congress, in the execution of its powers, adopt
measures which are prohibited by the constitution, or should Congress, under the pretext of
executing its powers, pass laws for the accomplishment of objects not entrusted to the gov’t;
it would become the painful language of this tribunal . . . to say that such an act was not the law
of the land.
 Both quotes articulating limits on congressional exercise of implied powers as necessary
and proper to effectuate the enumerated ones.
 Note: The necessary and proper clause cannot be used by itself as a source of power. It must
be coupled with some other constitutional provision. (Egthe right to establish post offices and
post roads  power and duty to carry the mail  right to punish those who steal letters.
Essential to the beneficial exercise of the power, but not indispensably necessary).
State Oversight of the Federal Government – The Term Limits Problem

May the states limit the terms of members of Congress?
 No. “Permitting individual States to formulate diverse qualifications for their congressional
representatives would result in a patchwork that would be inconsistent with the Framers'
vision of a uniform National Legislature representing the people of the United States.”
th
The 10 Amendment only lets the states retain powers they already had before the enactment of
the Constitution.
 The power to add qualifications for federal elections was not an original power that the
states had before enactment.
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o Furthermore, the Constitution was intended to be the sole source of qualifications
for membership in Congress
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The Commerce Power: Art I, § 8, cl. 3 grants Congress the power “To
regulate commerce with foreign Nations, and among the several states, and with Indian
Tribes.”
Commerce: is describes as commercial Intercourse b/w nations (states), in all its
branches, and can be regulated by congress – Marshall’s definition in Gibbons.
 Congress’s power to regulate commerce among states is plenary; is complete all by itself,
subject to no limitations except such as may be found in the constitution.
 Congress can ban items from commerce.
General Rule - Three Categories Commerce Power can Regulate:
1. Congress may regulate the use of channels of interstate commerce. Darby
E.g., Motels, railroads, roads, highway, waterway etc.
2. Congress may regulate the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come from intrastate
activities.
E.g., Items that move in interstate commerce such as lottery tickets, food & drugs,
trucks, plane, internet etc., regulate electricity, insurance, stocks, people because they go
across state line.
3. Congress may regulate those activities having a substantial relation or affect on
interstate commerce. ). The proper test requires an analysis of whether the regulated
activity substantially affects interstate commerce.
a. Substantial effect can be based on cumulative impact (aggregating principle) only
when congress is regulating economic activities – U.S. v. Morrison.
i. If things can be bought and sold in interstate commerce – econ activities.
b. When congress is regulating Non-economic activities – Substantial effect cannot be
based on cumulative impact – that power belongs to the state.
United States v. Lopez (1995):
Facts: In the Gun-Free School Zones Act of 1990, Congress made it a federal offense for any
individual to possess a firearm in a school zone.
Held: The Court held that the Act exceeded the authority of Congress “to regulate
Commerce among the several states”. For the Gun-Free School Zones Act to be sustained, it
must have fallen within the third category as a regulation of an activity that substantially
affects interstate commerce.
Wilkard v. Filburn (1942):Farmer planted and cultivated more wheat than federal act allows
 The court held that the production of wheat for consumption on the farm may be trivial in
the particular case is not enough to remove the grower from the scope of federal regulation,
where his contribution, taken with that of many others similarly situated, is far from trivial.
o Aggregating Principle: The cumulative effect of Lopez + Morrison = Black
allowing one thing leads to another. If he is allowed to, Letter Law Elements (3rd
then everyone else will too. category)
 The more wheat consumer for home consumption, the less 1. Economic Activity
wheat that is bought in commerce (i.e. by other farmers), 2. Jurisdictional Element
which affects price and market conditions (excess wheat (qualifying language in statute
would check market prices). connection to interstate
United States v. Morrison (2000): commerce)
Facts: A female student at Virginia Tech who said she had 3. Congressional Findings (not
been raped by two members of the school’s football team sufficient alone)
4. Link between the activity
and a substantial effect on
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sued them under the Act.
 Held: The Act was beyond Congress’ Commerce power. Where an activity is basically non-
commercial, its aggregate affects on commerce cannot suffice.
 Reject the argument that Congress may regulate noneconomic, violent criminal conduct
based solely on that conduct’s aggregated effect on interstate commerce. The
Constitution requires a distinction between what is truly national and truly local. Ct
tries to avoid any categorical rule of aggregate effects.
 This Act goes too far – economic effects are too remote from the activity involved
Gonzales v. Raich (2005)
Facts: California CSA permits the use of marijuana for medical purposes.
Held: Maj. Relied on Wilkard that Congress can regulate intrastate activity that in itself not
economic if it concludes that failure to regulate that class of activity would undercut the regulation
of the interstate market of that commodity
 May regulate purely local activities that are part of an economic class of activities that have
substantial effect on interstate commerce (wilkard’s language).
 Congress has plenary power to regulate what it wants so long as it is within the CC in that
economic activity having substantial effects on IC/noneconomic activity – failure to regulate
will affect IC (interstate/intrastate).
State Autonomy Limits: The question is whether a state’s activities, even though they
otherwise relate to commerce, are nevertheless immune from federal regulation, because of
external limits:
10th Amendment: “the powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.”
 Key Principle: Congress cannot compel state legislative or regulatory activities.
o The Supreme Court used to treat the 10th Amendment as a limit on federal power,
barring anything that would impair a state’s ability to carry out “traditional
functions.”
o Congress cannot force state to adopt a law or regulation.
o Congress can try to induce local state government to act by putting strings on
grants, so long as the conditions are explicitly stated and relates to the program.
New York v. United States (1992) & Printz: Congress cannot “commandeer the
legislative process of the states by directly compelling them to enact and enforce a federal
regulatory program” or compel a state or local government’s executive branch to perform
functions, even ones that are easy-to-do and involve no discretion.
The bottom line is that:
1. Congress can regulate private activity alone (Darby)
2. Congress can regulate private and state activity together (Garcia)
3. If Congress regulates the States alone and does it in a way that compels (indirectly or directly)
the states to regulate their citizens in a way that the states don’t want to – there is a 10 th
Amendment issue.
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Taxing & Spending Powers

TAXING: Congress has the power to "lay and collect taxes." (Art. I, §8). This is an independent
source of congressional power, so it can be used to reach conduct that might be beyond the other
sources of congressional power, like the Commerce clause.
1. A tax is permissible when congress’s primary motive is raise revenue and when
congress may impose the incidental effect of discouraging certain types of conduct
through such a tax.
2. Even if Congress’ principal motivation is to regulate rather than tax, so long as the
tax produces some meaningful revenue and any regulatory provisions
accompanying the tax are reasonably related to the tax’s enforcement, the tax will
probably be upheld.
3. However, Congress exceeds its power when a tax is not designed to raise money, but
instead becomes a penalty with the characteristics of regulation and punishment.
4. Under the “taxing power”, Congress is given far-reaching ability to tax in order to raise
revenue. Congress may also regulate via taxation.
SPENDING: Under the “spending power,” Congress may “provide for the common Defense and
general Welfare of the United States…” (Art. I, §8). The power to spend is linked to the power to tax
—money may be raised by taxation, and then spent for common defense and general welfare.
Limitations on spending power:
1. must be in pursuit of “the general welfare,”
2. must allow States to exercise their choice knowingly,
3. must be related to federal interest in particular national projects or programs,
4. may be barred by other constitutional provisions – spending power may not be used to
induce the states to engage in activities that themselves would be unconstitutional
SUMMARY:
1. For congressional enactment to be valid, Congress must assert that it acts pursuant to a delegated
power as expanded by the Necessary and Proper Clause.
2. Government frequently imposes Commerce Clause power as the basis for imposing regulation.
3. As a general rule, Congress has the power to regulate the use of the channels of interstate commerce;
may regulate and protect the instrumentalities of the interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate activities; and can
regulate activities that have substantial relation or effect on interstate commerce.
The Dormant Commerce Clause: Art. I, §8 –

Provides that states local law are unconstitutional if they discriminate against out
of commerce to benefit its own local interest and if it place undue burden on
interstate commerce. It is a situation where the federal govt commerce power lies
dormant; where it has the power to regulate in an area, but has not done so or has done so
incompletely.
1. First, think Is States Preempted from making laws in that area? Meaning the area
exclusively reserved to the federal gov’t –
a. if yes, state law Invalid;
b. If yes, but consent is granted, state can proceed
c. if no state can proceed
2. Notion of consent: If Congress gave the states a green light, then Congress felt that the
States are not unconstitutionally entering the part of interstate commerce they can’t enter.
The Courts must look at this.
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a. If Congress is silent and the states have legislated, the courts have to simply decide
whether the States have violated the dormant commerce power.
If states proceeds The questions becomes does the state local law
discriminate against out of commerce or does it treat instate and out of
state commerce alike? That is the key issue for Dormant Clause and P & I
(iv).
Discrimination against Interstate Commerce
1. Facially Discriminatory Laws: Determine whether the state law openly
discriminates against interstate commerce in favor of intrastate economic interests?
1. A state cannot discriminate against interstate commerce, If a law is found to Openly
discriminate against interstate commerce , the regulation is only valid if the state
can prove that the law furthers a legitimate state interest that cannot be
accomplished by any less discriminatory (retrictive) means. Strict Scrutiny:
a. It violates commerce clause unless it necessary to achieve an
important government interest and no less restrictive
alternative is available to accomplish its objective.
1. Courts determine whether legislation involves discrimination
against interstate commerce by examining the statute’s language, as
well as its stated objectives and its effects.
1. Exception: Discriminatory laws may be upheld only if they serve a
legitimate local purpose that could not be served as well by available
nondiscriminatory means. This is an exception that prove the rule. Maine
v.Taylor, Dean Milk.
2. Purposes & Effect – If a law is discriminatory in purpose and effects, the court
will treat it as openly discriminatory and subject it to the Strict Scrutiny –
legitimate interest and less restrictive means
3. Facially Neutral Laws – If a law that is discriminatory in purposes and effect
but applies impartially to in-state and out-of-state commerce and serves a legitimate
state objective, the analysis move to the second step, whether the state local law
places an undue burden on interstate commerce?
1. A Balancing test of the local benefits against the interstate commerce
burden is used to decide whether the burden on interstate commerce
outweighs benefit to the law.
i. If a legitimate local purpose is found, then the question becomes
one of degree. And the extent of the burden that will be tolerated will
of course depend on the nature of the local interest involved….
ii. Where the statute regulates evenhandedly to effectuate a legitimate
local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local
benefits.
Market Participants Exception for State
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The Market Participants says that a state make favor his own citizens in receiving
benefits from government programs. The Dormant Commerce clause does not prevent a
state from preferring its own citizens when the state is acting as a market participant—
provided that the state imposes burdens only within the market in which it is participant.
1. Market Participants for the state means it has the freedom to choose who he
chooses to sell to or buy from just like a private individual.
2. Nevertheless, there are limits to the marketplace exception
THE PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states” (Art IV §2).” Under Article IV, P & I, No States can’t deny to non-residents
the privileges and immunities afforded to its own citizens.
1. The clause has explicit language that forbids states from discriminating against non-
residents differently from residents.
2. The Privileges and Immunities clause bars only state discrimination that burdens
fundamental rights, i.e., access to the courts and pursing lawful trades.
1. For example, a law requiring you to live in NY to practice law in NY could
be attacked via the Privileges and Immunities clause. Another example is
a law forbidding non-residents from attending CA state colleges.
Its function overlaps those of several other provisions of the Constitution:
1. Like the commerce clause, it serves as a restraint on state efforts to bar out-of-states
from access to local resources.
2. Like the 14th Amendment, it protects citizens against discrimination, in this context,
on the basis of state residency.
Applicability:
What does the privileges and immunities clause apply to?
1. Only applies to fundamental rights that are attributes of our national
sovereignty.
a. Fundamental rights under privileges and immunities are mostly economic
rights – such as the right to engage in business or a profession.
b. The right to engage in recreational activity is not a fundamental right.
Differences from the Commerce Clause:
1. The courts say that the privileges and immunities clause, because of its wording,
may only be invoked by individuals – not corporations.
2. While Congress may consent to state practices that would otherwise be
impermissible under the Commerce clause, the Privileges and Immunities clause is a
rights provision, not a grant of authority to Congress, and so is arguably non-
waivable by Congress.
3. Standard of review for privileges and immunities denials is arguably stricter than
the balancing test used in dormant commerce clause analysis
4. Extends not to all commercial activity but only to fundamental rights.
5. No market participant exception.
PREMPTION
What happens when Congress does take action in a particular area of commerce, and must ask, “to
what extent does Congress’ valid exercise of power restrict what the states may do?
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1. In the case of a direct, obvious conflict between a federal and state statute, the resolution is
clear: the state statute is simply invalid because the Supremacy Clause says federal law is
going to trump state law.
a. Preemption can be found in one of the following ways
i. Express Preemption – if a federal statute explicitly said federal law is
exclusive in an area – state laws are preempted
ii. Implied Preemption – can be found exist these ways:
1. If federal law and state law are mutually exclusive states law is
preempted
2. If it is not possible to simultaneously complied with both federal and
state law
3. If a state local law impedes the achievement of a federal objective –
the sts law is deemed preempted.
4. If congress is evidence with clear desire that sts law is preempted
5. Sts cannot tax or regulate the federal gov’t.
2. Much more likely to arise is the situation where the federal and state actions involve similar
or identical subject matter, but there is no clear-cut conflict.
a. Preemption and undue burden on commerce clause arguments go together like ham
& eggs – if there’s a federal law on the subject.
 If the law gets attacked on one of those grounds, it will most likely be attacked on
both grounds.
There are two types of preemption:
1. Field Preemption: preemption where Congress occupies the field.
a. If Congress wants to occupy the field, it should expressly state so.
b. If Congress has the right to be in a field, then it has the right to occupy that
field. When it occupies the field, no one else may enter the field.
2. Conflict Preemption: First, the congressional statute and the state action may be in
actual conflict. If so, the state regulation is automatically invalid. If Congress doesn’t
occupy the field, we ask whether there was a conflict. There are two types of direct
conflicts:
a. If it is impossible to obey both the state and federal regulations
simultaneously, there is an actual conflict.
b. There may also be an actual conflict the objectives behind the two sets of
regulations may be inconsistent. Here, too, the state regulation must fall even
though the regulated party could theoretically comply with both sets
simultaneously.
Consent to State Laws
Congress, if it wants to, can unplug or wake up the dormant commerce clause by
simply legislating that it’s okay for the states to keep out goods from other states. Congress
can specifically legislate that it’s okay.
1. Though Congress may authorize protectionalism under the Dormant Commerce
clause, it may not under the Privileges and Immunities clause.
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Yes–––Premption ? No
Consent? Yes
Sts may regulate/effect
Nat’l ––––– Exd Interstate Commerce
Power
No––DCC bar? No
Yes Exclusive Nat’l Power
SUMMARY
1. Where there is no federal regulation, state regulation might be permissible.
However, courts will strike down legislation when the state has attempted to
discriminate against interstate commerce in favor of its own citizens.
2. Courts sometimes will allowed states to legislate in favor of its own citizens when
the state is acting as a market participant.
3. Even when a state is acting neutrally toward interstate commerce, courts will may
invalidate state legislation that imposes an undue burden on interstate commerce.
4. In cases where the federal government has chosen to regulate a particular area and
the state is inconsistent with the valid federal law, the state law is preempted by the
federal law.
EXECUTIVE AND LEGISLATIVE ACTION

1. Delegation: No limit exists on congress’s ability to delegate legislative powers.
1. Administrative agencies, which are generally part of the executive branch,
have been given or granted considerable lawmaking authority. Congress
often gives them little guidance.
2. The Court had held that one option for congressional control over executive
action is to be very specific and limiting in the delegation of power to
agencies, so that their rulemaking power will in turn be limited. It must be
accompanied by some guidance on how they must be enforced.
i. Congress cannot give these agencies a blank check to enforce the law
as they see fit.
ii. For congress to act there must always be a bicameralism pass by both
the house and congress and a presentment to the president.
2. Aggrandizement: when congress unreasonably enlarges the single powers, or
legislates without conforming to the constitutional procedures of bicameral action…
3. Encroachment: when congress enacts law that undermines the authority and
independence of any other branch of the federal gov’t
Separation of Powers
By insisting upon separation of powers, the Framers sought to promote such aims as
safeguarding against tyranny and promoting efficiency. The constitutional provisions
themselves reveal, however, that separation was not intended to be airtight. Repeatedly,
powers are intermixed, as with the participation of the President in the legislative process
through the veto power
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 Tension exists as, when the Constitution was written, it did not have an
administrative state of such complexity in mind.
o The cases attempt to maintain notion of distribution of powers without
disenabling administration.
Executive Powers: Art. II, §2
There are a few powers which are explicitly granted by the Constitution to the
President. These are enumerated in Article II, §2. They include, for instance, the President’s
status as Commander-in-Chief of the armed forces and his treaty-making power.
1. However, the most important single separation of powers principle to remember is
that the President cannot make the laws. All he can do is to carry out the laws
made by Congress.
J. Jacksons Concurrence stated the level in Executive Actions is at highest or

lowest:
Green Light:
When the President acts pursuant to an express or implied authorization
from Congress, his authority is at its highest. There would be a strong
presumption as to constitutionality and wide latitude of
judicial interpretation. The burden of persuasion rests heavily on
challengers to the President’s authority.
Yellow Light:
When President acts in absence of a congressional grant or denial of authority, he
can rely only on his independent powers, but there is a zone of twilight in which he
and Congress may have concurrent authority, or in which distribution is uncertain.
Any challenge will depend on the imperatives of events and contemporary
imponderables.
Red Light:
Where the President acts in contradiction of the expressed or implied will of
Congress, his power is at its lowest ebb. The President may only have authority if it
is within his domain and Congress does not have authority. Careful scrutiny.
1. President may still proceed if Congress’s red light is unconstitutional (i.e.
Congress interfering with president’s power to pardon federal criminals –
a power that only the president has)
2. Most of the time that Congress posts a red light and has the authority to
do so the President must stop.
3. In Youngstown the light was red – Congress rejected the power to seize in
deliberating over the Taft-Hartley Act.
Treaties, War & Foreign Affairs Powers

1. Treaty, Art. II, §2: The President may make a treaty, but it must be ratified by 2/3rds of
the Senate vote is required for ratification.
a. A treaty may not violate any distinct constitutional prohibitions or
guarantees. Thus, a treaty cannot infringe upon individual rights.
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2. War, Art. I, § 8: Congress is given the power to declare war, and to tax and spend for
national defense. Also, it is explicitly given the right to “raise and support armies” and to
provide and maintain a navy. All of these powers are given by Article I, §8. The President, by
contrast, is made the Commander in Chief of the Armed Forces. Thus, Congress and the
President in effect split the war powers .
3. Foreign Affairs: Congress has broad authority to conduct foreign affairs—this is an
inherent attribute of sovereignty. The states have very limited authority in this area.
The power in Congress to regulate foreign affairs has been repeatedly recognized by the
Court, though the source of the power remains unclear. The Court has recognized a
general constitutional principle that foreign affairs are the proper province of the
federal government
War Power Resolution

1. The President has the power as commander-in-chief to conduct war but Congress
has the power to declare war.
EXECUTIVE PRIVILEGE AND IMMUNITIES

Executive Privilege
Several Presidents have evoked the “executive privilege” to justify their refusal to disclose
information which they claimed to be confidential.
1. It is not a constitutional power, but rather it is an inherent privilege necessary to
protect the confidentiality of presidential communications.
2. The determination whether presidential communications can be use as evidence or
otherwise admissible must be made by the trial judge after hearing the evidence.
3. Where the claim of privilege is a general one, and not related to a need to
protect military, diplomatic, or national security secrets, the executive
privilege is a qualified one. United States v. Nixon:
4. The President has absolute immunity “from civil liability for acts within the
‘outer perimeter’ of his official [responsibility].” Nixon v. Fitgerald
 There remain several checks against misconduct: remedy of impeachment, constant
scrutiny by the press, vigilant oversight by Congress, desire to earn reelection, need
to maintain prestige as element of Presidential influence.
5. There is no immunity from civil liability for unofficial acts, including those
committed before taking office. Nor does the Constitution afford the President
temporary immunity from civil damages litigation arising from events that
occurred before he took office. Clinton v. Jones.
Individual Rights: Procedural/Substantive Due Process:

The Bill of Rights is applicable to the federal government. But these amendments did
not apply to the states expressly all of the provisions of the Bill of Rights; rather the 14 th
Amendment provided simply:
"All persons born or naturalized in the US, and subject to the jurisdiction hereof, are
citizens of the US and of the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges and immunities of citizens of the US; nor shall any
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State deprive any person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the laws."
Some of the Bills of Rights are now applicable to the state through the 14 th
Amendment – through a process called “Incorporation.” Meaning the individual
rights afforded to all citizens of U.S cannot be infringe on by state laws that are
unconstitutional.
Thus, there are three substantive provisions in the 14th Amendment:
1. Due Process based on 5th Amendment
2. Equal Protection
3. Privileges and Immunities Clause (similar to Art. IV) – No states may
deprive any citizens the privileges and Immunities of United States
citizenship.
a. P & I is always the wrong answer unless the question involves the right
to travel (only one place the court have uses it)
b. Differences b/w Art. IV & 14th A P & I – The original privileges and
immunities clause provided that states can’t deny citizens of other states the
P&I enjoyed by citizens of that state. On the other hand, the 14 th
Amendment’s P&I clause provided that states can’t deny their own citizens
the P&I enjoyed by citizens of the U.S.
The Slaughter-House Cases

Facts: The Louisiana legislature passed a statute granting the exclusive right to engage in
the slaughterhouse business to one state-chartered company. Several butchers sought to
invalidate the statute under all three substantive grounds of the 14 th Amendment:
Privileges and Immunities

 The 14th Amendment’s P&I Clause was designed primarily to overrule the
holding of the Dred Scott decision. It merely forbade state infringement of the
rights of national citizenship, not the rights of state citizenship.
o Examples of national rights include the right to petition for redress of
grievances and the privilege of the writ of habeas corpus.
 The sort of right asserted by the butchers, namely the right to pursue a
particular livelihood, was not encompassed by P&I of citizens of the U.S., but
were instead privileges of state citizenship, that the state itself could expand or
contract as it saw fit.
There are two quite different functions that the Due Process Clause serves. It imposes
certain procedural requirements on governments when they impair life, liberty, or
property. But the Due Process Clause also limits the substantive power of the states to
regulate certain areas of human life.
1. Due Process: Procedural
a. The Court gave the Due Process Clause a narrow reading and held that
it protects only against procedural unfairness.
b. It includes an individual's right to be adequately notified of charges or
proceedings, the opportunity to be heard at these proceedings, and that the
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person or panel making the final decision over the proceedings be impartial
in regards to the matter before them.
 Or, to put it more simply, where an individual is facing a (1)
deprivation of (2) life, liberty, or property, (3) procedural due
process mandates that he or she is entitled to adequate notice, a
hearing, and a neutral judge.
Substantive:
1. This "substantive" component of the Due Process Clause derives mainly from
the interpretation of the term "liberty" – certain types of state limits on
human conduct have been held to so unreasonably interfere with important
human rights that they amount to an unreasonable (and unconstitutional)
denial of "liberty".
2. The Court focuses on three types of rights under substantive due process in
the Fourteenth Amendment. Those three types of rights are:
1. the first eight amendments in the Bill of Rights;
2. restrictions on the political process (e.g. the rights of voting,
association, and free speech); and
3. The rights of “discrete and insular minorities.”
3. The Court usually look to see whether:
1. there is a fundamental right, by examining if the right can be found
deeply rooted in American history and traditions.
2. Where the right is not a fundamental right, the court applies a rational
basis test: if the violation of the right can be rationally related to a
legitimate government purpose, then the law is held valid.
3. If the court establishes that the right being violated is a fundamental
right, it applies strict scrutiny. This test inquires into whether there is
a compelling state interest being furthered by the violation of the
right, and whether the law in question is narrowly tailored to address
the state interest.
INCORPORATION
The Supreme Court has implicitly rejected the notion that that Amendment
automatically made applicable to the states all of the Bill of Rights guarantees (which had
previously been binding solely on the federal government). The Supreme Court has never
said that due process requires the states to honor the Bill of Rights as a whole. Instead, the
Court uses an approach called "selective incorporation".
1. Under this approach, each right in the Bill of Rights is examined to see whether it is
of "fundamental" importance. If so, that right is "selectively incorporated" into the
meaning of "due process" under the 14th Amendment, and is thus made binding on
the states.
2. Fundamental rights are those that are essential to the concept of ordered liberty.
a. Picks and choose among them based on ranking.
b. Only 2nd, 3rd, grand jury indictment clause of 5th, and 7th.
i. Fundamental vs. Non-fundamental rights
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ii. Justice Cardozo – double jeopardy fails of what constitute
fundamental rights
iii. Freedom of speech and religion pass the test
ECONOMIC LIBERTIES
Lochnerism: A form of judicial activism in which court decisions are made based upon
presumed rights not specifically addressed by existing (Constitutional) law, especially
when influenced by political or personal beliefs
Today, the test for whether a court could step in and decide whether an economic
law violates the due process clause is the rational-basis test; an economic statute has to
meet only two easily-satisfied requirements to be in conformity with substantive due
process:
1. Legitimate state objective: The state must be pursuing a legitimate state objective.
a. But virtually any health, safety or "general welfare" goal comes within the
state’s "police power" and is thus "legitimate".
2. Minimally rationally related: Second, there must be a "minimally rational
relation" between the means chosen by the legislature and the state objective.
a. To put it another way, the Court will presume that the statute is
constitutional unless the legislature has acted in a completely "arbitrary and
irrational" way.
Privacy Rights
If a state or federal regulation is impairing a fundamental right, the court strictly
scrutinizes the regulation. Here is what it means in practical terms for the Court to apply
strict scrutiny to a state or federal regulation that impairs a fundamental right:
1. The objective being pursued by the state must be "compelling" (not just
"legitimate" as for a non-fundamental right); and
2. The means chosen by the state must be narrowly tailored to achieve that
compelling end.
a. In other words, there must not be any less restrictive means that would do
the job just as well.
The only rights that have been recognized as "fundamental" for substantive due process
purposes are ones related to the loose category "right to privacy." This right of privacy or
autonomy derives indirectly from several Bill of Rights guarantees, which collectively
create a "zone" of privacy.
1. The list of rights or interests falling within this "right to privacy" include just a few
related areas: sex, marriage, child-bearing, abortion and child-rearing.
Contraception
Individuals’ interest in using birth control is "fundamental." So, whether a person is
married or single, he or she has a fundamental interest in contraception, and the state
cannot impair that interest without satisfying strict scrutiny. Griswold v. Connecticut
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Abortion
The right of abortion is the primary example of a right protected by substantive due
process. Roe v. Wade recognized that the right of privacy limits a legislature’s freedom to proscribe
or regulate abortion. But in Carey, the court rejects the premises of Roe that abortion is a
“fundamental right.” Apparently, abortion is no longer a fundamental right, and restrictions on it
are no longer to be strictly scrutinized. This represents a huge departure from the law as it stood
under Roe. Informed Consent, 24 Hour Waiting Period, Spousal Notification, Parental Consent – No
Undue Burden – all not undue burden on the woman’s right to abortion.
GENERAL RULE: The Undue Burden Standard

A woman has a constitutionally-protected privacy interest in choosing to have an
abortion before viability. However, the state has a somewhat countervailing interest in
protecting "potential life," even before viability. Regulation:
1. The state may regulate pre-viability abortion only if it does not place an "undue
burden" on the woman’s right to choose abortion. However, a regulation will
constitute an "undue burden" if the regulation "has the purpose or effect of placing a
substantial obstacle in the path of a woman" seeking a pre-viability abortion.
2. A state after viability may prohibit a woman from obtaining an abortion unless an
abortion is necessary to protect the mother’s life or health.
3. This is an issue with Carhart II because the court had ruled that partial abortion is
ban.
a. So does that mean that even if the woman’s life is at stake, to abort the baby
is still prohibited – Make an argument for both on exam.
4. A state requiring informed consent, waiting period, parental consent partial-birth
abortion ban and physician only requirement will not place undue burden on a
woman. However, spousal consent is undue burden.
Family Relationships
Parents have a fundamental right to make decisions concerning the care, custody,
and control of their children.
1. Whenever the state interferes with a person’s decision about how to live his family life and
raise his children, you should be on the lookout to see whether a fundamental right is being
interfered with. Loving v. Virginia
Right to Die
The law of "right to die" and "right to pull the plug" is developing. The Supreme Court has issued
two major decisions, one on the right to decline unwanted medical procedures and the other on the
right to commit suicide. As a result of these decisions, there are several major propositions that we
can recite at this point:
1. A competent adult has a 14th Amendment liberty interest in refusing unwanted medical
procedures, including artificial life-sustaining measures. It’s not clear whether this is a
"fundamental" interest.
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2. There is is no fundamental right to commit suicide; thus, a state may ban persons from
giving individuals assistance in commiting suicide.
3. The state has an important countervailing interest in preserving life.
4. In the case of a now-incompetent patient, the state’s interest in preserving life entitles it
to say that it won’t allow the "plug" to be "pulled" unless there is "clear and convincing
evidence" that the patient would have voluntarily declined the life-sustaining measures.
Cruszan.
Sexuality: Consensual Sexual Choices

The state has no legitimate interest in making it a crime for fully consenting adults to
engage in private intimate sexual conduct that is not commercial and a state law making it a crime
for members of the same sex to engage in sodomy violates the due process clause.
1. A person’s sexual conduct (apart from any issues of procreation or family life) may in some
instances be entitled to substantive due process protection. However, there seems to be no
general fundamental right to engage in adult consensual sexual activity.
2. In fact, outside of the marriage relationship, there is probably no kind of sexual activity the
practice of which is a "fundamental right". Thus the state can almost certainly prohibit, and
punish, adultery and fornication.
3. But where the parties are married, there probably is a fundamental right to have even
"deviant" sex, as long as it’s not physically dangerous and is consensual. For instance, the
state probably may not prohibit oral sex in marriage, since that would fall within the
marriage area of the right to privacy.
a. Liberty protects the person from unwarranted government intrusions. Freedom
extends beyond spatial bounds. Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression, and certain intimate conduct. Ds are adults
and their conduct was in private and consensual.
b. The right to privacy is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.
Equal Protection:
Equal protection is part of the 14th Amd. It provides that “no state shall make or
enforce any law which shall . . . deny to any person within its jurisdiction equal protection
of the laws.”
In the Slaughterhouse Cases, the Court narrowly interpreted the Equal Protection
Clause as having been enacted only to protect the newly freed slaves from discrimination.
This soon changed. The Court did a “180”, and it has never returned to its original notion
that the clause only applies to racial discrimination.
Standard of Reviews:
Intermediate Scrutiny
Standard: A law will be upheld if it served important governmental objectives and is
substantially related to achievement of those objectives.
Applicable To: Court uses this standard when a law is based on quasi-suspect
classification.
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Quasi-suspect classification:
1. Gender
2. Illegitimacy
Rational Basis
Standard: A law will be upheld if the distinction between classes is rationally related to a
legitimate interest (a constitutionally permissible purpose), and not deemed arbitrary
or irrational. The court will usually defer to legislative’s decision that a law is rational.
Applicable To: Applies when the other two are not applicable (i.e. most leg).
Includes:
1. Mental
2. Sexual Orientation
3. Wealth & Poverty
Strict Scrutiny:
Standard: A law (violating the fundamental right or suspect classification) will be struck
down, unless the government shows that the law was enacted because it has a compelling
governmental interest and the law is narrowly tailored to achieve that interest.
Applicable To: Court will scrutinize the law/action when a suspect classification or
fundamental right is involved.
1. Thus, where there is a fundamental right (right to travel, voting, privacy, all 1st
amendment rights ) or where there’s a suspect classification, the burden shifts,
and the State has the burden of proving that the law was narrowly tailored to serve
a compelling interest.
2. Court will look to see if less burdensome means for accomplishing the legitimate
goal are available. Suspect Classification Examples:
a. Race
b. Alienage
Suspect Classifications/ Race & Ethnicity – If governmental actions classifies persons

based on exercise of a fundamental rights or involves a suspect classification, strict scrutiny
is applied. A group of people will be deemed a suspect class if:
1. Historically discriminated against - – when an immutable trait group have been
discriminated against for a long period of time
2. Politically powerless (nature of harm to victims)- couple with a lack of access to that
political power
3. Immutable characteristics (i.e. race, gender, etc.) – classifications by an immutable
trait – a fixed, unchangeable quality like race.
Purposeful Discrimination – For a legislative classification to be constitutionally suspect,

the challenger must prove that “the classification is intentionally discriminatory.”
1. Strict scrutiny applies only when if the challenger proves that action was intended
to deliver invidiously discriminatory effects and the government is unable to rebut
that proof by showing that the action would have been taken anyway
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Segregation
The most important example of government action which classifies by race, but which,
superficially at least, does not explicitly disadvantage minorities, is segregation, i.e., the
maintenance of physical separateness between races. Brown v. Board of Educ.:
1. If it is proven that a school has engaged in racial segregation of schools, the school
must take steps to eliminate the effects of that discrimination.
2. Therefore, only intentional segregation in schools will be evaluated under the equal
protection by subjecting it to strict scrutiny.
3. Segregation of children in the public schools solely on the basis of race denies to
black children the equal protection of the laws guaranteed by the Fourteenth
Amendment, even though the physical facilities and other may be equal. Education
in public schools is a right which must be made available to all on equal terms.
4. The question presented in these cases must be determined not on the basis of
conditions existing when the Fourteenth Amendment was adopted, but in the light
of the role of public education in American life today. The separate but equal
doctrine adopted in Plessy v. Ferguson, which applied to transportation, has no
place in the field of public education.
5. Separating black children from others solely because of their race generates a
feeling of inferiority as to their status in the community that may affect their hearts
and minds in a way unlikely ever to be undone. The impact of segregation is greater
when it has the sanction of law. A sense of inferiority affects the motivation of a
child to learn. Segregation with the sanction of law tends to impede the educational
and mental development of black children and deprives them of some of the benefits
they would receive in an integrated school system.
AFFIRMATIVE ACTION
“Affirmative Action” = steps that are taken to benefit minorities in a situation where
minority applicants for education or employment get some kind of preferential treatment.
Two vital questions are raised:
 What standard should be used to review the benign use of a suspect classification
such as race?
 Does it matter whether the discrimination is intended to benefit minorities?
The strict scrutiny is required of “affirmative action” attempts based on race as is
required of race-based classifications that disadvantage a minority. Government may
discriminate to benefit minorities, only if it satisfies strict scrutiny.
 Rationale: Anytime classification is based on race or national origin, whether it is
benign or invidious, it must be examined under strict scrutiny.
Academic Admissions:
Ethnic diversity (race) may be a factor in the admissions process, as long as it is not
the only one.
 A number of factors enter consideration for admissions, but equal protection
guarantees that individual rights may not be disregarded. No facial infirmity –
meaning no discrimination exists in an admissions prgm where race/ethnic
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background is simply one element to be weighed fairly against the other elements in
the selection process. See Bakke; Hopwood v. TX.
 Quotas based on race are not allowed.
Education
The Court has declined to extend the list of fundamental rights to include education.
There is no fundamental right to equality in public school education. Therefore, the law was
subject to rational basis analysis.
Alienage
There are other classifications that arguably warrant heightened scrutiny.
In deciding whether or not to treat a particular type of classification as “suspect,”
the Court has given substantial weight to whether the class which is disadvantaged is a
“discrete and insular minority,” i.e., a minority which is politically powerless and has
historically been discriminated against.. In general, the Court has applied strict scrutiny
to classifications disadvantaging aliens.
“Alienage” as the term is used by the Court, means “not having U.S. citizenship.”
Discrimination against aliens often takes the form of discrimination against all aliens,
without regard to their country of origin.
In Plyler v. Doe, the Court invalidated a TX statute denying free public education to
illegal alien children.
1. Children can affect neither their own status nor that of parents.
2. Importance of education to children and nation generally (would create a
permanent underclass)
GENDER
Gender- based discrimination is analyzed through Intermediate Scrutiny.
Sex-based classifications get intermediate review:
1. The Court articulated the applicable standard as being that “classifications by
gender must serve important governmental objectives and must be
substantially related to achievement of those objectives.”
a. Where we apply the intermediate scrutiny standard, the government
objective must be "important," and the means must be "substantially
related" to that objective.
b. So if gov’t intentionally classifies on the basis of sex, the burden shifts to
the gov’t to show that it’s pursuing an important objective, and that the
sex-based classification scheme is substantially related to that objective.
2. Pure administrative convenience can never be an important government
interest sufficient to justify gender based discrimination.
Craig v. Boren:
Facts: An OK statute forbade the sale of “3.2 beer” to males under the age of 21,
and to females under the age of 18. The constitutional claim was that the statute
denied equal protection to males aged 18 to 20.
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Held: The Court articulated the applicable standard as being that
“classifications by gender must serve important governmental objectives
and must be substantially related to achievement of those objectives.” –
Intermediate scrutiny
1. Under this standard, the law was held unconstitutional. Here, the
government purpose was traffic safety, but stats did not bear out a reason
for subjecting men to greater restrictions than women.
2. Besides, even if the stats did show what the state believed (i.e., the men
were more likely to drive drunk), the law was not substantially related b/c
the women could go and buy the beer and give it to the guys.
U.S. v. Virginia
Facts: Woman wanted to enter all-male Virginia Military Institute. Virginia Military
Institute (VMI) was the only single-sexed school in Virginia. VMI used a highly adversarial
method to train (male) leaders of the future. There was no equal educational opportunity
to that of VMI in the State for women.
Held: VMI’s policy of excluding women violated equal protection, and the alternative
program was not sufficiently comparable to the VMI program.
Rationale: J. Ginsburg:
 Diversity of educational approaches may be legitimate interest, but not allowing
women into VMI does not further this interest.
 Not allowing women b/c they would destroy VMI’s atmosphere is not legitimate
state interest. Of course the place would be different – there would be women
there! This tautology is not enough to sustain intermediate scrutiny.
 Analysis: This case is prime example of the court using watered down strict
scrutiny to conduct its analysis Whenever it analogizes to race or national origin,
expect a more strict intermediate scrutiny.
o The court is especially likely to strike down a gender-based classification
system that seems to be based on faulty generalizations or stereotypes about
the differing abilities of the two sexes.
o After VMI, sex-based classifications apparently would have to undergo
“skeptical scrutiny,” and would be upheld only if the state demonstrated an
“exceedingly persuasive justification.”
FUNDAMENTAL RIGHTS
Fundamental Rights are another area where Equal Protection requires the Strict
Scrutiny Standard be applied. Two fundamental rights that get scrutiny, even though the
discrimination in the statute has nothing at all to do with race, gender, etc., are:
1. Voting
2. Access to justice [the courts].
Voting
The Ct. has found that the right to vote is a fundamental right. If this right is
infringed upon, it will have an impact on the exercise of other fundamental rights. See
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Harper v. Va. Bd. of Elections (invalidating poll tax). Voting is different than other rights
because it cannot be absolutely quantified. Your right to vote is always measured against
that of other citizens.
Access to Court
Existence of a classification based on wealth has never been enough to trigger strict
scrutiny. But where the state imposes fees which have the effect of preventing the poor
from gaining access to the courts, the Court has sometimes been willing to apply strict
scrutiny – if the particular type of judicial access being sought is found to be sufficiently
important.
The Court has carefully scrutinized and frequently invalidated economic barriers
impeding access to the criminal and civil processes. The Court has repeatedly divided on
the issue of whether procedural due process or equal protection provides the appropriate
analytical framework.
Generally, the Court has shown a greater likelihood of striking down barriers to the
pursuit of judicial remedies in criminal cases than in civil cases. Griffin v. Illinois is the
leading case:
Freedom of Expression
The 1st Amendment provides, in part, that "Congress shall make no law ... abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances."
Freedom of speech is not absolute and must be balanced against other important state interests.
1. Exclusions like bribery, perjury, and counseling to murder are not considered protected
under 1st Am
2. Closer calls: incitement, fighting words, libel, obscenity, and child pornography
(“unprotected” boundaries shrinking – especially anything resembling “political
speech,” which gets extra protection)
3. Lower value categories – commercial speech and sexually-explicit-but- non-obscene
speech – protected, but not fully so
CONTENT BASED VS. CONTENT NEUTRAL

Courts distinguish between “content-based” and “content-neutral” regulations on expression.
 If the government actions is content-based, the action will generally be subject to strict
scrutiny, and the action will usually be struck down.
o Regulation aims at the content of speech.
 On the other hand, if the government action is content-neutral, the government’s action
is subjected to intermediate scrutiny, and will usually be upheld. Most content-neutral
regulations of speech or symbolic conduct are subject to heightened rather than mere
rationality review.
o Regulation aims at some other, content neutral interst, such as peace & quiet,
the orderly movement of crowds, the aesthetic attractiveness of public spaces,
or the economic competitiveness of an industry.
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o Content neutral regulations generally simply regulate the time, manner, and
place of speech.
Content-Based Restrictions
When a law discriminates based on content by placing burden on speech - Regulation aimed at
subject matter. i.e., political speech.
 Strict scrutiny applies - which places the burden on the government to
show that the regulation is narrowly tailored to achieve a compelling
governmental interest and that it has no less restrictive alternative to
achieving that interest.
 Exception Includes: incitement, fighting words, libel, obscenity, and child
pornography (“unprotected” boundaries)
 It is difficult to find content-based discrimination that survives strict scrutiny. The Court has
considered several distinct types of content-based regulations:
Viewpoint restriction
The Court generally treats restrictions of the expression of a particular point of view as the
paradigm violation of the 1st Amendment. See e.g., Brandenburg; R.A.V.
Subject Matter Restriction
The Court has generally scrutinized subject matter restrictions strictly.
Content-Neutral Laws
Regulation aimed at the suppression of ideas; usually aimed at the way the speech is likely
to be delivered such as regulating the time, place, or manner in which the speech occurs.
i. These regulations are generally valid and as such subjected to Intermediate
Scrutiny Standard – which places the burden on the gov’t to show that the
regulation furthers some important governmental interest and is
substantially related to achieving that objectives.
Two types of content-neutral laws have come before the Court on free speech challenge:
 One type of content-neutral law, instead of focusing specifically on expression, is aimed at a
wider range of behavior and has only an “incidental” impact on speech.
o A 1st Amendment challenge typically arises against such a law when the violator
seeks to engage in an instance of expressive or symbolic conduct.
 A second type of content-neutral law aims at expression, but for reasons unrelated to its
content.
o Ex: Law limiting the decibel level of amplified sound or an injunction keeping
protestors at a certain distance from an abortion clinic entrance aim at interests in
tranquility and orderly movement that have nothing to do with the communicative
impact of the speech.
1. “Time, place, and manner” regulations of speech in the public forum represent
the largest single example of this type of content neutral law.
Time, Place, Manner test to be used when the gov’t is using content-neutral regulations b/c
concerned with conduct:
1. Significant (important, substantial) government interest
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2. Narrowly tailored to achieve asserted interestdoesn’t have to be the least
restrictive alternative, but has to be a good fit.
3. Adequate alternatives must be available.
Standard of review
 The contemporary standard of review for content-neutral regulations, as opposed to
that that are content-based, is a form of intermediate scrutiny: government can
justify content-neutral regulations of speech, or of conduct that might amount to
speech, only if it can show that they are closely tailored to serve a substantial or
significant govt interest.
o The interest need not be compelling, and the means/ends fit need not be perfect; the
state is not obliged to exhaust less restrictive alternatives before it may enact or
enforce a content-neutral law.
Symbolic Conduct
What if critics of public policies seek to express their views through symbolic behavior rather than
words: e.g., by burning a draft card (O’Brien), or by mutilating or burning the flag? Can such critics
claim as much protection as would be afforded if the criticism was expressed through the spoken or
printed word?
 Actions such as flying a flag can be expressive conduct entitled to as much protection as
traditional speech.
However, there has to be a point at which actions stop being symbolic speech and simply become
criminal actions.
 One cannot derail a troop train as expression of his objection to war. One cannot commit a
crime and wrap it in the flag of expression. After all, terrorism expresses a viewpoint and
yet it is not protected speech.
In cases such R.A.V. (burning cross), the challenged law was aimed expressly at symbolic conduct
for reason of its symbolism and communicative impact.
 But what about laws that have the incidental effect of prohibiting symbolic conduct?
 The court inquiry into whether there is an incidental intrution into the prohibition
of conduct starts and ends on the face of the statute.
In a Nutshell
Symbolic speech is communication effected through conduct  flag burning, draft card burning,
nude dancing. Symbolic speech always involves both a communicative element and a conduct
element.
 Look to see if the government it totally prohibiting the symbolic speech (apply the O’Brien
test) or just moving it around (time, place, manner test).
General rule; Where speech and non-speech are combined in conduct, a regulation that has only an
incidental restriction on expression will be tolerated only when it passes intermediate scrutiny
test: The Four Test:
1. regulation was within the constitutional power of the government;
2. it furthered an important or substantial governmental interest;
3. the interest was unrelated to the suppression of free expression;
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4. incidental restriction on Firs Amendment freedoms was no greater than it is essential to the
furtherance of governmental interest.
Erogenous Zoning
Erogenous zoning laws are laws that disperse or concentrate establishments that specialize in
materials of specified sexual content.
1. The state can’t ban non-obscene materials and films, but it can sure them geographically.
Thus, to limit or prohibit the proliferation of nude films – porn theaters – a city can enact
zoning ordinances limiting the amount in any particular area.
A plurality of the court advocated that not all protected speech is protected equally (two-tier
approach), however, the majority of the court has not accepted this.
Low Value Speech? (Two Tier Approach)
A number of cases suggest that the court may believe that certain types of expression, while not
directly suppressible on the grounds of their content, are inherently less valuable and may
therefore be regulated more extensively than speech closer to the “core” of 1 st Amendment values,
such as political speech. This less-favored speech seems to include mainly speech that is “indecent.”
Young v. American Mini Theatres (1976)
The court has split the categories of where some speech may fall on as “1A” and “Non-1A.”
Speech protected are Playboy(SS), O’Brien(IS) and Unprotected are Obscenity, Incitement, Child
Porn – If you happen to find yourself in the non-1A – the govt can do what it want.
Page 801 – list of the content matter
 Incitement, fighting words, libel, obscenity, and child pornography falls under the “Non-
1A unprotected” boundaries
Unprotected Speech: Obscenity

To begin with, obscenity is unprotected speech. Expression that is obscene is
simply unprotected by the 1st Amendment, so the states can ban it, punish it, or do
whatever else they want without worrying about the First Amendment. Therefore, all the
state needs is a rational basis. The Court continues to view obscenity as unprotected speech
so long as it is sufficiently defined. However, if speech is sexually explicit but is not obscene
and does not constitute child pornography, it is within the realm of 1 st Amendment
protection, but the Court has wrestled with it should occupy a subordinate position as
“lower value” speech.
Three Part-Test:
Obscenity, defined for purposes of free speech, is not deemed constitutionally protected
speech. However, laws designed to regulate obscene materials must be carefully limited. In Miller
v. California (1973), the Court agreed on a definition of “obscenity”.
In order for a state to regulate material on the basis of obscenity, the material must, when taken as
a whole:
1. Appeal to a prurient interest in sex – based on local community standards;
a. It has to be a “turn on”
2. Be patently offensive – based on local community standards;
3. Lack significant redeeming literay, political, scientific or social value – national
standard
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i. S.L.A.P.S
ii. So something will not be "obscene" unless it depicts or describes "hard
core sex". (For instance, mere nudity, by itself, is not obscene.)
FIGHTING WORDS
Fighting words receive no 1st Amendment protection because, like other
unprotected categories of speech (e.g., defamation, obscenity, etc.) they are not normally
part of any “dialogue” or “exposition of ideas.”
Fighting words are words which are likely to make the person to whom they are
addressed commit an act of violence (probably against the speaker).
1. Fighting words are defined as words that would provoke a reasonable
person to actual likelihood of imminent violence (elicit a breach-of-peace).
2. True Threat - Unprotected – Statements meant to communicate an intent
to place an individual or group in fear of bodily harm (Virginia v. Black)
3. States may Ban words likely to INCITE Physical Retaliation – those
personally abusive epithets that, when addressed to ordinary citizens, are
inherently likely to incite immediate physical retaliation.
a. However, limited by Chapinsky ( was a Jehova’s Witness who
called the city marshal a “God damned racketeer” and “a damned
Facist” and then got in a fight with him on the sidewalk,)
1. Fighting words are directed at a particular person. The fighting
words doctrine originated in Chaplinsky.
2. Offensive Speech is analyzed under fighting words - CONFIRM
HATE SPEECH
Government efforts to regulate "hate speech" – speech attacking racial minorities,
women, homosexuals, or other traditionally disfavored groups – are likely to run afoul of
the 1st Amendment for being content-based.
1. Public expression of ideas may not be prohibited just b/c the content (of the ideas)
are offensive (R.A.V v. City of St. Paul)
2. Thus, “hate speech” is protected under 1st amendment, unless it rises to level
of "fighting words."
a. Within the area of unprotected speech the government may not proscribe
some unprotected speech, but permit other unprotected speech based on
point-of-view (i.e. specifically ban only fighting words which are racial in
nature such as cross burning).
3. However, A state can increase a convicted defendant’s sentence based on the fact
that it chose the victim of his crime based on race (Wisconsin v. Mitchell).
Protected but limited
Commercial Speech - Commercial speech is speech that advertises a product or proposes
some commercial transaction.
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1. Commercial Speech in general have some 1st amendment protection, however, false
advertising does not. In determining a regulation on commercial speech is valid:
i. Determine whether the commercial speech concerns a lawful activity and is not
misleading or fraudulent. If it is, the regulation will be held valid only if it:
i. Serves a substantial government interest;
ii. Directly advances asserted interest; and
iii. Is narrowly tailored to serve the substantial interest. This part of the test
does not required that the least restrictive means be used. Rather, there
must be a reasonable fit b/w the legislation’s end and the mean chosen.
2. The court was clear in VA Pharmacy that commercial speech would not be protected when it
fell in one of these categories:
1. Advertising of illegal products (machine guns)
2. Discriminatory advertising (blacks only; males only)
3. False of deceptive advertising.
Content- Neutral Regulation as applied to Public Forum

1. If regulation is content-based, it makes no difference whether the expression is or is
not in a public forum: strict scrutiny will be given to the regulation, and it will
almost never be upheld.
2. It’s where a regulation is content-neutral that the existence of a public forum
makes a difference; especially regulations on “time, place & manner" are less likely
to be upheld where the expression takes place in a public forum.
3. When expression takes place in a non-public forum, the regulation merely has to be
rationally related to some legitimate gov’t objective, as long as equally effective
alternative channels for the expression are available.
4. When the expression takes place in a public forum, the regulation has to be
narrowly drawn to achieve a significant gov’t interest (roughly intermediate-level
review). It is necessary, but not sufficient, that the government also leaves
alternative channels available.
5. One drop of content discrimination or regulation means that it is content based and
the strict scrutiny test must be applied – Does not matter that it is otherwise a TMP
restriction, any content discrimination subjects the statute to strict scrutiny.
Overbreadth – A statute is overbroad if, in addition to prohibiting activities which may be

constitutionally forbidden, it also sweeps within its coverage speech or conduct which is protected
by the First Amendment. “A governmental purpose to control or prevent activities
constitutionally subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.”
A defendant could claim overbreadth even if even if may have been found guilty under a narrower
statute.
1. Basis – chilling effect on speech and selective enforcement.
2. Overbreadth means that a law will affect protected conduct as well as unprotected
conduct and is therefore facially invalid – “Good roots but potentially unhealthy
branches”
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Overbreadth analysis is an exception to two traditional rules of constitutional litigation:
1. First, it results in the invalidation of the law “on its face” rather than “as applied” to a
particular speaker. Thus, when invalidated for overbreadth, the law is not narrowed, but
rather becomes wholly unenforceable until a legislature rewrites it or a properly
authorized court construes it more narrowly.
2. Second, overbreadth is an exception to the usual rules of standing. Challengers are in
effect permitted to raise the rights of third parties.
3. Concern with the chilling effect of speech on overbroad laws. Laws affect many people –
some who may be afraid to challenge the law.
4. Substantial Overbreadth – The overbreadth must be substantial before facial
invalidation is appropriate.
a. Is a general doctrine – not limited to content based – free speech. It may be made
with respect with the right to travel, infinge the right to abortion
Vagueness –
1. A statute will be held void for vagueness if person of common intelligence must necessarily
guess at its meaning and differ as to its application.
2. If a law does not provide sufficient definite warning as to the proscribe conduct when
measured by common understandies and practices, it is unconstitutional vague and its
enforcement is a denial of due process.
1. Basis – This stems from the Due Process Clause’s requirement that people be
given fair notice of what conduct is prohibited.
 Challenger will often assert both vagueness and overbreadth. Vagueness, however, is
concerned with all statutes – not only speech. There is no exception for standing in
vagueness as there is in overbreadth
 The closer you get to the core of the 1st Am, the more precise the law has to be.
 The generic dangers of vagueness are as follows:
1. Insufficient notice
2. Hidden viewpoint-based discrimination (licensing cases)
3. Being governed at the whim of the executive (rule of law objection)
Vagueness is a procedural due process problem.
1. For instance, a law gives an awful amount of discretion to the arresting officer to decide
loitering, vagrancy, etc. There is the combined problem of unlimited discretion – plus a
reasonable person is not put on sufficient notice that they are doing something unlawful
2. Unconstitutional vague laws burdening expression are usually, but not invariably, facially
invlaid because such laws chill speech and permit covert view point based enforcement.
Prior Restraint – is an administrative or judicial order that prohibits speech before it

occurs, and does so, on the basis of the speech’s content. Only content-based restrictions
on speech before it occurs are prior restraints.
1. A content-neutral ban on speech before the fact is permissible if its purpose and
effect are not to suppress ideas but to advance legitimate state interests unrelated to
the suppression of speech
2. Punishments after the fact of the speech are not prior restraints.
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Any governmental action which prevents expression from occurring is considered to be

constitutionally invalid – prevents speech before it even gets out to the marketplace.
With prior restraints, you have not been charged with anything yet. You do not have any of the
protections in prior restraint as when you have been prosecuted for a crime. You just have a law
that prevents the speech from being uttered.
Rationale
1. Public has a right to receive information, and if prior restraints are applied, then that info
will never enter the proverbial marketplace.
2. States have to criminalize act/publication after the fact.
a. People would prefer to have a DA make that decision, rather than a board of
censors (better for the people b/c DA has other issues to deal w/)
3. Challenging a censorship board decision would place burden on the challenger, as
opposed to burden on gov't to prove no 1st amend violation
a. There’s a chilling effect if the speech has to go through a censor: “I don’t
need the hassle” – People will take the line of least resistance
4. Ensures const'l right to jury, judicial process, etc.
There are two basic types of prior restraints:

1. Requiring a license or permit before a particular type of expression may be engaged
in.
2. Governmental orders and court injunctions telling a particular person that he
cannot engage in a particular type of communication.
 Despite the general rule against prior restraints, the gov't may in fact use prior
restraints in certain situations. However, the gov't must show a lot to justify a prior
restraint.
FREEDOM OF ASSOCIATION
Although the 1st Amendment does not mention a right of freedom of association, the
right to join together with other persons for expressive or political activity is protected by
the 1st Amendment.
1. However, the right to associate for the expressive purposes is not absolute.
2. Infringement on such right must be justified by compelling state interest,
unrelated to the suppression of ideas that cannot be achieved through means
significantly less restrictive of associational freedom.
COMPELLED SPEECH: FREEDOM NOT TO SPEAK
“The freedom of thought protected by the First Amendment includes both the right
to speak freely and the right to refrain from speaking at all.”
1. The government may not force a person to speak or to affirm any prescribed belief
of idea.
2. The unenumerated right not to speak is based on the protections of the 1st
Amendment.
a. Can’t be made an unwilling mouthpiece of the state
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3. When examining compelled speech, the following factors are relevant. (Cited cases
are dealt with in detail below).
i. Will person being forced to carry the speech be able to easily disavow it? Or
will they be identified with it in some way?
ii. Will being forced to carry the speech make someone who would prefer to
remain silent speak up in order to disavow the unwanted speech?
iii. Has the government specified the message, as opposed to allowing private
individuals to do so?
iv. Is viewpoint the trigger for the regulation?
The Religion Clause: Free Exercise & Free Establishment

The 1st Amendment provides that: Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.
Thus, there were two clauses which sought to protect religion: (1) Free Exercise Clause;
and (2) Establishment Clause. They both apply to the state through the 14th Amendment.
FREE EXERCISE
The Free Exercise clause guarantees the free exercise of religion. Freedom of
religion can only be exercised to the extent of the law.
“Exercise” often implies conduct or action  to what extent may the state regulate activity
which the actor claims is required by religion?
1. Claim of Free Exercise Violation + Law of General Application = Rational Basis
2. If object of law is aimed at religion = Strict Scrutiny
ESTABLISHMENT CLAUSE
The Establishment clause prohibits state sponsored or established religion – we
don’t want to have a “Church of America.” It may also forbid government money from being
given to religious institutions.
Lemon Test
The Lemon Test, which still exists today is a guide, not an absolute rule, applied differently
in different cases and sometimes not at all.
1. Does the law have a secular purpose?
2. Is its principle or primary effect one that neither advances nor inhibits religion?
3. Does it foster an excessive government entanglement with religion?
Endorsement Test: A violation of the Establishment Clause is determined by the
"Endorsement Test":
1. Whether or not government is endorsing religion by its actions (would reasonable
person see this as endorsement)?
2. Look at:
a. The message program is sending (point to argue about)?
b. Direct benefit to school?
c. Whether it has a secular purpose?
d. Legislative history?
3. Key to Endorsement: if it is a mandatory event or at a public school, then may =
endorsement.
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a. Examples of Endorsement
i. moments of silence
ii. prayer meetings
iii. 10 commandments in class (= clearly assoc'd w/ religion)
iv. creationism in school (= mandating religious doctrine in school)
v. released time program, where religion brought to a public school
(allowed if go off campus b/c accommodating students who do not
participate)  here a different message is sent via venue (if at school =
saying "we support these religions")
STATE ACTION
There are two classifications of questionable areas that depend on how closely
related the private action is to the usual functions of government:
1. Private entities assuming public/government functions;
2. Significant state involvement, i.e. whether there is state involvement in private
activity sufficient to constitute state action.
a. If a private individual is doing something that would clearly pose
constitutional problems were it done by government, that’s a tip off to a state
action problem.
b. In all of these situations, there will be no state action (and thus no
constitutional violation), unless additional facts are presented that somehow
tie the state in to the private actor’s conduct.
Public Function
Under this approach to state action, if a private individual (or group) is entrusted by
the state to perform functions that are governmental in nature, the private individual
becomes an agent of the state, and his acts constitute state action. Company town case
functioning like a regular town does except it is privately owed
Significant State Involvement

Even if the private individual is not doing something that’s traditionally a "public
function," his conduct may constitute state action if the state is heavily involved in his
activities. This is the "state involvement" branch of state-action doctrine. Thus, where there
is sufficient state involvement, private activity can be dragged over the line and become a
state action.
The state may become responsible for the private party’s actions because it
commanded, i.e., required, the private party to act in that way. Skelly v. Kraemer –the
state enforced a private agmt among neighbors that none will sell his house to a black.
1. Because the state has lent its state judicial enforcement mechanism to this
otherwise private K, the combination of enforcement and private discrimination
violates equal protection. The state was throwing its weight behind the
enforcement of the covenant.
2. The state is responsible for the act of a private party when the state, by its law, has
compelled the act.
There is state action if there exists between the state and private actor a "symbiotic"
relationship, i.e., a relation between the two that is mutually beneficial. Burton v.
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Wilmington Parking Authority, a Wilmington, Delaware city agency owned and ran a
parking garage complex. The agency gave a 20 year lease to a privately-operated restaurant
located in the complex. The restaurant refused to serve African Americans.
Section 5 of the 14th Amendment: Authorizes Congress to enforce laws of the 14th
Amendment.
1. Under section 5, congress cannot create new rights or expand the scope of rights,
all the congress can do is act to prevent a remedy violation rights already recognized
by the courts.
a. Must be narrowly tailored – The law must be Proportional and
Congruence to remedy proven constitutional violation. City of Boerne v.
Flores
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Constitutional Law Outline Srg10

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Constitutional Law I Prof.

Judicial Review: Marbury v. Madison

1. Advisory Opinions: opinions issued outside the context of a

Constitutional minimum of standing contains three elements.

Government Powers in a Federal System (Federalism)

McCulloch v. Maryland (1819) (Introduction)

State Oversight of the Federal Government – The Term Limits Problem

Taxing & Spending Powers

The Dormant Commerce Clause: Art. I, §8 –

Market Participants Exception for State

THE PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV

EXECUTIVE AND LEGISLATIVE ACTION

J. Jacksons Concurrence stated the level in Executive Actions is at highest or

Treaties, War & Foreign Affairs Powers

War Power Resolution

EXECUTIVE PRIVILEGE AND IMMUNITIES

Individual Rights: Procedural/Substantive Due Process:

The Slaughter-House Cases

Privileges and Immunities

GENERAL RULE: The Undue Burden Standard

Sexuality: Consensual Sexual Choices

Suspect Classifications/ Race & Ethnicity – If governmental actions classifies persons

Purposeful Discrimination – For a legislative classification to be constitutionally suspect,

CONTENT BASED VS. CONTENT NEUTRAL

Unprotected Speech: Obscenity

Content- Neutral Regulation as applied to Public Forum

Overbreadth – A statute is overbroad if, in addition to prohibiting activities which may be

Prior Restraint – is an administrative or judicial order that prohibits speech before it

Any governmental action which prevents expression from occurring is considered to be

There are two basic types of prior restraints:

The Religion Clause: Free Exercise & Free Establishment

Significant State Involvement

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