Law 1

1
CONSTITUTIONAL LAW I
FALL 2003
I. The Constitution of the United States...........................................................................................5
II. Judicial Review...........................................................................................................................6
III. The Equal Protection of the aws..............................................................................................!
". The #asic Structure of Equal Protection Review....................................................................!
1. #ac$%round and Earl& 'ecisions( Centralit& of Race.........................................................!
'red Scott v. Sanford )1*5!+ ,. -.!/.......................................................................................!
0ro1 ,,. -21325 )4ote . throu%h end of -25/.........................................................................*
5o "h 6ow v. 4unan )7th Cir. 1*!7+ "R/..............................................................................*
.. 8Standards of Review9( :ere Rationalit& and 5ei%htened Scrutin&.......................................7
Railwa& E;,ress v. 4< )17-7+ ,. -*-/ ...................................................................................7
=illia1son v. ee >,tical )1755+ ,. -*5/...............................................................................7
:innesota v. Clover eaf Crea1er& Co. )17*1+ ,. -*5/ ........................................................7
6ore1atsu v. United States )17--+ ,. 5?1/............................................................................1?
ovin% v. @ir%inia )176!+ ,. 522/..........................................................................................1?
=ashin%ton v. 'avis )17!6+ ,. 51-/......................................................................................11
0ro1 ,,. 5173.1 )4otes 13./.................................................................................................11
@illa%e of "rlin%ton 5ei%hts v. :etro,olitan 5ousin% 'evelo,1ent Cor,. )17!!+ ,. 5.2/.1.
:assachusetts #oard of Retire1ent+ et al. v. :ur%ia )17!6+ "R ,. 6/..................................1.
Cit& of CleAurne v. CleAurne ivin% Center )17*5+ ,. -** B 6!7/.......................................1.
#. 8Se,arate #ut Equal9 C #rown v. #oard of Education .......................................................12
Pless& v. 0er%uson )1*76+ ,. -2!/..........................................................................................12
#rown v. #oard of Education )175-+ ,. --6/ .......................................................................1-
C. Se; ........................................................................................................................................16
0ro1 ,,. 57637! )4ote 1/......................................................................................................16
Crai% v. #oren )17!6+ ,. 6?./ ...............................................................................................16
:ississi,,i Universit& for =o1en v. 5o%an )17*.+ ,. 6?7 ,ara%ra,h 2 onl&/.....................1!
J.E.#. v. "laAa1a e; rel. T.#. )177-+ ,. 617/........................................................................1!
:ichael :. v. Sono1a Count& Su,erior Court )17*1+ ,. 6.1 4ote 2A/................................1!
4%u&en v. I11i%ration and 4aturaliDation Service ).??1+ Su,,le1ent ,. 7!/ ...................1*
'. #ush v. Eore.........................................................................................................................1*
#ush v. Eore ).???+ Su,,le1ent ,. 2/...................................................................................1*
E. 8"ffir1ative "ction9.............................................................................................................17
"darand Constructors+ Inc. v. Pena )17-!+ ,. 5!-/................................................................17
Erutter v. #ollin%er ).??2+ Su,,le1ent ,. !?/.......................................................................?
EratD v. #ollin%er ).??2+ Su,,le1ent ,. 71/ .........................................................................1
0. 5o1ose;ualit&........................................................................................................................1
Ro1er v. Evans )1776+ ,. 62*/...............................................................................................1
I@. The Se,aration of Powers.........................................................................................................1
". The "llocation of Powers Aetween the 0ederal Eovern1ent and the States..........................
1. #ac$%round..........................................................................................................................
.
:cCulloch v. :ar&land )1*17+ ,. 55/.....................................................................................
.. The Co11erce Power..............................................................................................................
EiAAons v. >%den )1*.-+ ,. 1-2/............................................................................................2
US v. E.C. 6ni%ht Co. )1*75+ ,. 161/.....................................................................................2
5ouston+ East B =est Te;as Railwa& v. US )The Shreve,ort Rate Cases/ )171-+ ,. 16./ . .2
Cha1,ion v. "1es )The otter& Case/ )17?2+ ,. 16-/..........................................................2
5a11er v. 'a%enhart )The Child aAor Case/ )171*+ ,. 1-!/..............................................2
Carter v. Carter Coal Co. )1726+ ,. 167/.................................................................................-
United States v. 'arA& )17-1+ ,. 1!7/....................................................................................-
=ic$ard v. 0ilAurn )17-.+ ,. 1-7/..........................................................................................-
5eart of "tlanta :otel v. United States )176-+ ,. 1*2/..........................................................-
6atDenAach v. :cClun% )176-+ ,. 1*-/..................................................................................5
United States v. o,eD )1775+ ,. 1*6/....................................................................................5
United States v. :orrison ).???+ ,. 17!/................................................................................6
2. Section 5 of the 0ourteenth "1end1ent and the Eleventh "1end1ent............................!
Eeneral Fuestion( Can Con%ress enforce a liAert& that courts have not reco%niDedG............!
6atDenAach v. :or%an )1766+ ,. .../....................................................................................!
Cit& of #oerne v. 0lores )177!+ ,. ..6/..................................................................................!
0ro1 ,. .2?321 4ote...............................................................................................................*
#oard of Trustees of the Universit& of "laAa1a v. Earrett ).???+ Su,,le1ent ,. 2!/..........*
-. Unwritten statesH ri%hts.......................................................................................................7
PrintD v. United States )177!+ ,. .-*/.....................................................................................7
Reno v. Condon ).???+ ,. .51 4ote 1/...................................................................................7
#. "llocation of Powers within the 0ederal Eovern1ent..........................................................2?
1. The President as aw1a$er................................................................................................2?
<oun%stown Sheet B TuAe Co. v. Saw&er )175./ ),a%e 226/..............................................21
Introduction to The Two :odes of Se,aration of Powers "nal&sis................................2.
Clinton v. Cit& of 4ew <or$ )177*/ ),a%e 26*/....................................................................2.
.. Con%ressional 'ele%ation to and @etoes of "d1inistrative "%encies...............................22
4ote( 4ondele%ation 'octrine and 8Fuasi3Constitutional9 Statutes.....................................22
2. ",,oint1ent and Re1oval of "d1inistrative >fficers......................................................2-
The Two :odes of Se,aration of Powers "nal&sis )Reloaded/............................................2-
Su11ar&+ and Se,aration of Powers "ccordin% to Jed.........................................................2*
-. Ene1& Co1Aatants.............................................................................................................27
#. 8SuAstantive 'ue Process9( The ochner Era.......................................................................-5
'red Scott v. Sanford )1*5!/....................................................................................................-5
:unn v. Illinois )1*!!/..............................................................................................................-5
Railroad Co11ission Cases )1**6/..........................................................................................-5
Santa Clara Count& v. Southern Pacific Railroad )1**6/..........................................................-5
:u%ler v. 6ansas )1**!/............................................................................................................-5
The :innesota Rate Case )1*7?/...............................................................................................-5
"ll%e&er v. ouisiana )1*7!/.....................................................................................................-5
ochner v. 4ew <or$ 17* U.S. -5 )17?5/ ),a%e !12/..............................................................-5
4ote( The ochner Era )17?53172-/ B 4eAAia+ =est Coast 5otel.......................................-!
:uller v. >re%on )17?*/............................................................................................................-!
2
#untin% v. >re%on )171!/..........................................................................................................-!
"dair v. United States )17?*/....................................................................................................-!
"d$ins v. ChildrenHs 5os,ital )17.2/........................................................................................-!
=illia1s v Standard+ RiAni$ v. :c#ride+ T&son B #rother v. #anton.....................................-!
4ew State Ice Co. v. ieA1ann )172./......................................................................................-!
4eAAia v. 4ew <or$ )172-/ ),a%e !.5/ C The end of ochner.................................................-*
=est Coast 5otel Co. v. Parrish )172!/ ),a%e !.!/..................................................................-*
=illia1son v. ee >,tical of >$laho1a )1755/ ),a%e !21/.....................................................-*
0er%uson v. S$ru,a )1762/ ),a%e !21/......................................................................................-*
C. The Incor,oration Controvers&........................................................................................-7
#arron v. :a&or B Cit& Council of #alti1ore )1*22/ ,. !?....................................................-7
:urra& v. 5oAo$en and B I1,rove1ent Co )1756/ Pa%e !?2...............................................-7
Twinin% v. 4ew Jerse& )17?*/ ,a%e !?-...................................................................................-7
Pal$o v. Connecticut )172!/ ,. !?-...........................................................................................-7
"da1son v. California )17-!/ ,. !?5........................................................................................5?
'uncan v. ouisiana )176*/ ,a%e !?!.......................................................................................5?
@I. Unenu1erated Ri%hts C :odern 'evelo,1ents......................................................................5?
". The Ri%ht of Privac& ................................................................................................................5?
1. "ntecedents of Roe............................................................................................................5?
.. "Aortion.............................................................................................................................52
0ro1 Jed . 8The Ri%ht of Privac&.9 1?. 5arv..Rev. !2! )17*7/.....................................5!
Unenu1erated Ri%hts and the 4inth "1end1ent.................................................................57
2. 5o1ose;ualit&...................................................................................................................6?
-. >ther ",,lications.............................................................................................................61
@I. Unenu1erated Ri%hts C :odern 'evelo,1ents......................................................................6-
#. The Ri%ht to Travel..............................................................................................................65
C. 8Positive9 Ri%hts C :ini1u1 Entitle1ents.........................................................................66
@II. The 0reedo1 of S,eech..........................................................................................................6*
". Introduction( s,eech and conduct........................................................................................6*
#.'an%erous s,eech...................................................................................................................!?
C. Content34eutralit&+ the PuAlic 0oru1+ and Ti1e+ Place and :anner Re%ulations...............!.
'. Un,rotected S,eech.............................................................................................................!!
1. >verview and iAel..............................................................................................................!!
C"SS 4>TES >4 0REE'>: >0 SPEEC5(...................................................................!*
on 1st "1end1ent tests(...................................................................................................*7
Relationshi, Aetween >H#rien Test and Ti1e Place and :anner Test.................................*7
.. 8Indecenc&+9 Porno%ra,h&+ >Ascenit&...................................................................................7?
2. 80i%htin% =ords9I 85ate S,eech9.........................................................................................72
E. The 80reedo1 of E;,ressive "ssociation9...........................................................................7!
0. EqualiDin% Political S,eech...................................................................................................77
E. SuAsidies+ Penalties+ and Eovern1ent S,eech....................................................................1?-
@III. ST"TE "CTI>4................................................................................................................1?!
". #ac$%round.........................................................................................................................1?!
#. Judicial Intervention............................................................................................................1?7
C. Entan%le1ent.......................................................................................................................11?
-
'. PuAlic 0unction...................................................................................................................11-
:arsh v. "laAa1a )17-6+ ,. 15--/......................................................................................11-
4ote 2)a/+ ,. 15-!................................................................................................................115
IJ. REIEI>4............................................................................................................................11!
". #ac$%round.........................................................................................................................11!
#. 0ree E;ercise.......................................................................................................................11*
C. EstaAlish1ent......................................................................................................................1.?
The School Pra&er Cases ),. 1-5? 4ote 2/..........................................................................1..
Content of view,oint3Aased discri1ination ),. 1-7! 4ote 1/..............................................1.2
J. T5E JUST C>:PE4S"TI>4 C"USE..............................................................................1.5
". The 8PuAlic Use Require1ent9...........................................................................................1.5
#. 'eter1inin% whether a 8ta$in%9 has occurred....................................................................1.5
I. The Constitution of the United States
Introduction
Constitutional aw a,,lies in all Kurisdictions
#inds %overn1ental )state/ actorsL does not Aind ,rivate actors
o E;ce,tions( two clauses which a,,l& to private as well as %overn1ental actors
1/ "rticle )8"rt9/ I@+ Section )8Sec9/ .+ Clause )8Cl9/ 2( 0u%itive Slave Clause. Slaves
1ust Ae returned to their owners+ even if the& had esca,ed to a state without slaver&
./ 12th "1end1ent )8"19/( "Aolition of slaver&
2/ 1*th "1( ProhiAition
>ther Restraints on Eovern1ental "ctors
Powers( Erants e;,licit ,ower )ori%inal Con strate%& to restrain Con%ress/+ li1itin% ,ower that is
%ranted
o Con%ress )"rt I+ Sec. "/. =hen it acts+ two questions are as$ed(
=as it within Con%ressHs %ranted ,owersG
'oes it violate so1eoneHs ri%htsG
1-th "1( 1ade #ill of Ri%hts a,,licaAle to all States
o 1?th "1 1a$es the ,oint that ,owers not dele%ated to the US are reserved for the States or
the ,eo,le
Rights( Protection of s,ecific ri%hts )7th "1 1a$e the ,oint that not all ri%hts 1ust Ae enu1erated/
o Roe v Wade( Ri%ht to ,rivac&+ no e;,licitl& %ranted ri%ht to ,rivac& in the Con
o 4ote( Con has no 8State of E1er%enc&9 Clause or 4ational Securit& override
I1,ortant Points on the Constitution
The Exceptions C!"se # Art 3$ Sec 2$ C!"se 2( Sa&s that Con%ress can chan%e the Areadth of the
Su,re1e CourtHs a,,ellate Kurisdiction C does not a,,l& to the Su,re1e CourtHs ori%inal Kurisdiction
)Aut Con%ress can ,ut so1ethin% in the SCHs ori%inal Kurisdiction into its a,,ellate Kurisdiction/
The S"pre%!c& C!"se # Art '$ Sec 2( The Constitution+ the laws that further it+ and treaties of the
U.S. are the su,re1e law of the land )contrar& state laws will not ,revail/
The E("! Protection C!"se # )*th A%$ Sec )( Requires states to treat equall& all si1ilarl&
situated classes of ,eo,le
5
+"e Process C!"se # ,th A%( SC has used this clause to declare that the federal %overn1ent 1ust
aAide A& the equal ,rotection 1easures s,elled out in the 1-th "1end1ent
+"e Process C!"se # )*th A%( Used to ,artiall& incor,orate so1e of the #ill of Ri%hts )see Aelow/
The Necess!r& !n- Proper C!"se # Art )$ Sec .$ C ).( @er& i1,ortant to the McCulloch decision
Co%%erce C!"se # Art )$ Sec .$ C 3( Con%ress has ,ower to re%ulate interstate co11erce and
trade with other nations
The +"e Process C!"se has also Aeen utiliDed to reco%niDe unenu1erated ri%hts+ li$e ,rivac& )Roe
v. Wade/
I%port!nt/ Which o0 the 0irst . !%en-%ents in the 1i o0 Rights !re not incorpor!te- into the
)*th A% +"e Process C!"se !n- th"s not %!-e to !pp& to the st!tes speci0ic!&2 Answer/
Using the seecti3e incorpor!tion -octrine$ the Co"rt h!s incorpor!te- e3er& !%en-%ent s!3e
these 0o"r/ 2n- A%$ 3r- A%$ ,th A% re("ire%ent o0 gr!n- 4"r& in-ict%ent$ !n- the 5th A%6
II. JUDICIAL REVIEW
Marbury v. Madison (1803, p. 22)
F!cts( In the last da&s of his Presidenc&+ "da1s a,,ointed Kustices who1 the Senate confir1ed Aut
whose co11issions had not Aeen delivered A& the ti1e "da1s left office. Jefferson succeeded "da1s
and refused to deliver :arAur&Hs co11ission. :arAur& sou%ht a writ of 1anda1us to co1,el :adison+
JeffersonHs Secretar& of State+ to deliver the co11issions.
Iss"e78o-ing( 'oes the Su,re1e Court )8SC9/ have ,ower+ under Judiciar& "ct of 1!*7 )J" 1!*7/
)Aotto1 ,. .6/+ to issue a writ of 1anda1us )court order forcin% so1eone to do so1ethin%/G <es.
Re!soning79!4or Points/
:arAur& has a ri%ht to the deliver& of his co11ission. 5e was a,,ointed A& "da1s to a ,osition that
is not re1ovaAle at will A& the e;ecutive. 5e is therefore entitled to all 8evidences of offices9 that
,ertain to this ,osition.
Since :arAur& has a ri%ht+ he has a re1ed&. :arshall states that the very essence o! civil liberty
certainly consists in the ri"ht o! every individual to clai# the protection o! the la$s, $henever he
receives an in%ury.& 0urther+ he holds that this is a %overn1ent of 8laws+ and not of 1en.9
:arshall estaAlishes the right to judicial reie!" 1eanin% that the courts have the ,ower to inter,ret
the Con and that the other Aranches of %overn1ent are Aound A& this inter,retation.
:arshall does not ,ri1aril& use the te;t of the Con+ which addresses the Kudiciar& )"rt III and "rt @I/
to estaAlish Kudicial review. To do so would Ae circular( these are the ver& thin%s that are Aein% called
into question.
:arshall turns to these - ,ro,ositions(
1/ The fact of a written constitution. Inherent within written cons is that the& are the ,ara1ount law
of the land. The law estaAlished A& the le%islature is Aindin% onl& in so far as it confor1s to the
con. It is the 8e1,haticall& the ,rovince and dut& of the Kudicial de,art1ent to sa& what the law
is.9 This is the 8ver& essence of Kudicial dut&.9
MNote( this Kustification does not answer wh& the JU'ICI"R< has the ,ower to sa& what is
Aindin% as constitutional on the national %overn1ent. It Kust ,osits that this is the 8essence of
Kudicial dut&.9N
./ The Kudicial ,ower is %ranted to all cases arisin% under the con. This 1ust 1ean that the Kudiciar&
1ust loo$ into the con+ all ,arts of it+ to deter1ine the validit& of the law.
2/ Jud%es ta$e an oath to su,,ort the Con.
-/ The Su,re1ac& Clause( the Con is the su,re1e law of the land.
6
Political Fuestion 'octrine( The courts do not have Kurisdiction over questions that are 1erel&
8,olitical9 or 8discretionar&.9 The& h!3e 4"ris-iction o3er ("estions concerning the rights o0
in-i3i-"!s6
The jurisdiction of the SC is confined to its ori%inal and a,,ellate Kurisdiction as laid out in "rticle
III. MThe Con%ress does have e;ce,tional ,ower to add to the a,,ellate Kurisdiction+ see AelowN.
Courts are %iven the ,ower to issue writs of 1anda1us to a Secretar& of State as stated in J" 1!*7
creatin% the Kudicial courts( 8the US authoriDes the su,re1e court to Oissue writs of 1anda1usPto
an& courts a,,ointed+ or ,ersons holdin%+ office+ under the authorit& of the US9 Mthis ,ower will Ae
shown to Ae unconstitutionalN.
Courts do not have ,ower 8to inquire how the e;ecutive or e;ecutive officers+ ,erfor1 duties in
which the& have discretion.9 :arshall insists that the Court has no Kurisdiction over ,urel& ,olitical
questions that are a ,art of the inner wor$in%s of the e;ecutive office.
=hile the Su,re1e Court was %ranted the ,ower to issue writs of 1anda1us A& the J" 1!*7+ it -oes
not h!3e 4"ris-iction o3er this iss"e6 Issuin% a writ is not within the ori%inal Kurisdiction of the SC
which is %iven in 8all cases affectin% a1Aassadors+ other ,uAlic 1inisters and consuls+ and those in
which a state shall Ae a ,art&.9 :arshall then insists that AIc issuin% this writ is li$e deliverin% the
ori%inal co11ission there is no a,,ellate review involved. =ithout ori%inal or a,,ellate ,owers+ the
Court here has no Kurisdiction. Con%ress does not have the authorit& to %rant ori%inal Kurisdiction
where there is a,,ellate and vice versa.
Power %ranted to SC A& J" 1!*7 to %rant writs of 1anda1us is unconstitutional. The Court has the
authorit& to hold that a le%islative act is unconstitutional and the le%islature 1ust Ae Aound A& these
Kud%1ents in its duties( Kudicial review is the ,rovince of the courts.
NOTE/ Marbury has Aeen overruled insofar as it su%%ests that Con%ress canHt %ive lower courts
Kurisdiction over cases that fall within the ori%inal Kurisdiction )>J/ of the SC. The o,,osite doesnHt a,,l&(
SCHs >J cannot Ae added to. 0urther+ con%ressional ,ower to 1a$e e;ce,tions 1eans that Con%ress can
chan%e sco,e of a,,ellate Kurisdiction.
III. The E#ual $rotection of the La!s
A. The %asic Structure of E#ual $rotection Reie!
1. 'ac("round and )arly *ecisions+ Centrality o! Race
*red ,cott v. ,an!ord (18-., p. /2.)
F!cts/ ScottHs for1er owner too$ hi1 fro1 :> to I then to :4 ),art of " Territor&/. 5e returned to
:>+ where Scott was sold as slave to Sandford )fro1 4</. Slaver& is le%al in :>+ Aut ille%al in I )A&
state constitution/ and :4 )A& federal statute outlawin% slaver& in " territor& as ,rovision of the :>
Co1,ro1ise/. Scott clai1s he is a free 1an and citiDen of :>+ Arin%s suit in federal court Aased on
diversit& of citiDenshi,.
Iss"es78o-ing/ =as Scott a citiDen of :issouri for diversit& ,ur,osesG 4o. 'id Scott re1ain a slave
after soKourn to the " Territor& and IG <es.
Scott is 4>T a citiDen of :> for diversit& Kurisdiction ,ur,oses+ thus federal court lac$s Kurisdiction.
o The fra1ers never intended to confer federal citiDenshi, u,on Alac$s( the& thou%ht that
Alac$s were inferior and were ri%htl& enslaved.
o Just Aecause a state confers citiDenshi, u,on a ,erson+ does not 1ean he is vested with the
,rivile%es of federal citiDenshi, that are the ,redicate of diversit& Kurisdiction.
Scott was therefore 4>T 1ade free A& residence in I or :4. 'ue ,rocess( CanHt Kustif& ta$in%
!
so1eoneHs ,ro,ert& when the& havenHt co11itted a cri1e.
o The :> Co1,ro1ise is unconstitutional insofar as it ,rohiAits slaver& in the " territor&.
o The ri%ht to ,ro,ert& in a slave is %ranted A& the Constitution and the Co1,ro1ise cannot
aAro%ate this ri%ht.
JRHs co11ents( 0irst ,art of the o,inion classic ori%inalist rhetoric. Court sa&s that it is not the CourtHs
KoA to sa& whether laws are %ood or Aad Aut to enforce the law as intended. The role of the Court is not to
,ronounce on the Kustness of the Con+ Kust to inter,ret it.
QQ1-th "1 s,ecificall& overrules *red ,cott( equal ,rotection laws refer not Kust to citiDens Aut persons.
0ro# pp. /3113- (2ote 2 throu"h end o! /3-)
,lau"hterhouse Cases (18.3, p. /33)( ReKected equal ,rotection attac$ on " statute %rantin% to a
sin%le co1,an& the e;clusive ri%ht to slau%hter livestoc$+ reasonin% that it was the KoA of the States
rather than the federal %overn1ent to ,rotect civil ri%hts %enerall&+ and that the 8one ,ervadin%
,ur,ose9 of the 1-th "1end1ent was 8the freedo1 of the slave racePand the ,rotection of the
newl&31ade free1an Pfro1 the o,,ressions of those who had for1erl& e;ercised unli1ited
do1inion over hi1.9
,trauder v. West 3ir"inia (18.4, p. /3/)( Struc$ down 1urder conviction of Alac$ 1an tried Aefore a
Kur& fro1 which Alac$s were e;cluded. ,trauder stands onl& for the ,ro,osition that statutor&
discri1ination which de,rives Alac$s of enKo&1ent of their ri%hts is unconstitutionalL it does not
1aintain that the state cannot draw distinctions a1on% citiDens Aased on %ender+ land ownershi,+ a%e+
education+ etc.
5nited ,tates v. Crui(shan( (18.-, p. /3/)( 0ollowin% an election dis,ute+ 6? freed1en were $illed
and 1utilated. 2 of 7! defendants were convicted under the 1*!? Enforce1ent "ct+ ,assed to enforce
the 1-th "1. The Court reversed all three convictions+ holdin% that the 1*!? "ct did not a,,l& to the
actions of ,rivate individuals.
6he Civil Ri"hts Cases (1883, p. /3-)( 'enied that the 12th and 1-th "1end1ents e1,owered
Con%ress to ,rohiAit ,rivate discri1ination in ,uAlic acco11odations.
7o 8h 9o$ v. 2unan (4th Cir. 18.4, 8R)
F!cts( 5"6 convicted under state statute and sent to ,rison+ where his queue is cut off. >rdinance that
states that 1ale ,risoners+ for sanitar& reasons+ 1ust have their hair cut to within one inch of their scal,.
5"6 challen%es this as cruel and unusual ,unish1ent+ ar%uin% ordinance tar%eted Chinese in ,articular.
Iss"e78o-ing/ Is the 8Fueue >rdinance9 constitutionalG 4o.
aw e;ceeds the authorit& of the 8#oard of Su,ervisors.9 The le%islature did not authoriDe the1 to
add to the fine i1,osed A& the court or the ri%ht to chan%e and add ,unish1ents.
Equal Protection )8EP9/ anal&sis( Structure used in this case is EP doctrine toda&+ see1s to Ae
rudi1entar& strict scrutin& anal&sis.
o Even thou%h this le%islation is neutral on its face it is clear to ever&one that this law was
created to tar%et Chinese ,eo,le+ to sin%le the1 out+ and tr& to coerce the1 into co1,liance.
o aw was I4TE4'E' to hurt Chinese ,eo,le in ,articular in an invidious wa&.
o Can loo$ to state1ents of su,ervisors )for all intents and ,ur,oses here a$in to le%islators/ for
the 1eanin% of certain ter1s used+ Aut the court cannot shut its e&es to the oAvious and
$nown ,ur,ose of this le%islation. 8=hen we ta$e our seats on the Aench we are not struc$
with AlindnessP9
o The Kustification %iven for the law )to ur%e Chinese ,eo,le into co1,liance with housin%
statutes/ is invalid Aecause it see$s enforce1ent throu%h a 1ethod a$in to torture. Thus+ the
ordinance violated the 1-th "1.
*
2. ,tandards o! Revie$&+ Mere Rationality and 7ei"htened ,crutiny
R!tion! 1!sis :;R1<= Re3iew
TEST( In the aAsence of interference with a funda1ental constitutional ri%ht in relation to a sus,ect class+
a law 1ust Ae RE"S>4"#< or R"TI>4"< related to a le%iti1ate state interest to ,ass Con 1uster
)ver& difficult to fail this test/.
Cases(
Rail$ay ):press v. 2; (14/4, p. /8/)
F!cts7Iss"e78o-ing( 4< traffic re%ulation which ,rohiAited 8advertisin% vehicles9 Aut which ,er1itted
,lacin% on a truc$ 8Ausiness notices9 relatin% to the Ausiness of the truc$Hs owner was ruled
constitutional. 'eference is %iven to le%islatures in discernin% a rational relationshi, Aetween
classifications and the %oals of the statute.
Re!soning79!4or Points(
=hen not dealin% with a sus,ect class deference %iven to local authorities )1unici,al %ovt.+ state
le%islature/ in how the& view the fulfill1ent of the lawHs %oals throu%h the classifications the& set u,.
"ssu1es so1e rational relationshi, Aetween these classifications and %oals of statute.
o Court defers to Cit&Hs assess1ent that distinctions set u, A& ordinance further ai1 of
eli1inatin% ,edestrian distraction.
o 8It is no require1ent of equal ,rotection that all evils of the sa1e %enus Ae eradicated or
nothin% at all.9
Concurrence( :aintains there is no rational difference Aetween the classifications of statute in
relation to statuteHs %oals+ Aut 1aintains that discri1ination constitutional Aecause statute
distin%uishes Aetween %rou,s who contriAute to the evil out of their own self3interest )constitutional/
and %rou,s who do so 8for hire9 )unconstitutional/.
Willia#son v. <ee =ptical (14--, p. /8-)
F!cts7Iss"e78o-ing( >6 law 1ade it unlawful for an&one not o,to1etrist or o,hthal1olo%ists to fit
lenses. Statute s,ecificall& e;e1,ted 8read&3to3wear9 sellers. In effect+ statute ,revented o,ticians fro1
fittin% old %lasses into new fra1es. Court held did not violate EP clause.
EP clause e;tends >4< to invidious discri1ination.
In cases where invidious discri1ination not a,,arent+ le%islatures 1a& ta$e ste,s to eli1inate so1e
evils Aut not all without violatin% the EP clause.
e%islature 1a& have felt that the 8read&3to3wear9 Aranch did not ,ose as %reat a ,roAle1 as the other
Aranches.

Minnesota v. Clover <ea! Crea#ery Co. (1481, p. /8-)
F!cts7Iss"e78o-ing( :4 law Aanned 1il$ sales in ,lastic non3returnaAle Aottles+ Aut ,er1itted non3
returnaAle ,a,erAoard containers. Court u,holds law as constitutional.
The Court assu1es that oAKectives articulated A& le%islature are the actual oAKectives of statute
)e;ce,tional circu1stances 1a& force Court to alter this assu1,tion/.
Proof that le%islature was :IST"6E4 in creatin% classifications to serve a state %oal does 4>T
show that the classifications are not rationall& related to the furtherance of a state %oal.
o If issue was 8at least deAataAle9 to le%islature creatin% the statute+ evidence showin%
classification is not rational will not ,revail.
7
o States do not have to convince Court of correctness of le%islative Kud%1ents. Even if shown
that statute does not fulfill the oAKectives intended to fulfill+ still cannot Ae used as ,roof of
statuteHs irrationalit& for rational Aasis review.
Strict Scr"tin& :;SS<=
TEST( aw 1ust Ae 8narrowl& tailored to further a co1,ellin% state interest9
Use hei%htened 1eans of scrutin& to 8s1o$e out9 underl&in% 8irrational9 ,reKudice
If over3 or under3inclusive+ law %ets struc$ down. @irtuall& i1,ossiAle to ,ass strict scrutin& due to
the narrow require1ent+ law rarel& so well tailored
JRHs two 1odes of anal&Din% state actions under SS(
1/ >"sti0ic!tor&. #alance state interest with har1 to the individuals involved. In the case of racial
,rofilin%+ ,rovide evidence on how well it sto,s cri1e. CostIAenefit anal&sis+ Aalancin% of interests.
./ P"rposi3ist )ver& different/. =hat were the reasons Aehind the state le%islation or oAKectives Aehind
the actionG So1e state interests are ille%iti1ate to ,ursue no 1atter what the costIAenefit.
Cases(
9ore#atsu v. 5nited ,tates (14//, p. -01)
F!cts7Iss"e78o-ing( 6ore1atsu+ Ja,anese3"1erican citiDen refuses to leave his ho1e for intern1ent
ca1, durin% ==II. E;ecutive >rder 7?66+ issued A& 1ilitar& co11ander+ required all ,ersons of
Ja,anese descentRincludin% U.S. citiDensRto re,ort to 8"sse1Al& Centers9. Court u,holds the order+
sa&in% it was Aased on a ,uAlic necessit& rather than racial anta%onis1.
aws curtailin% civil ri%hts of sin%le racial %rou, are i11ediatel& sus,ect and warrant SS+ Aut this
does not 1ean laws that faciall& discri1inate are auto1aticall& unconstitutional. )Toda&+ 9ore#atsu
stands for ,ro,osition that laws that are faciall& raciall& discri1inator& al1ost alwa&s unKust and
unconstitutional )see p. -0- 2ote/./
8Pressin% ,uAlic necessit&9 can Kustif& raciall& discri1inator& laws if shown to have a 8definite and
close9 relationshi, to a state ai1.
o 'eference %iven to the 1ilitar& authorities in their deter1ination of what is necessar& in this
instance.
o I1,ortant to the 1aKorit& that 6ore1atsu was not e;cluded Aecause of hatred of hi1 or his
race. Rather+ he was e;cluded Aecause of 1ilitar& necessit&.
'issent( =hen dealin% with a 1ilitar& order we can use rational Aasis test instead of SS. Even so+
however+ there is no rational Aasis for confinin% " Ja,anese ,eo,le Aecause so1e 1a& Ae dislo&al.
<ovin" v. 3ir"inia (14>., p. -33)
F!cts( Interracial cou,le convicted under a @ir%inia statute 1a$in% it a felon& for an& white ,erson to
1arr& an& ScoloredS ,erson+ or for an& ScoloredS ,erson to 1arr& an& white ,erson.
Iss"e78o-ing( 'oes a state statute ,reventin% 1arria%es Aetween ,ersons solel& on the Aasis of racial
classifications violate the EP and 'ue Process clauses of 1-th "1G <es.
State defended statute Aecause it ,unished Aoth 1e1Aers of an interracial cou,le equall&+ and thus did
not use racial classifications to 1a$e invidious discri1ination in furtherance of its Sle%iti1ateS state
,ur,ose.
Court held that Sequal a,,licationS of a statute containin% racial classifications does not re1ove the
classifications fro1 1-th "1Ts ,roscri,tion of invidious racial discri1ination.
o 0irst ti1e Court sa&s that the ,ur,ose of the law was racist+ 1a$in% it unconstitutional
1?
o =hite su,re1ac& is at issue+ holdin% does not necessaril& turn on the effect. Court uses strict
scrutin& to s1o$e out the ,ur,ose.
EP clause requires consideration of whether such classifications constitute arAitrar& and invidious
discri1ination.
o Racial classifications in a statute 1ust Ae shown to Ae necessar& to so1e ,er1issiAle state
oAKective+ inde,endent of the racial discri1ination.
o Statute ,atentl& has no le%iti1ate overridin% ,ur,ose inde,endent of invidious racial
discri1ination+ as shown A& the fact that it Aarred onl& interracial 1arria%es involvin% whites+
not+ for instance+ those Aetween "frican3"1ericans and "sians.
Washin"ton v. *avis (14.>, p. -1/)
F!cts( Unsuccessful "frican3"1erican a,,licants to '.C. ,olice force clai1ed that verAal s$ills test
unconstitutionall& discri1inated a%ainst the1 Aecause a hi%her ,ercenta%e of "frican3"1ericans than of
white "1ericans failed the test. The& clai1ed that there was no evidence estaAlishin% the testTs accurac&
in 1easurin% suAsequent KoA ,erfor1ance+ Aut 4>T that the test constituted SintentionalS or S,ur,osefulS
discri1ination a%ainst the1.
Iss"e78o-ing( Is a law or other official act is unconstitutional solel& Aecause it has a raciall&
dis,ro,ortionate i1,actG 4o.
Court holds that 1/ there is a rational Aasis for testL and ./ there was no invidious ,ur,ose in
ad1inistration
The invidious qualit& of a law clai1ed to Ae raciall& discri1inator& 1ust Ae traced to a raciall&
discri1inator& ,ur,ose.
This is not to sa& that the necessar& discri1inator& racial ,ur,ose 1ust Ae e;,ress or a,,ear on the
face of the statute )J. StevensTs concurrin% o,inion elaAorates on this/. "n invidious discri1inator&
,ur,ose 1a& often Ae inferred fro1 the totalit& of the relevant facts.
o 4evertheless+ the Court has not held that a law+ neutral on its face and servin% ends otherwise
within the ,ower of %overn1ent to ,ursue+ is invalid under the EP clause si1,l& Aecause it
1a& affect a %reater ,ro,ortion of one race than of another.
o 'is,ro,ortionate i1,act is not irrelevant+ Aut it is not the sole touchstone of an invidious
racial discri1ination forAidden A& the Con.
JRHs co11ents(
'onHt conflate conce,ts of rationalit& and discri1ination. 'iscri1ination can Ae ,erfectl& rational
o Instru1ental rationalit& de,ends on ,referencesL 1ust start so1ewhere. Preferences ,rovide
the Aasis for Kud%1ent on rationalit& of actions
o I1,act can Ae evidence of ,ur,ose+ Aut then that has to Ae the clai1 and ,laintiff 1ust
convince that it is true
Shows that 1odern EP doctrine is ,ur,osivist in its sense
:an& ,eo,le thin$ that EP law went funda1entall& wron% with Washin"ton v. *avis with the
require1ent that invidious ,ur,ose Ae shown
0ro# pp. -14121 (2otes 112)
=hat aAout if dis,ro,ortionate racial i1,act is intentionalG
;ic( Wo v. 7op(ins (188>, p. -14)( >verturned conviction of Chinese 1an for o,eratin% laundr&
without a ,er1it when it was shown that the ,er1it statute was a,,lied in a discri1inator& 1anner(
each of over .?? a,,lications A& Chinese nationals was reKected+ while all Aut one a,,lication A& non3
Chinese were acce,ted.
?o#illion v. <i"ht!oot (14>0, p. -21) " statute altered sha,e of Tus$e%ee in a 1anner which
11
e;cluded all Aut - or 5 of the 5?? Alac$ voters while not re1ovin% a sin%le white voter. Court held
that if these alle%ations were ,roved+ the statute infrin%ed on the ri%ht of Alac$s to vote in violation of
the 15th "1.
3illa"e o! 8rlin"ton 7ei"hts v. Metropolitan 7ousin" *evelop#ent Corp. (14.., p. -23)
F!cts( :etro,olitan a,,lied for re3Donin% of land to ,er1it construction of low3 and 1oderate3inco1e
housin%. @illa%e denied the requestL :etro,olitan sued+ clai1in% denial was raciall& discri1inator& in
violation of the EP clause.
Iss"e( >n what Aasis can official action Ae dee1ed to Ae 1otivated A& invidious discri1inator& ,ur,oseG
)>,inion as e;cer,ted in the C# is aAout evidence./
'eter1inin% whether invidious discri1inator& ,ur,ose was a 1otivatin% factor de1ands a sensitive
inquir& into such circu1stantial and direct evidence of intent as 1a& Ae availaAle.
I1,act is one ,ossiAilit&+ es,eciall& if a clear ,attern e1er%es which is une;,lainaAle on %rounds
other than race. 5istorical Aac$%round+ includin% de,artures fro1 the nor1al ,rocedural sequence
and suAstantive de,artures+ is one evidentiar& sourceL the le%islative or ad1inistrative histor& another.
J. Powell ,laces the Aurden of ,rovin% discri1inator& ,ur,ose on the ori%inal ,laintiff )here+
res,ondent+ :etro,olitan/+ and sa&s that it failed to carr& this Aurden.
Massachusetts 'oard o! Retire#ent, et al. v. Mur"ia (14.>, 8R p. >)
F!cts( 0or1er :assachusetts State Police officer+ who retired at a%e 5? as required A& state statuted+ sued
on the %round that the statute violated the EP clause of 1-th "1.
Iss"e78o-ing( 'oes a state statute requirin% the retire1ent of unifor1ed state ,olice officer u,on
attainin% the a%e of fift& denies the officer EP of the laws in violation of 1-th "1G 4o.
23Jud%e 'istrict Court held that the co1,ulsor& retire1ent ,rovision did not ,ass the rational Aasis
test. Su,re1e Court a%rees that rationalit&+ rather than SS+ is the correct test+ Aut disa%rees that the
,rovision is not rationall& related to furtherin% a le%iti1ate state interest.
o SS is the ,ro,er test onl& when a le%islative classification interferes with a funda1ental ri%ht
or o,erates to the ,eculiar disadvanta%e of a sus,ect class.
o Ri%ht of %overn1ental e1,lo&1ent is not funda1ental+ and unifor1ed state ,olice officers
over 5? do not constitute a sus,ect class.
o " sus,ect class is one Ssaddled with such disaAilities+ or suAKected to such a histor& of
,ur,oseful unequal treat1ent+ or rele%ated to such a ,osition of ,olitical ,owerlessness as to
co11and e;traordinar& ,rotection fro1 the 1aKoritarian ,olitical ,rocess.S
'ecision to a,,l& rational Aasis test reflects CourtTs awareness that drawin% lines that create
distinctions is ,eculiarl& a le%islative tas$ and an unavoidaAle one.
o Perfection in 1a$in% the necessar& classifications is neither ,ossiAle nor necessar&.
o State choosin% not to deter1ine fitness 1ore ,recisel& throu%h individualiDed testin% after
a%e 5? onl& 1eans that ,erha,s the State has not chosen Aest 1ethods to acco1,lish its
,ur,ose. 'oes not 1ean that oAKective of assurin% ,h&sical fitness is not rationall& furthered
A& 1a;i1u13a%e li1itation.
City o! Cleburne v. Cleburne <ivin" Center (148-, p. /88 @ >.4)
F!cts( Te;as cit& denied s,ecial use ,er1it for o,eration of %rou, ho1e for the 1entall& retarded+
,ursuant to 1unici,al Donin% ordinance requirin% ,er1its for such ho1es. >rdinance ,er1itted a wide
variet& of o,erations+ includin% hos,itals+ sanitariu1s+ nursin% ho1es+ and ho1es for convalescents or
a%ed+ on the site without a s,ecial ,er1it+ Aut required s,ecial ,er1its for ho1es for the insane+ feeAle3
1inded+ alcoholics or dru% addicts. Cit& Council oAKected to the use of the location for ho1e for the
1.
retarded Aecause( nearA& ,ro,ert& owners were o,,osedL facilit& was across the street fro1 a Kunior hi%h
school whose students 1i%ht harass the retarded residentsL and ho1e was located on a flood ,lain.
Iss"e78o-ing( 'oes ordinance violate EP clauseG <es. "lso+ on what Aasis should an ordinance
discri1inatin% a%ainst the 1entall& retarded Ae reviewed to ensure equal ,rotectionG
Court holds that the lower court erred in treatin% the retarded as a Squasi3sus,ect classS+ which
de1anded S1iddle level scrutin&S of the law. Court does not reall& 1a$e a ,olic& decision re%ardin%
the retarded+ Aecause it can+ on narrower %rounds+ 1a$e a decision usin% rational Aasis test.
Court held that 1ere ne%ative attitudes+ or fear+ unsuAstantiated A& factors which are ,ro,erl&
co%niDaAle in a Donin% ,roceedin% are not ,er1issiAle Aases for treatin% a ho1e for the 1entall&
retarded differentl& fro1 other uses of the ,ro,ert&. Concern for a flood does not distin%uish the use
for a ho1e for the retarded fro1 other uses+ which do not require the s,ecial ,er1it.
Court thus finds reason to Aelieve that requirin% the s,ecial ,er1it for the ho1e for the 1entall&
retarded rests on an irrational ,reKudice a%ainst the 1entall& retarded and thus constitutes invidious
discri1ination.
JRHs co11ents(
This is an unusual rational review case Aecause the Court ,erfor1s underIover3Areadth anal&sis
associated with SS.
Fuestioned use of 8irrational ,reKudice9Rthe conce,t of rationalit& 1a& not deliver the ri%ht conce,t
of discri1ination that the 1-th "1 o,,osesL 1-th "1 not aAout rationalit&
Can we suAKect e1otions to rationalit& testsG
o So1e ,eo,le sa& no+ rationalit& and e1otion are 1utuall& e;clusive
o Preferences are the Aasis for decisions on rationalit&
Court has Aeen e;tre1el& reluctant to reco%niDe other sus,ect classes. =h&G =h& did the court not
classif& handica,,ed as sus,ect class under strict scrutin& doctrineG
'. ,eparate 'ut )Aual& B 'ro$n v. 'oard o! )ducation
Clessy v. 0er"uson (184>, p. /3.)
F!cts( ouisiana statute required railroad co1,anies to ,rovide Sequal Aut se,arate acco11odations for
the white and colored races.S Pless&+ who clai1ed to Ae !I* Caucasian+ was ,rosecuted when he failed to
leave the coach reserved for whites.
Iss"e78o-ing( 'o raciall& se%re%ated acco11odations on railroad cars constitute a violation under 12th
and 1-th "1sG 4o.
Court distin%uishes 1-th "1Ts %oal of enforcin% aAsolute ,olitical equalit& of the two races fro1 what
it would see as enforcin% aAsolute social equalit&.
o If civil and ,olitical ri%hts of Aoth races are equal+ one cannot Ae inferior to the other civill&
or ,oliticall&.
o If one race Ae inferior to the other sociall&+ Con cannot ,ut the1 u,on the sa1e ,lane.
Court holds that laws ,er1ittin%+ and even requirin%+ the se,aration of the two races+ do not
necessaril& i1,l& the inferiorit& of either race to the other. Underl&in% fallac& of Pless&Ts ar%u1ent is
that the enforced se,aration of the two races sta1,s the colored race with a Aad%e of inferiorit&Rif
this is so it is solel& Aecause the colored race chooses to ,ut that construction u,on it.
Court sa&s ever& e;ercise of the stateTs ,olice ,ower 1ust Ae reasonaAle+ and e;tend onl& to such laws
as are enacted in %ood faith for the ,ro1otion of the ,uAlic %ood+ and not for the anno&ance or
o,,ression of a ,articular class. In deter1inin% reasonaAleness+ the le%islature is at liAert& to act with
reference to the estaAlished usa%es+ custo1s+ and traditions of the ,eo,le )thus+ in a circular fashion+
12
usin% the status quo to Kustif& itself/.
J. 5arlanHs dissent notes the ,ur,ose Aehind the law+ na1el& to e;clude colored ,eo,le fro1 coaches
occu,ied A& or assi%ned to white ,ersons. States that decision will encoura%e Aelief that it is ,ossiAle+
A& 1eans of state enact1ents+ to defeat the Aeneficent ,ur,oses of the recent a1end1ents to the Con.
'id the court a,,l& SSG 4o+ not as would Ae reco%niDaAle A& conte1,orar& doctrine
o E1,lo&s standard of reasonaAleness. ReasonaAle Aecause se,arate does not necessaril& 1ean
su,eriorIinferior
o 5oldin% on the effect of the statute and denies race Aased ,ur,ose of the law
'ro$n v. 'oard o! )ducation (14-/, p. //>)
F!cts( e%al re,resentatives of "frican3"1ericans sou%ht ad1ission for the1 to ,uAlic schools in their
co11unit& on raciall& non3se%re%ated Aasis. In each instance+ Alac$s were denied ad1ission to schools
attended A& white children under laws requirin% or ,er1ittin% racial se%re%ation.
Iss"e78o-ing( 'oes se%re%ation of children in ,uAlic schools solel& on the Aasis of race+ even thou%h the
,h&sical facilities and other Stan%iAleS factors 1a& Ae equal+ de,rive the children of the 1inorit& %rou, of
equal educational o,,ortunities+ in violation of the EP clause of 1-th "1G <es.
Court ar%ues a%ainst ori%inalist inter,retation of 1-th "1+ Aecause(
o =hat 1e1Aers of Con%ress and state le%islatures who were neither avid ,ro,onents nor
o,,onents had in 1ind cannot Ae deter1ined with an& de%ree of certaint&L and
o =hat an&one in 1*6* would have thou%ht of ,uAlic education in li%ht of 1-th "1 is
irrelevant to 1odern conditions %iven the enor1ous chan%es in the status and e;tent of ,uAlic
education.
Court sa&s that ,uAlic education is ,erha,s the 1ost i1,ortant function of state and local
%overn1ents+ and it is douAtful that an& child 1a& reasonaAl& Ae e;,ected to succeed in life if he is
denied the o,,ortunit& of an education.
Court relies on 6ansas lower courtTs findin% that Sse%re%ation of white and colored children in ,uAlic
schools has a detri1ental effect u,on the colored children. The i1,act is %reater when it has the
sanction of the lawL for the ,olic& of se,aratin% the races is usuall& inter,reted as denotin% the
inferiorit& of the ne%ro %rou,+S even thou%h lower court ruled a%ainst Alac$ ,laintiffs. 0indin% serves
as evidence enaAlin% the Court to hold that Sse,arate educational facilities are inherentl& unequal.S
Court does not use SS doctrinal structure+ even thou%h case after 9ore#atsu
o 0acilities are not at question here+ even thou%h in ,ractice the facilities were actuall& unequal
o 5oldin% on effect of statute. Se,aration has deleterious effect on children. Pur,osivist not
Kustificator&+ which doesnHt square with suAsequent decisions.
E("! Protection +octrine Re3iew
Fuestion( =hat is the a,,ro,riate standard of reviewG
1/ Strict Scr"tin&
Tri%%ered when state action(
i/ Interferes with a constitutional or funda1ental ri%htL or
ii/ Places a Ssus,ect classS at a disadvanta%e with res,ect to the enKo&1ent of a constitutional or a
funda1ental ri%ht.
Test( Is the law narrowl&3tailored and necessar& to the furtherance of a co1,ellin% state interestG
Test tri%%ers an overIunder3Areadth anal&sis that 1ost laws cannot ,ass.
SSus,ect classS a,,lies to %rou,s who have suffered fro1 Sdiscri1inationS in the ordinar& ,eKorative3
,olitical sense of the word. The %rou, 1ust Ae Sdiscrete and insular+S the victi1 of a Shistor& of
,ur,oseful and unequal treat1ent+S or so des,ised that its aAilit& to assert its interests throu%h
1-
coalition Auildin% is fatall& under1ined.
./ R!tion! 1!sis
Tri%%ered in all other cases when le%islation or %overn1ental action discri1inates a%ainst non3
sus,ect class+ with e;ce,tion for se;I%ender discri1ination+ which requires inter1ediate scrutin&.
Test( Is law rationall& related to a le%iti1ate state interestG
State onl& has to show that the discri1ination was 1ade in the furtherance of a le%iti1ate state
,ur,oseL it does not have to show that the law is the Aest+ 1ost efficient wa& to achieve that ,ur,ose.
JRHs co11ents(
Ever&thin% de,ends on the standard of review chosen(
o If Court a,,lies SS it has in a sense alread& decided that there is so1ethin% wron% with the
%overn1ental actionL
o If chooses R# it will 1ost li$el& u,hold the action.
#i% difference Aetween the two tests is whether over3Areadth counts a%ainst &ou33it does in SS+ Aut
not in R#. There are a few cases where laws were u,held under SS )9ore#atsu/ and struc$ down
under R# review )Cleburne/
Traditional view is that SS a,,lies 8when the classification i1,er1issiAl& interferes with the e;ercise
of a funda1ental ri%ht or o,erates to the ,eculiar disadvanta%e of a sus,ect class.9 ,. 8nt. ,chool
*ist. v. Rodri"ueD (14.3).
o 0unda#ental ri"hts ,ron% is rarel& invo$ed+ since 1ost funda1ental ri%hts are ,rovided
constitutional ,rotection inde,endent of equal ,rotection clause
o Sus,ect classes( race+ color+ Aut 4>T a%e )Mur"ia/+ ,overt& )Maher/+ %ender nor se;ual
orientation.
o Reli%ious %rou,s( Court has never decided the issue of whether reli%ious %rou,s are a sus,ect
class. Circuit courts have held that reli%ious %rou,s are a sus,ect class.
Toda& SS a,,lies to 8an& racial classification suAKectin% MaN ,erson to unequal treat1ent9 8darand v.
Cena (144-, p. -./). Eenerall& a,,lied when Court thin$s there was ulterior 1otive Aehind
enact1ent and wants to s1o$e out ,reKudicial 1otives Aehind a ,utativel& rational law.
'octrinal a,,aratus is i1,erfect+ as Cleburne shows. Court is not in fact a,,l&in% a R# test+ Aut
doin% the underIoverAreadth anal&sis associated with SS. 5owever+ if the Court were to hold the
1entall& retarded as a Ssus,ect class+S then ever& law re%ardin% the1 would Ae suAKect to SS+
includin% S,ecial Ed. ,ro%ra1s.
Washin"ton shows that dis,arate i1,act is not enou%h A& itself to raise the ,resu1,tion of
discri1inator& ,ur,ose. In order for state action to Ae found unconstitutional under the EP clause+ it
1ust Ae 1otivated A& 8&ur&oseful inidious discri'ination.9 #urden of ,roof on ,laintiff to show
discri1inator& ,ur,ose.
o SPur,osefulS is the Aasis of 5arlanTs dissent in Clessy and the 1aKorit&Ts reversal in <ovin"L
also the ,roAle1 that Washin"ton ,laintiffs ran u, a%ainst.
o SInvidiousS is Aasis for the SSus,ect ClassS 'octrine+ which+ ta$in% the treat1ent of "frican3
"1ericans in the US as the ,aradi%1+ is Aased on rootin% out the suAordination of a 1inorit&
%rou, to the 1aKorit&+ the reduction of that %rou, to a sociall& inferior caste which can Ae
e;,loited+ Sinstru1entaliDedS for the Ssu,eriorS %rou,Ts Aenefit. )>n this Aasis+ JR contends
&ou can distin%uish Aetween Sse,arate Aut equalS Aathroo1s for the se;es as o,,osed to the
races./
o SI1,actS does not count in itself+ thou%h is central to =arrenTs reasonin% in 'ro$n. #ut there
i1,act was evidence of the invidiousness of ,ur,ose.
C. ,e:
15
Inter%e-i!te Scr"tin&
QQ>nl& a,,lies to %enderIse; discri1ination
TEST( aw 1ust 8serve i1,ortant %overn1ental oAKectives and 1ust Ae suAstantiall& related to
achieve1ent of those oAKectives.9 Crai" v. 'oren. See also 5.,. v. 3ir"inia )@:I case/ requirin%
8e;ceedin%l& ,ersuasive Kustification.9
0ro# pp. -4>14. (2ote 1)
Earl& cases decided a%ainst the Aac$dro, of 6he ,lau"hter17ouse Cases(
'rad$ell v. Ellinois (18.3, p. -4>)( Ri%ht to ,ractice law was not a ,rivile%e or i11unit& of national
citiDenshi,+ therefore not ,rotected A& the 1-th "1+ wo1en could Ae denied license to ,ractice law.
Minor v. 7appersett (184/, p. -4.)( Ri%ht to vote was not a ,rivile%e of citiDenshi,+ therefore wo1en
could Ae denied the franchise.
Muller v. =re"on (1408, p. -4.)( Constitutional to ,rohiAit the e1,lo&1ent of wo1en in factories for
1ore than ten hours a da&+ distin%uishes <ochner v. 2e$ ;or( Aecause 8inherent difference Aetween
the two se;es9 Kustified li1itations on wo1anHs ri%ht to contract+ in conflict with 8d(ins v. ChildrenFs
7ospital (1423, p. -4.).
?oesaret v. Cleary (14/8, p. -4.)( Constitutional to ,rohiAit a wo1an fro1 wor$in% as a Aartender
):I statute/+ court found no equal ,rotection clai1.
Guon" Win" v. 9ir(endall (1412, p. -4.)( U,held as 8rational9 a Kur& selection s&ste1 e;cludin%
wo1en who did not affir1ativel& indicate a desire to serve+ Aecause of the s,ecial ,lace a wo1an has
in the ho1e.
Reed v. Reed (14.1, never discussed in class or assi"ned, yet cited in these cases, p. -48) ( Statute
,referrin% 1en to wo1en as ad1inisters of intestate estates overturned usin% SS. 0irst SC decision to
invalidate a %ender classification under the EP Clause.
Crai" v. 'oren (14.>, p. >02)
F!cts( >6 statute ,rohiAited the sale of non3alcoholic Aeer to 1ales under the a%e of .1+ Aut to fe1ales
under the a%e of 1*.
Iss"e78o-ing( Is a denial of 1ales 1*3.? &ears of a%e of the equal ,rotection of the laws a violation of
the 1-th "1G <es.
4ot a sufficient correlation Aetween the 1ales and the suAKect of drin$in%.
>verrules ?oesaret in an& ,ortions of the o,inion that 1a& Ae inconsistent.
Inter,rets Reed to Ae sa&in% that %ender3Aased difference 1ust Ae suAstantiall& related to achieve1ent
of the statutor& oAKective+ and is tr&in% to follow Reed
'oes not distin%uish Aetween discri1ination a%ainst 1en verses discri1ination a%ainst wo1en
EstaAlishes Inter1ediate Scrutin&( "n& %ender3Aased classification 1ust Ae suAstantiall& related to
i1,ortant %overn1ental oAKectives )Aut not e;,licitl& announced in the o,inion/
JRHs co11ents(
#elieves Crai" is wron%l& decided Aecause the ,ur,ose of the test of inter1ediate scrutin& with
re%ard to %ender is to s1o$e out invidious discri1ination a%ainst wo1en on the Aasis of %ender.
"%rees with Rehnquist in his dissent+ who a,,arentl& would not have oAKected to inter1ediate
scrutin& for discri1ination a%ainst wo1en+ Aut saw no reason wh& discri1ination a%ainst 1ales
should Ae %iven an& %reater scrutin& than that %iven to 1ost other statutes attac$ed on equal
,rotection %rounds.
16
Mississippi 5niversity !or Wo#en v. 7o"an (1482, p. >04 para"raph 3 only)
F!cts( 4ursin% School at :U= Aarred 1en fro1 enrollin% in courses. 5o%an wished to enroll Aecause it
was the closest nursin% school to his ho1e.
Iss"e78o-ing( Is wo1en3onl& ,olic& constitutionalG 4o.
Inter1ediate Scrutin& was a,,lied+ with the addition that an e;ceedin%l& ,ersuasive Kustification 1ust
Ae shown for an& se;3Aased classification+ also i1,ortant that the 8i1,ortant %overn1ental ,ur,ose9
Ae an ori%inall& intention of the le%islature+ and whether that ,ur,ose was suAstantiall& related to
achieve1ent of an i1,ortant %overn1ental oAKective
4ot "ffir1ative "ction Aecause the field of nursin% was not a field in which wo1en found
disadvanta%es+ so the ,ro%ra1 was not co1,ensatin% for an&thin%
JR a%rees with >HConnor who wrote the o,inion
5nited ,tates v. 3ir"inia (144>, p. >11)
F!cts( @ir%inia :ilitar& Institute )@:I/ was a ,uAlic+ 1ilitar& focused+ all31ale colle%e run A& the State.
In res,onse to threats of %ender3inte%ration+ @" had created an all3fe1ale ,ro%ra1 at a ,rivate colle%e in
the state+ which had a si1ilar+ &et ad1ittedl& less ri%orous ,ro%ra1 for wo1en.
Iss"e78o-ing( 'oes @:IHs all31ale ,olic& violate the EP ClauseG <es. =as the StateHs alternative
,ro%ra1 si1ilar enou%h to @:I to overco1e the equal3,rotection clai1G 4o.
Court used Inter1ediate Scrutin& and stated that State 1ust de1onstrate an e;ceedin%l& ,ersuasive
Kustification. State 1ust show at least
o I1,ortant %overn1ental oAKectivesL and
o 'iscri1inator& 1eans e1,lo&ed are suAstantiall& related to the achieve1ent of those
oAKectives
'ifferences Aetween 1ere rationalit&
o Justification 1ust Ae %enuine+ not invented ,ost hoc in res,onse to liti%ation
o #urden lies on the State
Court left o,en ,ossiAilit& of SS
JRHs co11ents( "ccordin% to this case+ se;3se%re%ated Aathroo1s in state Auildin%s would li$el& Ae
unconstitutional+ Aut we donHt see this as reflectin% discri1ination a%ainst either %rou,
H.).'. v. 8laba#a e: rel. 6.'. (144/, p. >14)
F!cts( Trial to deter1ine whether the defendant was the father of a child and the e;tent of his child
su,,ort oAli%ations. State used %ender3Aased ,ere1,tor& Kur& challen%esL and+ as a result of the
challen%es+ Kur& was 1ade u, entirel& of wo1en.
Iss"e78o-ing( "re %ender3Aased ,ere1,tor& challen%es unconstitutionalG <es.
Usin% Inter1ediate Scrutin&+ Court stated that assu1,tion that wo1en would have ,articular views in
certain t&,es of cases )such as ,aternit&/ reinforced stereot&,es aAout wo1en that laws sou%ht to %et
rid of.
in$ed to 'atson v. 9entuc(y )17*6/+ which forAids ,ere1,tor& challen%es Aased on race
Michael M. v. ,ono#a County ,uperior Court (1481, p. >21 2ote 3b)
F!cts( Statute 1ade it a cri1e to have se;ual intercourse with a fe1ale under the a%e of 1*. Thus+ onl&
1en could Ae liaAle for 8statutor& ra,e9
Iss"e78o-ing( Pluralit& decision of four u,held statute.
Usin% Inter1ediate Scrutin&+ Court found that state had a stron% interest in ,reventin% ille%iti1ate
1!
,re%nancies+ and consequences fall al1ost entirel& on fe1ales
'issent Aelieves %oal would Ae Aetter advanced A& Aein% a,,lied equall& to 1en and wo1en )JR
see1ed to a%ree/
2"uyen v. E##i"ration and 2aturaliDation ,ervice (2001, ,upple#ent p. 4.)
F!cts7Iss"e78o-ing/ U,held I4S rule requirin% an unwed citiDen father )Aut not a citiDen 1other/ of a
child Aorn overseas to de1onstrate that there was an o,,ortunit& to for1 a relationshi, durin% the childHs
1inorit& &ears Aefore the child can Aeco1e a citiDen.
8The 1other is alwa&s ,resent at Airth+ Aut the father need not Ae+ MsoN the faciall& neutral rule would
so1eti1es require fathers to ta$e additional affir1ative ste,s Mto ,rove ,arenthoodN9.
4ot doin% ,ur,osive anal&sis as in 3ME+ court 1ore acce,tin% of ,roffered Kustification as real
Kustification
*. 'ush v. ?ore
'ush v. ?ore (2000, ,upple#ent p. 3)
F!cts( >utco1e of .??? Presidential election rested on 0 recount+ which had Aeen dis,uted due to
1ethod of vote countin% in various counties.
Iss"e78o-ing( Recount to discern intent of the voterRdifferent countin% standards in various counties
was a violation of EP clause. Three 1ain ,ieces(
1/ SC issued sta& a%ainst recount
./ >,inion issued(
a/ 0indin% of EP violation
A/ 4o ,ossiAle re1ed&+ so 1ust shut recount down
0unda1ental Ri%ht case( ri%ht to vote funda1ental+ Court a,,lies hei%htened scrutin&
End of o,inion Court states there can Ae no re1and and recount 1ust sto,+ Aecause it is i1,ossiAle to
co1,lete recount A& 'ec 1.th in a 1anner that co1,lies with EP
JRHs co11ents(
:anual recounts have Aeen %oin% on for 15? &ears+ so ,eculiar that it would violate EP. #ut concerns
over differin% standards was le%iti1ate
Re1ed& was le%all& indefensiAleRsin%le worst ,iece of reasonin% to co1e out of SC durin% JRHs
lifeti1e
Court %ave its decision on 'ec 1. at 1?a1P1a$in% it i1,ossiAle to %et it done A& 'ec 1.. #ut wh&
'ec 1.G 0ederal statute does not require the recount to Ae co1,leted A& 'ec 1.. "ctuall& 8safe
harAor9 statute that sa&s that if a state co1,letes its recount A& 'ec 1.+ then that deter1ination A& the
state will Ae conclusive in '.C. a%ainst certain t&,es of challen%es
o 5awaii failed in 6enned& v. 4i;on+ and suA1itted its votes in Januar&
o So1e states have a state law require1ent Aecause the& want to co1,lete its recount under
safe harAor require1ents. #ut the 0lorida election code has no such require1ent.
SC states that the 0lorida SC said that the 0lorida le%islature intended co1,lete recount A& 'ec 1..
0lorida SC had never said that.
o Court said 8the Su,re1e Court of 0lorida has said that the le%islature intended the StateHs
electors to ,artici,ate full& in the federal electoral ,rocess9.
o In ,rior rulin% on certification+ SC had overruled 0lorida SC Aecause 0SC had inter,reted
0lorida election code to state a date which it hadnHt
T5ERE ="S 4> 'EC 1. 'E"'I4E
1*
o Court Kust 1ade it u,+ le%all& indefensiAle
o 4o one defends this ,art of the o,inion+ without this it would have Aeen re1anded
). 8!!ir#ative 8ction&
8darand Constructors, Enc. v. Cena (14/., p. -./)
F!cts( Central 0ederal ands 5i%hwa& 'ivision )C05'/+ ,art of 'e,t. of Trans.+ awarded hi%hwa&
construction contract to :ountain Eravel Construction Co. ):E/+ which then solicited suAcontractor
Aids. "darand suA1itted lowest Aid Aut EonDales Construction Co. was awarded suAcontract. C05'Hs
contract+ as ,er federal require1ents+ %ave financial incentive to hire suAcontractors certified as s1all
Ausinesses controlled A& 8sociall& and econo1icall& disadvanta%ed individuals.9 "darand challen%ed
%ovtHs race3Aased assu1,tion in identif&in% sociall& and econo1icall& disadvanta%ed individuals. :E
suA1itted an affidavit statin% it would have acce,ted "darandHs Aid if not for additional ,a&1ent it
received for hirin% EonDales.
Iss"e78o-ing( #& what standard should a 5th "1 challen%e a%ainst race3Aased affir1ative action Ae
reviewedG ",,ellate court incorrectl& used inter1ediate scrutin& and therefore its rulin% is vacated and
the case is re1anded. SS should Ae a,,lied( 8federal racial classifications+ li$e those of a State+ 1ust
serve a co1,ellin% %overn1ental interest+ and 1ust Ae narrowl& tailored to further that interest.9
Precedent ,rior to Metro 'roadcastin", Enc. v. 0CC (1440) estaAlished three ,ro,ositions with res,ect
to racial classifications(
o S$e,ticis1( 8an& ,reference Aased on racial or ethnic criteria 1ust necessaril& receive a 1ost
searchin% e;a1ination9 )Wy"ant/
o Consistenc&( 8the standard of review under EP Clause is not de,endent on the race of those
Aurdened or Aenefited A& a ,articular classification9 )Croson/
o Con%ruence( 8EP anal&sis in the 5th "1 area is the sa1e as that under the 1-th "19
)'uc(ley v. 3aleo/ i.e. con%ruence Aetween federal )5th "1/ and state )1-th "1/ EP
"Aove three ,ro,ositions to%ether stand for the idea that 8an& ,erson+ of whatever race+ has the ri%ht
to de1and that an& %overn1ental actor suAKect to the Constitution Kustif& an& racial classification
suAKectin% that ,erson to unequal treat1ent under the strictest %udicial scrutinyP.9 )e1,hasis added/
Metro 'roadcastin" undercuts all three of the aAove ,rinci,les and stands for the ,ro,osition that
8Aeni%n race3conscious 1easures 1andated A& Con%ress P are ,er1issiAle to the e;tent that the&
serve i1,ortant %overn1ental oAKectives P and are substantially related to the achieve1ent of those
oAKectives9 )e1,hasis added/ i.e. that Aeni%n race classifications are suAKect to inter1ediate scrutin&
onl&.
Court states that Aecause it 1a& not alwa&s Ae clear whether a race classification is Aeni%n+ the SS
outlined A& Croson should a,,l&.
o "ccordin% to Croson+ the ,ur,ose of SS is to 8s1o$e out9 ille%iti1ate race classifications.
o This is ,ur,ose3Aased view of SS+ which is consistent with Washin"ton v. *avis+ unli$e a
cost3Aenefit view )see Aelow/.
o SS ensures that %overn1ent 1easures 8fit MitsN co1,ellin% %oal so closel& that there is little or
no ,ossiAilit& that the 1otive for the classification was ille%iti1ate racial ,reKudiceP.9 i.e.
narrowl& tailored
Idea of co1,ellin% state interest relates to 8consistenc&9 ,rinci,le outlined aAove. Princi,le of
consistenc& 1eans that 8whenever the %overn1ent treats an& ,erson unequall& Aecause of his or her
race+ that ,erson has suffered an inKur& that falls squarel& within the lan%ua%e and s,irit of the
ConstitutionHs %uarantee of equal ,rotection.9 The a,,lication of SS 8deter1ines whether a
co1,ellin% %overn1ent interest Kustifies the infliction of that inKur&P.9
17
o This the cost3Aenefit view of SS.
o Cost3Aenefit view+ which is concerned with unintended har1s+ is inconsistent with welfare+
veteranHs Aenefits+ etc.
JRHs co11ents(
Racial classification cases are suAKect to SS+ 8darand settled this issue
8darand transfor1s SS fro1 a 1ethod of s1o$in% out invidious ,ur,oses into Kustificator& Aalancin%
test. It h&,othesiDes an effect fro1 all racial classifications ),er,etuation of racial stereot&,es/ and
inverts the Washin"ton v. *avis rule that effects are onl& relevant as evidence of intent
Justificator& view ),. 5!*/ of SS( Unequal treat1ent tri%%ers SS+ which+ when a,,lied+ deter1ines
whether co1,ellin% %overn1ent interest Kustifies infliction of that inKur&
o Should we distin%uish Aetween %ood and Aad intentionsG Recall Mur"ia( SS onl& a,,lies
when statute o,erates to the ,eculiar disadvanta%e of a sus,ect class )Sus,ect Class 'octrine/
o #ut SS doctrine no lon%er Aased on sus,ect classes+ now Aased on suspect classi!ications.
SS Classification 'octrine( Classifications the1selves are Aad
o =hites are now treated as a sus,ect class for EP
o >ther %rou,s cannot Ae %ranted 8sus,ect class9 status. =ealth Aased classifications favor the
,oor )ta;es+ welfare/. #ut rich are not a sus,ect class.
=h& does Court thin$ classifications are AadG
o Consequences are ,ernicious+ unintentionall& reall& Aad for 1inorities+ which is wh& SS 1ust
Ae a,,lied. Thou%h there are unintended har1s for 1inorities+ Aenefits could )not li$el&
under SS/ outwei%h the costs.
o Can we acce,t this as the constitutional anal&sisG 'oesnHt Washin"ton v. *avis sa& that
unintended consequences can never Ae the ,ur,ose for tri%%erin% SSG
o =hat aAout standardiDed testsG Ereater effect in ,ro1otin% notions of racial
su,eriorit&Iinferiorit&PCourt would sa& that it is unintended+ Aasicall& contradictin% itself.
Court is %ust inconsistent on this point
=hatHs the defense for suAKectin% classifications to SSG Three ,ossiAle ones(
o Unintended consequencesRcontradicts Washin"ton v. *avis
o Just Aad on face+ color consciousness is Kust reall&+ reall& Aad( this would Ae a different
ar%u1ent. 4ot a 1orall& ,lausiAle clai1.
o 'iscri1inates a%ainst white ,eo,le. #ut 1an& laws are unfair to 1an& ,eo,le.
"fter 8darand+ not a sin%le decision A& a lower court u,holdin% an affir1ative action ,ro%ra1 until
the :ichi%an cases.
?rutter v. 'ollin"er (2003, ,upple#ent p. .0)
F!cts7Iss"e78o-ing( Erutter+ a white :ichi%an resident whose a,,lication to :ichi%an aw School was
denied+ clai1ed that she was reKected Aecause the aw School used race as a ,redo1inant factor in
violation of the EP clause. SC u,held law school "ffir1ative "ction )8""9/ ,ro%ra1.
"s ,er 8darand+ SS a,,lied for racial classification case.
Court found 8co1,ellin% state interest in diversit&9 in hi%her education ),. !2/.
o Educational Aenefits flow fro1 student Aod& diversit&.
o aw schools re,resent trainin% %round for lar%e nu1Aer of 4ationHs leaders.
aw schoolHs use of race as a 8U factor9 to 8achieve critical 1ass9 to achieve that interest was
narrowl& tailored.
o 4ot a quota s&ste1 li$e under%rad ,ro%ra1+ Aecause aw School awards no 1echanical+
,redeter1ined diversit& 8Aonuses9 Aased on race or ethnicit&
.?
o Si%nificant variance in ,ercenta%e of 1inorit& students in enterin% classes over a ,eriod of
&ears.
o 4arrow tailorin% requires 8serious+ %ood faith consideration of wor$aAle race3neutral
alternatives9 Aut not 8e;haustion of ever& conceivaAle race3neutral alternative9 ),. !6/.
?ratD v. 'ollin"er (2003, ,upple#ent p. 41)
F!cts7Iss"e78o-ing( SC struc$ down :ichi%an under%raduate "" ad1issions ,ro%ra1 Aecause it was
8not narrowl& tailored9 to serve %overn1ent interest in diversit&.
"d1issions ,olic& included ,oint s&ste1+ which awarded a si%nificant nu1Aer of ,oints for 1inorit&
status )Court sa&s dis,ro,ortionate to ,oints awarded for other characteristics/.
"d1issions ,olic& did not ,rovide for individualiDed consideration+ and had the effect of 1a$in% the
factor of race decisive for virtuall& ever& 1ini1all& qualified underre,resented 1inorit& a,,licant.
0. 7o#ose:uality
Ro#er v. )vans (144>, p. >38)
F!cts( Colorado constitutional a1end1ent would have ,revented the state or an& of its cities fro1
enactin% or enforcin% an& statute+ ordinance+ etc. whereA& ho1ose;ual orientation+ conduct+ etc. could Ae
the Aasis for a clai1 of 1inorit& status+ quota ,references+ ,rotected status or clai1 of discri1ination.
Iss"e78o-ing( "1end1ent constitutionalG 4o.
Court found that the 1easure flun$ed 81ere rationalit&9 review on two se,arate %rounds(
o )1/ 4o le%iti1ate state interest Aein% servedL
o )./ :eans chosen A& the state were not rationall& related to the interest that the state asserted
)le%iti1ate or not/
0unda1ental ri%ht to equal ,artici,ation in the %overn1ental ,rocess.
o "1end1ent withdraws fro1 ho1ose;uals+ Aut no others+ s,ecific le%al ,rotection fro1 the
inKuries caused A& discri1ination+ and
o 0orAids reinstate1ent of these laws and ,olicies.
JRHs co11ents(
Used ,ur,osivist anal&sis to deter1ine that a1end1ent was 1otivated A& ani1us
"1end1ent tar%eted ,eo,le rather than conduct )i.e. s1o$ers rather than the action of s1o$in%/+
conduct v. status )conduct can Ae re%ulated+ status should not Ae/. Person can Ae se,arated fro1 the
conduct.
Court a,,lies 1ere rationalit& review+ li$e Cleburne one of the rare cases where the SC stri$es down
so1ethin% under rationalit& review
o Perce,tion that this law Aorn of ani1osit& that EP law does not allow. This is not a ,lausiAle
rationalit& review case
o Covertl& SC is viewin% ho1ose;uals as a 8sus,ect class9. SC is sus,icious of the intent of
this law+ that there is actuall& an invidious ,ur,ose
e%al 1ethods for ,reventin% discri1ination
o Co11on Carrier. 5otels+ trans,ortation co1,anies. Eeneral law ,rohiAitin% arAitrar&
discri1ination
o 0orAidden Erounds. Cannot e;clude so1eone on Aasis ofPla&s down s,ecific criteria )race+
creed+ color+ %ender+ etc/. Controvers& over what etc. is
IV. T(E SE$ARATI)* )+ $)WERS
.1
JR Preview(
Turnin% to structural side of Con aw( 0ederal vs. StatesH Ri%hts
Two 1ethods of restrainin% %overn1ental ,ower
o i1it do1ain( define s,heres
o "rticulate ri%hts( canHt violate certain thin%s+ doesnHt 1atter what the suAKect 1atter is
>ri%inal Constitution 1ore aAout li1itin% do1ain than settin% out ri%hts. Concerned that ri%hts
would Ae construed as e;haustive
Strate%& of enu1eratin% ,owers of Con%ress failed A& around 17-?+ Aecause there failed to Ae
li1itations
0ederalists were in favor of national ,ower+ less %overn1ent for the States
o "nti3federalists were those who wanted 1ore ,ower for the States
o 4ow+ federalists are the o,,osite
8. 6he 8llocation o! Co$ers bet$een the 0ederal ?overn#ent and the ,tates
1. 'ac("round
McCulloch v. Maryland (1814, p. --)
F!cts( Cashier at US #an$ alle%edl& failed to ,a& state ta; and denied that he is oAli%ated to follow state
le%islature Aecause soverei%n i11unit& clai1.
Iss"e78o-ing( 'oes Con%ress have ,ower to incor,orate Aan$G <es. Can a state ta; a US %overn1ent
Aan$G <es+ if a unifor1 ta; not s,ecificall& tar%etin% federal e1,lo&ees.
:ar&land clai1s that the ,ower to estaAlish a Aan$ is not an enu1erated ,ower and that federal
%overn1ent %ets ,owers fro1 states. Court res,onds that the Con that %ives 0ederal authorit&.
0ederal %overn1ent %ets ,ower fro1 the ,eo,le 8in for1 and suAstance it e1anates fro1 the19 ),.
57/.
"sserts su,re1e authorit& of US %overn1ent over States. 0eds %iven Aroad ,ower to re%ulate
co11erce+ wa%e war+ etc. Court sa&s that Aan$in% ,rovides the 1eans for the 0eds to carr& out its
duties.
"rt I+ Sec * %ives Con%ress 8all laws which shall Ae necessar& and ,ro,er for carr&in% into e;ecution
the fore%oin% ,owersP9 sa&s necessar&+ not aAsolutel& necessar& or indis,ensaAl& necessar&.
o Court reads necessar& in a 1iti%ated senseRcites e;a1,le of Con creatin% ,ost office+ which
i1,lies ,ower to deliver 1ail and ,unish roAAers and 1ail fraud.
o 4arrowerIstricter readin% of necessar& would Ae i1,ractical+ would render %overn1ent
i1,otent.
o Clause ,laced in section on ,owers of Con%ress )"rt I+ Sec */+ not li1itations )"rt I+ Sec 7/.
US Con is su,re1e over state constitutions
Power to create i1,lies ,ower to ,reserve
Power to destro& is hostile to ,ower to create and ,reserve
=here conflict+ su,re1e ,ower 1ust not &ield to lesser authorit&
Therefore+ States do not have ,ower to ta; or do an&thin% that restricts Con%ressHs ,ower.
2. 6he Co##erce Co$er
..
a. 5istorical 'evelo,1ent
?ibbons v. ="den (182/, p. 1/3)
F!cts( 4< le%islature %ranted e;clusive ri%hts to 0ultonIivin%ston to o,erate stea1Aoats in 4< waters.
These two licensed >%den. EiAAons o,erated co1,etin% ferr& service+ licensed A& Con%ress in 1!72.
Iss"e78o-ing7Re!soning(
4< 1ono,ol& invalid under su,re1ac& clause+ inKunction dissolved.
Con%ress has the ri%ht to re%ulate interstate co11erce+ Aut will not re%ulate 1atters internal to states.
5, v. ).C. 9ni"ht Co. (184-, p. 1>1)
F!cts( US invo$ed Sher1an "nti3Trust "ct to Aloc$ acquisition of four co1,etin% su%ar co1,anies A&
"1erican Su%ar Refinin% Co1,an&+ which left onl& one inde,endent refiner& in o,eration ),rovided onl&
.V of the su%ar refined in the countr&/.
Iss"e78o-ing( 'oes Sher1an "ct reach this 1ono,ol&G 4o.
Sher1an "ct did not reach this 1ono,ol& Aecause the Constitution did not allow Con%ress to re%ulate
81anufacturin%.9
0act that an article is 1anufactured for e;,ort to another state does not 1a$e it an article of interstate
co11erce
5arlan dissent( Co11on %overn1ent of all is onl& one that can deal with 1atter that directl& and
inKuriousl& affects the entire co11erce of the countr&.
This c!se is wron%l& decided "n-er ,cCulloch$ which pro3i-es 0or %ore exp!nsi3e Co%%erce
C!"se powers6 Stafford !n- Shree&ort c!se re3erse -night
7ouston, )ast @ West 6e:as Rail$ay v. 5, (6he ,hreveport Rate Cases) (141/, p. 1>2)
F!cts7Iss"e78o-ing7Re!soning( Railwa& o,erated lines Aetween TJ and ". Interstate Co11erce
Co11ission set 1a;i1u1 rate for shi,1ents fro1 Shreve,ort to Te;as and ordered railwa& to char%e no
hi%her rates ,er 1ile for shi,1ents to :arshall fro1 Shreve,ort or 'allas in order to eli1inate
8discri1ination9 a%ainst Shreve,ort.
Court held Co11ission could set rates for the intrastate 'allas to :arshall route
"lso held that Con%ress is entitled to ,rescriAe the final and do1inant rule when interstate and
intrastate transactions of carriers are so related that %overn1ent of one involves control of the other
Cha#pion v. 8#es (6he <ottery Case) (1403, p. 1>/)
F!cts7Iss"e78o-ing7Re!soning( 0ederal otter& "ct of 1*75 ,rohiAited interstate trans,ortation of
forei%n lotter& tic$ets. Cha1,ion indicted for shi,,in% Para%ua&an lotter& tic$ets fro1 TJ to C". Court
reKected challen%e to constitutionalit& of act+ sa&in% Cha1,ionHs actions constituted interstate co11erce.
"s states 1i%ht ,rohiAit lotteries to ,rotect 1orals+ so 1i%ht Con%ress across states.
Con%ress canHt arAitraril& ,rohiAit co11erce+ will Ae u, to the courts to Kud%e.
'issent( Con%ress Aein% %iven %eneral ,olice ,ower. 8It is a lon% ste, in the direction of wi,in% out
all traces of state lines+ and the creation of a centraliDed Eovern1ent.9
Reversed A& 7a##erL Aut *arby reverses 7a##er+ Arin%in% Aac$ Cha#pion into %ood law.
7a##er v. *a"enhart (6he Child <abor Case) (1418, p. 1/.)
F!cts7Iss"e78o-ing7Re!soning/ Con%ress ,asses Child aAor "ct in 1716+ which ,rohiAited trans,ort in
interstate co11erce of %oods ,roduced in factories e1,lo&in% children in certain conditions. 0ather of
two children e1,lo&ed in cotton 1ill in 4C secured an inKunction a%ainst enforce1ent of the act on
%rounds it was unconstitutional. Court u,holds.
.2
Court sa&s that Con%ress has no ,ower to require states to e;ercise ,olice ,ower so as to ,revent
unfair co1,etition. Co11erce Clause not intended to %ive Con%ress %eneral ,ower to equaliDe such
conditions
Transcends authorit& dele%ated to Con%ress Aut also e;erts a ,ower as to a ,urel& local 1atter to
which federal authorit& does not e;tend
'issent 5ol1es( =hen states see$ to send ,roducts across state lines the& are no lon%er within their
ri%hts. Court is Aein% inconsistent with other cases
IrreconcilaAle with Cha#pion+ later reversed A& *arby
Carter v. Carter Coal Co. (143>, p. 1>4)
F!cts7Iss"e78o-ing7Re!soning( #itu1inous Coal Conservation "ct of 1725 intended to staAiliDe
industr& durin% ,eriod of sustained industrial crisis. EstaAlished coal Aoards to set 1ini1u1 ,rices+
ad1inister e1,lo&ee collective Aar%ainin% code. Stoc$holder sued to enKoin co1,an& fro1 co1,l&in%
with code. Court invalidated statuteHs laAor ,rovisions+ which were not severaAle fro1 ,rice3fi;in%
,rovisions.
Court sa&s these issues are local+ not interstate in nature. Sli,,er& slo,e if Con%ress aAle to re%ulate.
The Court holds 8the ,ower e;,ressl& %ranted Con%ress to re%ulate interstate co11erce does not
include the ,ower to control the conditions in which coal is ,roduced Aefore it Aeco1es an article of
co11erce.9
'issent( =ithin the ,ower of Con%ress. Intrastate sales ,rices have a %reat affect on interstate. Coal
industr& a 1ess+ this is Aest re1ed&.
5nited ,tates v. *arby (14/1, p. 1.4)
F!cts7Iss"e78o-ing7Re!soning( 'arA& char%ed with violation of 0air aAor Standards "ct of 172*+
which ,rohiAited e1,lo&1ent of wor$ers in interstate co11erce other than at ,rescriAed wa%es and
hours. 'istrict court sustained 'arA&Hs oAKections+ SC reversed.
Court holds that while 1anufacture is not itself interstate co11erce+ the shi,1ent of 1anufactured
%oods interstate falls under Con%ressHs ,ower to re%ulate. 8Such re%ulation is not a forAidden
invasion of state ,ower 1erel& Aecause either its 1otive or its consequence is to restrict the use of
articles of co11erce within the states of destinationP9
ReKects ,ur,osivist inter,retation of McCulloch
Re3o?es (a''er ho-ing + incor,orates 5ol1esHs dissent in that case.
Wic(ard v. 0ilburn (14/2, p. 1/4)
F!cts7Iss"e78o-ing7Re!soning( "%ricultural "dKust1ent "ct set quotas on wheat ,roduction. 0ilAurn
harvested 1ore than his allot1ent+ for ho1e consu1,tion+ was ,enaliDed W11!. 5e sued the Secretar& of
"%riculture to enKoin enforce1ent+ lower court issued inKunction. SC reversed.
5o1e %rown wheat is 1ost variaAle factor in disa,,earance of wheat cro, and co1,etes with wheat
in co11erce
Sa&s even if local+ can Ae re%ulated A& Con%ress if 8e;erts a suAstantial econo1ic effect on interstate
co11erce9 re%ardless if direct or indirect. Test is a%%re%ate effect ),. 15?/+ speci0ic re4ection o0
E.C. -night !n!&sis .
7eart o! 8tlanta Motel v. 5nited ,tates (14>/, p. 183)
F!cts7Iss"e78o-ing7Re!soning( Title II of the 176- Civil Ri%hts "ct declares that ,laces of ,uAlic
acco11odation 1ust not discri1inate or se%re%ate on the Aasis of race+ color+ reli%ion or national ori%in+
and defines ,laces of ,uAlic acco11odation as those whose 8o,erations affect co11erce.9 5": sou%ht
a declarator& inKunction that Title II was unconstitutional. SC u,held statute.
.-
Court ac$nowled%ed this was a 1oral ,roAle1+ Aut there was overwhel1in% evidence of the
disru,tive effect on co11ercial intercourse+ the aAilit& of Alac$s to travel interstate.
ocal character didnHt 1atter either+ was Kust local incidence of Aroader co11erce.
9atDenbach v. McClun" (14>/, p. 18/)
F!cts7Iss"e78o-ing7Re!soning( Co1,anion case to 78M case aAove. Restaurant challen%ed
constitutionalit& of Title II. Court u,held statute. Con%ress had rational Aasis for findin% that racial
discri1ination in restaurants had direct and adverse effect on the free flow of interstate co11erce.
A. The 4ew 'octrine
5nited ,tates v. <opeD (144-, p. 18>)
F!cts( Con%ress ,assed Eun30ree School Xones "ct of 177?+ 1a$in% it a federal offense to ,ossess a
firear1 in a school Done.
Iss"e78o-ing( Is re%ulation lin$ed to interstate co11erceG 4o.
Court held that the act neither re%ulates a co11ercial activit& nor contains a require1ent that the
,ossession Ae connected to interstate co11erce. E;ceeds the authorit& of Con%ress to re%ulate
co11erceP
There are 2 cate%ories that Con%ress 1a& re%ulate under interstate co11erce ,owers(
o 1/ Channels )waterwa&s+ hi%hwa&s/ of interstate co11erce+
o ./ The instru1entalities )air,lanes+ trains/ in interstate co11erce+ and
o 2/ "ctivities havin% a suAstantial relationshi, to interstate co11erce.
>n ,oint 2/+ test requires an anal&sis of whether the re%ulated activit& 8suAstantiall& affects9
interstate co11erce )Wic(ard Test/
EovHt contends that it does suAstantiall& affect co11erce in two wa&s ),. 1**/(
o Costs of violent cri1e suAstantial+ costs s,read throu%h insurance
o @iolent cri1e reduces willin%ness of ,eo,le to travel to areas ,erceived unsafe
Court sa&s this rationale lac$s real li1its
6enned&+ concurrin%( Statute u,sets federal Aalance to a de%ree that renders it unconstitutional
assertion of co11erce ,ower ),. 171/
'issent(
o J. Souter( =h& are we %oin% Aac$ to old standardsG Co11ercial+ non3co11ercial li$e
direct and indirect
o J. #re&er( Rational Aasis test. Is there rational AasisG
<opeD introduces Econo%ic Acti3it& Test+ which is what the SC a,,lies in Morrison. This is now
the cr"ci! test in Co%%erce C!"se -octrine
The holdin% in o,eD(
o i1its con%ressional ,ower to activit& that is econo1ic in nature.
o Resurrects the ,rete;t tests fro1 :cCulloch
o i1its ,ur,oseL ,ur,ose 1ust Ae related to interstate co11erce.
o =hen in3state action is Aein% re%ulated A& Con%ress+ ,ur,osive )rational Aasis/ test is
used.
5ow to deter1ine what is econo1ic activit&G Can loo$ to(
o )C 9ni"ht( Tradin% of %oods+ Au&in% or sellin% )Aut fails Wic(ard/
o Effects of action
.5
o Pur,ose of actor( tr&in% to 1a$e 1one& )could have a,,lied to <opeD/
o Pur,ose of statute( econo1ic or co11ercial ,ur,oseG
5nited ,tates v. Morrison (2000, p. 14.)
F!cts7Iss"e78o-ing7Re!soning( Court held civil re1ed& ,rovision of the @iolence "%ainst =o1en "ct
of 177- unconstitutional. Statute ,rovided da1a%e re1ed& for the victi1 a%ainst an& ,erson 8who
co11its a cri1e of violence 1otivated A& %ender.9 Con%ress acted Aased on findin%s that %ender
1otivated violence affects interstate co11erce A& deterrin% ,otential victi1s fro1 travelin% interstate.
Court states that %ender 1otivated cri1es of violence are not econo1ic activit&.
Souter+ dissent( =h& this econo1icInonecono1ic distinction nowG Just serves a conce,tion of
federalis1 )to ,reserve state autono1&/L no Co11erce Clause lo%ic or view of national econo1&.
Co%%erce C!"se +octrine Re3iew
JRHs anal&sis(
Two 1ethods of inter,retin% Co11erce Clause(
E.C. -night ,cCulloch
RestrictiveG 5as e;,ansive side too E;,ansiveG 5as restrictive side too
4on3,ur,osive Pur,osive
iteralITe;tualI0or1alistic Prete;t E;ce,tionI4on3Te;tual( Restrictive
Side )%oin% to e;a1ine Con%ressHs end/
C!ses
,hreveport
J. 5ol1esHs 'issent in 7a##er 7a##er
Carter Coal
*arby
Wic(ard
=hich of these two 1odes is ri%htG McCulloch and )C 9ni"ht de1onstrate two different $inds of
,owers conferred u,on Con%ress
1/ To achieve oAKectives( collect ta;es+ raise ar1ies+ etc. "ctivities ,art of achievin% oAKective+
do what is necessar&
./ Re%ulate certain suAKect 1atter of interactions Aetween individuals( interstate co11erce
Con%ress can choose to what end it will re%ulate that suAKect 1atter+ Aut it 1ust stic$
to that suAKect 1atter.
Is it interstate co11erceG 4o ,ur,osive inquir&. Pur,ose is not stated in the
interstate co11erce clause.
Con%ress had the ,ower under Co11erce Clause to re%ulateIAan international slave trade. =as this
done for econo1ic reasonsG 4o+ understood it was done for 1oral reasons.
Paradi%1 case( River flows interstate+ Arid%e Aein% Auilt in one state+ within that state for local
,ur,oses. Con%ress has ri%ht to re%ulate Arid%e Auildin% Aecause of ,otential i1,act on interstate
co11erce. ElaAoration of this case is Wic(ard v. 0ilburn.
:ista$e 1ade Aetween Wic(ard and <opeD is that Court threw to%ether Wic(ard and *arby. Court
eli1inated+ throu%h Wic(ard and *arby+ the restrictive sides of Aoth )C 9ni"ht and McCulloch+
res,ectivel&.
o Under Wic(ard+ a%%re%ate effects inter,retation %ives Aroad classification as co11erce
o In *arby+ Court $noc$s out ,ur,osivist intent
.6
Result is a Co11erce Clause doctrine with no restrictions. *arby U Wic(ard Y Unli1ited
Con%ressional Power+ and fro1 17-.31775+ not a sin%le law A& Con%ress was struc$ down as too
Aroad under Co11erce Clause
=h& did this atte1,t to li1it Con%ressHs ,ower failG
o :a& have Aeen a li1ited ,ower when not as 1uch interstate co11erce+ Aut then countr&
develo,ed. 4ow+ virtuall& no ,urel& intrastate co11erce.
o 'e,ression conte;t. Con%ress was tr&in% to sti1ulate trade at hi%her ,rices Aecause of
econo1ic des,air+ and there was a feelin% that onl& federal %overn1ent could re1ed&
situation. Initiall&+ Court was stri$in% down such le%islation. 0'R ,ro,osed court ,ac$in%
,lan )a,,oint seven new Kustices to Arin% to si;teen/+ Aut then one Kud%e switched to chan%e
53- Aalance+ ,ro1,tin% ada%e 8switch in ti1e saves nine.9
#ut <opeD Ae%ins to li1it con%ressional ,ower under the Co11erce Clause.
5&,othetical under <opeD( Is 1arria%e an econo1ic activit&G The word econo1ic ori%inated fro1 the
household. 5ow could &ou conclude 1arria%e is not an econo1ic activit&G Is Con%ress re%ulatin%
ho1ose;ual 1arria%e to ,rotect interstate co11erceG =ould have to a,,l& stricter scrutin& under
,ur,osive test.
o Conundru1( 4o interstate traffic in %oods A& so1eone who en%a%ed in ho1ose;ual act.
UnsolvaAle ,roAle1 of %ivin% Con%ress ,ower over interstate co11erce
o Con%ress 1i%ht use Co11erce Clause ,ower for other ends

3. ,ection - o! the 0ourteenth 8#end#ent and the )leventh 8#end#ent
Eeneral Fuestion/ C!n Congress en0orce ! i@ert& th!t co"rts h!3e not recogniAe-2
9atDenbach v. Mor"an (14>>, p. 222)
F!cts7Iss"e78o-ing7Re!soning( <assiter v. 2ortha#pton )lection 'oard (14-4) held that En%lish3
lan%ua%e require1ent did not violate the suAstantive %uarantees of the 1-th and 5th "1s. Con%ress
,assed+ in Section -)e/ of the @otin% Ri%hts "ct of 1765+ a ,rovision that no ,erson who has co1,leted
si;th %rade in a Puerto Rican school+ where instruction was in S,anish+ can Ae denied ri%ht to vote
Aecause of his or her inaAilit& to read or write En%lish.
Court was aAle to ,erceive a enou%h of a Aasis u,on which Con%ress 1i%ht resolve the issue of
,rovidin% franchise to Puerto Rican co11unit& as it did.
'issent( It is Kudiciar&Hs KoA to define suAstantive sco,e of 1-th "1+ not Con%ressHs under Z5 of 1-th
"1.
City o! 'oerne v. 0lores (144., p. 22>)
F!cts( 'ecision A& local Donin% authorities to den& a church a Auildin% ,er1it was challen%ed under the
Reli%ious 0reedo1 Restoration "ct of 1772 )R0R"/. In res,onse to CourtHs decision in *ept. o! 7u#an
Resources o! =re"on v. ,#ith )the freedo1 of reli%ion case involvin% 1e1Aers of native "1erican
church Aein% denied une1,lo&1ent Aenefits after Aein% fired for in%estin% ,e&ote/+ Con%ress ,assed the
R0R" to reestaAlish the rule Aefore ,#ith. R0R" ,rohiAits %overn1ent fro1 suAstantiall& Aurdenin% a
,ersonHs e;ercise of reli%ion+ unless the %overn1ent can de1onstrate( 1/ the Aurden is in furtherance of a
co1,ellin% %overn1ental interest and ./ the law is the least restrictive 1eans of furtherin% that interest.
Iss"e78o-ing( Is R0R" constitutionalG 4o. Statute e;ceeds Con%ressH ,ower.
Con%ress ,assed R0R" with the e;,ress intent of ,reventin% violations of 1-th "1. In realit&+
thou%h+ a suAstantive chan%e to 1-th "1 is created+ and Con%ress cannot ,ass le%islation that in
effect 1a$es suAstantive chan%e A& i1,osin% the suAstance on the states.
.!
'esi%n of 1-th "1 and the te;t of Sec 5 inconsistent with su%%estion that Con%ress has the ,ower to
decree suAstance of 1-th "1 restrictions on the states
o Under Sec 5( Con%ress can
1/ Enforce causes of action that si1,l& sto, states fro1 violatin% 1-th "1
./ "dd duties Ae&ond those in 1-th "1 to states
o Test for ./( onl& when the 8re1ed& is ,ro,ortionate and con%ruent res,onse to identified
constitutional violations9
o Court delivers te;tual o,inion+ hin%in% on word 8enforce9+ which Court sa&s is u, to the SC+
not Con%ress+ to inter,ret.
Court sa&s case is different fro1+ Aut consistent with Mor"an )where Court stated that Con%ress is a
Aetter fact findin% Aod& and acce,ted that the re1ed& in that case was ,ro,ortional to the violation/.
5ere+ Court does not acce,t that R0R" is ,ro,ortional and con%ruent to the violation.
ReKects ,art of McCullochIrestricts Sec 5. In McCulloch+ Court %ave Con%ress the ri%ht to an&
1eans as lon% as ends are within ,ower. 5ere 1eans 1ust Ae ,ro,ortional to ends.
0ro# p. 230131 2ote
11th "1 ,rovides that 8the Kudicial ,ower of the US shall not Ae construed to e;tend to an& suit in
law or equit&+ co11enced or ,rosecuted a%ainst one of the United States A& CitiDens of another State+
or A& CitiDens or SuAKects of an& 0orei%n State.9
Chishol# v. ?eor"ia (1.43, p. 230)( Chishol1 Arou%ht suit a%ainst E" to recover deAt owed on
which E" was tr&in% to default. #rou%ht suit under diversit& Kurisdiction clause )"rt III+ Sec .+ Cl 1/+
which SC u,held. Con%ress suA1itted ,ro,osal for 11th "1 within three wee$s of Chishol#
decision.
Inter,la& Aetween 1-th "1 Z 5 and 11th "1( 1-th "1 su,ercedes 11th "1
'octrines of state i11unit& ta$en to%ether i1,lies that the Constitution li1its Aut does not eli1inate
Con%ressHs aAilit& to choose a sche1e for re1ed&in% violations of national law ),. .21/.
JRHs co11ents(
#efore 1775+ SC held that 11th "1 did not a,,l& to suits arisin% under federal law.
In 1775+ SC decided this was a Aad idea+ and stated that 11th "1 still a,,lies.
o 4ow+ unless suit can Ae Arou%ht under 1-th "1+ Sec 5+ canHt Ae Arou%ht at all.
o 4o one had reall& thou%ht 1uch of 1-th "1+ Sec 5 Aefore 1775 Aecause Con%ressHs ,owers
were so Aroad under Co11erce Clause.
'oard o! 6rustees o! the 5niversity o! 8laba#a v. ?arrett (2000, ,upple#ent p. 3.)
F!cts7Iss"e78o-ing7Re!soning( Earrett was an "laAa1a citiDen+ lived and wor$ed there. Court held
that Con%ress lac$ed ,ower under 1-th "1+ Sec 5 to require that state %overn1ents ,a& 1onetar&
da1a%es for their failure to co1,l& with the require1ent of the "1ericans =ith 'isaAilities "ct
)"='"/ that e1,lo&ers ta$e ste,s to reasonaAl& acco11odate e1,lo&ees with disaAilities. Record did
not de1onstrate sufficientl& wides,read violations of require1ent a%ainst arAitrariness.
JRHs co11ents(
"='" is constitutional under the Co11erce Clause. 0its the <opeD cate%or& suAstantial effects test+
Aut Court holds she canHt Arin% her suit and she has no re1ed& a%ainst "laAa1a Aecause of 11th "1.
o 11th "1 doesnHt sa& an&thin% aAout actions Arou%ht A& citiDens a%ainst their own states
o US can Arin% case+ not Aarred A& 11th "1
Revisit Marbury ),. .2/( 8The ver& essence of civil liAert& certainl& consists in the ri%ht of ever&
individual to clai1 the ,rotection of the laws+ whenever he receives an inKur&.9
"rt III ,rovides for
.*
o SuAKect 1atter Kurisdiction( Cases arisin% under federal law can Ae Arou%ht in federal court
o 'iversit& of the ,arties( Can Arin% suit in federal court Kust Aecause of identit& of ,arties.
Initiall& this included suits Aetween a state and citiDens of another state )e;. Chishol#/
11th "1 Kust eli1inates ,rovision of "rt III that allows suits a%ainst a state A& citiDens of another
state.
o The SC shouldnHt read the 11th "1 wordin% 8another9 to 1ean 8sa1e9.
o #& doin% so+ Court is creatin% an unwritten rule of state soverei%n i11unit& )in order to
avoid ano1alous result of citiDen of sa1e state Aein% aAle to Arin% suit a%ainst State under
federal law Aut not non3citiDen/.
o JR( Su,erior readin% is that which a,,lies 11th "1 onl& to diversit& law suits+ Aut not those
under federal law )this is 4>T current doctrine/.
2evada *ept. o! 7u#an Resources vs. 7ibbs (2003, ,upple#ent p. 3.)
F!cts7Iss"e78o-ing7Re!soning( Court reKected a constitutional challen%e to the 1one& da1a%es
,rovision of the 0a1il& and :edical eave "ct of 1772 as a,,lied to states. 0:" satisfied
require1ents of con%ruence and ,ro,ortionalit& in ,art Aecause state laws that discri1inate on Aasis of
%ender 1ust survive hi%her standard of reviewRi1,l&in% that it was easier to show ,attern of state
violationsRand in ,art Aecause of li1itations on the re1ed& ,rovided A& the 0:".
/. 5n$ritten statesF ri"hts
C1 235B*. :*e! .or/ # reco%%en-e-C not re("ire-=
CrintD v. 5nited ,tates (144., p. 2/8)
F!cts( #rad& "ct required the "ttorne& Eeneral to estaAlish national instant Aac$%round s&ste1 A& 4ov
177*. Until then+ %un dealers required to send for1 identif&in% ,urchaser to 8chief law enforce1ent
officer9 )CE>/. CE> had to 1a$e reasonaAle effort to ascertain whether recei,t or ,ossession would
Ae in violation of the law+ not required to notif& %un dealer+ Aut if did+ ,urchaser 1ust Ae notified of
reasons for deter1ination.
Iss"e78o-ing( Is this constitutionalG 4o.
Eovern1ent relies u,on the 4ecessar& and Pro,er Clause to su,,ort #rad& "ct require1ent.
5owever+ the Court holds that Con%ress cannot co1,el the States to enact or enforce a federal
re%ulator& ,ro%ra1 and cannot circu1vent this ,rohiAition A& conscri,tin% the stateHs officers directl&
R"ntico11andeerin% Princi,le.
o 8It is the ver& ,rinci,le of se,arate state soverei%nt& that such a law offends and no
co1,arative assess1ent of the various interests can overco1e that funda1ental defect.9
o 8The ,ower of the federal %overn1ent would Ae au%1ented i11easureaAl& if it were aAle to
i1,ress into its service C and at no e;tra cost to itself C the ,olice officers of the 5? states.9
Stevens )dissent/( Intent was to %ive federal ,ower to act throu%h local officials
o Political s&ste1 ensures ,ro,er decision 1a$in% A& Senators
o #etter wa& of enforcin% than creatin% hu%e 0ederal Aureaucrac&
Reno v. Condon (2000, p. 2-1 2ote 1)
F!cts7Iss"e78o-ing7Re!soning( U,held federal 'riverHs Privac& Protection "ct )'PP"/+ which
re%ulates the disclosure of ,ersonal infor1ation in the records of state 1otor vehicle de,art1ents. 'PP"
re%ulates states as owner of dataAases.
Court unani1ousl& reKected the ar%u1ent that statute violated antico11andeerin% ,rinci,le+ even
.7
thou%h would require ti1e and effort on ,art of state e1,lo&ees( 8It does not require the South
Carolina e%islature to enact an& laws or re%ulations and it does not require state officials to assist in
the enforce1ent of federal statutes re%ulatin% ,rivate individuals9 ),. .51/.
Eenerall& a,,licaAle not co11andeerin%( if Con%ress i1,oses actions that are i1,osaAle on
ever&Aod&+ thatHs constitutional. 'PP" re%ulates entire universe of entities that ,artici,ate in 1ar$et
for vehicle infor1ation.
Su11ar&( =hen 0ederal Statutes are a,,lied to(
1/ Private individuals+ then no CrintD ,roAle1 arisesL
./ State actors
=hen state actors are treated as 8oAKects9 or 8%overned9+ then there is no CrintD ,roAle1 )see Condon/.
This is when all are treated as oAKects+ li$e ,rivate actorsR1ini1u1 wa%e laws+ for e;a1,le.
=hen treated as instru1ents or %overnors+ then PrintD ,roAle1 arises. US cannot tell states the& 1ust Ae
the instru1ents to i1,le1ent a federal statute and 1a$e state e1,lo&ees into their enforce1ent a%ents.
)Jose,h #locher/
16 Aoc!tion o0 Powers within the Fe-er! Do3ern%ent
)6 The Presi-ent !s L!w%!?er
United States . Curtiss0Wright Cor&. )1726/ ),. -?2/
F!cts
" Joint Resolution of Con%ress a,,roved in 172- authoriDed the President to ,rohiAit the sale of ar1s if
he found that such a ,rohiAition would contriAute to the estaAlish1ent of ,eace in a ,articular re%ion.
E1,lo&in% the ,owers %ranted A& this the resolution+ the President ,roclai1ed a ,rohiAition on the sale of
ar1s to #olivia. In violationa of the resolution+ the Curtis3=ri%ht Cor,. was indicted for cons,irac& to
sell ar1s to #olivia. The lower court held that the Koint resolution was an unconstitutional dele%ation of
le%islative ,ower to the President.
Iss"e
Can Con%ress %rant the President the 8le%islative9 ,ower to declare a sale of ar1s ille%alG
8o-ing
<es )Aut not Aecause itHs a si1,le dele%ation of authorit& P/
Reasonin%
The Court found that Con%ress 1a& dele%ate 1uch Aroader ,owers to the ,resident in forei%n affairs than
in do1estic ones. The enu1erated ,owers and the necessar& and ,ro,er clause ta$e ,owers otherwise
%ranted to the states and %ive the1 to the federal %overn1ent. #ut the states never had ,ower over forei%n
affairs+ therefore these two restrictions are not a,,licaAle to federal action internationall&. )-?2/ The
Court finds that the U.S.Hs 8e;ternal9 soverei%nt& C that is+ its soverei%nt& in forei%n affairs C derives
directl& fro1 its Area$ fro1 Ereat #ritain at the ti1e of Inde,endence+ not fro1 an& affir1ative %rants of
the Constitution. 0urther1ore+ the President is alread& %ranted with the ,ower to conduct the e;ternal
affairs of the nation. The Court even asserts that the President is the 8sole or%an of the federal
%overn1ent in the field of international relations9 )i%norin% Con%ressH i1,ortant forei%n affairs roles+
such as declarin% war+ re%ulatin% co11erce with forei%n nations and so on/.
Notes
Jed aAsolutel& hates this holdin%. The Curtiss3=ri%ht Court en%a%es in so1e reall& shad& evasive
1aneuvers to %et around the non3dele%ation doctrine+ which is in full effect at the ti1e Aut is now
dead. ThatHs wh& it calls on this ridiculousness aAout the %overn1entHs ,ower not derivin% fro1
the Constitution+ when the whole ,oint of our s&ste1 of %overn1ent is that it does.
2?
Toda& we have no non3dele%ation doctrine )if we did+ the whole ad1inistrative state would
colla,se/+ so this would Ae a ,rett& eas& case+ and wouldnHt require the sa1e
'es,ite JedHs ri%hteous an%er+ Curtiss3=ri%ht re1ains %ood law+ and stands for the ,ro,osition
that the ,resident has s,ecial authorit& over international affairs.
.oungsto!n Sheet 1 Tu2e Co. . Sa!3er )175./ ),a%e 226/
F!cts
Steelwor$ers were on the ver%e of a nationwide stri$e durin% the 6orean =ar. Citin% the serious national
interest in steel ,roduction+ President Tru1an order his Secretar& of Co11erce to ta$e ,ossession of the
steel 1ills and $ee, the1 runnin%. 5e also notified Con%ress of his action+ Aut two wee$s later Con%ress
had still ta$en no action. The steel 1ills challen%ed the action as unconstitutional and unauthoriDed A&
Con%ress. The 'istrict Court issued a te1,orar& restrainin% order a%ainst the Secretar& of Co11erce and
the order was sta&ed A& the Court of ",,eals. The SC %ranted certiorari.
Iss"e
=as the President actin% within his Constitutional ,owers when he issued an order directin% the Secretar&
of Co11erce to ta$e ,ossession of and o,erate 1ost of the 4ationHs steel 1illsG
8o-ing
4o
Re!soning
The PresidentHs authorit& to issue such an order 1ust either ste1 fro1 an "ct of Con%ress or the
Constitution itself. There was no statute that e;,ressl& authoriDed the President to ta$e ,ossession of the
,ro,ert& as he did here+ nor was there an& s,ecific Constitutional %rant of ,ower. 4either does the
PresidentHs ,ower as Co11ander in Chief of the "r1ed 0orces or other Constitutional ,rivile%es %rant
the President the ,ower to ta$e ,ossession of the steel 1ills. In issuin% his order+ the President went
Ae&ond the ,owers of his office.
Conc"rrence :Fr!n?0"rter=
The ,ower of seiDure lies with Con%ress+ and thus the President can onl& e;ercise that ,ower if he is first
%iven an e;,licit authoriDation fro1 Con%ress. =e as a nation have acce,ted the 8,rice9 of chec$s and
Aalances.
Conc"rrence :+o"g!s=
It was >6 for the President to act as he did+ Aut onl& if the Con%ress suAsequentl& a,,roved the seiDure+
which it did not.
Conc"rrence :>!c?son=
Jac$son sets out a tri,artite test to anal&De different situations in which the President has differin% levels
of authorit&(
1. =hen he acts with the e;,licit or i1,lied authoriDation of Con%ress+ Presidential ,ower is at its
hi%hest.
.. =hen Con%ress is silent+ the President acts in a 8Done of twili%ht9 where tests of constitutionalit&
are li$el& to Ae Aased on current i1,eratives and needs rather than aAstract theories. )This Done is
al1ost inevitaAl& 1ess&/
2. =hen Con%ressional will e;,licitl& or i1,licitl& contravenes that of the President+ his ,ower is at
its lowest. 5e can clai1 onl& his own ,ower+ 1inus that of Con%ress.
This case falls into the third cate%or&+ and there is not enou%h su,,ort for e;ecutive ,owerC either in the
e;ecutive ,ower ,rovisions of the Constitution or the Co11ander3in3Chief desi%nation or an& other
8i1,lied9 ,ower Cto Kustif& this action.
+issent :Einson$ Ree-$ 9inton=
Stressin% the ,eril to national defense and callin% on historical e;a1,les fro1 incoln to =ilson+ the
dissent ar%ues that seiDures such as this one have Aeen acce,ted throu%hout our histor&. :oreover+ the
,ower of seiDure is not e;,licitl& %iven to Con%ress+ either+ so wh& den& it to the PresidentG
21
Notes
ater USSC decisions have e1Araced Jac$sonHs concurrence+ so this is one of the relativel& few
cases in which a concurrence is citeaAle.
The do1esticIforei%n affairs distinction re1ains i1,ortant. If the President is actin% in forei%n
affairs+ the Court will never treat it as a 8Cate%or& 29 case+ and will instead e1,lo& the cate%or& .
twili%ht Done anal&sis+ which is inevitaAl& 1essier.
o In this case C unli$e Curtiss3=ri%ht C ,ower is e;ercised do1esticall&.
Introduction to The T!o ,odes of Se&aration of $o!ers Anal3sis
Jed used ;oun"sto$n to introduce the 8Two :odes9 a,,roach. It %oes a little so1ethin% li$e this(
9o-e I C 8Se,arated PowersICharacter of "ction9
:ode I anal&sis loo$s at the character o! the action+ and atte1,ts to identif& whether it is
Kudicial+ e;ecutive+ or le%islative. If+ as in this case+ the President en%a%ed in law1a$in%+ the action will
Ae found unconstitutional. <oun%stown :aKorit& e1Araces this anal&sis. See Aotto1 of ,a%e 22!+
descriAin% the PresidentHs actions as law1a$in%. Indeed+ :ode I is al1ost lo%icall& necessar& when
&ouHve %ot a non3dele%ation doctrine+ Aecause &ou need to estaAlish what $ind of action counts as
law1a$in% vs. law inter,retin% vs. law enforcin%+ etc.
5owever+ :ode I is e;ceedin%l& ,roAle1atic. 0irst of all+ itHs hard to reconcile with the
ad1inistrative state in which we live+ where a%encies ,erfor1 rule31a$in% functions which certainl& loo$
li$e law1a$in%. Secondl&+ and on a related note+ itHs ver& difficult to estaAlish what counts as law1a$in%
and what doesnHt )see Chadha+ Aelow+ where the USSC does Aac$fli,s tr&in% to fi%ure this out/. astl&+
:ode I doesnHt even lead to a totall& satisf&in% solution to the s,ecific facts of <oun%stown. 'o we reall&
thin$ that the PresidentHs action would have Aeen constitutional had he si1,l& ordered %enerals do seiDe
the steel 1ills+ instead of the Secretar& of Co11erceG
Currentl&+ the onl& instance in which :ode I is ,referred is when Con%ress is tr&in% to %rant
itself Kudicial or e;ecutive ,owers. ThatHs what was %oin% on in Chadha+ for e;a1,le.
9o-e II C 8Chec$s and #alancesI>verla,,in% Powers9 )a.$.a. the ,referred standard/
Jac$sonHs concurrence sets u, :ode II. 4otice that his tri,artite test never once 1entions
i1,ro,er law1a$in%. Instead+ :ode II anal&sis focuses on whether an& sin%le Aranch has too 1uch
,ower. If the President is not usin% one of his "rticle II ,owers+ and Con%ress has not authoriDed the
President to ta$e an action+ he is doin% so1ethin% constitutionall& sus,icious. Chec$s and Aalances
81ode9 a,,lies when a Aranch e;ercises ,owers that infrin%e another AranchHs aAilit& to do its KoA.
Clinton . Cit3 of *e! .or/ )177*/ ),a%e 26*/
F!cts
In 1776 Con%ress ,assed the ine Ite1 @eto "ct which authoriDed the President to cancel in whole an&
ite1s of new s,endin% or an& li1ited ta; Aenefit. Under the "ct the President cancelled sections of the
#alanced #ud%et "ct of 177! and the Ta;,a&er Relief "ct of 177!.
Iss"e
Can Con%ress authoriDe the President to a1end two "cts of Con%ress A& re,ealin% a ,ortion of eachG
8o-ing
4o
Re!soning
Justice Stevens found for the Court that the line ite1 veto effectivel& %ave the President the ,ower to
a1end an alread&3enacted statute+ and there is no ,rovision in the Constitution that authoriDes the
President to enact+ a1end+ or to re,eal statutes. The President 1ust either 8a,,rove all of the ,arts of a
Aill or reKect it in toto.9 The ,resident and Con%ress 1ust oAserve the ,rocedures set forth in "rticle I+
Section ! of the Constitution+ and Con%ress cannot alter the ,rocedures set out in "rticle I+ Section !
without a1endin% the Constitution.
2.
+issent :Sc!i!=
Reall&+ this is Kust aAout the President declinin% to s,end 1one& he is authoriDed to s,end+ and thatHs well
within his ,ower. The word 8veto9 reall& isnHt accurate+ and the 1aKorit& was Aasicall& 8fa$ed out9 A& it.
26 Congression! +eeg!tion to !n- Eetoes o0 A-%inistr!ti3e Agencies
*ote4 *ondelegation Doctrine and 56uasi0Constitutional7 Statutes
The conventional understandin% C that Con%ress ,asses laws and the e;ecutive enforces the1 C is
not in tune with current ,ractice )ad1inistrative a%encies have consideraAle law1a$in% ,owers/ or with
current law )there are few+ if an&+ restrictions on Con%ressH ,ower to dele%ate/. Con%ress is now free to
authoriDe re%ulation of 8unreasonaAle ris$s9 or ad1inistration action 8in the ,uAlic interest+9 for e;a1,le.
The onl& two outliers C in fact+ the onl& two ti1es the Court invalidated statutes on nondele%ation
%rounds C were Pana1a Refinin% Co. v. R&an )1725/ )invalidatin% a ,rovision of the ,ost3'e,ression
4ational Industrial Recover& "ct that would have authoriDed the President to ,rohiAit interstate
trans,ortation of oil ,roduced in violation of state3i1,osed quotas/L and Schechter Poultr& Cor,. v.
United States )1725/ )stri$in% ,arts of the ,oultr& code on nondele%ation %rounds Aecause Con%ress had
authoriDed industr& re,resentatives the1selves to define 8fair co1,etition9/.
I*S . Chadha )17*2/ ),. 2!?/
F!cts
Chadha was an East Indian who lawfull& entered the United States on a noni11i%rant student visa. 5is
visa e;,ired and the I4S held a de,ortation hearin% and the i11i%ration Kud%e sus,ended his de,ortation
and sent a re,ort to Con%ress as required A& section .--)c/)1/ of the I11i%ration and 4aturaliDation "ct.
Under Section .--)c/)./ of the "ct either house of Con%ress can veto a sus,ension of de,ortation. The
5ouse of Re,resentatives ado,ted a unilateral resolution o,,osin% ChadhaHs ,er1anent residence and
Chadha was ordered to Ae de,orted. Chadha a,,ealed and the Circuit Court held Section .--)c/)./
unconstitutional.
Iss"e
Can Con%ress e1,lo& a le%islative veto to oversee dele%ation of constitutional authorit& to the e;ecutive
AranchG
8o-ing
4o
Re!soning
The action ta$en A& the 5ouse was a le%islative one and had the effect of enactin% le%islation requirin%
ChadhaHs de,ortation )it was an 8action that had the ,ur,ose and effect of alterin% the le%al ri%hts+ duties+
and relations of ,ersons9/. 5owever+ the 5ouse could not act alone to do this. Con%ress can i1,le1ent
le%islation in onl& one wa&( Aica1eral ,assa%e followed A& ,resent1ent to the e;ecutive. )See
Present1ent clause+ "rt. I+ Sec. !+ Cl. .( 8shall Ae ,resented to the President of the USP shall Ae
a,,roved A& hi19L Aica1eralis1+ "rt. IR8"ll le%islative ,owers herein %ranted shall Ae vested in a
Con%ress of the United States+ which shall consist of a Senate "4' a 5ouseP9/. There are onl& four
instances in which either house 1a& act alone( i1,each1ent+ trial after i1,each1ent+ ratification of
treaties+ and confir1ation of ,residential a,,oint1ents. The le%islative veto is not one of these. >nce
Con%ress dele%ates authorit&+ it 1ust aAide A& that dele%ation until it le%islativel& alters or revo$es it.
Conc"rrence :Powe=
>ne35ouse veto in this instance is a Kudicial act since it allows the 5ouse to overturn the rulin%s of
i11i%ration Kud%es )no ,rocedural safe%uards+ no suAstantive rules to %uide the ,rocess/. This
unconstitutionall& e;ceeds Con%ressH ,owers.
+issent :White=
This decision in effect is not a li1it on Con%ress Aut a Alan$ chec$ to the a%encies and a death $nell for
.?? other statutor& ,rovisions. "lthou%h not e;,ressl& estaAlished in the Constitution+ the le%islative veto
22
was not ,rohiAited and it is in line with "rticle 1 and Se,aration of Powers. Previous courts reco%niDed
this+ and %reatl& e;,anded Con%ressional aAilit& to estaAlish e;ecutive and inde,endent a%encies+ thus
sanctionin% the 1odern ad1inistrative state. Toda&Hs Court li1its con%ressional ,ower to chec$ those
sa1e a%encies+ and its decision is funda1entall& at odds with those ,revious court decisions. The United
States has chan%ed+ %overnin% 1ust chan%e+ too.
Notes
This is essentiall& a :ode I anal&sis. It as$s what $ind of ,ower is Aein% e;ercised )le%islative/
and A& who1 )le%islature C >6/+ and finds that it does not follow the ,ro,er le%islative ,rocedure
C even thou%h itHs e;ercised A& the le%islature+ thereHs no ,resent1ent and no Aica1eralit&.
ater decisions su11aril& affir1in% invalidations of le%islative vetoes have confir1ed Justice
=hiteHs su%%estion that ChadhaHs reach is quite Aroad.
Con%ress+ however+ is not ,owerless to control a%encies even without a veto ,ower( It can cut
fundin%+ ter1inate an a%enc& throu%h 8sunset9 le%islation+ or le%islativel& li1it an a%enc&Hs
authorit&.
Thou%h Jed li$es the idea of a one3house veto to li1it the ,ower of the ad1inistrative state+ he
Aelieves that Chadha was in fact ri%htl& decided. :ore on this in the 8one house veto9 note
Aelow.
36 Appoint%ent !n- Re%o3! o0 A-%inistr!ti3e O00icers
The T!o ,odes of Se&aration of $o!ers Anal3sis 8Reloaded9
"s in other areas of allocation of ,ower anal&sis+ there are two wa&s of scrutiniDin% statutes that deal with
the a,,oint1ent and re1oval of ad1inistrative officers.
:ode I uses what Jed calls 8the se,aration of ,owers conce,tion of the se,aration of ,owers.9 This as$s
what role the officer ,la&s in the constitutional s&ste1 C if itHs an e;ecutive function+ he should Ae hired
and fired A& the e;ecutive AranchL if itHs a le%islative function+ he should Ae hired and fired A& the
le%islative Aranch )assu1in% itHs a dele%aAle le%islative function in the first ,lace/+ etc. This is the
anal&sis used A& the Court in Myers+ 7u#phreyFs ):ecutor+ and 'o$sher.
:ode II uses what Jed calls 8the Aalance of ,owers conce,tion of the se,aration of ,owers.9 This see$s
to ,reserve the Aalance of ,owers a1on% the three Aranches+ and not let one Aranch interfere undul& with
the e;ercise of ,ower A& the other two. Essentiall& a Aalancin% test C uses ver& neAulous questions aAout
the Aalance of ,ower. Used in Morrison and Mistretta.
=e can do Aetter than :ode II+ without shiftin% Aac$ to :ode I 3 see notes at end of this section.

,3ers . United States .!. U.S. 5. )17.6/ ),%. 2!7/
F!cts/
Con%ress ,assed a statute ,rovidin% for the a,,oint1ent and re1oval of ,ost1asters A& the ,resident+
with 8the advice and consent of the Senate.9 )'ifferent than 8%ood cause9 li1itation in 5u1,hries C
althou%h not noted in that case/ =oodrow =ilson tried to re1ove ,ost1aster :&ers unilaterall&.
8o-ing/
=ilsonHs atte1,t to re1ove :&ers was lawful Aecause the atte1,ted li1itation )8the advice and consent
of the Senate9 ,rovision/ on the ,residentHs re1oval ,ower is unconstitutional under article II.
Re!soning(
The atte1,ted li1itation on the ,residentHs re1oval ,ower is unconstitutional Aecause a./ The act of
re1oval is itself e;ecutive in nature and 1ust therefore Ae ,erfor1ed A& the ,residentL A./ the 8ta$e Care9
2-
clause sa&s that the ,resident+ not his suAordinates+ 1ust ta$e care that the laws Ae faithfull& e;ecutedL
and c./ "rticle II vests e;ecutive ,ower in the ,resident+ not suAordinate officials.
+issent :8o%es$ 1r!n-eis !n- 9cRe&no-s=
The& ar%ue that the office of ,ost1aster owes its ver& e;istence to Con%ress+ and the entire office can Ae
aAolished A& Con%ress+ so Con%ress should have in,ut in re1ovin% those who hold the office.
Notes
"rticle II+ section .+ clause . ,rovides for the a,,oint1ent of officers. There is nothin% in the
constitution aAout re1ovin% officers.
The decision draws 8consideraAle9 su,,ort fro1 the fact that we have a unitar&+ rather than
,lural+ e;ecutive.
(u'&hre3:s E;ecutor . United States .75 U.S. 6?. )1725/ ),a%e 2!7/
F!cts
Con%ress ,assed a statute sa&in% that the President could re1ove 1e1Aers of the 0ederal Trade
Co11ission C Aut onl& for 8%ood cause.9 The histor& of the statute indicated that the le%islative %oal was
to entrust re%ulator& decisions to a Aod& of non,artisan e;,erts insulated fro1 ,olitical ,ressures.
Roosevelt re1oved 5u1,hre& fro1 his ,ost+ ar%uin% not that there was a 8%ood cause+9 Aut that he
si1,l& had such ,ower under "rticle II as inter,reted in Myers.
8o-ing
The Court held for 5u1,hre&. The %ood cause li1itation )which is different than :&ersH require1ent of
Senate consent/ on the ,residentHs re1oval ,ower is constitutional.
Re!soning
The Court disa%rees distin%uishes Myers+ sa&in% the ,ost1aster in Myers is a ,urel& e;ecutive officer+ Aut
the 0TC co11issioner is quasi3le%islative+ so Con%ress can li1it the ,residentHs ,ower to re1ove hi1.
The anal&sis loo$s at whether or not the official is ,erfor1in% 1ainl& an e;ecutive+ le%islative+ or Kudicial
function to decide who has the ,ower to re1ove hi1. This doctrine was e;,licitl& overruled in Morrison +
,. -5*.
Notes
#& loo$in% to the nature of the 0TC Co11issionerHs activit& as le%islative rather than e;ecutive+
the Court relies on that $ind of 1ess& :ode I anal&sis that drives Jed nuts.
Unli$e in Myers+ this was not an oAvious e;,ansion of Con%ressH own ,ower. That is+ it li1ited
the PresidentHs ,ower+ Aut didnHt %ive Con%ress 8oversi%ht9 ,ower.
%o!sher . S3nar -!* U.S. !1- )17*6/ ),a%e 2*1/
F!cts
Con%ress ,assed the #alanced #ud%et and E1er%enc& 'eficit Control "ct MEra113Rud1an35ollin%s
"ctN of 17*5+ under which the Co1,troller Eeneral was res,onsiAle for ,re,arin% and suA1ittin% to the
President a re,ort s,ecif&in% deficit reductions for a fiscal &ear. The President in turn was reAuired to
order the reductions s,ecified A& the Co1,troller Eeneral. The Co1,troller Eeneral was re1ovaAle fro1
office onl& A& Con%ress. Con%ress1an S&nar and others initiated an action challen%in% the "ctTs
constitutionalit&. The trial court ruled that the Co1,troller EeneralTs role in the deficit reduction ,rocess
violated the constitutionall& i1,osed se,aration of ,owers.
8o-ing
The "ct is unconstitutional+ Aecause it %ives the Co1,troller Eeneral+ an officer of the le%islative Aranch
over who1 Con%ress retained re1oval ,ower+ the ulti1ate authorit& to deter1ine the Aud%et cuts to Ae
1ade+ which is a ,lainl& e;ecutive function.
Re!soning
The Court+ as in 7u#phreyFs ):ecutor+ uses what calls 8the se,arated ,owers conce,tion of se,aration
of ,owers9 ):ode I/ to decide whether the ,owers Aein% e;ercised A& the Co1,troller Eeneral are
25
le%islative+ e;ecutive or Kudicial. The Court decides that the Co1,troller is vested with e;ecutive ,ower+
and therefore Con%ress canHt Ae the one to dischar%e hi1. 8Con%ress cannot reserve for itself the ,ower
of re1oval of an officer char%ed with the e;ecution of the laws e;ce,t A& i1,each1entP M=Ne view Mthe
Co1,trollerHsN functions as ,lainl& entailin% e;ecution of the law in constitutional ter1s. Inter,retin% a
law enacted A& Con%ress to i1,le1ent the le%islative 1andate is the ver& essence of Oe;ecutionH of the
law.9 Under Chadha+ Con%ress cannot retain a le%islative veto+ which is effectivel& what this le%islation
does.
+issent :Ste3ens$ 9!rsh!=
The& sa& the ,olic& decisions 1ade A& the Co1,troller have the force of law+ and therefore heHs actin%
le%islativel& and not e;ecutivel& as the 1aKorit& sa&s. The&Hd still stri$e down the law+ however+ Aecause
onl& Con%ress can 1a$e law C it canHt desi%nate so1e 8lesser re,resentative of the e%islative #ranch to
act on its Aehalf.9
+issent :White=
The 1aKorit& decision is 8distressin%l& for1alistic.9 Sa&s the real question 8whether the "ct so alters the
Aalance of authorit& a1on% the Aranches of %overn1ent as to ,ose a %enuine threat to the Aasic division
Aetween the law1a$in% ,ower and the ,ower to e;ecute the law.9 =hite sees no such threat+ rather+ in
this case the se,aration Aetween the ,owers of le% and e;ecutive Aranches 1a$e the Co1,troller
e;ce,tionall& inde,endent C not 1ore than Kustl& de,endent on con%ress. :oreover+ Aecause the
Co1,troller can onl& Ae re1oved throu%h a decision of Aoth houses and ,resent1ent to the ,resident+ the
require1ents of Chadha are 1et.
Notes
'o$sher is an a,,lication of Myers. It would see1 after 'o$sher that the 7u#phreyFs ):ecutor
reasonin% is still intact. Is that trueG 4>Rnot after Morrison.
=hiteHs dissent loo$s li$e :ode II anal&sis.
,orrison . )lson -*! U.S. 65- )17**/ ),a%e 2*!/
F!cts
"ctin% under ,ower %iven to it A& Con%ress in the Ethics in Eovern1ent "ct of 17!*+ the S,ecial
'ivision a,,ointed a,,ellant as inde,endent counsel to investi%ate a,,ellees for violations of federal
cri1inal laws. The "ct ,rovides for the a,,oint1ent of an inde,endent counsel to investi%ate and
,rosecute certain hi%h3ran$in% %overn1ent officials for violations of federal cri1inal laws. ",,ellant
caused a %rand Kur& to issue and serve suA,oenas on a,,ellees. "ll three a,,ellees 1oved to quash the
suA,oenas+ clai1in% that the inde,endent counsel ,rovisions of the "ct were unconstitutional.
8o-ing
0or ,etitioner :orrison+ o,inion A& Rehnquist. Inde,endent counsel ,rovision doesnHt violate the
constitution.
Re!soning(
>verrules doctrine used in 7u#phreyFs ):ecutor
The Court dis,oses of two other Constitutional issues Aefore turnin% to se,aration of ,owers( )1/ the "ct
did not violate the ",,oint1ents Clause for Con%ress to vest the a,,oint1ent of inde,endent counsel in
the S,ecial 'ivision+ Aecause the s,ecial ,rosecutor is an 8inferior officer9 and Con%ress is authoriDed
under 8e;ce,tin% clause9 to ,lace re1oval ,owers outside e;ec Aranch for such officersL and )./ the
,owers e;ercised A& the 'ivision under the "ct did not violate U.S. Const. "rt. III+ Aecause the
,rosecutorHs ,owers are not Aroad enou%h to interfere with Kudiciar&
Turnin% then to the Se,aration of Powers question+ the Court held( 8our ,resent considered view
is that the deter1ination of whether the Constitution allows Con%ress to i1,ose a O%ood3causeH3t&,e
restriction on the PresidentHs ,ower to re1ove an official cannot Ae 1ade to turn on whether or not that
official is classified as O,urel& e;ecutive.H9 Instead+ the new -octrine see?s ;to ens"re th!t th!t
Congress -oes not inter0ere with the Presi-entFs exercise o0 the Gexec"ti3e powerF !n- his
26
constit"tion!& !ppointe- -"t& to Gt!?e c!re th!t the !ws @e 0!ith0"& exec"te-F "n-er Artice II6<
),. 271/ 8Unli$e Aoth #owsher and :&ers+ this case does not involve an atte1,t A& Con%ress itself to %ain
a role in the re1oval of e;ecutive officials other than its estaAlished ,owers of i1,each1ent and
convictio.9 ),%. 27?/ Con%ress+ in other words+ is not tr&in% to e;,and its own ,owers at the e;,ense of
the E;ecutive #ranch. Con%ress+ after all+ cannot re1ove the s,ecial ,rosecutor C onl& the "ttorne&
Eeneral can+ and then onl& with %ood cause. This 1a$es it an e;ecutive ,ower. The "ttorne& Eeneral can
also su,ervise and control the ,rosecutor.
This is a :ode II anal&sis
+issent :Sc!i!=
5e sa&s that the 1aKorit& o,inion has 8re,laced the clear constitutional ,rescri,tion that the e;ecutive
,ower Aelon%s to the President with a OAalancin% test.H9 "nd he doesnHt li$e it.
,istretta . United States -** U.S. 261 )17*7/ ),. 27!/
F!cts
" se,aration of ,owers challen%e to the United States Sentencin% Co11ission+ the role of which is to
create 1andator& sentencin% %uidelines. The Co11ission has seven 1e1Aers a,,ointed A& the President
)three 1ust Ae federal Kud%es/.
8o-ing
Co11ission does not violate se,aration of ,owers ,rinci,les.
Re!soning(
Court relies on Jac$sonHs concurrence in ;oun"sto$n+ and refers to the 8twili%ht9 area where the
se,aration of ,owers is unclear. 8MTNhe %reatest securit& a%ainst t&rann& C the accu1ulation of e;cessive
authorit& in a sin%le Aranch C lies not in a her1etic division Aetween the #ranches+ Aut in a carefull&
crafted s&ste1 of chec$ed and Aalanced ,ower within each #ranch.9 )not in the new edition/ Petitioner
:istretta ar%ued that the Kudicial Aranch was wea$ened A& its ,artici,ation in ,olic&1a$in%+ Aut the Court
sa&s that 8such ,ower as these Kud%es wield as Co11issioners is not Kudicial ,owerL it is ad1inistrative
,ower. MTheN Constitution MdoesN not forAid Kud%es fro1 wearin% two hatsL it 1erel& forAids the1 fro1
wearin% Aoth hats at the sa1e ti1eP9 #ecause service A& an& ,articular Kud%e on the co11ission was
voluntar&+ that service could not di1inish the inde,endence of the Kudiciar&. This o,inion is a clear 1ove
awa& fro1 the 8her1eticall& sealed9 wa& of loo$in% at the Aranches and toward the chec$s and Aalances
:ode II 1ethod.
+issent :Sc!i!=
5e sa&s 8the ,ower to 1a$e law cannot Ae e;ercised A& an&one other than Con%ress+ e;ce,t in
conKunction with the lawful e;ercise of e;ecutive or Kudicial ,owerP in this case+ MtheN consequence is to
facilitate and encoura%e Kudiciall& uncontrollaAle dele%ation.9 Sa&s the Co11ission is essentiall& a
fourth Aranch of %overn1ent+ 8a sort of Kunior3varsit& Con%ress.9 8This is an unde1ocratic ,recedent that
we set C not Aecause of the sco,e of the dele%ated ,ower+ Aut Aecause its reci,ient is not one of the three
#ranches of Eovern1ent.9

Rust . Sullian 5?? U.S. 1!2 )1771/ ),a%e 1.72/
QThis case was onl& Ariefl& referenced in se,aration of ,owers )1ostl& as a ,unchin% Aa% for Jed/ and is
dealt with in 1ore detail under suAsidiDed s,eech.
F!cts
"n e;istin% statute said that federal funds for fa1il& services shall not 8Ae used in ,ro%ra1s where
aAortion is a 1ethod of fa1il& ,lannin%.9 The Secretar& of 5ealth and 5u1an Services inter,rets this
rule to Aar federal fundin% not onl& for aAortion itself Aut also for all activities that 8encoura%e+ ,ro1ote
or advocate aAortion as a 1ethod of fa1il& ,lannin%.9 Clinics receivin% federal funds thus couldnHt
,resent aAortion as an o,tion for wo1en.
8o-ing and Re!soning( 8The Eovern1ent can+ without violatin% the Constitution+ selectivel& fund a
,ro%ra1 to encoura%e certain activities it Aelieves to Ae in the ,uAlic interest+ without at the sa1e ti1e
2!
fundin% an alternate ,ro%ra1 which see$s to deal with the ,roAle1 in another wa&P when the
%overn1ent a,,ro,riates ,uAlic funds to estaAlish a ,ro%ra1 it is entitled to define the li1its of that
,ro%ra1.9
Notes
The effect on the Aalance of ,ower is devastatin%. "n indi%nant Jed de1ands to $now+ 8=h& on
earth does this a%enc& have the ri%ht to 1a$e law for the rest of the countr&G[9 " 1aKorit& of
Con%ress even ,asses a law re,ealin% %a% rule+ Aut President #ush I vetos it. It wasnHt until
Clinton %ot into ,ower that he called u, Secretar& to end the ruleL we had to elect a president to
%et rid of the %a% rule. This is the wa& a lot of thin%s wor$ in the ad1inistrative state now( it
entirel& de,ends on who is ,resident. This is scar&+ and unconstitutional accordin% to Jed. The
Constitution 1a$es it reall& hard to 1a$e new law+ it canHt Ae 1ade without at least 1aKorit&
su,,ort in the ,o,ular houses. #ut it can Ae 1ade 4>= A& ad1inistrative a%encies Aased solel&
on ,residential whi1. ItHs not what the Constitution envisioned for constitutional desi%n. =hich
Arin%s us to P
Te1,orar& "side( 5ow would we deal with Rust under our two :odesG
Mode E( The& donHt call it law 1a$in% so itHs not law1a$in%. )<ou can %uess what Jed thin$s
aAout this one/
Mode EE( It is Aalanced ,ower C a,,roved A& two Aranches
Con%ress vests the President with this authorit& in %rantin% hi1 the ,ower+ and President has
a,,roved it A& usin% it Y chec$ A& two Aranches. "lthou%h Con%ress 1a& want to revo$e the
authoriDation+ if President does not want to release it+ the& have no recourse. >nl& new le%islation
can ta$e awa& the PresidentHs new to&+ and the President can veto that )as #ush Sr. did/.
Su''ar3" and Se&aration of $o!ers According to Jed
If &ou ta$e 1/ non3dele%ation+ ./ Chada and 2/ the :&ersI5u1,hre&Hs e;ecutor holdin%s )all
%ood on their own/+ and add the1 to%ether &ou %et an unchec$ed e;ecutive ,ower. Court does not see
e;ecutive a%enc& law 1a$in% as unconstitutional after the de1ise of the non3dele%ation doctrine.
Ta$e(
1/ The de1ise of the non3dele%ation doctrineL
./ The Myers and 7u#phreys ):ecutor holdin%s sa&in% that Con%ress cannot involve itself in the
re1oval of ad1inistrative officers )even thou%h it creates the offices/L and
2/ ChadhaHs reKection of the 13house veto.
"n& one of these 1i%ht Ae fine on its own. #ut ,ut the 2 to%ether+ and &ou %et e;ecutive law1a$in%+
virtuall& unchec$ed.
Jed:s argu'ent for a one house eto 8to sae us fro' the ad'inistratie state9
Chada is ri%ht on its facts )Con%ress was tr&in% to involve itself in a Kudicial ,ower %iven to the
I4S/ Aut its i1,act is devastatin% on the Aalance of ,ower. 0ollowin% Chadha+ Con%ress cannot fire an
ad1inistrator who 1ade a Aad re%ulation+ and it cannot veto the re%ulation. Its onl& recourse is to create a
law+ Aut that has to %o throu%h the PresidentHs ,otential veto C see the Rust deAacle.
Chada %ives us a ,residential law1a$in% ,ower. =e need the ,ossiAilit& of one3house le%islative
veto to Aalance out the loss of the non3dele%ation doctrine. :oreover+ the one house veto does not ,resent
a 1aKor conflict with Constitutional ,rovisions. 4ote that under "rticle I Z ! there are two wa&s to 1a$e
law( with 1aKorit& of Aoth houses and ,residential a,,roval or .I2 1aKorit& with ,residential veto.
"ccordin% to Jed+ a one house veto re,licates this structure+ 1ore or less. If either house sa&s no throu%h
le%islative veto+ then the re%ulation is out re%ardless of Presidential su,,ort.
+inal Thoughts on the ,odes
2*
4othin% in Constitution Aars e;ecutive officers fro1 1a$in% law+ nor are Kudicial officers Aarred
fro1 law1a$in%+ nor are e;ec Aodies Aarred fro1 Kudicial decisions )I4S+ e.%./. >ne %rou,+
however+ is ,rohiAited fro1 e;ercisin% the ,ower of the other Aranches( "rticle I+ Section 6+
Clause . Aars Con%ress1en fro1 Aein% e;ecutive officers. Thus Con%ress canHt arro%ate to itself
or a co11ittee an e;ecutive or a Kudicial ,ower )as it tried to do in Chadha/.
o >nl& in i1,each1ent can Con%ress act li$e another Aranch+ and that e;ce,tion is
e;,licitl& ,rovided for in the Constitution.
:ode II thus requires that &ou do :ode I3t&,e anal&sis for Con%ress+ or else its ,ower will Ae
unchec$ed Aecause it can ta$e on Kudicial and e;ecutive ,ower for itself.
The 1aKor ,roAle1 with :ode II is that the 8test9 isnHt reall& concrete enou%h. ItHs one of those
Aalancin%3t&,e test that drive Jed nuts.
<. Ene'3 Co'2atants
Refer to the end for 8notes9 on the cases C the& were all discussed to%ether and ,rett& 1uch
interchan%eaAl& in class.
$adilla . %ush .22 0. Su,,. .d 56- )S.'.4.<. .??2/
F!cts
Jose Padilla+ an "1erican citiDen+ was arrested on :a& *+ .??. in Chica%o+ ,ursuant to a suA,oena issued
A& a district court+ and was 1oved to 4ew <or$. >n June !+ PadillaHs court3a,,ointed attorne&+ after
1eetin% with hi1 in ,rison+ suA1itted a 1otion to vacate the warrant for his arrest. Two da&s later+ the
%overn1ent withdrew the suA,oena+ and si1ultaneousl& revealed that President #ush had desi%nated
Padilla an 8ene1& co1Aatant.9 Padilla is now detained in a naval Ari% in South Carolina. 5e has had no
char%es filed a%ainst hi1+ and is forAidden to consult with an attorne&.
Padilla challen%ed his detention+ ar%uin% that the President lac$s authorit& to detain hi1 for a
variet& of reasons Aut ,articularl& Aecause he is a US citiDen arrested on US soil+ and that even if the
President does have that authorit& Padilla 1ust Ae allowed to consult with counsel.
St!t"tor& 1!c?gro"n-
>n Se,te1Aer 1*+ .??1+ Con%ress ,assed PuAlic aw 1?!3-? )the 8Joint Resolution9/+ which ,rovided(
That the President is authoriDed to use all necessar& and a,,ro,riate force a%ainst those
nations or%aniDations+ or ,ersons he deter1ines ,lanned+ authoriDed+ co11itted+ or aided
the terrorist attac$s P or harAored such or%aniDations or ,ersons+ in order to ,revent an&
future acts of international terroris1 a%ainst the United States A& such nations+
or%aniDations or ,ersons.
Con%ress said that this was 1eant to Ae in line with the =ar Powers "ct of 17!2+ which requires the
President to oAtain s,ecific Con%ressional authoriDation for the co11it1ent of US troo,s. #ush si%ned
the aw+ while 1aintainin% )as Presidents since 4i;on %enerall& have/ that the "ct is unconstitutional )it
has never Aeen tested in court/.
Pursuant to his ,owers under the new aw+ #ush desi%nated Padilla an ene1& co1Aatant. The
order suA1itted to the court set out a su11ar& of the PresidentHs findin%s to su,,ort this desi%nation+
includin% a declaration A& :ichael 5. :oAAs+ a 'efense 'e,art1ent e1,lo&ee who e1,hasiDed that
Padilla had e;tended ties to "l3Faeda and intended to hel, set off a 8dirt& Ao1A9 in the US. In addition to
this 8:oAAs 'eclaration+9 the %overn1ent suA1itted a 8Sealed :oAAs 'eclaration9 the %overn1ent said
is 8sufficient to estaAlish the correctness of the PresidentHs findin%s+9 Aut whose contents 1ust under no
circu1stances Ae revealed to the defense. Padilla+ of course+ ar%ues that this sealed declaration 1ust not
Ae considered or+ if it is+ 1ust Ae turned over to the defense.
8o-ings
1. Theresa 4ew1an+ PadillaHs court3a,,ointed attorne&+ 1a& act as ne;t friend.
27
.. The -
th
Circuit has Kurisdiction over this case and over Secretar& Ru1sfeld )den&in% a
%overn1ent 1otion to dis1iss for lac$ of Kurisdiction or transfer the case to South Carolina/
2. PadillaHs detention is not ,er se unlawful MreKectin% PadillaHs ar%u1ents that 1/ Con%ress did not
declare warL and ./ the 8war on terror9 can have no clear end+ and thus detentions li$e PadillaHs
are ,otentiall& indefiniteN
a. "s for the first ,oint+ no Con%ressional authoriDation is necessar& in order for the
President to res,ond when we have Aeen attac$ed. The decision aAout what 1easures to
use is a ,olitical+ not Kudicial+ decision+ and arises fro1 his constitutional authorit& as
Co11ander and Chief
i. Even if statutor& authoriDation were necessar& ,ursuant to 1* U.S.C. Z -??1)a/
)84o citiDen shall Ae i1,risoned or otherwise detained A& the United States
e;ce,t ,ursuant to an "ct of Con%ress/+ the Joint Resolution ,rovided that
authoriDation. Thus the President has two Aases for his authorit&.
A. "s for the second ,oint+ indefinite confine1ents are not necessaril& unconstitutional.
i. :oreover+ the Courts have no "rticle III Kurisdiction to tell the President when a
war is or is not over.
c. 5avin% reKected these ar%u1ents+ the Court reviewed the four criteria of Aein% a lawful
co1Aatant )chain of co11and+ unifor1+ o,en ar1s+ adherence to laws of war/+ and noted
that different rules a,,l& to unlawful co1Aatants C the& are usuall& tried A& 1ilitar&
co11issions+ and can Ae detained for the duration of hostilities.
d. In Fuirin+ 21! U.S. 1 )17-./+ the Court found that ei%ht Eer1an saAoteurs+ includin% one
who clai1ed "1erican citiDenshi,+ could Ae treated as unlawful co1Aatants. The is
relevant for the current case Aecause the Fuirin Court( 1/ reco%niDed the difference
Aetween lawful and unlawful co1Aatants and the fact that different rules a,,l& to eachL
and ./ it allowed the 1ilitar& triAunal to hand down a death sentence+ so surel& detention
in this case is >6.
i. Fuirin )and the Padilla court/ distin%uished Milli"an+ an 1*66 Civil =ar case
findin% that a citiDen char%ed with cons,irac& had the ri%ht to Ae tried in a
Kudicial foru1 rather than a 1ilitar& co11ission.
-. Padilla 1a& consult with counsel+ under circu1stances controlled so as to ,revent hi1 fro1 usin%
his law&ers as inter1ediaries for trans1ittin% infor1ation to others.
a. Padilla has the ri%ht to ,resent facts. The 1ost convenient wa& for hi1 to do that C Aoth
for hi1 and for the court C is throu%h counsel. The %overn1entHs ar%u1ents )includin%
the infor1ation set out in the Sealed :oAAs 'eclaration/ are 8%ossa1er s,eculation9 and
not sufficient to Kustif& denial of the ri%ht to counsel.
5. In deter1inin% the lawfulness of PadillaHs detention+ the court will Ae satisfied so lon% as #ush
had 8so1e evidence9 to su,,ort his use of the ene1& co1Aatant desi%nation.
a. The courts owe %reat deference to the President in 1atters of forei%n ,olic&+ national
securit&+ and 1ilitar& affairs. In this case+ 1oreover+ the President is o,eratin% at full
authorit& under the tri,artite <oun%stown test.
A. It is unnecessar& at this ,oint to decide whether or not to consider the Sealed :oAAs
'eclaration. If the unsealed :oAAs 'eclaration is insufficient to ,rove the %overn1entHs
case+ the court will revisit the issue.
(a'di . Ru'sfeld 216 0. 2d -5? )-
th
Cir. .??2/
F!cts
5a1di+ an "1erican citiDen+ was ca,tured in "f%hanistan in a co1Aat Done. 5e was confined first at
Euantana1o and later on "1erican soil in a naval Ari% in 4orfol$+ @ir%inia as a 8ene1& co1Aatant.9
-?
5a1diHs father filed a haAeas ,etition+ na1in% 5a1di as ,etitioner alon% with hi1self as ne;t friend )a
desi%nation acce,ted A& the court/. The district court certified the followin% question for a,,eal(
H"estion
Is a declaration A& a 'efense 'e,art1ent official )another 8:oAAs 'eclaration9/ sufficient evidence to
Kustif& #ushHs detention of 5a1di+ an "1erican citiDen+ as an ene1& co1AatantG
8o-ing
<es+ and no further factual inquir& is necessar& or ,ro,er( 8M=Ne hold that+ des,ite his status as an
"1erican citiDen currentl& detained on "1erican soil+ 5a1di is not entitled to challen%e the facts
,resented in the :oAAs declaration.9
Re!soning
The Constitution %rants s,ecific war3related ,owers to the le%islature and to the e;ecutive+ Aut not the
Kudiciar&. Judicial deference is thus ver& stron%+ even if not unli1ited. The safe%uards of cri1inal
,rocedure do not translate neatl& to the arena of ar1ed conflict+ es,eciall& Aecause the detention of ene1&
co1Aatants serves 8at least two vital ,ur,oses9( ,reventin% the1 fro1 re3Koinin% the ene1& and relievin%
1ilitar& co11anders of the 8Aurden9 of liti%atin% the circu1stances of ca,tures ,erfor1ed far awa&.
5a1di ar%ues that his detention is ille%al under 1* U.S.C. Z -??1 )citiDens 1a& onl& Ae detained
,ursuant to an "ct of Con%ress/ and under the Eeneva Convention )desi%nation as an ene1& Aelli%erent
1ust Ae 1ade 8A& a co1,etent triAunal9/. 4either ar%u1ent is ,ersuasive. 0irst+ Con%ress did authoriDe
his detention in the Joint Resolution. "s for the Eeneva Convention+ it is not self3e;ecutin% and ,rovides
no cause of action for individuals C it is instead 8vindicated A& di,lo1atic 1eans and reci,rocit&.9
The case should not Ae re1anded for further ,roceedin%s+ Aut rather dis1issed. The :oAAs
'eclaration+ which estaAlishes that 5a1di served with the TaliAan and was ca,tured in "f%hanistan
durin% ar1ed hostilities+ is sufficient to 1eet the %overn1entHs Aurden+ and the district court erred in
evaluatin% it with the $ind of s$e,ticis1 that would have Aeen a,,ro,riate had this Aeen a cri1inal case.
Notes
The court Aends over Aac$wards for se,aration of ,owers( 8<et we s,ea$ in the end not fro1 sorrow or
an%er+ Aut fro1 the conviction that se,aration of ,owers ta$es on s,ecial si%nificance when the nation
itself co1es under attac$.9
QIf I were Jed and loo$in% for a question+ I 1i%ht as$ whether these decisions are a,,l&in% :ode
I or :ode II anal&sis.
(a'di . Ru'sfeld II 22! 0.2d 225 )-
th
Cir. .??2/
F!cts
MSee aAoveN ",,ellees filed a ,etition for rehearin%+ and requested that it Ae en Aanc. " 1e1Aer of the
court requested a ,oll on the ,etition for rehearin% en Aanc.
8o-ing
The Court reKected the ,etition !3-+ with Jud%es =il$inson and Tra;ler each writin% concurrences to the
denial+ and Jud%es :otD and utti% writin% se,arate dissents.
Wil/inson )res,ondin% ,ri1aril& to :otD/
The question is 8whether the United States can ca,ture and detain ,risoners of war without suAKectin% the
factual circu1stances surroundin% forei%n Aattlefield seiDures to e;tensive in3court review. The answer to
this is now C and has alwa&s Aeen C &es.9 The courts 1ust reco%niDe the 8caution si%nals9 and defer to the
e;ecutive.
Tra;ler )res,ondin% ,ri1aril& to utti%/
The fact that 5a1di was ca,tured in a co1Aat Done is not as dis,utaAle as Jud%e utti% ar%ues it is+ and
the si%nificance the court attriAutes to that fact is full& Kustified.
Luttig
0irst+ the circu1stances of 5a1diHs seiDure are not as undis,uted as the 1aKorit& would have it.
0urther1ore+ the courtHs failure to rest its decision on deference to ,residential authorit& )rather than+ as it
-1
did+ 5a1diHs dis,uted concession that he was in "f%hanistan when seiDed/ threatens to eviscerate the
PresidentHs ,ower to identif& ene1ies.
,ot=
The :oAAs 'eclaration+ A& itself+ is insufficient to Kustif& the detention. " %reater evidentiar& showin% is
required.
Al )dah . United States 2.1 0.2d 112- )'.C. Cir. .??2/
F!cts
4ationals of 6uwait+ "ustralia and the United 6in%do1 were seiDed in "f%hanistan and Pa$istan and
transferred into detention at Euantana1o #a&. Each denied en%a%in% in hostilities a%ainst the US. In three
se,arate district court cases+ court3reco%niDed ne;t friends Arou%ht ,etitions for haAeas cor,us and other
Constitutional ,rotections+ includin% the due ,rocess clause and the "lien Tort Clai1s "ct.
8o-ing
8M4No court in this countr& has Kurisdiction to %rant haAeas relief P to the Euantana1o detainees+ even if
the& have not Aeen adKudicated ene1ies of the United States.9
Re!soning
4one of the detainees can ,ro,ert& Ae called 8ene1& aliens+9 Aecause the& all denied in the ,leadin%s that
the& had ta$en u, ar1s a%ainst the US+ and the lower court decided the case on the ,leadin%s. That
doesnHt 1ean that the& have a clai1 in this court+ thou%h. See Eisentra%er+ a 175? USSC decision holdin%
that Eer1an ene1& aliens confined aAroad had no standin% to see$ haAeas review. Constitutional ri%hts
such as the 0irst+ Second+ 0ourth+ 0ifth and Si;th "1end1ents are not %uaranteed to aliens outside the
soverei%n authorit& of the United States+ so itHs hard to i1a%ine how the writ of haAeas cor,us would Ae.
Euantana1o #a& 1a& Ae under our control+ Aut the US does not e;ercise soverei%nt& over it.
Hud"e Randolph !iled a separate concurrence addin" additional "rounds !or re%ectin"
%urisdiction over the non1habeas clai#s.
Anal3sis and discussion of the cases
There a nu1Aer of se,aration of ,owers issues here+ includin%(
o =hat ,owers does the ,resident have durin% warti1eG
There is no sin%le 8=ar Powers Clause9( "rt I %ives Con%ress aAilit& to declare
war+ and "rt II declares that the President is 8Co11ander in Chief9. "dd to this
confusion the =ar Powers "ct+ which sa&s that the President can declare war
without authoriDation A& Con%ress+ Aut then 1ust co1e Aac$ within s,ecified
ti1e fra1e and %et con%ressional a,,roval
o " new one we havenHt reall& addressed( =hat is the role of the Kudiciar&G
Two ,ro,ositions(
o Pro,osition 1( thin%s Aeco1e difficult to consider as a result of the shift fro1 a
,rosecutorial ,aradi%1 ):c@ei%h+ "l Faeda in the 17*?s and 177?s/ to a war1a$in%
,aradi%1. If we call so1ethin% a 8war+9 does that 1ean it actuall& is a war in ter1s of its
le%al effectsG
o Pro,osition .( the war on terror can le%iti1atel& Ae classed in the new ,aradi%1. Even if
we acce,t the first ,ro,osition+ how do we classif& the current conflictG =hen does it
endG =ho is the ene1&G
In constitutional ,arlance+ the Joint ResolutionHs %rant of ,ower to the President C 8necessar& and
a,,ro,riate9 C is aAout as Aroad as &ou can %et.
The 0ourteenth a1end1ent refers not Kust to citiDens Aut to ,ersons. "nd that word was used
deliAeratel& to refer to aliens+ not Kust to citiDens. 'oes it follow that those ,rotections refer to all
,eo,le ever&where in the worldG The U.S. Su,re1e Court has held in a nu1Aer of cases that U.S.
constitutional ,rotections are not e;traterritorial. The& do not follow with the ,resence of U.S.
-.
soldiers or forces. "liens aAroad have no constitutional ri%hts Aased onl& on their dealin% with
U.S. officers.
o This confir1s the i1,lication fro1 <oun%stown and Curtiss3=ri%ht that there is
so1ethin% different aAout the e;ercise of ,ower aAroad.
%onus4 Jed on the >enea Conention and Unla!ful Co'2atants

To Ae a lawful co1Aatant+ one 1ust 1eet four criteria(
1. #e co11anded A& a ,erson res,onsiAle for his suAordinates
.. 5ave a 8fi;ed distinctive e1Ale19 such as a reco%niDaAle unifor1
2. Carr& ar1s o,enl&
-. 0ollow the laws and custo1s of war
:ost international law&ers thin$ that 7I11 was a cri1e+ not an act of war+ and that the 8=ar on
Terror9 was reall& 1ore co1,araAle to the 8=ar on Povert&9( i.e.+ not a real war. uc$il& for the
US+ these law&ers sa&+ the TaliAan %ot involved and %ave the US so1eone to wa%e a 8real9 war
a%ainst.
Third Eeneva Convention does not a,,l& to unlawful co1Aatants+ which is what the US sa&s all
of these defendants are. International law&ers+ however+ contend that unlawful co1Aatants are
actuall& civilians+ and that their treat1ent should Ae %overned A& the 0ourth Eeneva Convention
)17-7/+ which a,,lies to detention of civilians in warti1e. Jed sa&s this is odd+ Aecause the result
is unlawful co1Aatants 1ust Ae treated Aetter Aecause of the civilian classification. #ut
re1e1Aer+ &ou can ,rosecute unlawful co1Aatants. If the& tr& and $ill ,eo,le+ the& can Ae
convicted of so1ethin%. :ost ,eo,le thou%ht that if &ou did not ,rosecute &ou didnHt have to
%rant the e;tra ,rotections. Should the Eeneva convention Ae a1ended to clarif& this or to set
forth s,ecificall& nor1s and rules to cover unlawful co1AatantsG Jed thin$s so. The Euro,ean
law&ers %enerall& sa& thereHs no ,roAle1 with the Convention+ itHs Kust that the US is violatin% it.
The question of whether citiDens have standin% to sue %overn1ent for violations of those citiDensH
ri%hts under that treat& is understood to Ae a se,arate question fro1 whether the treat& is a law.
So1eti1es a treat& is self3e;ecutin% 3 If it clearl& sets out that there is a ,rivate ri%ht of action+
then fine. If not+ then Con%ress 1ust s,ecificall& create standin%. If Con%ress doesnHt do this+ then
international 8law9 is onl& enforceaAle as a1on% states. Jed sa&s that 1ost international law is not
actuall& law+ Aecause of this ver& ,roAle1.
E6 Unen"%er!te- Rights # 8istoric! +e3eop%ents
A6 The Pri3ieges or I%%"nities C!"se
84o State shall 1a$e or enforce an& law which shall aArid%e the ,rivile%es or i11unities of citiDens of
the United States.9
"t least so1e of the 1e1Aers of Con%ress who ,artici,ated in the draftin% of the 0ourteenth "1end1ent
e;,ected and ho,ed that this clause would constitute a suAstantial restraint on state %overn1ent action
a%ainst individuals. #ut the Su,re1e Court did not ta$e this view.
The Slaughter0(ouse Cases *2 U.S. )16 =all./ 26 )1*!2/ ),a%es 67.37*/
F!cts
-2
ouisiana ,assed a law %ivin% a 1ono,ol& on 4ew >rleans area slau%hterhouses to a ,articular co1,an&.
" %rou, of dis%runtled Autchers not included in the 1ono,ol& clai1ed that the state 1ono,ol& constituted
a denial of their ,rivile%es and i11unities as citiDens as e;,ressed in the 1-
th
"1end1ent.
6his $as the !irst case involvin" a clai# that the protections "ranted under the 1/
th
applied
eAually to the ,tates and the 0ederal "overn#ent. 6his Auestion $ould later be the !oundation o!
the incorporation& debate $ith re"ard to other constitutional protections.
8o-ing
The stateHs %rant of 1ono,olies does not violate the ,rivile%es or i11unities clause+ Aecause the 1-
th

"1end1ent does not ,rotect the citiDens of a state a%ainst the le%islative ,ower of that state.
Re!soning
The 1-
th
a1end1ent 1a$es clear a distinction Aetween citiDenshi, of a state and of the US+ then e;tends
,rotection of ,rivile%es and i11unities to citiDens of the US )not citiDens the states/. "rticle I@+ Section
.+ Clause 1 C 8The CitiDens of each State shall Ae entitled to all Privile%es and I11unities of CitiDens in
the Several States9 C 1eans onl& that once the 8Several states9 have defined ,rivile%es and i11unities
for their citiDens+ those ,rivile%es and i11unities 1ust Ae a,,lied to all citiDens of the US equall&. It was
not the ,ur,ose of the 1-
th
"1end1ent to transfer res,onsiAilit& for the ,rotection of civil ri%hts fro1 the
states to the federal %overn1ent. Rather+ the clause refers onl& to ,rivile%es and i11unities that are
s,ecificall& desi%nated in the Constitution or which are necessaril& i1,lied. The Court need not
enu1erate the !ederal ,rivile%es and i11unities which the states cannot aArid%e+ Aut the list would
include the ri%ht to clai1 federal ,rotection when on the hi%h seas or aAroad+ or to travel to the seat of
%overn1ent to assert clai1s a%ainst the %overn1ent or do Ausiness with it.
+issent )0ield/
The 1-th does afford ,rotection to the citiDens of the US a%ainst the de,rivation of their co11on ri%hts
A& State le%islation and was so intended. ),. 676/ If the clause were onl& to refer 8to such ,rivile%es and
i11unities as were Aefore its ado,tion s,eciall& desi%nated in the Constitution or necessaril& i1,lied as
Aelon%in% to citiDens of the US+ it was a vain and idle enact1ent.9 Instead+ 8The ,rivile%es and
i11unities desi%nated are those $hich o! ri"ht belon" to the citiDens o! all !ree "overn#ents+9 and the
%rantin% of 1ono,olies clearl& violated those.
+issent )#radle&/
States have lots of ,ower to re%ulate activit&+ that ,ower is not without restrictions. "nd %rantin%
1ono,olies is an invasion of the funda1ental ri%ht of others to choose a 8lawful callin%+ and an
infrin%e1ent of ,ersonal liAert&.9 These ri%hts were transferred to the citiDens when the countr& Aro$e
fro1 En%land+ not when the Constitution was written )\Curtiss =ri%ht/.
Notes
The first sentence of the 1-
th
"1end1ent+ which the Court reads as creatin% a dual citiDenshi,+
was reall& si1,l& intended to overrule 'red Scott.
So1e scholars ar%ue that Justice :iller )writin% for the 1aKorit&/ was driven A& a desire to avoid
the ,ost3Civil =ar trend toward nationaliDation.
#radle&Hs assertion that we all have a ri%ht to ,ursue a 8lawful callin%9 is wron%( States %rant
1ono,olies all the ti1e+ li$e for ,ower or water service.
"s a result of this case+ the Privile%es or I11unities clause Aears the duAious distinction of
havin% Aeen rendered a total constitutional nullit& within &ears of its creation. 5ad this not Aeen
so+ ,erha,s the suAstantive due ,rocess decisions would have Aeen decided as PBI cases instead.
The Court has %enerall& held fir1 to Slau%hter35ouse+ treatin% the PBI clause a su,erfluous.
Until 1777+ no case ever %ave an& wei%ht to the Privs B I11s clause. ,aenD v. Roe )see Aelow
QQQ/ ruled that the Privs B I11s clause ,rotects a certain as,ect of the ri%ht to travel )recent
citiDens have sa1e ri%hts as lon%3standin% citiDens/. So+ ,erha,s the Su,re1es will Ae%in an
e;,ansion of the readin% of the Privs B I11s clause. Sta& tunedP
--
%. 5Su2stantie Due $rocess74 The Lochner Era
T5E R>"' T> >C54ER
Econo1ic suAstantive due ,rocess was Aorn in 17?5 with <ochner C Aefore it+ the ,revailin% view was
that due ,rocess was essentiall& ,rocedural C Aut earlier cases did set the sta%e.
+re- Scott 36 S!n0or- :).,5=
=ithout e;,lanation+ the Court asserts that Con%ress cannot de,rive a citiDen of ,ro,ert& 81erel&
Aecause he ca1e hi1self or Arou%ht his ,ro,ert& into a ,articular MTerritor&N.9 Such a de,rivation
would Ae a due ,rocess violation.
Social and econo1ic develo,1ents also ,la&ed a ,art+ as the rise of industrial or%aniDation created stron%
o,,osition to re%ulator& laws. Industr& re,resentatives ar%ued that the re%ulator& laws de,rived the1 of
8funda1ental9 ,ro,ert& ri%hts and hel,ed 8interest %rou,s9 rather than actual wor$ers.
9"nn 36 Iinois :).55=
The Court re%ected a due ,rocess challen%e to an Illinous law fi;in% certain %rain3stora%e char%es+
findin% that ,rice3fi;in% could Ae le%iti1ate when the effected Ausinesses were 8affected with a
,uAlic interest.9 The shift to suAstantive due ,rocess was on its wa&+ thou%h P
R!iro!- Co%%ission C!ses :)..'=
The Court u,held state re%ulation of railroad rates Aut si%naled that Kudicial deference would onl&
%o so far( 8The ,ower to re%ulate is not a ,ower to destro&.9 State canHt ta$e ,rivate ,ro,ert& for
,uAlic use without Kust co1,ensation+ or without due ,rocess of law.
S!nt! C!r! Co"nt& 36 So"thern P!ci0ic R!iro!- :)..'=
Cor,orations are 8,ersons9 within the 1eanin% of the due ,rocess clause of the fourteenth
a1end1ent+ thus o,enin% the door to challen%es to re%ulations A& cor,orations.
9"ger 36 I!ns!s :)..5=
8If a statute ,ur,ortin% to have Aeen enacted to ,rotect the ,uAlic health+ the ,uAlic 1orals+ or the
,uAlic safet&+ has no real or suAstantial relations to those oAKects+ or is a ,al,aAle invasion of
ri%hts secured A& funda1ental law+ it is the dut& of the courts to so adKud%e+ and thereA& %ive
effect to the constitution.9
The 9innesot! R!te C!se :).J0=
0irst ti1e court used due ,rocess clause to stri$e down econo1ic re%ulation )unreviewaAle
railroad rates/.
Age&er 36 Lo"isi!n! :).J5=
The final ste, toward ochner+ and the introduction of a 8liAert& of contract.9 'ue ,rocess liAert&
is not onl& ri%ht to Ae 8free fro1 ,h&sical restraint+9 Aut also freedo1 to 8enKo& and use
faculties+9 8live and wor$ where he will+9 8enter into contracts+9 and so1e other cra,. See ,a%e
*1! for entire Aloated quote+ althou%h the 1eat of it is here.
Lochner . *e! .or/ 17* U.S. -5 )17?5/ ),a%e !12/
F!cts
4ew <or$ ,assed a statute ,rovidin% that no e1,lo&ee shall 8wor$ in a Aiscuit+ Aread or ca$e Aa$er& or
confectionar& estaAlish1ent 1ore than si;t& hours in an& one wee$+ or 1ore than ten hours in an& one
da&.9 So1e e1,lo&ers sued.
-5
8o-ing
The statute is an unconstitutional violation of due ,rocess.
Re!soning
The due ,rocess clause of the 5
th
and 1-
th
"1end1ents ,rotects ,rivate ,ro,ert& and liAert& of contract
a%ainst unwarranted %overn1ent interference. )"lle%&er/ This statute clearl& interferes with the aAilit& of
an e1,lo&er and e1,lo&ee to enter into contracts. 5owever+ the state does have le%iti1ate ,olice ,ower
to ,rotect the health and welfare of societ&. The $e& question thus Aeco1es( Is the le%islation within the
,olice ,ower of the state or is it 8an unreasonaAle+ unnecessar& and arAitrar& interference with the ri%ht of
the individual to his ,ersonal liAert&.9 The Court finds that there is no ,uAlic interest at sta$e+ and that the
statue is invalid as a laAor law. It 1ust thus Ae Kustified in ter1s of ,rotectin% the health of the individual
Aa$er+ and this is unKustifiaAle as well Aecause it would %ive le%islatures the ,ower to re%ulate Kust aAout
an&thin%+ and would interfere too 1uch with the ri%ht to contract. The Court %oes on to conduct so1e
$ind of 8s1o$in% out9 anal&sis )even citin% <ic$ =o/ to su%%est that there are 8other 1otives9 )read(
socialis1/ Aehind the law.
+issent :8!r!n=
The ,eo,le of 4ew <or$ found a reasonaAle+ health3Aased reason for the law+ and thatHs enou%h to ,ass
the 1eans3end test that we should Ae concerned with here.
+issent :8o%es=
8This case is decided u,on an econo1ic theor& Mstrict laisseD faireN which a lar%e ,art of the countr& does
not entertain.9 Court ,recedent alread& allows for re%ulation of Ausiness far harsher than that at issue
here. 8M"N constitution is not intended to e1Aod& a ,articular econo1ic theor&.9
Notes
ochner is one of the 1ost notorious cases in US histor&+ and has ,la&ed a 1aKor ,art in definin%
the CourtHs role in "1erican %overn1ent. It stands for a $ind of Kudicial activis1 which we have
su,,osedl& overco1e.
Two ),roAle1atic/ conce,ts underl&in% ochner
o There is a funda1ental ri%ht+ under the Constitution+ to enter into contracts.
ThereHs nothin% in the Constitution that sa&s this+ or that le%islatures canHt
le%islate Aased on 1oralit&. =hether there should Ae is a se,arate question C see
awrence )Aelow QQQ/.
o Sus,icion of the lawHs 1otive as ,otentiall& socialist.
If we thin$ this was wron%l& decided+ what do we thin$ aAout the fact that the awrence Court
said that ho1ose;ual conduct cannot Ae Aarred if itHs not har1in% other ,eo,le+ and that 1oralit&
alone is not enou%h to Kustif& the lawG
There are also at least two wa&s to sa& whatHs wron% with ochner(
o "ttac$ the su,,osed 8ri%ht to contract9 as none;istent
o "d1it that the ,rinci,le is >6+ Aut that the e1,lo&ees in this case didnHt reall& have
freedo1 to contract+ 8so it was all a lie.9
Even then+ &ouHd have to have a theor& of duress or so1ethin%. "nd if &ou could
,rove that ,eo,leHs se;ual choices are hard3wired+ there 1i%ht Ae an ar%u1ent
that the %overn1ent should Ae aAle to re%ulate se;ual Aehavior.
Lochner" Li2ertarianis' and the (ar' $rinci&le
The 8har1 ,rinci,le9 C &ou have a funda1ental ri%ht to do what &ou li$e so lon% as &ou donHt
har1 an&one else C is at the root of ochner and is the Aasis of liAertarianis1. Jed sa&s itHs Kust
,lain wron%. 5ere are three reasons.
1/ There is no adequate theor& of har1 with which &ou can 1a$e sense of liAertarianis1.
:ental offense is+ after all+ a har1 in the nor1al sense of the word.
-6
"ll actions cause har1 in so1e wa&
<ou could Kust sa& a certain har1 )such as 1ental har1/ is out of Aounds+ Aut
then &ouHd Ae doin% so1ethin% Aesides liAertarianis1
./ Even if we acce,t ar"uendo that ,eo,le do what the&Hre doin% without affectin%
an&one else+ &ouHd then have to throw out all of our anti3discri1ination laws )anti3
discri1ination laws are+ after all+ Aased on 1oralit&/
So1e liAertarians+ of course+ do this.
2/ 0inall&+ whatHs so Aad aAout har1in% ,eo,leG =h& shouldnHt I Ae aAle to har1 ,eo,le
if I chooseG In order to answer those questions+ &ou have to ta$e a 1oral ,osition+ which
is ,recisel& what liAertarians sa& &ou canHt do. So reall&+ the liAertarian is not sa&in% that
%overn1ent canHt le%islate 1oralit&+ onl& that %overn1ent can onl& le%islate #y 1oralit&.
*ote4 The Lochner Era 8?@AB0?@C<9 1 *e22ia" West Coast (otel
0ro1 17?5 C 1id 172?Hs+ the Su,re1es invalidated .??U econo1ic re%ulations+ usuall& for due ,rocess
reasons. The CourtHs decisions see1 so1ewhat inconsistent C as illustrated Aelow C thou%h it a,,ears that
the Court was 1ostl& interested in the 8real9 reason Aehind le%islation. If it was ,uAlic interest+ the law
1i%ht stand.
:"JI:U: 5>UR EEIS"TI>4
9"er 36 Oregon :)J0.=
5pheld 1a;i1u1 hour le%islation for wo1en Aecause wo1enHs 8,h&sical structure9 ,uts the1 at
a disadvanta%e
1"nting 36 Oregon :)J)5=
5pheld 1a;i1u1 hour le%islation for factor& wor$ers+ overturnin% the s,ecific holdin% of
<ochner even thou%h its ,rinci,le continued to Ae enforced.
8<E>=3'>E9 C>4TR"CTS
A-!ir 36 Unite- St!tes :)J0.=
Envalidated federal and state le%islation forAiddin% e1,lo&ers to require e1,lo&ees to a%ree not
to Koin a union. 8It is not within the functions of %overn1ent to co1,el an& ,erson in the course
of his Ausiness to retain the ,ersonal services of another.9
:I4I:U: ="EES
A-?ins 36 Chi-renFs 8ospit! :)J23=
Envalidated 1ini1u1 wa%e for wo1en as unconstitutional+ findin% that ti1es had chan%ed since
:uller and the role and understandin% of wo1en is different.
PRICE REEU"TI>4
Wii!%s 3 St!n-!r-$ Ri@ni? 36 9c1ri-e$ T&son K 1rother 36 1!nton
Envalidatin" various ,rice re%ulations+ increasin%l& narrowin% the 8affected with ,uAlic interest9
standard fro1 Munn.
#USI4ESS E4TR<
New St!te Ice Co6 36 Lie@%!nn :)J32=
Envalidatin" law requirin% ,eo,le to oAtain a certification Aefore ,roducin% ice.
-!
*e22ia . *e! .or/ :)J3*= :p!ge 52,= # The en- o0 Lochner
F!cts
Prices in the 1il$ industr& ,lu11eted in 172.+ ,uttin% dair& far1ers in a 8des,erate situation.9 4ew
<or$ set u, a :il$ Control #oard to fi; ,rices. 4eAAia+ a %rocer& store owner+ was convicted for sellin%
1il$ Aelow the 1ini1u1 ,rice.
8o-ing )53-/
The ,rice re%ulation is u,held.
Re!soning
Court loo$s at le%islative intent and u,holds the law as a reasonaAle 81ethod of correctin% the evils+
which the re,ort of the co11ittee showed could not Ae e;,ected to correct the1selvesP9 4either
,ro,ert& ri%hts nor the ri%ht to contract are aAsolute+ and the 5
th
and 1-
th
"1end1ents do not ,rohiAit
%overn1ent re%ulation for the ,uAlic welfare+ the& Kust require that it Ae done in accordance with due
,rocess. Price re%ulations+ then+ are onl& unconstitutional if 8arAitrar&+ discri1inator&+ or de1onstraAl&
irrelevant to the ,olic& the le%islature is free to ado,t. In su1(
8" state is free to ado,t whatever econo1ic ,olic& 1a& reasonaAl& Ae dee1ed to ,ro1ote ,uAlic
welfare+ and to enforce that ,olic& A& le%islation ada,ted to its ,ur,ose.9
West Coast (otel Co. . $arrish :)J35= :p!ge 525=
8o-ing
The Court e;,licitl& overruled 8d(ins and u,held a state law estaAlishin% a 1ini1u1 wa%e for wo1en.
Re!soning
The Constitution doesnHt refer to an& freedo1 to contract. It refers instead to due ,rocess+ and due ,rocess
is not threatened A& a re%ulation that is reasonaAle and ado,ted in the ,uAlic interest. The le%islature has
reasonaAl& concluded that ,rotectin% the health of wo1en is such an interest. :oreover+ the Court
su%%ests that %overn1ent 8inaction9 is itself a constitutionall& si%nificant decision+ Aecause e;,loited
wor$ers can Ae a 8direct Aurden9 on ta;,a&ers.
*ote < 0 United States . Carolene $roducts Co. :)J3.= :p!ge 52J=
The Court u,held the 0illed :il$ "ct of 17.2+ which Con%ress ,assed after heav& loAA&in% A& the 1il$
industr& to ,rohiAit the interstate shi,1ent of 8filled 1il$+9 which is 1il$ thatHs had its Autter fat re,laced
with ve%etaAle oil. )<u1/. If the question of fact is at least deAataAle+ %ive deference to Kud%e1ent of
le%islature.
"lso note that Carolene Products set out Justice StoneHs fa1ous 0ootnote 0our. QQ
Willia'son . Lee )&tical of )/laho'a :)J,,= :p!ge 53)=
The Court u,held a statute requirin% that o,thal1olo%ists+ not o,to1etrists+ fill e&e%lass ,rescri,tions is
constitutional. 8It is for the le%islature+ not the courts+ to Aalance the advanta%es and disadvanta%es of the
new require1ent.9 " law 8need not Ae in ever& res,ect lo%icall& consistent with its ai1s to Ae
constitutional.9
+erguson . S/ru&a :)J'3= :p!ge 53)=
The Court u,held a statute 1a$in% it unlawful for an&one Aut law&ers to en%a%e in the Ausiness of deAt
adKustin%. 8States have the ,ower to le%islate a%ainst what are found to Ae inKurious ,ractices in their
internal co11ercial and Ausiness affairs+ so lon% as their laws do not run afoul of so1e s,ecific federal
constitutional ,rohiAition.9 It is u, to le%islatures+ not courts+ 8to decide on the wisdo1 and utilit& of
le%islation.9
EC>4>:IC SU#ST"4TI@E 'UE PR>CESS T>'"< )0R>: C"SE#>>6/
8In Carolene Products+ the Court indicated that it would u,hold econo1ic le%islation if an& state
of facts either $nown o reasonaAl& inferaAle could su,,ort the le%islative Kud%1ent. In ee
-*
>,tical+ however+ the Court went even further and resorted to wholl& h&,othetical facts and
reasons to sustain the le%islation. "nd in 0er%uson+ the Court a,,eared to u,hold the le%islation
without an& inquir& into the rationalit& of the 1eansIends connection.9
C. The Incor&oration Controers3
The question is+ To what e;tent+ if an&+ does the 1-
th
"1ed1entHs 'ue Process Clause
8incor,orate9 the s,ecific %uarantees of the #ill of Ri%hts+ so as to 1a$e the1 a,,licaAle a%ainst
the statesG
o Jed( The incor,oration cases are suAstantive due ,rocess cases.
%arron . ,a3or 1 Cit3 Council of %alti'ore :).33= p6 502
F!cts
#arron sued the cit& of #alti1ore for ruinin% his wharf while constructin% a street. 5e ar%ued that the
0ifth "1end1ent %uaranteed hi1 8Kust co1,ensation9 for this ta$in%.
8o-ing
#arron has no standin%+ Aecause the "1end1ents 1 throu%h * of #ill of Ri%hts do not a,,l& to states.
Re!soning
0ra1ers e;,ressed no such intent C had it Aeen their intent the& would have enu1erated the li1itations
that the first * "1end1ents ,lace on the states C the& didnHt do this+ so the& donHt li1it the ,ower of the
states.
Notes
This is ,roAaAl& true C the fra1erHs real concern was aAout the distant federal %ovHt. The& thou%ht that the
citiDen control over state %overn1ent )in the for1 of state constitutions and re,resentatives/ was
sufficient to safe%uard individual liAert& C 5ere the& were wron%. In an& case+ the ,ost3Civil =ar
a1end1ents chan%ed the landsca,e.
9"rr!& 36 8o@o?en L!n- K I%pro3e%ent Co :)J,'= P!ge 503
The Constitution does not e;,lain which ,rocesses it was intended to allow or forAid. To deter1ine the
1eanin% of 'ue Process+ the Court loo$s to the :a%na Charta.
Twining 36 New >erse& :)J0.= p!ge 50*
Jur& instructed that it can inter,ret a defendantHs unwillin%ness to testif& as Aein% a ne%ative a%ainst hi1.
E;e1,tion fro1 self3incri1ination not funda1ental to due ,rocess+ B 5
th
"1 doesnHt a,,l& to states.
5owever+ the Court did o,en the door sli%htl&+ and su%%ested the due ,rocess route of incor,oration. It
said that the first ei%ht a1end1ents 1i%ht in fact a,,l& a%ainst the states+ Aut that 8If this is so+ it is not
Aecause those ri%hts are enu1erated in the first ei%ht "1end1ents Aut Aecause the& are so such a nature
that the& are included in the conce,tion of due ,rocess of law.9
P!?o 36 Connectic"t :)J35= p6 50*
Ri%ht a%ainst 'ouAle Jeo,ard& is not funda1ental B 5
th
"1 doesnHt a,,l& to states. >nl& ri%hts that are
funda1ental are aAsorAed throu%h the 1-
th
"1end1ent to a,,l& a%ainst the states+ and the $ind of douAle
Keo,ard& here ),er1ittin% the state to a,,eal in cri1inal cases/ is not 8so acute and shoc$in% that our
,olic& will not endure it.9
4ote( #& 172!+ there was no lon%er an& douAt that due ,rocess could e1Arace not onl&
,rocedural ri%hts Aut also suAstantive ri%hts such as freedo1 of s,eech and reli%ion.
-7
A-!%son 36 C!i0orni! :)J*5= p6 50,
The Court+ in a 53- decision+ held that the ,rivile%e a%ainst self3incri1ination was not incor,orated
throu%h the 1-
th
"1end1ent to a,,l& a%ainst the states. In dissent+ #lac$+ Koined A& 'ou%las+ sets forth
his theor& of Total Incor,oration )which has never Aeen ado,ted+ Aut was influential/. #lac$ reKects the
8natural law9 understandin% of the Constitution laid out in Twinin%. 5e sees that a,,roach as endowin%
the Court with Aoundless ,ower to ,eriodicall& e;,and and contract the constitutional standards to
confor1 to the CourtHs conce,tion of what at a ,articular ti1e constitutes 8civiliDed decenc&9 and
8funda1ental liAert& and Kustice9 Instead+ #lac$ Aelieves that the writer of the 1-
th
full& intended it to
1a$e the #ill of Ri%hts a,,licaAle to the states )see the first section/( 8=ith the full $nowled%e of the
#arron decision+ the fra1ers and Aac$ers of the 1-
th
,roclai1ed its ,ur,ose to overturn the constitutional
rule that case had announced.9
Duncan . Louisiana :)J'.= p!ge 505
Si;th "1end1ent ri%ht to trial A& Kur& incor,orated A& 1-
th
"1 to states. The Court
ac$nowled%es that a variet& of theories have Aeen e1,lo&ed to e;,lain incor,oration+ and sa&s that the
real question is whether 8a ,articular ,rocedure is funda1ental9 to our co11on3law s&ste1.
"lthou%h the Court has never e1Araced #lac$Hs total incor,oration theor&+ it has used selective
incor,oration to 1a$e al1ost all the s,ecific %uarantees of the Aill of ri%hts a,,licaAle to the states. >nce
incor,orated+ these ri%hts a,,l& in ,recisel& the sa1e awa& a%ainst the states as the& do a%ainst the
federal %overn1ent(
'enton v. Maryland C 5
th
"1 'ouAle Jeo,ard& incor,orated A& 1-
th
"1 to states.
Robinson v. Cali!ornia C *
th
"1 Cruel B Unusual incor,orated A& 1-
th
"1 to states.
,chlib v. 9uebel C *
th
"1 E;cessive #ail incor,orated A& 1-
th
"1 to states.
Wol! v. Colorado C -
th
"1 incor,orated A& 1-
th
"1 to states.
Roth v. 5nited ,tates C 1st "1 incor,orated A& 1-
th
"1 to states.
Toda&+ all of the #oR )e;ce,t 7 and 1?/ have Aeen incor,orated a%ainst the states+ with four
e;ce,tions+ which Jed e;,ects us to $now(
o Second "1end1ent
o Third "1end1ent
o Seventh "1end1ent
o Erand Jur& clause of the 0ifth "1end1ent
EI6 Unen"%er!te- Rights # 9o-ern +e3eop%ents
A. The Right of $riac3
8lthou"h the court e#ployed substantive due process in the <ochner era pri#arily in the real# o!
econo#ic re"ulation and the liberty o! contract, not all o! its decisions $ere so li#ited
?. Antecedents of Roe
,e3er . *e2ras/a+ .6. U.S. 27? )17.2/ ),a%e *1?/
F!cts
4eAras$a ,assed a law that ,rohiAited the teachin% of an& 1odern lan%ua%e other than En%lish in ,uAlic
or ,rivate schools.
H"estion
'oes the law violate a funda1ental liAert&G
R"ing
<es
5?
Re!soning
8MThe OliAert&H %uaranteed A& the due ,rocess clause of the fourteenth a1end1entN denotes not 1erel&
freedo1 fro1 Aodil& restraint A&t also the ri%ht of the individual to contract+ to en%a%e in an& of the
co11on occu,ations of life+ to acquire useful $nowled%e+ to 1arr&+ estaAlish a ho1e and Arin% u,
children+ to worshi, Eod accordin% to the dictates of his own conscience+ and %enerall& to enKo& those
,rivile%es lon% reco%niDed at co11on law as essential to the orderl& ,ursuit of ha,,iness A& free 1en.9
The le%islature can onl& infrin%e on this liAert& if it has a 8reasonaAle relation to so1e ,ur,ose within the
co1,etenc& of the state to effect.9
$ierce . Societ3 of Sisters+ .6* U.S. 51? )17.5/ ),a%e *11/
F!cts7H"estion
Can the state ,ass a law requirin% all children to attend ,uAlic school )disallowin% ,rivate and ,arochial
school attendance/G
8o-ing
4o
Reasonin%
The statute 8unreasonaAl& MinterferedN with the liAert& of ,arents and %uardians to direct the u,Arin%in%
and education of children under their control.9
>ris!old . Connecticut+ 2*1 U.S. -!7 )1765/ ),a%e *11/
F!cts
" Connecticut law ,revented the use of contrace,tion. Eriswold+ the E;ecutive 'irector of the Planned
Parenthood ea%ue of Connecticut+ and co3a,,ellant #u;ton+ ,h&sician and ,rofessor at <ale :edical
School+ ,rovided contrace,tive infor1ation+ instruction+ and advice to #arried couples. #oth were
,rosecuted under the law. The& challen%ed the CT statute on 0ourteenth "1end1ent %rounds.
H"estion
'oes the Constitution ,rotect the ri%ht of )1arried/ cou,les to use contrace,tionG
R"ing
<es+ Aut court reKects usin% <ochner as a %uide )8we do not sit as a su,er3le%islature to deter1ine the
wisdo1+ need+ and ,ro,riet& of laws that touch econo1ic ,roAle1s+ Ausiness affairs+ or social conditions.
This law+ however+ o,erates directl& on an inti1ate relation of husAand and wife and their ,h&sicianHs
role in one as,ect of the that relationshi,9/ ),. *11/
Re!soning
8MSN,ecific %uarantees in the #ill of Ri%hts have ,enu1Aras+ for1ed A& e1anations fro1 those %uarantees
that hel, %ive the1 life and 1eanin%.9 @arious %uarantees create 8Dones of ,rivac&9(
o The 0irst "1end1ent i1,licit ri%ht of association C in 4""CP v. "laAa1a the Court found
the 1st "1end1ent ,revented the %overn1ent fro1 forcin% disclosure of 1e1Aershi, lists.
8In other words+ the 0" has a ,enu1Ara where ,rivac& is ,rotected fro1 %ovHt intrusion9
o The Third "1end1ent ,rotection fro1 havin% to quarter troo,s
o The 0ourth "1end1ent ,rotection a%ainst unreasonaAle search and seiDureL require1ent for
8,roAaAle cause9 for a warrant.
o The 0ifth "1end1ent ri%ht not to self3incri1inate.
o The 4inth "1end1ent )8The enu1eration in the Constitution of certain ri%hts shall not Ae
construed to den& or dis,ara%e others retained A& the ,eo,le.9
This case thus 8concerns a relationshi, l&in% within the Done of ,rivac& created A& several funda1ental
constitutional %uarantees.9 The CT law is too Aroad Aecause 8a %overn1ental ,ur,ose to control or
,revent activities constitutionall& suAKect to state re%ulation 1a& not Ae achieved A& 1eans which swee,
unnecessaril& Aroadl& and thereA& invade the area of ,rotected freedo1s.9 Mquoted fro1 4""CP v. "N
51
#& the end of the o,inion+ itHs clear that Justice 'ou%las has 1oved Ae&ond even the #ill of Ri%hts C
8=e deal with a ri%ht of ,rivac& older than the #ill of Ri%hts P.=ould we allow the ,olice to search the
sacred ,recincts of 1arital Aedroo1s for telltale si%ns of the use of contrace,tivesG The ver& idea is
re,ulsive to the notions of ,rivac& surroundin% the 1arria%e relationshi,.9
The conc"rrence @& >"stice Do-@erg !n- 4oine- @& the Chie0 >"stice !n- >"stice 1renn!n was
Aased on ,ast ,recedents and also on the 4inth "1end1ent. The 4inth "1end1ent would Ae
su,erfluous if it didnHt ,rotect 1ore ri%hts than are alread& listed in the first ei%ht a1end1ents+ and the
8Aasic and funda1ental9 ri%ht to 1arria%e is certainl& one of those.
>"stice 8!r!nFs conc"rrence was Aased on the idea that the 8statute infrin%es on the 'ue Process
Clause of the 0ourteenth "1end1ent Aecause the enact1ent violates Aasic values Oi1,licit in the conce,t
of ordered liAert&+H9 not that it violates so1e ri%ht assured A& the letter or ,enu1Ara of the #ill of Ri%hts.
>"stice WhiteFs conc"rrence reco%niDes the ri%ht 8to 1arr&+ estaAlish a ho1e and Arin% u, children9
fro1 :e&er+ as well as the holdin%s in Pierce and S$inner. Eiven these ri%hts+ ConnecticutHs law fails to
1ean a 8reasonaAle relation9 to a valid state interest. Mlan%ua%e fro1 Meyer.N
>"stice 1!c? with >"stice Stew!rt -issente- on the %rounds that the Court does not have the ,ower to
announce unenu1erated ri%hts Aecause that is the role of a le%islative Aod&. The 1aKorit& o,inion en%a%es
in the sa1e 8natural law due ,rocess9 used in ochner and since re,udiated. The Courts are in no ,osition
to deter1ine what ,rinci,les are rooted in the 8McollectiveN conscience of our ,eo,le.9
>"stice Stew!rt -issente-+ 8I can find no such %eneral ri%ht of ,rivac& in the #oR+ in an& ,art of the
Constitution+ or in an& case ever Aefore decided A& this Court.9
Eriswold su%%ests the first real 1ove fro1 an understandin% of ,rivac& as locational to ,rivac& as
infor1ational. Roe will co1,lete the 1ove to ,rivac& as a suAstantive ri%ht to action.
S/inner . )/laho'a+ 216 U.S. 525 )17-./ ),a%e !26/
F!cts
>$laho1aHs 5aAitual Cri1inal SteriliDation "ct allowed the attorne& %eneral to Arin% a court action
orderin% forced steriliDation a%ainst those convicted three ti1es of a felonies 8involvin% 1oral tur,itude.9
The act did not a,,l& to those convicted of violatin% ,rohiAitor& laws or revenue acts or found %uilt& of
e1AeDDle1ent or ,olitical offenses.
H"estion
'oes the "ct violate the Equal Protection ClauseG
R"ing
<es
Re!soning )'ou%las/
8=e are dealin% here with le%islation which involves one of the Aasic civil ri%hts of 1an. :arria%e and
,rocreation are funda1ental to the ver& e;istence and survival of the race.9
The Court doesnHt reach the question of due ,rocess+ Aecause the equal ,rotection violation is so clear.
#ecause so1e classes of felons are e;cluded fro1 the law+ those who in effect do the sa1e thin% Aut are
%uilt& technicall& of different cri1es )li$e e1AeDDlin% instead of stealin%/ are treated differentl& under the
"ct. The law 1ust face strict scrutin& Aecause A& distin%uishin% Aetween t&,es of cri1es the "ct en%a%es
in invidious discri1ination+ and >6 1a$es no showin% that ,eo,le who co11it larcen& 8A& tres,ass or
tric$9 have Aiolo%icall& inheritaAle traits which 8he who co11its e1AeDDle1ent lac$s.9
Chie0 >"stice Stone conc"rre- on the %rounds that the "ct violated the due process clause )not equal
,rotection/ A& invadin% the ,ersonal liAert& of a felon without %ivin% hi1 the o,,ortunit& to show that his
is not the t&,e of case deservin% steriliDation. Jed( Stone is su%%estin% that thereHs a funda1ental ri%ht at
issue here+ and that thatHs wh& thereHs a constitutional issue in the first ,lace.
Eisenstadt . %aird+ -?5 U.S. -2* )17!./ ),a%e *.1/
5.
The Court e;tended Eriswold to un1arried cou,les A& invalidatin% on eAual protection rational basis&
revie$ a :assachusetts statute ,rohiAitin% the distriAution of contrace,tives to un1arried ,ersons.
Reasonin%
The statute violates EP Aecause it ,rovides dissi1ilar treat1ent of 1arried and un1arried cou,les+ and
none of the state interests ,resented is sufficient to Kustif& the classification( not deterrence of ,re1arital
se; )at Aest a 81ar%inal9 %oal of the law/L not ,rotectin% the health of the co11unit& )not all
contrace,tives are ,otentiall& dan%erous/L and not on 1oral %rounds )Aecause Eriswold alread&
estaAlished that contrace,tives are a ri%ht of 1arried cou,les+ and the su,,osed 8evil9 would Ae the sa1e
for 1arried and un1arried cou,les/
26 A@ortion
Roe . Wade+ -1? U.S. 112 )17!2/ ),a%e *.2/
F!cts
Te;as ,assed a law Aannin% aAortion e;ce,t where necessar& to save the life of the 1other.
H"estion
'oes the Constitution confer a ri%ht to aAortionG
8o-ing
<es+ as ,art of the ri%ht to ,rivac&.
Re!soning
The ri%ht to ,rivac&+ whether founded in the 0ourteenth "1end1ent ),referred/ or alternatel& the 4inth
"1end1ent+ ,rotects the wo1anHs ri%ht to choose. 0or the ,ur,oses of the Constitution+ 8,erson9 does
not include an& ,re3natal life. The ri%ht+ thou%h funda1ental+ is not aAsolute+ and the state can re%ulate
aAortions when the state has a co#pellin" state interest. The state has interests in Aoth the health of the
,re%nant wo1an and in the 8,otentialit& of hu1an life.9 #lac$1un fashions a Aalancin% test A& which the
ri%ht to an aAortion %rows wea$er as the ,re%nanc& advances and the stateHs interest in ,rotectin% the
,otentialit& of life and the health of the 1other increase as the ,re%nanc& advances and eventuall&
Aeco1es co1,ellin%(
1. #efore the end of the 1st tri1ester aAortions cannot Ae ,roscriAed.
.. "fter the 1st tri1ester the state has a co1,ellin% interest to ,reserve the health of the 1other+ so
the state can re%ulate aAortions to ,rotect the 1otherHs health. Prior to the end of the 1st tri1ester
the 1ortalit& rates fro1 aAortions are lower than the 1ortalit& rate fro1 carr&in% a AaA& to ter1.
2. The interest in the ,otentialit& of life does not Aeco1e co1,ellin% until viaAilit&. "fter viaAilit&
the state can ,roscriAe aAortion so lon% as it 1a$es e;ce,tions for the health of the 1other.
>"stice Stew!rt conc"rre- citin% the 8liAert& ,rotected A& the 'P clause of the 1-th reco%niDed in
Eisenstadt when the Court said the state could not intrude on the decision whether 8 Oto Aear or Ae%et a
child.H9 CSI not so stron% as to aArid%e that liAert&.
>"stice +o"g!ss conc"rre- on the %rounds that so1e of the 8ti1e3honored ri%hts9 that were 8retained
A& the ,eo,le9 and can Ae included in the 1eanin% of 8liAert&9 1entioned in the 0ourteenth "1end1ent
are(
80irst is the autono1ous control over the develo,1ent and e;,ression of oneHs intellect+ interests+
tastes+ and ,ersonalit&.9
8Second is freedo1 of choice in the Aasic decisions of oneHs life res,ectin% 1arria%e+ divorce+
,rocreation+ contrace,tion+ and the education and u,Arin%in% of children.9
8Third is the freedo1 to care for oneHs health and ,erson+ freedo1 fro1 Aodil& restraint or
co1,ulsion+ freedo1 to wal$+ stroll+ or loaf.9 M,a%e *.!N
>"stice White with >"stice Rehn("ist -issente- sa&in% the Court aAused its ,ower of Kudicial review in
announcin% a ri%ht that cannot Ae found in the Constitution.
>"stice Rehn("ist -issente- sa&in% this case did not involve the ri%ht to ,rivac& Aecause when a ,atient
%oes to a doctor for an aAortion this transaction is not ,rivate. The Court is 8lochneriDin%9 C creatin% a
52
ri%ht to co1e u, with outco1e it wants. The fact that 1ost states had outlawed aAortions is fatal to the
contention that the ri%ht to aAortion is 8 Oso rooted in the traditions and conscience of our ,eo,le as to Ae
ran$ed as funda1ental.H9 M,a%e 761N Since at the ti1e of the writin% of the 0ourteenth "1end1ent 26
laws e;isted ,rohiAitin% aAortion+ it cannot Ae said that the authors of the 0ourteenth "1end1ent
included the ri%ht to aAortion as one of the liAerties ,rotected A& the a1end1ent.
Notes !n- c!ss -isc"ssion !@o"t how Roe co"- @e 4"sti0ie-
Equal Protection( ItHs aAout equaliDin% Aurdens faced A& 1en and wo1en
EstaAlish1ent clause( ,roscriAin% aAortion 1eans Au&in% into a ,articular reli%ious view,oint
aAout when life Ae%ins )'wor$in/
iAert& of contract Aetween a wo1an and her doctor( #ut freedo1 of contract isnHt necessaril&
reco%niDed in 1edicine C the 0'" can re%ulate thin%s+ after all.
Pro,ert&IAodil& inte%rit& interest( " wo1an has a funda1ental ,ro,ert& interest in her own Aod&
and her aAilit& to wor$+ stud&+ etc. State canHt force wo1en to have aAortions+ as that would
violate Aodil& inte%rit&+ so the sa1e ar%u1ent should a,,l& on the fli,side.
5ar1 ,rinci,le( #ut itHs hard to sa& that aAortion doesnHt har1 an&one.
Self definition( #ut+ Jed sa&s+ Kust aAout an&thin% is aAout 8self3definition+9 and 1oreover there
can also Ae co11unit& self3definition )these co11unities are definin% the1selves A& ,roscriAin%
aAortion/.
JedHs conscri,tion theor&( See Aelow for details. QQQ
$lanned $arenthood of Southeastern $enns3lania . Case3+ 5?5 U.S. *22 )177./ ),a%e *5?/
F!cts
The Penns&lvania "Aortion Control "ct of 17*. required that a wo1an %ive infor1ed consent Aefore
havin% an aAortion+ the wo1an Ae ,rovided with infor1ation at least .- hours Aefore the o,eration+ a
1inor either %et the infor1ed consent of her ,arents are %o Aefore a Kud%e to %et consent+ a 1arried
wo1an %et a si%ned state1ent fro1 her husAand sa&in% he has Aeen notified of her intention to %et an
aAortion. The "ct ,rovided an e;ce,tion for when the wo1an faces a 8serious ris$.9
H"estion
Should Roe v. =ade Ae u,heldG
R"ing
<es C the 8essential holdin%9 at least( 1/ wo1an have a ri%ht to choose aAortion ,rior to viaAilit&+ without
an& undue state interferenceL ./ the state can restrict aAortions after viaAilit&+ so lon% as there is a
1otherHs health e;ce,tionL and 2/ state has le%iti1ate interests throu%hout the ,re%nanc& in Aoth the
health of the 1other and of the fetus.
)stablishes idea o! undue burden+ which shifts the Aurden to the individual to ,rove that state is
crossin% line. In other funda1ental ri%ht questions the standard is co1,ellin% state interest+ with a
Aurden on the state to ,rove interest is co1,ellin%.
Re!soning :>"stice OFConnor$ with >"stice Ienne-& !n- >"stice So"ter !n- >"stice Ste3ens in p!rt=
The ri%ht to ,rivac&+ a liAert& ,rotected A& the 'ue Process Clause of the 0ourteenth "1end1ent+
e;tends to the ri%ht to have an aAortion )suAstantive ri%ht not Kust ,rocess used A& state/ and is not li1ited
to those ri%hts ,rotected at ti1e of the 1-
th
"1end1entHs ,assa%e. "Aortion is a unli$e and i1,ortant
,rivac& ri%ht+ si1ilar to the ri%ht to contrace,tion ri%htl& u,held in Eriswold+ Eisenstadt+ etc.
The Court ,uts for a nu1Aer of reasons wh& stare decisis requires u,holdin% Roe(
Roe has not ,roven unwor$aAle.
Peo,le have co1e to rel& on Roe.
There have Aeen no relevant intervenin% chan%es in le%al doctrine.
5-
The relevant facts )1edical technolo%&+ etc./ have not chan%ed so 1uch as to chan%e the ,oint of
Roe.
Concludin% this ,aean to stare decisis+ >HConnor sa&s that the Court would da1a%e its own le%iti1ac& if
it were to overturn Roe. She then %oes on to reKect the tri1ester fra1ewor$ )not ,art of RoeHs 8essential
holdin%9/ Aecause it 81isconceives9 )ha[/ the nature of the ,re%nant wo1anHs interest and undervalues
the stateHs interest in ,otential life. In its ,lace+ she ,uts forward the 8undue Aurden9 test(
Prior to viaAilit& the state can re%ulate an aAortion C even if it 8has the incidental effect of 1a$in%
it 1ore difficult or 1ore e;,ensive to ,rocure an aAortion C so lon% as the re%ulation does not
i1,ose 8an undue Aurden on a wo1anHs aAilit& to 1a$e this decision.9 The state can re%ulate
aAortion to ,rotect the health of the wo1an "4' to ,ersuade the wo1an not to have an aAortion.
8" findin% of an undue Aurden is a shorthand for the conclusion that a state re%ulation has the
,ur,ose or effect of ,lacin% a suAstantial oAstacle in the ,ath of a wo1an see$in% an aAortion of a
nonviaAle fetus.9
Post3viaAilit&+ the state can ,roscriAe aAortion )with an e;ce,tion for the life or health of the 1other/ as it
could under Roe v. =ade.
",,l&in% this anal&sis to the Penns&lvania "ct(
8Serious ris$9 as defined A& the Court of ",,eals does not ,ut an undue Aurden on the wo1an.
The infor1ation and infor1ed consent require1ent do not ,lace an undue Aurden on the wo1an
and serves a le%iti1ate state interest.
Requirin% a si%ned state1ent A& the husAand does ,lace an undue Aurden Aecause a husAand 1a&
threaten do1estic violence and thus ,revent the wo1an fro1 Aein% aAle to 1a$e a 1eanin%ful
decision. It also har$s Aac$ to the co11on law doctrine that wo1an were the ,ro,ert& of their
husAands.
The require1ent of ,arental consent is not an undue Aurden. >HConnor assu1es that 1inors
Aenefit fro1 the advice of their ,arents and ,arents have their childrenHs Aest interests at heart+
which cannot alwa&s Ae said of a husAand. M,a%e 1??2N
>"stice 1!c?%"n conc"rring with the 4"-g%ent in p!rt !n- -issenting in p!rt said the Penns&lvania
"ct should Ae invalidated. "ll restrictions on aAortion require strict scrutin& review+ and the "ct fails.
80irst+ co1,elled continuation of a ,re%nanc& infrin%es u,on a wo1anHs ri%ht to Aodil& inte%rit&
A& i1,osin% suAstantial ,h&sical intrusions and si%nificant ris$ of ,h&sical har1s.9
Second+ the state ta$es awa& the wo1anHs ri%ht to 1a$e decisions aAout re,roduction and fa1il&
,lannin%+ Aoth of which have Aeen reco%niDed A& the Court as co1,onents of the ri%ht to ,rivac&.
Restrictions on the ri%ht to aAortion also i1,in%e %ender equalit&. 8#& restrictin% the ri%ht to
ter1inate ,re%nancies+ the State conscri,ts wo1enHs Aodies into its service+ forcin% wo1en to
continue their ,re%nancies+ suffer the ,ains of childAirth+ and in 1ost instances+ ,rovide &ears of
1aternal care. The State does not co1,ensate wo1en for their servicesL instead+ it assu1es that
the& owe this dut& as a 1atter of course. This assu1,tion C that wo1en can si1,l& Ae forced to
acce,t the OnaturalH status and incidents of 1otherhood C a,,ears to rest u,on a conce,tion of
wo1enHs role that has tri%%ered the ,rotection of the Equal Protection Clause.9
#lac$1un ta$es also issue with RehnquistHs state1ent that the question of aAortion should Ae left to the
de1ocratic Aranches. 8=hile there is 1uch to Ae ,raised aAout our de1ocrac&+ our countr& since its
foundin% has reco%niDed that there are certain funda1ental liAerties that are not to Ae left to the whi1s of
an election. " wo1anHs ri%ht to re,roductive choice is one of those funda1ental liAerties. "ccordin%l&+
that liAert& need not see$ refu%e at the Aallot Ao;.9
I Kust li$e this Aecause itHs so hu1an+ es,eciall& co1in% fro1 the Justice who wrote Roe
and received a lifeti1eHs worth of death threats for it( 8I a1 *2 &ears old. I cannot re1ain
on this Court forever+ and when I do ste, down+ the confir1ation ,rocess for 1&
successor well 1a& focus on the issue Aefore us toda&. That+ I re%ret+ 1a& Ae e;actl&
where the choice Aetween the two worlds will Ae 1ade.9
55
>"stice Ste3ens conc"rring in p!rt !n- -issenting in p!rt also found the Penns&lvania ,rovision
requirin% infor1ation and the .-3hour waitin% ,eriod to Ae unconstitutional. Stevens said the interest in
,rotectin% ,otential life is not in the Constitution+ and thus the state cannot require infor1ation Ae %iven
to the wo1an to ,ersuade her not to have an aAortion. The .-3hour waitin% ,eriod is invalid Aecause it
,uts u, a severe Aurden and lac$s a le%iti1ate+ rational Kustification.
Chie0 >"stice Rehn("ist$ with >"stice Sc!i! !n- >"stice Tho%!s$ -issenting in p!rt !n- conc"rring
in p!rt6 )'issentin% with the u,holdin% of Roe and concurrin% with the u,holdin% of several of
Penns&lvaniaHs ,rovisions/.
The ri%ht to an aAortion is not funda1ental nor can the destruction of ,otential life Ae dis1issed. Stare
decisis does not require the u,holdin% of a law that was not constitutional to Ae%in with. It is inconsistent
that the Court can aAandon the tri1ester fra1ewor$ in Roe and &et clai1 the& 1ust follow stare decisis
and u,hold the ri%ht to aAortion. It does not 1atter that wo1en have Aeco1e accusto1ed to havin% the
choice.
Since the Constitution does not suAKect the re%ulation of aAortion to strict scrutin&+ Penns&lvaniaHs laws
need onl& Ae 8rationall& related to a le%iti1ate state interest+9 which the& are.
>"stice Sc!i!$ 4oine- @& >"stices Rehn("ist$ White !n- Tho%!s$ conc"rring in p!rt !n- -issenting
in p!rt6 There is no constitutional ,rotection for the choice to have an aAortion( it is not e;,licitl& in the
Constitution+ and ,rohiAitin% aAortion was traditional in the states. ",,l&in% the rational Aasis test+ the
"ct should Ae u,held in its entiret&.
Sten2erg . Carhart+ 1.? S. Ct. .57! ).???/ ),a%e *!1/
8o-ing
4eAras$a law ,rohiAitin% ,artial Airth aAortions is held unconstitutional Aecause )1/ it does not have a
clause ,rotectin% the 1otherHs life and )./ it i1,in%es on a wo1anHs aAilit& to choose to have a 'BE
aAortion+ thereA& Aurdenin% the choice to have an aAortion itself.
Re!soning
Three estaAlished ,rinci,les deter1ine the issue Aefore the Court(
)a/ #efore 8viaAilit& P the wo1an has a ri%ht to choose to ter1inate her ,re%nanc&.9
)A/ 8" law desi%ned to further the stateHs interest in fetal life which i1,oses an undue Aurden on
a wo1anHs decision Aefore fetal viaAilit&9 is unconstitutional.
)c/ 8SuAsequent to viaAilit& the state in ,ro1otin% its interest in the ,otentialit& of hu1an life
1a&+ if it chooses+ re%ulate+ and even ,roscriAe+ aAortion e;ce,t where it is necessar& in
a,,ro,riate 1edical Kud%1ent for the ,reservation of the life or health of the 1other.9
The Court recounts in relativel& %ra,hic detail the aAortion ,rocedure. " few ,oints(
1. "Aout 7?V of aAortions in the US ta$e ,lace in the first tri1ester. 'urin% the first tri1ester the
,redo1inant aAortion 1ethod is 8vacuu1 as,iration.9
.. ",,ro;. 1?V of all aAortions are ,erfor1ed durin% the second tri1ester. The 1ost co11onl&
used ,rocedure )75V/ is a 'BE C 8dilation and evacuation.9
2. 'BE is si1ilar to the vacuu1 as,iration ,rocedure althou%h the cervi; 1ust Ae dilated 1ore
widel& Aecause sur%ical instru1ents are used to re1ove lar%e ,ieces of tissue.
-. "t ti1es+ it is necessar& to dis1e1Aer the fetus. =hen this is needed+ the doctor 1a& have to ,ull
,art of the fetus throu%h the cervi; and into Airth canal.
5. The 'BE ,rocedure carries certain ris$s ),erforation A& sur%ical instru1ents or Aone fra%1ents+
tissue left in the ,atient/
6. There is another ,rocedure called an 8intact 'BE.9 =hen the e;traction is a Areech e;traction
)feet first/ the ,rocedure is also $nown as a 'BJ C 8dilation and e;traction.9
!. 'es,ite certain technical differences+ the intact 'BE ,rocedure and the 'BJ ,rocedure are
sufficientl& si1ilar to use the ter1s interchan%eaAl&.
56
The state law fails for two reasons. 0irst+ the stateHs interest in re%ulation aAortion ,reviaAilit& is
consideraAl& wea$er than ,ostviaAilit&. Since a health e;ce&tion is re#uired to validate a ,ostviaAilit&
aAortion re%ulation )see Roe/+ then 8at a 1ini1u19 the sa1e e;ce,tion is needed to validate a PRE3
viaAilit& aAortion re%ulation.
Secondl&+ one could a,,l& the statuteHs definition of a ,artial Airth aAortion to the co11on 'BE
,rocedure )see aAove for stats/. The difference Aetween the two is a 1atter of Aod& ,arts C an ar1 or le%
versus the Aod& u, to the head. The question is not whether the le%islature wanted to Aan 'BJ Aut
whether the law was intended to a,,l& onl& to 'BJ. The ,lain lan%ua%e covers Aoth ,rocedures+ and the
threat of ,rosecution for the co11on 'BE ,rocedures creates an undue 2urden u,on a wo1anHs ri%ht to
choose aAortion.
0ro1 Jed . 5The Right of $riac3.7 1?. 5arv..Rev. !2! )17*7/
Aasicall& started with the ,re1ise that the Court had announced a Ri%ht of Privac& Aut the ,rinci,le
Aehind it had not &et Aeen fir1l& estaAlished. The e;istin% ,hiloso,hical e;,lanations for the ri%ht of
,rivac& could not adequatel& reconcile Meyer, Cierce, ?ris$old, <ovin" and Roe with 'o$ers v.
7ard$ic(. deAun$s the ,ersonhood )or ,ersonal autono1&/ theor& and offers his own to re,lace it.
8MTNhe funda1ent of the ri%ht to ,rivac& is not to Ae found in the su,,osed funda1entalit& of what the
law ,roscriAes. It is to Ae found in what the law i1,oses. The question+ for e;a1,le+ of whether the state
should Ae ,er1itted to co1,el and individual to have a child C with all the ,ervasive+ far3reachin%+
lifelon% consequences that child3Aearin% ordinaril& entails C need not Ae the sa1e as the question of
whether aAortion or even child3Aearnin% itself is a Ofunda1entalH act within so1e nor1ative fra1ewor$.
The distin%uishin% feature of the laws truc$ down A& the ,rivac& cases has Aeen their ,rofound ca,acit&
to direct and to occu,& individualsH lives throu%h their affir1ative consequences.9 ),a%es !273!-?/
)1/ The Personhood Theor& )8a ,erson 1ust Ae free to Odefine hi1selfH9/
a. 8The ,ersonhood thesis is this( where our identif& or self3definition is at sta$e+ there the
state 1a& not interfere.9 ),a%e !5-/
i. #ut those who es,ouse the theor& have failed to state a rule of what is definin%.
ii. There is no adequate e;,lanation of wh& ,rostitution+ ho1ose;ual sodo1&+
adulter& and incest are not definin% Aehaviors that 1ust Ae ,rotected.
1. The ar%u1ent that the Aehaviors are 8Aads9 is not satisfactor& Aecause
that is hi%hl& suAKective
.. The ar%u1ent that those Aehaviors har1 others and thus can Ae re%ulated
is not satisfactor& Aecause it creates a Aalancin% test A& which we 1ust
wei%h whether the definitional i1,ortance of the Aehavior to oneHs
identif& outwei%hs the cost in the for1 of a har1 to so1eone else.
A. " 1aKor deficienc& is that there are two t&,es of self3definition( individual self3definition
)liAeralis1/ and co11unal self3definition ) calls it re,uAlicanis1+ it sounds li$e
co11unitarianis1 to 1e/+ A& which we de1ocraticall& 1a$e our laws to fashion that
identit& we de1ocraticall& choose.
i. It is i1,ossiAle to sa& which self3definition should ,revail. "llowin% individual
self3definition would allow ,eo,le to undue the collective self3definition
de1ocraticall& choosen.
ii. 5arwic$ ,rovides an e;a1,le. 5ardwic$ would ar%ue he was en%a%in% in
individual self3definition Aut Eeor%ia would clai1 itHs laws re,resented a
collective self3definition.
c. :an& ,eo,le connect the ,rivac& cases as havin% to do with se;ualit& and the i1,ortant
role se;ualit& ,la&s in ,ersonhood. #ut 0oucault sa&s se;ualit& does not deter1ine
identit& C thus the Kustification for the ,rivac& cases disa,,ears.
5!
i. "ssu1in% that ,ersonhood theorists would sa& 7ard$ic( was wron%l& decided+
the idea that ho1ose;ualit& is critical to self3definition Aecause a ho1ose;ual
identit& is distinct fro1 a heterose;ual identit& is an invidious classification.
ii. 8In defendin% ho1ose;ualit& Aecause of its su,,osedl& self3definitive character+
,ersonhood re,roduces the heterose;ual view of ho1ose;ualit& as a qualit& that+
li$e so1e characterolo%ical virus+ has invaded and funda1entall& altered the
nucleus of a ,ersonHs identit&.9 ),a%e !*?/
iii. 8=e 1ust reKect the ,ersonhood thesis+ then+ not Aecause the conce,t of Oself3
definitionH is anal&ticall& incoherent+ nor Aecause it is too Oindividualistic+H Aut
ulti1atel& Aecause it Aetra&s ,rivac&Hs C if not ,ersonhoodHs own C ,olitical
as,irations. #& conceivin% of the conduct that it ,ur,orts to ,rotect as Oessential
to the individualHs identif&+H ,ersonhood inadvertentl& reintroduces onto ,rivac&
anal&sis the ver& ,re1ise of the invidious uses of state ,ower it see$s to
overco1e.9 ),a%e !*./
)./ Hs Conscri,tion Theor&
a. The ri%ht of ,rivac& 8is the funda1ental freedo1 not to have oneHs life too totall&
deter1ined A& a ,ro%ressivel& 1ore nor1aliDin% state.9 ),a%e !*-/ The dan%er is a
8cree,in% totalitarianis19 that ta$es over individualHs lives. This theor& can e;,lain the
,rivac& decision ,re37ard$ic(
i. Meyer and Cierce can Ae understood as ,reventin% the state fro1 usin% the
schools to 8standardiDe9 children.
ii. 8"nti3aAortion laws ,roduce 1otherhood( the& ta$e diverse wo1en with ever&
variet& of career+ life3,lan+ and so on+ and 1a$e 1others of the1 all. P 0or a
,eriod of 1onths and quite ,ossiAl& &ears+ forced 1otherhood sha,es wo1enHs
occu,ations and ,reoccu,ations in the 1inutest detailL it creates a ,erceived
identif& for wo1en and confines the1 to itL and it %athers of a 1ulti,licit& of
a,,roaches to the ,roAle1 of Aein% a wo1an and reduces the1 all to the sin%le
nor1 of 1otherhood.9 ),a%e !**/ The state 8involuntaril& drafts9 wo1en to
re,roduce the stateHs ,o,ulace. This 1odels ,eo,le into 8instru1entalities of the
state+ rather than as citiDens with inde,endent 1inds who the1selves constitute
the state.9 ),a%e !7?/
iii. ?ris$old also ,revented standardiDation. 'enial of contrace,tion+ when aAortion
was ille%al+ was Aasicall& forced child3Aearin%. It ,ressured chastit& until
1arria%e+ which created social standardiDation.
iv. <ovin" v. 3ir"inia can Ae understood as ,rohiAitin% the state fro1 tr&in% to $ee,
8the races O,ure.H9 :isce%enation laws were state3s,onsored eu%enics+ which is
the 1ost scientific e;a1,le of the stateHs totalitarian atte1,ts at standardiDin% its
,eo,le.
v. Moore v. City o! )ast Cleveland+ in which the Court struc$ down a law li1itin%
occu,anc& in ho1es to i11ediate fa1il& 1e1Aers+ is necessar& Aecause
,reventin% ,eo,le fro1 livin% with those the& see fit has the effect of cri1,in%
cultural e;,ression and e;,osure.
vi. The state cannot ,rohiAit ,eo,le livin% with 1achines to have those 1achines
1oved Aecause such a ,rohiAition would enaAle the state to dictate such ,eo,le
live their lives confined to hos,itals attached to 1achines.
vii. #ut the state can ,rohiAit suicide Aecause doin% so does not narrowl& define the
life a suicidal ,erson 1ust live.
viii. The state could ,rohiAit a wo1an fro1 havin% a third or fourth child Aecause the
law would not have the effect of ta$in% over the wo1anHs life the wa& orderin%
her to Aear a child would.
5*
A. aws ,rohiAitin% ho1ose;ual se; forces ,eo,le into re,roductive se;ualit&. This
,ro1otes %ender roles. 8It is this as,ect of the Aan on ho1ose;ualit& C its central role in
the 1aintenance of institutionaliDed se;ual identities and nor1aliDed re,roductive
relations C that have 1ade its affir1ative or for1ative consequences+ as well as the
reaction a%ainst these consequences+ so ,owerful a force in 1odern societ&.9 ),a%e *??/
Such laws should Ae seen as i1,er1issiAl& creatin% heterose;uals.
c. The Constitutional Aasis of the ri%ht to ,rivac& then is no one a1end1ent Aut rather the
s,irit )assu1,tions/ of the docu1ent in its entiret&. The Constitution is Aased on the
,re1ise that the %overn1ent is accountaAle to the ,eo,le. 8The ver& ,ossiAilit& of
accountaAilit& to a ,eo,le ,resu,,oses that the Aodies and 1inds of the citiDenr& are not
to Ae too totall& conditioned A& the state that the citiDenr& is 1eant to Ae %overnin%. I0
the& were+ self3%overn1ent+ althou%h it 1i%ht continue to e;ist in for1 would in fact A&
wholl& illusor&.9 ),a%e *?5/ The ,eo,le cannot sha,e the %overn1ent if the %overn1ent
is sha,in% the1. Thus an& state atte1,ts at standardiDation or forcin% the ,eo,le into one
1odel is anathe1a to the ,re1ises on which the Constitution is Aased.
Unenu'erated Rights and the *inth A'end'ent
)1/ ItHs ille%iti1ate to have an& unenu1erated ri%hts and suAstantive due ,rocess.
a. If &ouHre a%ainst <ochner &ou have to Ae a%ainst Roe
A. If &ouHre %oin% to Ae a%ainst suAstantive due ,rocess+ then what aAout the incor,oration
of the #ill of Ri%hts to the statesG 6he strict constructionists say that is di!!erent because
the incorporated ri"hts are enu#erated ri"hts. #ut that is unsatisfactor& Aecause &ou
incor,orate throu%h a suAstantive readin% of the due ,rocess clause. The incor,oration
would have 1ade 1uch 1ore sense a%ainst the Privile%es and I11unities Clause.
c. <ou canHt i%nore the 4inth "1end1ent. This 1eans there are other unenu1erated ri%hts.
The readin% that the first * a1end1ents are e;haustive co1,letel& contradicts the 4inth
"1end1ent. So the strict constructionist who sa&s &ou canHt have unenu1erated ri%hts is
%oin% a%ainst the 4inth "1end1ent.
)./ There is a ,erfectl& le%iti1ate readin% that the constitution allows for unenu1erated ri%hts( The
4inth "1end1ent+ which %ives a ,erfectl& ,lausiAle te;tual warrant for %rantin% unenu1erated
ri%hts.
a. <ou still need a theor& of what the unenu1erated ri%hts are. <ou canHt sa& the 4inth
"1end1ent allows Kudicial enforce1ent of whatever ri%hts the& thin$ are %ood ones.
A. ( Jud%es should Ae ,re,ared to read unenu1erated ri%hts into the constitution if there is
a case to Ae 1ade that the ri%ht in question is necessar& to the whole ,roKect of
constitutional self3%overn1entIde1ocrac&. Constitutionalis1 is an effort to 1e1orialiDe
so1e co11it1ents C 0ree S,eech+ 4o Slaver&+ etc. 33 and live u, to the1 over ti1e
re%ardless of what the ,o,ular will 1i%ht Ae at an& ,articular 1o1ent. So1e of these
i1,licit co11it1ents include( Judicial Review+ the Ri%ht to Travel+ the Ri%ht of Privac&.
These ri%hts are i1,licit in the ,re1ises on which the Constitution is Aased. The
Constitution lac$s 1eanin% without the1.
i. The ri%ht of ,rivac& is crucial to ,revent totalitarian encroach1ents in our lives.
"llowin% the state to ta$e over our lives would ,revent the aAilit& of the ,eo,le
to hold the state accountaAle. The ,eo,le 1ust sha,e the stateL the& cannot do
this 1eanin%full& if the state sha,es the ,eo,le.
ii. This understandin% of the Constitutional Aasis for the Ri%ht of Privac& reconciles
the annunciation of so1e unenu1erated ri%hts with the Courts decision in
<ochner. The Ri%ht to Contract was ri%htfull& not reco%niDed in <ochner Aecause
the ri%ht to contract is not necessar& to ,reserve an anti3totalitarian state. This is
the value of the Conscri,tion )Totalitarian/ Theor& over the Personhood
57
)Personal "utono1&/ Theor&. Under the autono1& theor& <ochner and Roe
would have to have co1e out the sa1e wa&L the Conscri,tion Theor& e;,lains
wh& <ochner and Roe were correctl& decided differentl&.
Class discussion on a2ortion !as D !ide0ranging" and hard to su' u&.
36 8o%osex"!it&
%o!ers . (ard!ic/+ -!* U.S. 1*6 )17*6/ ),a%e *76/
F!cts
"n adult 1ale was cri1inall& char%ed for violatin% Eeor%iaHs sodo1& statute A& co11ittin% a consensual
se;ual act with another adult 1ale in his own ho1e. "fter the ,rosecutor elected not to ,resent this case
to the %rand Kur&+ the res,ondent Arou%ht suit in federal court challen%in% the constitutionalit& of the
statute. The district court u,held the statute+ the court of a,,eals reversed.
8o-ing
The statute was constitutional as there is no 8funda1ental ri%ht to en%a%e in ho1ose;ual sodo1&.9
Re!soning
Proscri,tions a%ainst sodo1& had 8ancient roots.9 The rational Aasis of the law C the Aeliefs of the
1aKorit& of the Eeor%ia electorate C was held to satisf& the rational Aasis require1ent as 8the law is P
constantl& Aased on notions of 1oralit&.9 )Jed sa&s this is the critical ,ara%ra,h in the o,inion C see ,a%e
*7*/. The Court distin%uished Stanle& )0irst "1end1ent ,revents conviction for ownershi, of
,orno%ra,h& in oneHs own ho1e/ A& sa&in% that Stanle& ,rotected 8conduct that would not Ae ,rotected
outside the ho1e Aut the decision was fir1l& %rounded in the 0irst "1end1ent. The ri%ht ,ressed u,on
us here has no si1ilar su,,ort in the te;t of the Constitution.9
Conc"rrence :1"rger=
"dds that conde1nation of ho1ose;ual sodo1& 8is fir1l& rooted in Judeo3Christian 1oral and ethical
standards.9 MSee awrence for 6enned&Hs re,l& QQQN
Conc"rrence :Powe=
The statute can stand+ Aut the .?3&ear ,rison sentence it allows 1i%ht ,resent Ei%hth "1end1ent issues.
+issent :1!c?%"n$ with 1renn!n$ 9!rsh!$ !n- Ste3ens=
This case is aAout the 81ost co1,rehensive of ri%hts C the ri%ht to Ae let aloneP =e ,rotect those
ri%htsPAecause the& for1 so central a ,art of a1 individualHs life.9 The Court should have loo$ed harder
at the Kustifications offered for the law.
+issent :Ste3ens=
The statuteHs 8da1nation9 a,,lies to Aoth hetero3 and ho1ose;ual relations. The statute did not ,rovide
an e;e1,tion for 1arried cou,les. 5owever+ 1arried cou,les do have a ri%ht to ,rivac& under Eriswold.
Since the law cannot Ae enforced as written+ the state 1ust a,,l& the statute selectivel&. The ra1ifications
of such a ,olic& are insu,,ortaAle.
La!rence . Te;as+ 527 U.S. ]] ).??2/
F!cts
Te;as ,assed a statute 1a$in% it a cri1e for two ,ersons of the sa1e se; to en%a%e in 8certain inti1ate
se;ual conduct.9 awrence was arrested+ char%ed+ and convicted after ,olice entered his ho1e and found
hi1 en%a%in% in consensual sodo1& with another 1an.
H"estions
1. 'o the convictions violate the 1-
th
"1end1entHs %uarantee of equal ,rotectionG
.. 'o the convictions violate the ,etitionersH 8vital interests in liAert& and ,rivac&9 as ,rotected A&
the 1-
th
"1end1entHs %uarantee of due ,rocessG
2. Should #owers v. 5ardwic$ Ae overruledG
6?
8o-ings
1/ 4ot addressed. ./ <es. 2/ <es.
Re!soning :Ienne-& L=
The Court traces the histor& of due ,rocess cases fro1 Eriswold u, until #owers+ and finds that the
suAstantive due ,rocess liAert& ri%hts were e;,andin%. The #owers Court 81isa,,rehended9 the liAert&
clai1 Aefore it when it tal$ed aAout a 8funda1ental ri%ht to en%a%e in ho1ose;ual sodo1&9 C the real
clai1 is one of control over a ,ersonal relationshi,. i$ewise+ #owers )s,ecificall&+ #ur%erHs
concurrence/ 1isread le%al histor& when it su%%ested that there is a histor& of laws ,unishin% ho1ose;ual
sodo1&. The histor& is 1ore co1,le; and 1i;ed than #owers su%%ests+ and so1e authorities )includin%
the #ritish Parlia1ent and the EC5R/ ,oint 8in the o,,osite direction.9 )See also Case& and Ro1er/.
#owers 8de1eans the lives of ho1ose;ual ,ersons9 and i1,oses a non3trivial sti%1a on the1. The force
of stare decisis that %uided us in Case& is not a,,licaAle here+ Aecause there has Aeen no reliance on the
decision. #owers is hereA& overruled. The Court instead ado,ts StevensH 'o$ers dissent )see ,a%e 11!/+
reco%niDin% that due ,rocess ,rotects this 8conduct.9
Conc"rrence :OFConnor=
=ould have u,held #owers+ and struc$ down the statute on equal ,rotection %rounds. 8:oral disa,,roval
of a %rou, cannot Ae a le%iti1ate %overn1ental interest under the Equal Protection Clause Aecause le%al
classifications 1ust not Ae Odrawn for the ,ur,ose of disadvanta%in% the %rou, Aurdened A& law.H9
+issent :Sc!i!$ with Rehn("ist !n- Tho%!s=
The 1aKorit& i%nores Case&Hs ri%htful su,,ort of stare decisis+ and overrules #owers while down,la&in%
the fact that under the CourtHs reasonin% Roe should also Ae overruled. 5o1ose;ualit& is totall&
indistin%uishaAle fro1 other 81orals9 offenses+ which is wh& #owers reKected a rational Aasis challen%e.
:oreover+ it is totall& Ae&ond question that ho1ose;ual sodo1& is not a funda1ental ri%ht.
+issent :Tho%!s=
The law Aefore the Court is 8unco11onl& sill&+9 and I would vote a%ainst it if I were a le%islator+ Aut the
law is not on the side of the ,etitioners.
Notes
=h& arenHt these decided as equal ,rotection casesG Perha,s Aecause the Justice are war& of
reco%niDin% ho1ose;uals as a sus,ect class.
This decision is re1iniscent in so1e wa&s of Ro1er )another dooD& of 6enned& o,inion/+ which
was concerned with the intent Aehind the law.
4otice that the CourtHs lan%ua%e tries to su%%est that it does not 1ean to ,rotect ho1ose;ual
1arria%e )Su,,. Pa%e 11!/.
It loo$s li$e the awrence court is not Aein% radical and liAertariansL it loo$s li$e in the Done o!
inti#ate relationships the state canHt re%ulate 1oralit&. In that sense it would not Ae a reversal of
that 81oralit&9 ,ara%ra,h of #owers.
*6 Other Appic!tions
,oore . Cit3 of East Cleeland -21 U.S. -7- )17!!/ ),a%e **2/
F!cts
",,ellant lived with her son and her two %randsons+ one of who1 was the her sonHs ne,hew. Under a cit&
ordinance+ the sonHs ne,hew could not live in the house Aecause he was not 8sufficientl& related9 to his
uncle and cousin under the ordinanceHs definition of 8fa1il&.9
8o-ing
The Court invalidated the ordinance on 1-
th
"1end1ent 'ue Process %rounds.
Re!soning
Court said that the %overn1ent can re%ulate fa1ilies in order to ,revent overcrowdin%+ 1ini1iDin% traffic
con%estion+ and avoidin% an undue financial Aurden on school s&ste1+ Aut that the ordinance in question
61
fails the 1eansIends test. 8",,ro,riate li1its on suAstantive due ,rocess co1e Mfro1N careful res,ect for
the teachin%s of histor& MandN solid reco%nition of the Aasic values that underlie our societ& P >ur
decisions estaAlish that the Constitution ,rotects the sanctity o! !a#ily ,recisel& Aecause the institution of
fa1il& is dee,l& rooted in the 4ationHs histor& and tradition.9 Mitalics addedN
Conc"rrence :Ste3ens=
Stevens su,,orted CourtHs result Aut li$ened the situation to a ta$in% of ,ro,ert& without due ,rocess and
without co1,ensation.
Ea2loc/i . Redhail -2- U.S. 2!- )17!*/ ),a%e **!/
The Court invalidated on eAual protection "rounds a =isconsin statute that said ,eo,le with child su,,ort
oAli%ations could not 1arr& without a Kudicial deter1ination that the su,,ort oAli%ation would Ae 1et and
the children would not Aeco1e wards of the state. The Court found that the state statute interfered directl&
with the ri"ht to #arry and further1ore the state had other #eans A& which to insure the fulfill1ent of
su,,ort oAli%ations.
%oddie . Connecticut -?1 U.S. 2!1 )17!1/ ),a%e !!!/
F!cts
"n& individual see$in% divorce in CT was required to ,a& court fees and costs of a,,ro;. W6?.
8o-ing
The Court invalidated the fee require1ent as it a,,lied to indi%ents+ on due process "rounds.
Re!soning
The state require1ent which denied the1 access to its courts if the individuals could not ,a& the fees was
the 8equivalent of den&in% the1 an o,,ortunit& to Ae heard u,on their clai1ed ri%ht to a dissolution of
1arria%e and in the aAsence of a sufficient countervailin% MKustificationN+ a denial of due ,rocess.9 The
Court e1,hasiDed that 8we do not decide that access for all individuals to the courts is a ri%ht that is+ in
all circu1stances+ %uaranteed A& the 'ue Process Clause MAut onl& thatN %iven the Aasic ,osition of the
1arria%e relationshi, in this societ& P due ,rocess does ,rohiAit the Mstate require1entN.
Conc"rrence :+o"g!s=
This case is distin%uishaAle fro1 ?ri!!in )findin% a due ,rocess violation in re%ard to the costs of a
cri1inal ,rosecution/+ Aecause it is a civil 1atter.
Ro2erts . Ja3cees )17*-/
F!cts
Ja&cees is a non3,rofit sin%le3se; 1e1Aershi, cor,oration. The :innesota 'e,art1ent of 5u1an Ri%hts
found that the Ja&ceesH e;clusion of wo1en violated the :innesota 5u1an Ri%hts "ct+ which ,rohiAited
discri1ination on the Aasis of se;.
8o-ing
The Court held that the :innesota 5u1an Ri%hts "ct did not violate the first a1end1ent ri%ht of
association.
Re!soning
0reedo1 of association has two facets( one concerned with the e;ercise of first a1end1ent ri%hts+ and the
other concerned with 8inti1ate hu1an relationshi,s.9 The latter include thin%s li$e 1arria%e+ childAirth+
the raisin% and education of children+ and cohaAitation with oneHs relatives. These 8inti1ate hu1an
relationshi,s9 1erit 8a suAstantial 1easure of sanctuar&.9 The Ja&cees+ however+ are oAviousl& en%a%in%
in the first $ind of free association.
The "ct was not ai1ed at the su,,ression of s,eech and it did not discri1inate in re%ards to view,oint.
The Court also found that the Ja&cees had failed to show that the "ct i1,osed 8serious Aurdens9 on the
1ale 1e1AersH e;,ressive association. The "ct required no chan%e in the Ja&ceesH 1ission and the
inclusion of wo1en would not necessaril& conflict with the views of the or%aniDation.
MSee the freedo1 of association stuff Aelow QQQ for 1ore on the CourtHs first a1end1ent holdin%N
6.
Washington . >luc/s2erg 5.1 U.S. !?! )177!/ ),a%e 711/
F!cts !n- 8o-ing
=ashin%ton state ,rohiAition a%ainst 8causMin%N or aidMin%N9 a suicide does 4>T violate the 1-th
"1end1ent.
Re!soning
>ld "n%lo3"1erican co11on law tradition holds suicide as a cri1e. "lthou%h this view,oint is not full
e1Araced in 1odern ti1es+ it has Aeen in no wa& su,erseded A& the Aelief that assisted suicide is a
funda1ental liAert&. Rather+ the issue is still Aein% discussed in the ,uAlic foru1 )see >R and C"/. #&
e;tendin% constitutional ,rotection to an asserted ri%ht the Court ,laces the 1atter outside the arena of
,uAlic deAate. So the Court resists doin% so.
'ue ,rocess anal&sis has . features(
)1/ Protects ri%hts Odee,l& rooted in the 4ationHs histor& and traditionH such that Oneither
liAert& nor Kustice would e;ist if the& were sacrificed.H )quotin% Cal(o v. Connecticut/
)./ SuAstantive due ,rocess cases require a Ocareful descri,tionH of the asserted
funda1ental interest.
Constitution also requires that the Aan Ae rationally related to le%iti1ate %overn1ent interests. Court sa&s
the state has a le%iti1ate interest in(
". Preservation of all hu1an life
#. Protectin% the ethics of the 1edical industr&
C. Protectin% vulneraAle %rou,s )elderl&+ ,oor/ fro1 aAuse+ ne%lect+ and 1ista$es.
'. Protectin% ill ,eo,le fro1 ,reKudice )sic$ and elderl& are less valuaAle that &oun% and
health&/.
E. :i%ht also want to ,rotect a%ainst the encoura%e1ent of involuntar& euthanasia )the
8sli,,er& slo,e9 ar%u1ent/.
=ashin%tonHs Aan on assisted suicide is 8at least reasonaAl& related9 to these interests+ so the Court
u,held the statute.
In its final Ait of dicta+ the Court sa&s that its holdin% allows for discussion on the suAKect to continue as it
should in a 8de1ocratic societ&.9 The case was re1anded for further ,roceedin%s consistent with the
CourtHs findin%s.
Tro;el . >ranille 1.? S. Ct. .?5- ).???/ ),a%e *7./
F!cts
" =ashin%ton statute allowed an& ,erson to ,etition the Court for visitation ri%hts at an& ti1e and
authoriDed the Court to %rant visitation ri%hts whenever 8visitation 1a& serve the Aest interest of the
child.9 The Tro;els had ,etitioned a court for the ri%ht to visit their %randchildren. The childrenHs 1other
sou%ht a li1itation on the visitation ri%hts. The court overrode the 1otherHs wishes and ordered
si%nificantl& 1ore visitation than the 1other wanted.
8o-ing
The Court held )on suAstantive due ,rocess %rounds/ that the statute was unconstitutional as a,,lied.
Re!soning
Reaffir1in% :e&er and Pierce+ the Court su%%ested that the 'ue Process Clause has a suAstantive
co1,onent enco1,assin% Othe funda1ental ri%ht of ,arents to 1a$e decisions concernin% the care+
custod&+ and control of their children.H #ecause the law was so Aroad+ the Court found that it i1,in%ed
u,on this ri%ht. There was no evidence that the 1other was unfit C nor did she tr& to cut off visitation
62
entirel&. The lower courts had disre%arded these facts and 8contravened the traditional ,resu1,tion that a
fit ,arent will act in the interest of his or her child.9
+issents included(
Stevens( ChildHs interest 1a& Ae 1ore than Kust ,rotection fro1 serious har1.
Scalia( Ri%ht of ,arents Y unenu1erated ri%ht that is not ,rotected A& the Constitution
6enned&( Conventional nuclear fa1il& should not Ae the default standard for ever& do1estic
relations case.
Notes
Jed( ots of state re%ulation of the ,arent3child relationshi,. The State tells ,arents what to do all
the ti1e. :andator& schoolin% )es,. wIo o,tions of ho1e schoolin% or ,rivate institutions/
deter1ines childHs activities for 63* hours a da&. If we didnHt have state action doctrine+ 7?V of
US fa1ilies would Ae unconstitutional thru the EstaAlish1ent Clause when the& tau%ht their
children aAout reli%ion.
17
)#randon 0ail/
3E. 5nenu#erated Ri"hts B Modern *evelop#ents
6-
16 The Right to Tr!3e
C# !*13*6 ),hapiro+ ,aenD/
Sha,iro v. Tho1,son+ 1767. C# !*1.
Two st!tes !n- +C h!- p!sse- !ws -en&ing we0!re to resi-ents who h!- not resi-e- within
their 4"ris-ictions 0or !t e!st one &e!r6 The Co"rt 0o"n- this "nconstit"tion!6
#rennan+ for the 1aKorit&(
^ The effect of these laws is to create two classes of need& residents+ otherwise indistin%uishaAle+
and to den& equal ,rotection of the laws to one of the classes. The states ,ro,ose several interests
that the& clai1 Kustif& this discri1ination+ Aut the Court sa&s these ,ur,oses are either
unconstitutional or not 8co1,ellin% state interests9 sufficient to Kustif& denial of equal ,rotection.
^ )1/ 'eterrin% the indi%ent fro1 enterin% a state is not a constitutionall& ,er1issiAle %oal+
Aecause the Court 8lon% a%o reco%niDed9 that the ri%ht of travel+ thou%h unenu1erated+ was
ele1ental to the constitution.
^ )./ i$ewise+ it is also i1,er1issiAle to tr& to $ee, out those who are tr&in% to enter a state onl&
to oAtain welfare Aenefits.
^ )2/ It is i1,er1issiAle to distin%uish Aetween new and old residents on the Aasis of the
contriAution the& have 1ade to the state throu%h ta;es.
^ It is ,er1issiAle to tr& to li1it state e;,enditures+ Aut not A& usin% an invidious classification.
^ 0inall&+ the Court dis1isses a nu1Aer of Kustifications for the 8waitin% li1it+9 li$e its
ad1inistrative convenience+ its use in encoura%in% e1,lo&1ent+ etc.
Justice 5arlan+ in dissent+ writes that it is not equal ,rotection that is at sta$e here+ Aut due
,rocess+ since it is a funda1ental ri%ht that is Aein% hindered+ not the wa& it is Aein% done that is
i1,ortant. Usin% Aalancin%3test anal&sis+ he concludes that the laws )8clothed with the authorit&
of Con%ress9 since a 'C law is involved/ should Ae held constitutional.
SaenD v. Roe+ 1777. C# !*6.
C!i0orni! h!- !%en-e- its we0!re progr!% to pro3i-e we0!re @ene0its to new resi-ents
0or their 0irst &e!r o0 resi-ence to the @ene0its the& wo"- h!3e recei3e- in their origin!
ho%e st!te6 The Co"rt he- th!t the ch!nge 3io!te- the pri3ieges !n- i%%"nities c!"se o0
the )*
th
A%en-%ent6
This case is the 1odern3da& reaffir1ation of ,hapiro. The Court Ae%an its anal&sis A& listin% 2
co1,onents of the ri%ht to travel(
)1/ the ri%ht to enter and leave another state+ for which there is no te;tual Aasis+
)./ the ri%ht to Ae treated as 8a welco1e visitor rather than an unfriendl& alien when
te1,oraril& ,resent+9 a ri%ht it rooted in "rt. I@ Z .+
)2/ and 8for those travelers who elect to Aeco1e ,er1anent residents+ the ri%ht to Ae
treated li$e other citiDens of that state. This was the ri%ht at issue in ,aenD+ and the
Court adhered to ,hapiro.
The Court wrote that the citiDenshi, clause of the 1-
th
a1end1ent does not allow for -5
suAclasses of citiDens )the _ of other states when ,hapiro was written/.
California ar%ued that Con%ressHs a,,roval had Aeen %ranted+ Aecause the Secretar& of
55S and Con%ress itself had a,,roved the 1easure. #ut accordin% to the Court con%ress cannot
authoriDe a state to violate the 0ourteenth "1end1ent.
65
Rehnquist and Tho1as dissented. Rehnquist wrote that an&one who has finished his Kourne& is
no lon%er travelin%. Tho1as wrote that ,rivile%es and i11unities referred to funda1ental ri%hts+
rather than ever& ,uAlic Aenefit a state decides to 1a$e availaAle.
C# !*!371 )4ote 132)c//
^ 4ote 1 offers different KusticesH views at different ti1es on the difference Aetween findin% a
state ,ur,ose 8constitutionall& i1,er1issiAle9 and findin% it ,er1issiAle Aut insufficient to satisf&
a 8co1,ellin%9 interest standard. In Jobel v. Willia#s )17*./+ the court invalidated an "las$a
statute which had distriAuted the inco1e derived fro1 natural resources de,endin% on len%th of
residence. The 1aKorit& wrote that rewardin% ,ast contriAutions was an ille%iti1ate ,ur,ose.
>HConnorHs concurrence wrote that it was a le%it ,ur,ose Aut not sufficient when 8tested9 a%ainst
the 8stren%th9 of the constitutional ,ur,ose of creatin% a union rather than a federation of states.
#rennan wrote in re,l& in his concurrence that an& sche1e of classification Aased on duration of
residence created classes of residents in which 8so1e citiDens are 1ore equal than others+9 a
,re1ise reKected in the equal ,rotection clause.
^ 4ote . ,oints out the fallac& that the e;ercise of a constitutional ri%ht is Aein% penaliDed in these
lawsRsince those conte1,latin% travel to another state are 1ade no worse off than the& would Ae
with res,ect to welfare Aenefits if the& never 1oved at all.
^ 4ote 2 ,oints to a case in which a Tennessee law i1,osin% a one3&ear waitin% ,eriod for votin%
was challen%ed and found unconstitutional. T4 had ar%ued that+ unli$e in the welfare cases+ this
require1ent did not actually deter travel. The Court res,onded that what was at sta$e there was
to an& findin%s that travel )a funda1ental ri%ht/ was ever deterred+ Aut that a law ,enaliDed the
e;ercise of that funda1ental ri%ht. It didnHt 1atter what the result of i1,osin% those ,enalties
was.
C6 ;Positi3e< Rights # 9ini%"% Entite%ents
C# !!.3!- )?ri!!!in+ *ou"las/
Eriffin v. Illinois+ 1756. C# !!..
A st!te %"st 0"rnish !n in-igent cri%in! -e0en-!nt with ! 0ree tri! tr!nscript i0 s"ch !
tr!nscript is necess!r& 0or !-e("!te !n- e00ecti3e !ppe!te re3iew o0 his con3iction6
^ Even thou%h states are not required to ,rovide a,,ellate review in cri1inal cases+ those that do
)all states at the ti1e of the o,inion/ 1a& not do so in a wa& that discri1inates a%ainst so1e
convicted defendants on the %rounds of ,overt&. 8There can Ae no equal Kustice where the $ind of
trial a 1an %ets de,ends on the a1ount of 1one& he has.9 In the o,inion+ i1,ortantl&+ Aoth equal
,rotection and due ,rocess are evo$ed.
'ou%las v. C"+ 1762. C# !!2.
A CA !w w!s ch!enge- th!t re("ire- st!te !ppe!te co"rts$ on the re("est @& ! poor
-e0en-!nt 0or co"nse on !ppe!$ to go thro"gh the recor- !n- !ppoint co"nse on& when it
wo"- @e %e!ning0" or hep0" to the Co"rt6 The co"rt 0o"n- the r"e "nconstit"tion!6
This case relied on ?ri!!in and e;tended its reasonin%+ sa&in% that the denial of counsel on a,,eal
to an indi%ent would at least as invidious a discri1ination as the that conde1ned in ?ri!!in.
These were cases of a,,eal as of ri%ht
C# !!53!6 )note - C Ross/
In Ross v. :offit+ 17!-+ the Court defined the li1it of ?ri!!in and *ou"las. It wrote that the
constitution does not require states to ,rovide counsel for indi%ent defendants when state a,,eal
66
was discretionar& or when a,,eal was to the U.S. Su,re1e Court. 4either due ,rocess not equal
,rotection+ Aoth at issue in 'ou%las+ required it.
C# !7.375 )*andrid"e and 4ote/
'andrid%e v. =illia1s+ 17!?. C# !7..
The co"rt "phe- ! pro3ision o0 9!r&!n-Fs AF+C progr!% th!t gr!nte- %ost 0!%iies
their co%p"test!n-!r- o0 nee- @"t c!ppe- %onth& gr!nts !t M2,0 reg!r-ess o0 0!%i&
siAe or nee-6
In the area of econo1ics and social welfare+ where Aill3of3ri%hts %uarantees are not affected+ the
court is not %oin% to stri$e down laws si1,l& Aecause the& are unwise or out of har1on& with a
,articular school of thou%ht+ as it did in =illia1son v. ee >,tical. " state does not violate the
equal ,rotection clause Aecause classifications are i1,erfect. =hen the stateHs action is
rationall&3Aased and free fro1 invidious discri1ination+ it is fine.
The note e;,lains that since 'andrid%e+ rational Aasis has %enerall& Aeen the standard of review
in welfare cases. In 5.,. *ept o! 8"riculture v. Moreno+ the Court defined the li1its of
'andrid%e. In that case+ it declared unconstitutional a ,rovision of the 0ood Sta1, "ct e;cludin%
fro1 ,artici,ation an& household containin% an individual who is unrelated to an& other
household 1e1Aer. Thou%h the %ovtHs ,ur,ose was to cut down on fraud+ the court found that
there was no rational Aasis+ since the real effect of the law was not to cut down on fraud Aut to
leave without food those fa1ilies who could not afford to live as the law wished the1 to.
C# !753*?. ),an 8ntonio/
San "ntonio Inde,. School 'istrict v. Rodri%ueD+ 17!2. C# !75.
The !ws"it ch!enge- TNFs "se o0 oc!&B0in!nce- schoo -istricts on the gro"n-s th!t it
pro-"ce- s"@st!nti! inter-istrict -isp!rities in perBp"pi spen-ing6 A 0e-er! -istrict co"rt$
!pp&ing strict scr"tin&$ 0o"n- th!t the sche%e 3io!te- e("! protection6 The S"pre%e
Co"rt re3erse-6
Powell delivered the 1aKorit& o,inion. 0irst+ it as$ed whether the law disadvanta%ed a sus,ect
class+ or whether a funda1ental ri%ht was at sta$e. If so+ it would a,,l& strict scrutin&L if not+ it
would a,,l& a rational3Aasis test.
^ The law did not disadvanta%e a sus,ect class. Eriffin and 'ou%las were i1,ro,er wealth
classifications Aecause )1/ in those cases+ ,overt& rendered the ,oor co1,letel& unaAle to ,a&L
and )./ as a result+ the& were unaAle to enKo& a the Aenefit. 4either is true in school district cases.
0irst+ the ,oor are not sin%led out+ and 1an& are Aetter off since the& live in industrial hi%h3ta;
districts. Second+ there is no aAsolute de,rivation.
^ Education is not a funda1ental ri%ht. Thou%h it is i1,ortant )see 'ro$n) that does not 1ean it
evo$es equal ,rotection.
^ Therefore the court a,,lies rational Aasis+ and does not want to set te;asHs education ,olic& for
the ,eo,le of TJ. It u,holds the s&ste1.
333333
C"SS 4>TES >4 T5E RIE5T T> TR"@E "4' P>SITI@E RIE5TS(
M4otes fro1 this section are relativel& short Aecause quic$l& covered these cases and returned
to the aAortion issue.N
6!
Unenu1erated ri%ht of travel has Aeen there for a lon% ti1e. Should a state Ae aAle to wall itself
offG >ne route to findin% a ri%ht of travel co1es fro1 its funda1entalit& and another co1es fro1
the U.S. Aein% a union.
=hat aAout entitle1entsG 'andrid%e shuts down EP3st&le hei%htened scrutin& review of welfare
lawsR3since there is no funda1ental ri%ht to welfare.
=hat aAout cri1inal ,rocedure cases li$e Eriffin and 'ou%lasG
,. !!2( Eriffin v. Ill( there can Ae no equal Kustice where the $ind of trial a 1an %ets de,ends on
how 1uch 1one& he has. That has nothin% to do with "1erican law.
Could &ou have a constitutional re%i1e that equaliDed thin%sG <es+ &ou could ca, law&ersH fees
and ,rovide law&ers. =e donHt have that+ instead we have 1ini1u1 require1ents. The&Hre
funda1ental ,rocedural fairness cases+ not equalit& cases. ThereHs not 1uch funda1ental ri%ht
here+ itHs aAout fairness+ not unenu1erated ri%hts.
San "ntonio( the court does not rule out that it would hold that a state education s&ste1 was
unconstitutional if it did not satisf& 1ini1u1 educational require1ents. #ut it refuses to a,,l&
hei%htened scrutin& Aecause ed is not a funda1ental ri%ht.
3EE. 6he 0reedo# o! ,peech
A6 Intro-"ction/ speech !n- con-"ct
C# 12?.3?! )=F'rien/
U.S. v. >H#rien+ 176*. C# 12?..
This is the -r!0tBc!r- @"rning c!se6 The co"rt he- constit"tion! the !w @!nning the
@"rning o0 -r!0t c!r-s6
^ 4oAod& ar%ues that the law is ,er1issiAle on its face. It no 1ore aArid%es freedo1 of s,eech on
its face than a law ,rohiAitin% the destruction of a driverHs license+ or a ta; law ,rohiAitin% the
Aurnin% of records.
^ >H#rien ar%ued it was unconstitutional )1/ in its a,,lication to hi1+ and )./ Aecause con%ressHs
,ur,ose was to su,,ress freedo1 of s,eech.
^ "nal&sis of )1/ its a,,lication to >H#rien( <ou canHt Kust laAel &our conduct s,eech and have it
Ae e;e1,t fro1 li1its. Even if >H#rien was atte1,tin% to e;,ress hi1self A& Aurnin% his draft
card+ the court 1ust still as$ the followin% four questions )the OF1rien test/ aAout the law(
)6 is it within the constit"tion! power o0 the Do3ern%ent2
26 -oes it 0"rther !n i%port!nt or s"@st!nti! go3ern%ent! interest2
36 is the go3ern%ent! interest "nre!te- to 0ree-o% o0 expression2
*6 !n- is the inci-ent! restriction on 0ree-o% o0 expression no gre!ter th!n is
necess!r& to !chie3e the o@4ecti3e2
Under this test+ the Court finds the law o$.
^ "nal&sis of )./ con%ressHs ,ur,ose( the Court will not underta$e to e;a1ine the ,ur,ose of
Con%ress. 8it is a fa1iliar ,rinci,le of constitutional law that this Court will not stri$e down an
otherwise constitutional statute on the Aasis of an alle%ed illicit le%islative 1otive.9
C# 121?31. )notes 63!/
6*
4ote 6 ,oints to the difference Aetween direct and incidental restrictions on s,eech. "t issue in
=F'rien were incidental restrictionsRrestrictions in which s,eech is not itself tar%eted Aut one
incident of ,ur,orted s,eech is 1ade ille%al as a result of the law. The Court has rarel& found
incidental restrictions unconstitutional+ thou%h a notaAle e;ce,tion was 288CC v. 8laba#a, in
which the court found unconstitutional the require1ent that out3of3state cor,orations doin%
Ausiness in " had to suA1it 1e1Aershi, lists. That was a case in which the effect on s,eech
would Ae suAstantial.
4ote ! ,oints to several cases in which the court has sin%led out e;ecutive and ad1inistrative
1otives+ Aut it e;,lains that %enerall& the court has Aeen reluctant to inquire into the ,ur,oses
Aehind le%islation. There are 2 1ain e;,lanations( the difficult& of ascertainin% the 8actual9
1otives of a le%islative Aod&L the futilit& of invalidatin% a law that could Ae reenacted with
ostensiAl& wiser 1otivesL and the ina,,ro,riateness of i1,u%nin% the inte%rit& of a coordinate
Aranch.
C# 121-31! )notes -35/
4ote - refers to TJ v. Johnson+ the fla%3Aurnin% case+ in which the Court found a law Aannin%
fla%3Aurnin% unconstitutional. In that case+ the Court wrote that the >H#rien standard ,er1itted
the Aannin% of e;,ressive conduct so lon% as the %overn1ental interest was unrelated to the
su,,ression of free e;,ression. The stateHs interest in ,rotectin% the fla% is in ,rotectin% its
1eanin%L and KohnsonHs Aurnin% of the fla% could onl& affect that 1eanin% if it were intended to
co11unicateL so a Aan on his Aurnin% the fla% is necessaril& content3Aased. The dissent
hi%hli%hted that Johnson could have chosen other 1eans of e;,ression of the sa1e idea.
4ote 5( after that case+ Con%ress ,assed the 0la% Protection "ct of 17*7. thou%h that act 1ade
ille%al all desecration of fla%s+ whether in ,uAlic or ,rivate+ co11unicative or not+ it was still
unconstitutional )53-/ Aecause the %overn1entHs interest was still related to the su,,ression of
free e;,ression. The %overn1entHs interest was related to ,rotectin% the fla%Hs status as a s&1Aol.
:ere ,rivate destruction could not da1a%e the s&1Aolis1 in an& wa&. This was a ,ur,osivist
inter,retationRthe ,oint was that the law was intended to affect e;,ression.
C# 12.?3.. )City o! )rie/
Cit& of Erie v. Pa,Hs ".:.+ .???. C# 12.?
Erie$ PA$ en!cte- !n or-in!nce @!nning p"@ic n"-it&6 The st!te- p"rpose w!s to respon-
to the incre!se in i3e n"-e entert!in%ent$ which !-3erse& i%p!cts the p"@ic he!th$ s!0et&
!n- we0!re @& cre!ting !n en3iron%ent con-"ci3e to 3ioence$ h!r!ss%ent$ p"@ic
intoxic!tion$ prostit"tion$ the spre!- o0 ST+s$ etcL6The or-in!nce w!s ch!enge- @& the
owner o0 I!n-&!n-6 The Co"rt "phe- the or-in!nce6
>HConnor delivered the ,luralit& decision. She wrote that the ordinance in Erie was one ai1ed at
the har1ful secondar& effects of e;,ressive activit&. Secondar& effects anal&sis+ while not
doctrinall& identical to 8incidental Aurdens9 anal&sis as in >H#rien+ should receive the sa1e
treat1ent. The %overn1ent can Aan ,uAlic nudit&+ even when such a Aan ,laces incidental
Aurdens on so1e ,rotected s,eech. The reason for the law is that one occurrence of nudit&
,roduces har1ful secondar& effects.
#ecause ErieHs ,ur,ose was unrelated to the erotic 1essa%e+ the law was o$. )>HConnor also
notes that an& effects on erotic e;,ression were de #ini#is Aecause the dancers were still free to
wear ,asties and E3Strin%s/.
67
In dissent+ Stevens and EinsAur% ,oint out that the ,luralit& conflate incidental Aurdens+ in which
s,eech is not tar%eted+ and secondar& effects+ in which s,eech is directl& tar%eted Aecause of its
effects. The& Aelieve the ,ur,ose of the law is to li1it a ,rotected for1 of s,eech Aecause of its
effects+ and when the har1s of s,eech are whatHs at sta$e+ the& would tr& to circu1scriAe Aut not
Aan it alto%ether+ throu%h+ e.%.+ Donin%.
C# 126?361 )notes .32/
4ote .( In W3 ,tate 'd. =! )d. v. 'arnette+ the Court held unconstitutional a law requirin% all
,uAlic school children to salute and ,led%e alle%iance to the fla%. The ,ur,ose of the #ill of
ri%hts was to $ee, individuals free fro1 officialsH ,rescri,tions of what would Ae orthodo; in
,olitics+ nationalis1+ reli%ion+ etc.
4ote 2( in Wooley v. Maynard+ the court held that 45 could not cri1inall& ,unish individuals
who covered u, the state 1otto+ 8live free or die+9 on their license ,lates. The Court held the law
to a co1,ellin% interest standard. The stateHs interest in identif&in% vehicles could Ae 1et A& less
drastic 1eansL and the stateHs interest in a,,reciatin% histor&+ individualis1 and state ,ride were
not ideolo%icall& neutral. " stateHs interest in advancin% a view,oint cannot outwei%h a 0irst
"1end1ent ri%ht. Rehnquist disa%reed+ sa&in% ,eo,le were still free to ,lace Au1,er stic$ers
statin% their disa%ree1ent.
16 +!ngero"s speech
C# 77237* )Section " throu%h note 6/
These notes e;,lain the evolution of freedo1 of e;,ression. In En%lish societ&+ that freedo1
evolved slowl&+ fro1 a ti1e when the $in% had to license all ,uAlication and ,unished with death
those with o,,osin% views to a ti1e when that had %one out of fashion. In the colonies+
1eanwhile+ thou%h there was diversit& of o,inion earl& on+ each colon& or s1aller societ& was
intolerant and ea%er to ,unish those with outsidersH views. It is unclear e;actl& what the fra1ers
intended to ,reserve and ,revent when enactin% the first a1end1ent.
C# 1??63?7 ),ha!!er+ Masses/
Shaffer v. U.S.+ 7
th
Cir 1717. C# 1??6.
Sh!00er p"@ishe- ! no3e which oppose- entr& into WWI$ !n- which 3io!te- the espion!ge
Act @ec!"se it wo"- s"ppose-& e!- to o@str"ction o0 the enist%ent !n- -r!0t process6 8e
w!s con3icte-$ !n- the Ninth Circ"it "phe-. The court wrote that the intent and effect of his
writin% was to ,revent enlist1ent+ which con%ress had Aanned.
:asses PuAlishin% Co. v. Patten+ S'4< 171!. C# 1??!.
The post%!ster re0"se- in !-3!nce to !ow the ship%ent o0 ! %onth& re3o"tion!r&
4o"rn! on the gro"n-s th!t its res"ts wo"- pro-"ce 3io!tions o0 the !w !n- h!%per the
go3ern%ent in the con-"ct o0 w!r6 The 4o"rn! so"ght !n in4"nction to 0orce the
post%!ster not to stop the %!iing6 The co"rt gr!nte- it6 earned 5and wrote that s,eech can
onl& Ae ,revented that ur%es on others that it is their dut& or interest directl& to resist the law. the
lan%ua%e and cartoons in the ,uAlication )8the :asses9/ held u, lawArea$ers as 1art&rs and
heroes Aut did not directl& counsel an&one to Area$ the law.
C# 1?1-31! )8bra#s/
!?
"Ara1s v. U.S., 1717. C# 1?1-
Three R"ssi!n i%%igr!nts$ se0Bproc!i%e- soci!ists !n- !n!rchists$ -istri@"te- e!0ets @&
throwing the% 0ro% ! win-ow$ c!ing the A%eric!n sen-ing o0 %!rines to E!-i3osto?
-"ring ww) !n !tte%pt to cr"sh the R"ssi!n Re3o"tion6 The& were con3icte- o0 espion!ge6
The Co"rt "phe- the con3iction$ @"t >"stice 8o%es -issente-/
5ol1es clai1s that freedo1 of s,eech can onl& Ae aArid%ed when there is ,resent dan%er of
i11ediate evil or an intent to Arin% it aAout.
C# 1?..3.2 )?itlo$ )5ol1es+ J.+ with #randeis+ J.+ dissentin%//
Eitlow v. 4<, 17.5( 5ol1es and #randeis dissentin%. C# 1?...
A -e0en-!nt w!s ch!rge- with cri%in! !n!rch&$ @ec!"se he w!s ! %e%@er o0 the Le0t
Wing o0 the Soci!ist P!rt&$ which open& !n in p"@ic!tions !-3oc!te- the 3ioent
o3erthrow o0 go3ern%ent6 The %!4orit& "phe- the con3iction$ @"t 8o%es !n- 1r!n-eis
-issente-6
In the dissent 5ol1es writes that he still Aelieves+ as he wrote in the 8bra#s dissent+ that the
,resent dan%er test should rule+ and that for the sa1e reason the 1aKorit& was rulin% incorrectl&.
The 1aKorit& Aelieved the ,a1,hlets in question were not theories Aut incite1entsL Aut 5ol1es
sa&s the onl& difference Aetween a theor& and an incite1ent is the authorHs enthusias1. The real
test+ he clai1s+ should Ae the s,eechHs chance of startin% a ,resent confla%ration.
C# 1?.-3.* )Whitney/
=hitne& v. C", 142.. C# 1?.-.
Whitne& w!s ! co%%"nist who !tten-e- ! con3ention in O!?!n- where ! %iit!nt p!t0or%
w!s !-opte-6 She w!s ch!rge "n-er ! CA !ct which prohi@ite- %e%@ership in
org!niA!tions !-3oc!ting the ieg! %e!ns o0 !00ecting ch!nge in ownership or poitic!
contro6 The co"rt r"e- th!t wh!t the !ct %!-e ieg! w!s !?in to conspir!c&$ !n- "phe-
her con3iction6
#randeis concurred. 5e called it 8settled9 that free s,eech could onl& Ae restricted when it would
,roduce or was intended to ,roduce 8a clear and i11inent dan%er of so1e suAstantive evil which
the state 1a& constitutionall& see$ to ,revent.9 5e then states )at len%th/ that althou%h clear+
i11inent+ and suAstantive have not Aeen well defined A& the court+ there had Aetter Ae a real ris$
of actual+ i11ediate+ and serious dan%er in order to aArid%e free s,eech. The s,eech 1ust Ae
incite1ent+ not advocac&. =hen free s,eech ri%hts are violated+ the state 1ust show it has
%rounds. Its findin%s and the law itself were said to Ae reAuttaAle ,resu1,tions that there were
%rounds. "nd+ accordin% to #randeis+ :s. =hitne& had not ,roduced enou%h evidence in court to
overco1e this ,resu1,tion. That is wh& he concurred.
Q C# 1?-?3-. )'randebur"/
#randenAur% v. >hio+ 1767. C# 1?-?.
A III e!-er w!s con3icte- "n-er !n Ohio cri%in! s&n-ic!is% st!t"te si%i!r to the
st!t"te in Whitne36 The st!t"te %!-e it ieg! to @e ! %e%@er o0 ! gro"p th!t !-3oc!tes
3ioent %e!ns to e00ect ch!nge6 The co"rt o3err"e- its Whitne3 -ecision$ r"ing the Ohio
st!t"te "nconstit"tion!6
The court wrote that the statute failed to distin%uish Aetween advocac& and incite1ent )the latter
of which would Arin% aAout or was intended to Arin% aAout i11inent har1/+ and that a law which
Aanned aAstract advocac& intruded u,on 0irst and 1-
th
a1end1ent freedo1s. 'ou%las+ in a
concurrence+ wrote that the clear and ,resent dan%er test was the wron% standard+ and that onl&
!1
when s,eech is clearl& an 8act+9 as in shoutin% fire in a crowded theater+ should it Ae
,rosecutaAle.
C# 1?-23-- )notes 23-/
4ote 2( the court has adhered to 'randenbur" in suAsequent cases. In 7ess v. Endiana, 17!2+ the
court would not allow the conviction of a 1an who had shouted 8weHll ta$e the fuc$in% street
later.9 4or did it find that an 4""CP leaderHs threat that 8if we catch an& of &ou %oin% in an& of
the1 racist stores+ weHre %onna Area$ &our da1n nec$9 to 1eet the 'randenbur" test.
4ote - lists additional variations where the s,eech itself was not the i11ediate cause of the har1
accordin% to 'randenbur"( 7erce" v. 7ustler Ma"aDine+ a 5
th
Circuit case in which a 1-3&ear3old
Ao& was found han%in% in his closet with a co,& of 5ustler at his feet o,en to an article on
autoerotic as,h&;iationL =livia 2. v. 2'C+ a C" case in which teena%e Ao&s co,ied a ra,e the&
had seen on T@ with a 8,lu1AerHs hel,er.9
#& contrast+ in Rice v. Caladin )nterprises+ a -
th
circuit case in which a 1urderer followed the
instructions on how to co11it a 1urder fro1 a Aoo$ called 7it Man+ and the fa1il& of the victi1
sued the ,uAlisher+ the court held that 'randenbur" did not control Aecause the ,uAlisher
intended that the 1anual would Ae used A& ,eo,le atte1,tin% 1urder.
C# 1..*32? )notes 13.)d//
These notes involve ,orno%ra,h& and the victi1iDation of wo1en. The& ,resent a 1odel statute
Aannin% ,orno%ra,h& that shows wo1en in de%radin% rolesL and then three different theories are
,rovided+ each of which ar%ues that ,orno%ra,h& is dan%erous and har1ful to wo1en. The fourth
theor& ar%ues that ,orno%ra,h& does not deserve first a1end1ent ,rotection Aecause rather than
conve& ideas in rational for1+ it conditions 1en A& 1eans that A&,ass conscious deliAerationR
and therefore ,la&s no role in the search for truth.
C# 1.2?321 )note .)%/ C 7udnut/
"1erican #oo$sellers "ssn v. 5udnut+ !
th
cir 17*5. C# 1.2?.
This c!se in3o3e- !n !ntiBpornogr!ph& st!t"te in In-i!n!pois th!t -e0ine- pornogr!ph&
@& its -e%e!ning -epiction o0 wo%en !n- @!nne- it6 The Se3enth Circ"it 0o"n- th!t the
!w w!s "nconstit"tion!6 The court did not den& the har1s that could result fro1 the viewin%
of ,orno%ra,h&. #ut the Su,re1e Court+ it said+ had found so1e s,eech less worth of ,rotection
Aecause of the type o! speech and not the content o! speech. The law in question+ A& contrast+
sin%led out the use of se;uall& e;,licit s,eech to conve& a ,articular view,oint( since ,orn that
,ortra&ed wo1en in suAordinate ,ositions was Aanned Aut ,orn that ,ortra&ed wo1en in
,ositions of equalit& was lawful. This 8created an a,,roved ,oint of view9 and was therefore
thou%ht control since the %overn1ent was decidin% what ideas were correct.
C6 ContentBNe"tr!it&$ the P"@ic For"%$ !n- Ti%e$ P!ce !n- 9!nner Reg"!tions
C# 1.2532* ),chneider throu%h 9ovacs/
Schneider v. State+ 1727. C# 1.25.
Schnei-er h!- -istri@"te- e!0ets !n- w!s !rreste- "n-er ! !w th!t prohi@ite- the
-istri@"ting o0 e!0ets in ;!n& street or w!&6< The Co"rt he0 the or-in!nce in3!i-6
The court e;,lained in this earl& case that when s,eech is i1,aired A& a law+ that law 1ust Ae
fore 1ore i1,ortant ,ur,oses than laws that aArid%e other non3funda1ental ri%hts. =hen s,eech
is aArid%ed+ it falls to the courts 8to wei%h the circu1stances and to a,,raise the suAstantialit& of
!.
the reasons advanced in su,,ort of the re%ulation.9 The ,ur,ose advanced here was to ,revent
litter+ and the court dee1ed that this was not sufficient. MThe court did a Aalancin% test.N
:artin v. Cit& of Struthers+ 17-2. C# 1.26.
A >eho3!Fs Witness w!s con3icte- o0 3io!ting ! !w prohi@iting ringing -oor@es to
-istri@"te h!n-@is6 The Co"rt he- the or-in!nce in3!i-6
The court clai1ed it was 8wei%hin% the conflictin% interests9 of the ,arties at sta$e. It wrote that
the freedo1 to distriAute info of an& $ind is vital to the ,reservation to a free societ&+ and that
%oin% door to door was an i1,ortant 1eans of doin% so. #ecause the dan%ers the law tried to
sto, )nuisance and the ,ossiAilit& of cri1e/ could Ae easil& sto,,ed A& other 1eans+ the onl&
,ur,ose left was the restriction of ideas+ which is forAidden A& the constitution.
6ovacs v. Coo,er, 17-7. C# 1.26.
The co"rt "phe- ! !w th!t prohi@ite- the "se o0 ! ;so"n- tr"c?< or other o"- instr"%ent
on !n& p"@ic street6
0reedo1 of s,eech+ the court wrote+ does not require le%islators to Ae insensitive to citiDensH
clai1s of co1fort and convenience. =here there were other 1eans of s,eech availaAle
)news,a,ers+ hu1an voice+ etc/ the re%ulation was o$. The dissent ar%ued that the law favored
so1e 1eans of s,eech over others+ and this tended to favor the s,eech of those who could afford
news,a,er or radio ads+ for e;a1,le. It also ar%ued that the law could have Aeen tailored in a
,er1issiAle wa&+ A&+ e.%.+ controllin% onl& the volu1e or the hours li1ited Aut not Aannin% the
1ediu1.
C# 1.273-? )<adue+ 288CC/
Cit& of aude v. Eilleo+ 177-. C# 1.27.
The co"rt "n!ni%o"s& he- th!t ! cit& co"- not constit"tion!& prohi@it ho%eowners
0ro% -isp!&ing signs on their propert&6 At iss"e w!s ! 2*x3'< sign re!-ing ;s!& no to w!r
in the Persi!n D"0$ c! Congress now6<
The court wrote that eli1ination of an e1tire 1ediu1 has the dan%er of su,,ressin% 8too 1uch9
s,eech. The cit& ar%ued the law was 1erel& a 8ti1e+ ,lace+ or 1anner9 re%ulation+ Aut the court
re,lied that ti1e+ ,lace+ and 1anner re%ulations 1ust leave o,en a1,le alternative channels+ and
this law did not+ Aecause( dis,la&in% a si%n fro1 oneHs residence carries 1eanin% in itself.
:oreover+ this intrudes on the cherished ,rivac& of the ho1e. "nd+ the cit& could have li1ited
Aut not Aanned the use of si%ns.
4""CP v. "laAa1a+ 175*. C# 1.-?.
AL h!- ! !w re("iring o"tBo0Bst!te corpor!tions to -iscose n!%es !n- !--resses o0 oc!
%e%@ers @e0ore -oing @"siness in the st!te6 The co"rt r"e- with respect to the NAACP
th!t whie this w!s otherwise ! constit"tion! !w$ it co"- not constit"tion!& @e !ppie- to
the NAACP6
5arlan wrote for the 1aKorit& that there is a vital relationshi, Aetween freedo1 to associate and
,rivac& in oneHs association+ ,articularl& when a %rou, es,ouses dissident Aeliefs. The 4""CP
1ade a 8showin%9 that in the ,ast the revelation of identit& had led to re,risals+ loss of
e1,lo&1ent+ threats+ etc. this was sure to dissuade ,eo,le fro1 Koinin% and 1i%ht lead so1e to
withdraw 1e1Aershi,. =hatever interest the state had in its require1ent could not overco1e
that constitutional oAKection.
C# 1.?*3?7 )Renton/
Cit& of Renton v. Pla&ti1e Theatres+ 17*6. C# 1.?*.
!2
The co"rt "phe- !n or-in!nce prohi@iting !-"t %otion pict"re the!ters 0ro% oc!ting
within )$000 0eet o0 !n& resi-enti! Aone$ singeB or %"tipeB0!%i& -weing$ ch"rch$ p!r?$
or schoo6
Rehnquist+ writin% for the 1aKorit&+ wrote that there is a distinction Aetween content3Aased
restrictions )which violate the constitution ,resu1,tivel&/ and 8content3neutral ti1e+ ,lace+ and
1anner re%ulations9 which are acce,taAle so lon% as the& serve a 8suAstantial %overn1ental
interest9 and 8do not unreasonaAl& li1it alternative avenues of co11unication.9 The court
concluded that the Renton ordinance was not ai1ed at that content of the fil1s+ Aut at the
secondary e!!ects on the surroundin% co11unit& )that it is 8Kustified without re%ard to the content
of the re%ulated s,eech9/+ and that it therefore should Ae considered as a content3neutral law for
anal&sis. The court then a,,lied a relativel& lenient standard of scrutin&+ accordin% the cit&Hs
interest 8hi%h res,ect+9 and reKectin% the theaterHs clai1s )1/ that the cit& i%nored Aetter o,tions+
)./ that the law was underinclusive Aecause it didnHt include Aars+ 1assa%e ,arlors+ etc.+ and )2/
that 5V of the cit&Hs land was not sufficient alternative s,ace for the s,eech.
#rennan and :arshall dissented+ ,ointin% out that the Renton ordinance was on its face not
content3neutral. That secondar& effects 1a& ensue is relevant to assessin% the stren%th of the
cit&Hs Kustification+ Aut that should ta$e ,lace under the standard for content3Aased restrictions.
Su,,. 1!13!2 )8la#eda 'oo(s/
Cit& of " v. "la1eda #oo$s+ .??.. Su,,. 1!1.
An LA !w @!nne- %ore th!n one !-"t est!@ish%ent in the s!%e @"i-ing$ @!se- on
0in-ings th!t concentr!tions o0 !-"t entert!in%ent w!s corre!te- with cri%e6 A!%e-!
r!n ! @oo?store !n- !-"t 3i-eo !rc!-e in the s!%e @"i-ing !n- ch!enge- the !w on the
gro"n-s th!t there w!s no e3i-ence th!t co%@ining these two !cti3ities in one oc!tion
c!"ses higher cri%e r!tes6 The Co"rt "phe- the !w6
>HConnor+ Rehnquist+ Scalia and Tho1as delivered the ,luralit& o,inion. That o,inion relied on
Renton+ sa&in% that " had showed that this ordinance was desi%ned to serve a suAstantial
%overn1ental interest and that reasonaAle avenues of co11unication re1ained availaAle. The&
a%ree with 6enned& that a Donin% ordinance li$e this requires inter1ediate scrutin&+ Aut onl& if it
is a TPB: re%ulation and not a Aan.
6enned& concurred. 5e said that Renton notwithstandin%+ this ordinance was content Aased 8and
we should call it so.9 #ut so lon% as the 8,ur,ose and effect9 of the Donin% ordinance was to
reduce the secondar& effects and not the s,eech+ he was o$a& with the law. Xonin% laws do not
auto1aticall& raise strict scrutin& Aecause the Donin% conte;t ,rovides a Auilt3in le%iti1ate
rationale+ which reAuts the usual ,resu1,tion that content3Aased re%ulations are ille%iti1ate. 5e
is concerned that there Ae another ,lace for the Ausiness to %o that is forced to 1ove. If it is
forced to close+ that 1i%ht not withstand inter1ediate scrutin&.
Souter+ EinsAur%+ Stevens+ and #re&er dissented+ sa&in% that even 8content3correlated9
restrictions ai1ed at secondar& effects raise the ,ossiAilit& of censorshi, and that the cit&Hs
strate%& was ,roAaAl& to drive estaAlish1ents li$e "la1eda out of Ausiness A& forcin% the1 to
douAle overhead A& runnin% . locations+ and that there was no findin% of correlation Aetween the
co1Aination and cri1e.
C# 1.-63-* )*avis+ 7a"ue/
'avis v. :"+ 1*7!. C# 1.-6.
+!3is$ ! pre!cher$ w!s con3icte- "n-er ! cit& or-in!nce th!t 0or@!-e gi3ing ! p"@ic
!--ress on the 1oston Co%%on6 8o%es$ then ! 9A S"pre%e >"-ici! Co"rt 4"stice$
"phe- the con3iction$ !n- the U6S6 S"pre%e Co"rt e%@r!ce- his position6
!-
5ol1esHs ar%u1ent was that the law was not ai1ed at free s,eech %enerall&+ Aut at the 1odes in
which #oston Co11on 1a& Ae used. "s a re,resentative of the ,uAlic+ the le%islature 1a&
control the ,ar$ or hi%hwa&s in the sa1e wa& a ,erson could control his own ho1e. Since the
le%islature could close a ,ar$ and end its ,uAlic use+ it could also li1it ,uAlic use to certain
,ur,oses. The Su,re1e Court ado,ted the sa1e view.
C# 1.-23-- )notes 13./
4ote 1( courts have inter,reted as content3Aased laws which hin%e on 8co11unicative i1,act9R
as in laws which forAid s,eech that will cause a hostile res,onse or disturA the ,eace. The
rationale is that it is the content of the 1essa%e that tri%%ers the reaction.
4ote .( the court is Aac$in% awa& fro1 its stance in Renton that secondar&3effects laws are
content3neutral. >ne e;a1,le was 'oos v. 'arry in 177*( the court invalildated an ordinance
,rohiAitin% the dis,la& of si%ns within 5?? feet of forei%n e1Aassies if the si%ns tended to Arin%
the forei%n %overn1ent into disre,ute.
C# 1.-735. )notes 135/
8Re%ulatin% the PuAlic 0oru19
1. In 5.,. v. ?race+ 17*2+ the Court invalidated a law Aannin% si%ns ,ro1otin% ,arties+
or%aniDations or 1ove1ents in front of the Su,re1e Court. It said that the sidewal$ there
was a 8,uAlic foru19 and that the %overn1entHs aAilit& to restrict e;,ression there was
ver& li1ited. The %overn1ent can enforce TP: standards onl& if the& are content3
neutral+ are narrowl& tailored to serve a si%nificant %overn1ental interest+ and leave o,en
a1,le alternative channels of co11unication. It 1a& aAsolutel& ,rohiAit a ,articular
t&,e of e;,ression onl& if the ,rohiAition is narrowl& drawn to acco1,lish a co1,ellin%
%overn1ental interest.
.. In ?rayned v. Roc(!ord+ 17!.+ the Court u,held a law ,rohiAitin% noise that disru,ts
classroo1 learnin%+ as a,,lied to ,rotesters on the sidewal$ outside a school. The law+
the court held+ was narrowl& tailored for a co1,ellin% interestL ,unishes onl& disru,tive
conduct and %ives no license to ,unish an&one Aecause of what he sa&s.
2. In 0risby v. ,chultD+ 17**+ the Court u,held an ordinance that Aanned ,rotests that focus
on and ta$e ,lace in front of a ,articular residence. The law left o,en a1,le 1eans of
co11unication and was narrowl& tailored to serve a si%nificant %overn1ental interest.
-. In Clar( v. Co##unity !or Creative 2on13iolence+ 17*2+ the Court u,held the 4ational
,ar$ ServiceHs decision to allow a tent3cit&3st&le ,rotest in afa&ette Par$ to de1onstrate
the ,li%ht of the ho1eless Aut did not allow ,rotestors to slee, in the tents Aecause of the
Aan on ca1,in% in the ,ar$. The court assu1ed ar%uendo that slee,in% in the tent had
e;,ressive value Aut u,held the re%ulation as a reasonaAle T+P+: standard.
5. In Ward v. Roc( a"ainst Racis#+ 17*7+ the court u,held a 4<C law requirin% the use of
cit&3,rovided sound s&ste1s and technicians for concerts in Central Par$. The
Kustification was noise3related+ and avoidin% undue noise was held to Ae suAstantial. The
Court in this case ,rovided a novel definition of 8narrowl& tailored+9 thou%h. In res,onse
to the clai1 that the law was not sufficientl& narrowl& tailored Aecause it could have
1erel& li1ited volu1e levels and left entertainers to ,rovide their own s&ste1s+ the Court
re,lied that narrow tailorin% does not require that the re%ulation Ae the 8least restrictive.9
Instead+ it requires onl& that aAsent the re%ulation the suAstantial interest would Ae served
less effectivel&.
!5
C# 1.6?365 )notes 23!L E,9C=2/
These notes involve the question of what is to Ae considered a ,uAlic foru1( a 1ilitar& Aase is
not+ des,ite other ,uAlic functions ,er1itted thereL a state fair differs fro1 the street Aecause of
the state interest in traffic flow and info distriAution there and reasonaAle TP: standards can
include the require1ent of a Aooth and s,ecific location for ,a1,hletin%L a 1ailAo; is not a ,Alic
foru1RAecause there is neither historical nor constitutional su,,ort for the idea that a ,ersonHs
1ailAo; is ,uAlic ,ro,ert&L and a ,uAlic utilit& ,ole is not.
International Societ& for 6rishna Consciousness v. ee+ 177.. C# 1.62.
ISICON s"e- the Port A"thorit& o0 NO !n- N> @ec!"se it h!- @!nne- soicit!tion$ !ong
with s!es !n- p!%pheting$ within !irport ter%in!s6 The Co"rt "phe- the @!n on
soicit!tion @"t in3!i-!te- the @!n on s!e !n- -istri@"tion o0 iter!t"re6
^ Rehnquist wrote for the Court )includin% >HConnor/ that air,ort ter1inals were not ,uAlic fora+
Aecause the& did not 1eet the standard of havin% Aeen ,uAlic fora for ti1e i11e1orial+ and
Aecause their owners did not wish for the1 to Ae o,en to ,uAlic ,ur,oses.
^ 6enned& wrote for four Kustices )the 1inorit&/ that air,ort ter1inals are ,uAlic fora Aecause the
,ur,ose of ,uAlic foru1 doctrine should Ae to reco%niDe that o,en ,uAlic ,laces and
thorou%hfares which are suitaAle for discourse 1a& Ae ,uAlic fora re%ardless of their historical
,edi%ree.
^ >n solicitation+ 6enned& thus assu1ed air,orts were ,uAlic fora+ Aut still found that a Aan on
solicitation was a reasonaAle TP: restriction+ ai1ed at ,reventin% fraud and duress for travelers.
That vote Koined the votes under Rehnquist )who Aelieved air,orts were not ,uAlic to Ae%in with/
1a$in% a 1aKorit& sa&in% o$ to a Aan on solicitation.
^ >n sales and distriAution of literature+ 6enned& wrote for the sa1e four Kustices )this ti1e a
,luralit&/ that the Aan violated the first a1end1ent Aecause the sa1e ,roAle1s and nuisances did
not inhere for travelers offered ,a1,hlets or ,roducts for sale. Justice >HConnor still 1aintained
that air,orts were not ,uAic fora+ Aut a%reed with 6enned&Hs result Aecause she nevertheless
found the restriction 8unreasonaAle.9 This 1ade her the fifth vote in favor of overturnin% that
Aan.
C# 1.*63** )8r(ansas )ducational/
"r$ansas Educational Television Co11ission v. 0orAes+ 177*. C# 1.*6.
The AETC$ which r"ns TE st!tions in AL$ p!nne- ! series o0 -e@!tes !%ong 0e-er!Bo00ice
c!n-i-!tes$ @"t i%ite- the -e@!tes to c!n-i-!tes who were o0 %!4or p!rties or who h!-
recei3e- %!4or s"pport in the press or pos6 For@es w!s exc"-e- on these gro"n-s$ !n- he
c!i%e- this 3io!te- his First A%en-%ent rights6 The Co"rt re4ecte- his c!i%6
The Court )6enned&/ distin%uished Aetween a desi%nated ,uAlic foru1+ in which the %overn1ent
1a$es ,ro,ert& %enerall& availaAle to classes of ,eo,le+ and a non,uAlic foru1+ in which the
%overn1ent reserves eli%iAilit& to a ,articular class+ who 1ust then a,,l& for use. The latter was
the case with the candidate deAate. "nd+ this $ind of foru1 furthers 0irst "1end1ent interests
Aecause it encoura%es the %overn1ent to o,en its ,ro,ert& to so1e e;,ressive activit& in cases
where+ if faced with an all3or3nothin% choice+ it 1i%ht not o,en the ,ro,ert& at all. The li1it on
candidates who had received a,,reciaAle ,uAlic su,,ort was constitutional Aecause it was not
Aased on the s,ea$erHs view,oint and was reasonaAle in li%ht of the ,ur,ose of the ,ro,ert&. In
another ,art of the o,inion+ 6enned& noted that+ in ,ro%ra11in% other than deAates+ ,uAlic
television stations were not ,uAlic fora or non,uAlic foraRthe& were 8not a foru1 at all+9 which
!6
1eant that da&3to3da& ,ro%ra11in% need not Ae suAKected to editorial control to avoid view,oint
discri1ination.
+6 Unprotecte- Speech
)6 O3er3iew !n- Li@e
C# 1?6636* )Chaplins(y/
Cha,lins$& v. 4ew 5a1,shire+ 17-.. C# 1?66.
A >eho3!Fs Witness p!%pheting in Rochester$ N8$ sho"te- !ngr& wor-s$ i?e ;&o" !re !
go- -!%ne- r!c?eteer< !n- ;! -!%ne- 0!scist$< etc$ !t p!ssers@& !n- the Cit& 9!rsh!$ or
%!& h!3e$ !n- there w!s ! p"@ic -ist"r@!nce !0ter which he w!s !rreste-6 The Co"rt
!00ir%e- the con3iction6
This is the 8fi%htin% words9 case. The Court lists cate%ories of s,eech that have 8never9 received
,rotection( 8the lewd and oAscene+ the ,rofane+ the liAelous+ and the insultin% or Ofi%htin%H words
C those which A& their ver& utterance inflict inKur& or tend to incite an i11ediate Areach of the
,eace.9 Those words are of no ,art of an e;,osition of ideas and of 8such sli%ht social value as a
ste, to truth that an& Aenefit P is clearl& outwei%hed A& the social interest in order and 1oralit&.9
The test was an oAKective one+ of words that would Ae li$el& to cause the avera%e ,erson to fi%ht.
The statute thus does not contravene the constitution.
C# 111-317 )2e$ ;or( 6i#es/
4< Ti1es v. Sullivan+ 176-. C# 111-.
Fo"r @!c? A!@!%! cerg&%en r!n !n !- in the NO Ti%es$ in which the& st!te- se3er!
0!sehoo-s concerning o00ici! con-"ct in 9ontgo%er& :th!t poice h!- circe- ! c!%p"s$
e6g6$ when the& h!- in 0!ct not -one so=$ which S"i3!n$ one o0 three eecte- Co%%issioners$
too? to @e i@e !g!inst hi%se06 8e s"e- the NOTi%es !n- won M,00$000C the co"rt o0
!ppe!s "phe-6 the S"pre%e Co"rt re3erse-6
"lthou%h liAel is not ,rotected when it is a%ainst ,rivate individuals+ the question at hand was
8liAel9 a%ainst ,uAlic officials actin% in their ,uAlic ca,acit&. 4either factualit& nor defa1ator&
character 1atters to the issue( erroneous state1ents are inevitaAle and often necessar& in free
deAate. "nd+ the fact that a ,uAlic fi%ureHs re,utation suffers as a result of the state1ent 1a$es
the criticis1 effective+ not ina,,ro,riate.
4e;t+ the court notes that the Sedition "cts+ while never tested in Court+ have Aeen found
unconstitutional in the court of histor&. "nd if a %overn1ent cannot ,unish cri1inall& a $ind of
s,eech+ it cannot lev& fines in civil court either. " news,a,er livin% in fear of si1ilar suits does
not o,erate in an at1os,here in which 0irst "1end1ent freedo1s can survive. Sullivan ar%ued
that the ,a,erHs defense could Ae the truth of the state1ent. #ut the Court re,lies that a rule
co1,ellin% a critic to %uarantee the truth of his state1ents deters s,eech in the first ,lace+ either
Aecause of douAt he can ,rove it is true or hesitance to ris$ the e;,ense. That would da1,en the
vi%or of ,uAlic deAate and is inconsistent with the first and fourteenth a1end1ents.
So the standard should Ae a federal rule which ,rohiAits ,uAlic officials fro1 collectin%
on defa1ator& falsehoods relatin% to official conduct unless the state1ent was 1ade with 8"ctual
1alice9R$nowled%e of falsehood or rec$less disre%ard for its truth or falsehood. There is a
s&11etrical ,rivile%e for officials s,ea$in% aAout ,rivate individuals within the ,eri1eter of their
duties.
The note followin% sa&s that the case i1,lies that the central 1eanin% of the 0irst
"1end1ent was to $ee, the censorial ,ower in the ,eo,le over the %overn1ent and not vice
versa. Several authors celeArate this+ as well as the fact that the Court finall& ,ronounced the
Sedition "cts unconstitutional.
!!
C# 11.23.* )?ertD/
EertD v. RoAert =elch+ 17!-. C# 11.2.
This case defined the li1its of the 2; 6i#es liAel rule.
DertA$ !n !ttorne&$ w!s representing ! 0!%i& whose son h!- @een ?ie- in its !ws"it
!g!inst the poice o00icer who h!- shot hi%6 Wech$ ! p"@isher !t the >ohn 1irch Societ&Fs
p"@ic!tion$ A'erican )&inion$ p"@ishe- 0!se st!te%ents !@o"t DertA :th!t he h!- !
cri%in! recor- !n- co%%"nist !00ii!tions=6 8e s"e- 0or i@e$ !n- the tri! co"rt
conc"-e- th!t *. Ti'es !ppie- since it w!s ! ;p"@ic iss"e6< The S"pre%e Co"rt
re3erse-6
The issue at sta$e was whether a news,a,erIAroadcaster who ,uAlishes defa1ator& falsehoods
aAout an individual who is not a ,uAlic fi%ure or a ,uAlic official can clai1 a constitutional
,rivile%e a%ainst liaAilit&.
^ Under the Constitution there is no such thin% as a false ideaL nevertheless there are false facts(
8there is no constitutional value in false state1ents of fact.9 4either intentional lies nor careless
errors advance societ&Hs interest in roAust ,uAlic deAate. The& Aelon% to the cate%ories that are
un,rotected in Chaplins(y.
^ #ut errors of fact are inevitaAle in free deAate+ and the first a1end1ent requires that we ,rotect
so1e falsehood in order to ,rotect s,eech that 1atters.
^ 4evertheless that is not the onl& value at sta$e. There is also a le%it state interest in ,rotectin%
,eo,le fro1 liAel.
^ The first re1ed& for an& victi1 is self3hel,. PuAlic officials+ as in 2; 6i#es+ are aAle to
e;ercise self3hel, easil&. Private individuals are not. :oreover+ an individual who ,ursues
%overn1ental office acce,ts certain necessar& consequences+ ris$in% closer scrutin& )li$ewise for
other ,uAlic fi%ures/L while the ,rivate ,erson does not. The ,rivate ,erson has not relinquished
his interestin% ,rotectin% his %ood na1e.
^ )The Court orders states to li1it liAel awards in ,rivate cases to actual da1a%es+ in order to
inhiAit first a1end1ent freedo1s no 1ore than necessar&Rso no ,unitive da1a%es/.
^ The law&er in this case+ EertD+ was not a ,uAlic fi%ure+ even thou%h he was active in co11unit&
affairs and ,racticin% in a hi%h3,rofile case. "Asent %eneral fa1e or notoriet&+ the question of
whether so1eone is a ,uAlic fi%ure is Aest answered with reference to the individualHs
,artici,ation in the ,articular controvers&.
C"SS 4>TES >4 0REE'>: >0 SPEEC5(
>H#rien( 'raft3card Aurnin%. The court assu1es that his Aehavior is sufficientl& co11unicative
to Ae 8s,eech.9
#ut it doesnHt follow that it is not suAKect to re%ulation. The& articulate the >H#rien test(
1. "ction within ,ower of the %overn1ent
.. The law has to suAstantiall& further a si%nificant %overn1ent interest
2. Interest 1ust Ae unrelated to su,,ression of e;,ression
-. Restriction on e;,ression )tailorin%/ should Ae 8no %reater than is essential9 to the
interest.
The court a,,roves the law under these standards.
The court discusses ,ur,ose or 1otive. The court will not stri$e down an otherwise
constitutional law on the Aasis of alle%ed ,ur,ose )JR( [/. #ut it is a fa1iliar idea that the court
WE<< stri$e down otherwise constitutional laws when the ,ur,ose is wron%P see =ashin%ton v.
!*
'avis+ see all the redistrictin% cases+ etc. 0or well over 1?? &ears+ the court loo$ed to illicit
1otive in equal ,rotection conte;ts. =hich 1a$es this an e;traordinar& state1ent.
" $e& feature of 1ere rational Aasis review is that &ou canHt challen%e the alle%ed Aasis of the
law.
This is neither that standard nor strict scrutin&( it is an inter1ediate for1 of review.
=hat if the >H#rien test failed on a test of the 551,h s,eed li1it Aecause 55 doesnHt reall&
further an& %overn1ental interest. 5ow do we avoid that resultG If we inter,ret ,ron% . in a
,ur,osivist fashionP Aut that is not what the court is sa&in%.
"hh+ Aut thereHs a 8?9 ,ron%( that the test onl& a,,lies if the conduct has to Ae so1e $ind of
s,eech. ThatHs a qualif&in% test for the test itself. S,eedin% wasnHt s,eech. That is how the
doctrine answers the question.
6K v. Hohnson
The caseAoo$ s$i,s over the section in the handout33See first ,ara%ra,h in handout.
0irst+ is it s,eechG If it is+ then second+ is the stateHs interest related to e;,ressionG If not+ then
a,,l& the low >H#rien test. If so+ it 1ust ,ass strict scrutin&.
In an& case+ the ,erson 1ust first show that his conduct was related to s,eech at all. 5e does so
A& a,,l&in% the S,ence test. Is there intent to conve& a ,articulariDed 1essa%e+ and is there
li$elihood that it would Ae understood A& those who viewed it.
So+ first a,,l& S,ence+ then a,,l& >H#rien unless another 1otive is found )if it were found then
in that case &ou would then a,,l& strict scrutin&/.
The S,ence test onl& a,,lies when &ou donHt use words+ of course. 'oes this S,ence standard
wor$ in the case of aAstract scul,tureG
The S,ence test doesnHt do it(
)1/ itHs a terriAle test Aecause it loses art. "rt is ,rotected s,eech Aut it ver& ver&
infrequentl& has a clear and ,articulariDed 1essa%e.
)./ The s,eeder can satisf& it+ itHs not that hard or craD& to construct a h&,othetical li$e that.
Suddenl&+ it see1s li$e ever& ti1e &ou violate the law and &ou %et ,eo,le to see that &ou are
tr&in% to send a 1essa%e &ou can %et the court to sit as a su,erle%islature to see that the law
doesnHt further an& %overn1ental interest.
)2/ >ne 1ore wa& it doesnHt wor$( Su,,ose ever&one wears a t3shirt with a s&1Aol that sa&s
&ou are a%ainst the 1a&or. So the 1a&or ,asses a law sa&in% &ou will %o to Kail if &ou
wear that shirt. In that circu1stance+ the doctrinal fra1ewor$ wor$s ,erfectl&. It ,asses
S,ence+ it fails >H#rien.
#ut+ it doesnHt wor$ ,erfectl& for the ,oor ha,less tourist+ who sees it on sale and Au&s it
and ,uts it on+ and he accidentall& s,ea$s+ so he doesnHt ,ass the S,ence test.
If &ou were at a rall&+ Aut &ou werenHt ,art of it+ and &ou werenHt s,ea$in%+ then &ou could Ae
fired Aased on that. The first a1end1ent doesnHt co1e into ,la&.
!7
5udnut(
"n ",,ellate court case dealin% wit an anti3,orno%ra,h& ordinance. The ar%u1ent is that
,orno%ra,h& leads to violence a%ainst wo1en. The court stri$es down anti3,orno%ra,h&
le%islation despite that assertion.
#randenAur%(
S,eech that is
)1/ intended to incite
)./ i11inent lawless conduct
)2/ and has to Ae li$el& that such conduct would occur.
"ll 2 have to Ae satisfied to Aan the s,eech. The s,eech in 5udnut doesnHt satisf& these criteria.
5ow co1e the court doesnHt sa& thatG
'oes e;,ression have to e;,ress a view to Ae ,rotected+ and does it have to e;,ress a ,olitical
viewG
5ereHs one view( itHs a $ind of tort law question+ the ,roAaAilit& and 1a%nitude of the har1 are
what counts. =h& would &ou care aAout i11inence unless i11inence is a ,ro;& for certaint&G
If &ou su,,ort the 5udnut case+ itHs Aecause &ou are fi%htin% the h&,othetical that this s,eech
causes these har1s. The court assu1es for the sa$e of ar%u1ent that the s,eech does cause the
har1s. Su,,ose &ou do acce,t these clai1s. Can har1s outwei%h the ri%ht to s,ea$G Surel&
the& can+ &ou canHt carAo1A the white house. "nd once &ou start thin$in% this wa&+ the
#randenAur% test see1s not to wor$R&ou can not intend to incite an&thin%+ the har1 can Ae far
in the future+ etc. 5udnut therefore 1ust Ae all aAout har1s+ so #randenAur% doesnHt 1a$e all
that 1uch sense an&whereRwhat aAout anti3aAortion s,eech+ or even the #iAleG
=e wont insist on ,oliticalit& Aut we can reco%niDe that it adds value to s,eech+ and this i1,acts
our Aalancin%.
33333
First A%en-%ent
0irst we saw+ is there a test for deter1inin% what is s,eechG <es. If it is words+ and if it is
conduct that ,asses the S,ence test. ThatHs e;,ressive activit&. #ut the doctrine treats laws that
re%ulate conduct differentl& fro1 laws that li1it s,eech. aws that re%ulate conduct are suAKect
to the >H#rien test. aws that li1it s,eech are suAKect to stricter scrutin&.
There are ,roAle1s with the S,ence test+ thou%h+ as evidenced A& the e;a1,le of the s,eeder who
sa&s that the 551,h s,eed li1it is a Aad law and Area$s it. 4or does it ,rotect art or the
accidental shirt3wearer.
*?
Then we turned to dan"erous speech( the 5udnut case. The court acce,ts ar%uendo that the
s,eech in question will cause e;traordinar& har1s Aut holds it nevertheless constitutionall&
,rotected and the ordinance unconstitutional.
=ell+ the s,eech in 5udnut does not ,ass the #randenAur% test+ which 1a$es it o$Reven
%rantin% the har1. There is an ar%u1ent that the #randenAur% test a,,lied to 5udnut+ so wh&
didnHt the court a,,l& itG #ecause the #randenAur% test was seen A& the !
th
circuit as onl&
a,,l&in% to incite1entRs,eech that advocates unlawful conduct. The ar%u1ent 1i%ht %o(
s,eech that advocates unlawful conduct is advocatin% ,olitical disoAedienceL it is ,olitical+
,rotected s,eech+ and therefore needs careful ,rotection+ so only ,rohiAit it when it is ver& clear it
will instantl& cause a violation. =hereas ,orno%ra,h& is not ,olitical s,eech li$e that. >ther
courts have a,,lied #randenAur% to ,orno%ra,h&+ thou%h.
So1e ,eo,le said itHs not i11inent and itHs not intentional+ so thatHs wh& 5udnut is not an eas&
case. The #randenAur% test doesnHt a,,l& to firewor$s that are e;,ressive that 1i%ht har1 othersL
Aut wh&G If har1 is enou%h to outwei%h it there+ wh& isnHt it enou%h in #randenAur%G =h& have
an intentionalit& or i11inence ar%u1ent. =here we are ,re,ared to sto, e;,ressive activit&+ we
donHt care aAout intentionalit&.
IsnHt #randenAur% all aAout har1G The Su,re1e Court law had never struc$ down a sin%le
statute on s,eech %rounds Aefore the .?
th
centur&. Sedition laws in the first world war+ e.%.
Toda&Hs law is a twentieth centur& Kudicial creation. <ou 1i%ht sa& that it all traces Aac$ to
Kustice 5ol1esHs dissent in the earl& cases li$e "Ara1s. 5e started to chan%e his 1ind after
a,,rovin% convictions. It wasnHt threatenin% an&Aod& so "Ara1s had to have a ri%ht to distriAute
the literature.
5ol1es articulated a clear and ,resent dan%er testRunless there is a clear and ,resent dan%er the
%overn1ent cannot ,rohiAit the s,eech. That sounds li$e a har1 test+ Aut ,resence is li$e
i11inence. 5ow do we understand that( a ,erson cannot falsel& shout fire in a crowded theater.
#ecause it will cause har1s. If &ou thin$ aAout it li$e that it sounds li$e a co1,ellin% state
interest test. Then the #randenAur% test sounds li$e( the intentionalit& and i11inence
require1ent are ,ro;ies for li$elihood of har#. "nd such an econo1ic anal&sis of the law
doesnHt care aAout intent. The econo1ic ,t of view is onl& concerned with the 1a%nitude and
,roAaAilit& of the har1. I11inence and intentionalit& donHt fit unless &ou thin$ of the1 as
,ro;ies ),oor ,ro;ies/ for ,roAaAilit&. Thus it 1a$es no difference if &ou sti,ulate that the har1
will occur at so1e ,oint in the future. JRHs ,oint( there is an oddit& in loo$in% at this as a har13
Aased test.
0or sure we canHt understand the 5udnut case if &ou sti,ulate that the har1s will occur.
( "ll the S,ence ,roAle1s are solved if we ta$e a ,ur,osivist view.
The ,u,osivist view sa&s what 1a$es laws unconstitutional under freedo1 of s,eech is whether
the& have a ,ur,ose that violates that freedo1. "re the& ,unishin% ,eo,le because o! the s,eech
the& en%a%ed in+ or for so1e other reasonG Even if &ou were s,ea$in% A& s,eedin%+ that doesnHt
1ean that &ou were %iven a tic$et Aecause &ou were s,ea$in%. I donHt care what &ou were tr&in%
to do A& s,eeedin%+ it 1a$es no difference. Tr&in% to e;,ress &our o,inion A& Area$in% the law
doesnHt %ive &ou the ri%ht to do so. The question is+ is the law ,unishin% &ou for &our s,eechG
Suddenl&+ the S,ence test falls out+ so art is Aac$ in. The ha,less tourist is o$ too. The actorHs
,ur,ose is irrelevant+ it is the %overn1entHs ,ur,ose that is at sta$e.
*1
The >H#rien case did not articulate a ,ur,osivist anal&sis Aecause there was evidence there was
,ur,ose to Aan s,eech. <et+ the courtHs test can Ae seen as ,ur,osivist nevertheless+ even thou%h
it doesnHt loo$ at le%islative histor&.
In #randenAur%+ has su%%ested that &ou canHt 1a$e %ood sense there fro1 a har1 ,oint of
view. I11inence and intentionalit& can Ae seen as ,ro;ies for har1+ Aut that is not the Aest wa&
to loo$ at #randenAur%.
( Eovern1ents can sto, ,eo,le fro1 roAAin% Aan$s( the law is ai1ed at ,rotectin% Aan$s+ not
sto,,in% s,eech. Peo,le roA Aan$s in several wa&s( the& %o inside and roA it+ Aut the& also Arin%
aAout the sa1e result thru s,eech. Peo,le 1a$e ,lans and arran%e for conduct. Eoin% to Kail for
cons,irac&( should we re%ard that as Aein% ,unished for en%a%in% in s,eechG 4o+ we should
re%ard it as the state ,unishin% 1e as en%a%in% as an acco1,lice in a Aan$ roAAer&Rwhether 1&
role is the %etawa& driver or the furnisher of info+ the thin% the state is ,unishin% is the aidin% in a
Aan$ roAAer&+ and as lon% as it does so equall& itHs o$. The state has to show that I intended to Ae
,artici,atin% in a Aan$ roAAer&Rhence the need for intentionalit&.
#asic ,rinci,le( &ou cannot Ae ,unished for an&thin% &ou sa&. <ou can Ae ,unished for
e;,ressin% so1ethin%+ Aut not !or the e:pression. 4o ele1ent of the cri1e can Ae the e;,ressive
%oal of the action.
=hen I a1 ,unished for s,eech leadin% to third ,art& acts+ I had Aetter have Aeen so involved in
the conduct that I a1 ,unished as a ,art of the act itself and not si1,l& for the e;,ression.
=hat if we were co11itted to the conce,t that there are no har1ful o,inions+ that there are no
har1ful ideas+ that noAod& should Ae ,unished for e;,ressin% a view that the 1aKorit& views as
har1fulG Start with that ,re1ise+ and what ha,,ensG That co11its &ou to a stron%+ non3
consequentialist+ deontolo%ical view.
The #iAle causes har1.
This non3consequentialist view 1a$es hate s,eech laws unconstitutional. 5ate cri1es laws+
sa&s+ thou%h+ are differentR&ou can Ae %uilt& of a hate cri1e without havin% tried to
co11unicate &our hatred. The hate cri1es law can Ae full& stated without showin% that the
cri1inal e;,ressed the view to an&one.
" state Aans Ae%%in% on the Aoardwal$Ris that o$G 5ow do &ou wor$ thru the doctrineG
0irst+ the activit&( is it s,eech or conductG
If itHs s,eech+ it tri%%ers ,rotection.
If itHs conduct+ is it e;,ressive conduct )S,ence test/G
If not+ then no ,rotection.
If so+ then it tri%%ers the four3,ron% >H#rien test.
If it is s,eech(
Then+ ,lace( is it a ,uAlic foru1+ or non3,uAlic foru1G
" ,lace is a ,uAlic foru1 if
*.
)1/ it has ti1e i11e1orial Aeen used for e;,ressive activit&+ or
)./ it has Aeen o,ened thereto )test in 6rishna+ , 1.62/.
In not a ,uAlic foru1+ the law at first had to Ae )1/ reasonaAle and )./ content3neutral )accordin%
to U.S. v. 6o$inda+ the Postal Service case+ at ,. 1.6./. MMthis contradicts the ,rior holdin% in
Ereer v. S,oc$NN. >HConnor chan%ed the for1ulation a%ain fro1 content3neutralit& Mconsistent
with Ereer v. S,oc$N to Ae official o,,osition to the s,ea$erHs view. The non3,uAlic foru1 test is
now )1/ reasonaAle and )./ vie$point3neutral.
etHs sa& Con%ress ,asses a law Aannin% s,a1 in e1ail 1ailAo;es. Is the 1ailAo; a ,uAlic
foru1G The ,ostal svc case sa&s no. 4or does it ,ass the two3,ron% test.
'oes it follow that Con%ress can Aan all e1ail Aased co11unicationsG =ould it Ae reasonaAleG
:a&Ae notRAut reasonaAle is ver& ver& Aroad. It is view,oint3neutral. So what do &ou do aAout
thisG
There 1ust Ae a third cate%or& of location( ,uAlic and non3,uAlic fora+ and private property.
PuAlic foru1 Y ,lace owned A& %overn1ent which has Aeen o,ened u,. The ,uAlic foru1
doctrine arises in the followin% wa&( of course the %overn1ent can ,ass 1ore strin%ent
re%ulations on its own ,ro,ert&. #ut there are so1e ,laces on %overn1ent ,ro,ert& where the
aAilit& to restrict s,eech doesnHt a,,l&. The doctrine thus arises as an e;ce,tion to %overn1ent
aAilit&. Streets+ ,ar$s+ and Aoardwal$s have alwa&s Aeen that wa&+ )1/ since ti1e i11e1orial or
)./ if the %ovt has intentionall& o,ened it u,.
#ut ,rivate ,ro,ert& doesnHt even %et &ou into this anal&sis. In ,uAlic fora+ as on ,rivate
,ro,ert&+ the full nor1al first a1end1ent anal&sis a,,lies. It onl& doesnHt a,,l& where %ovt can
re%ulate.
Thus ,rivate ,ro,ert& and ,uAlic fora are equivalent )1ore s,eech 1ust Ae allowed/L non3,uAlic
fora are different )1ore restriction is o$/.
Private ,ro,ert& and ,uAlic fora require full ,rotection.
333333
I. S,eech
II. Conduct
a. E;,ressive
S,ence test >H#rien test
A. 4on3e;,ressive I 1ere conduct
no ,rotection at all.
=hat aAout s,eechG Cha,lins$& sa&s+ not all s,eech is ,rotected A& the first a1end1ent.
So(
5ere is the anal&sis so far(
*2
I. S,eech
a. Un,rotected ),rofanit&+ fi%htin% words+ lewd and lascivious+ liAel+ tendin% to
cause Areaches of the ,eace/ no ,rotectionG 4ot necessaril&. <ou have to
,ass thru hoo,s first.
A. Protected foru1 anal&sis
i. Eovern1ent ,ro,ert&
1. a non3,uAlic foru1 reasonaAle+ view,oint3neutral )4>T
content3neutral/
.. a ,uAlic foru1 !ull protection.
ii. Private ,ro,ert& !ull protection
Is the 8un,rotected s,eech9 un,rotected Aecause it is 8low3value9G
Just to sa& that liAel is un,rotected s,eech+ &ou need to sa& what liAel is. So 1a&Ae the court isnHt
Kust $noc$in% out these cate%ories+ it is narrowin% the ,revious co11on3law definitions. That the
%overn1ent sa&s it is re%ulatin% liAel doesnHt 1a$e a law o$ without an&thin% further.
What is !ull protectionL
0ull ,rotection( &ou as$ whether the law is(
". content3neutral. If it is+ then a 8ti1e+ ,lace+ and 1anner9 re%ulation is o$+ if the law(
1. 0urthers a suAstantial %overn1ental interests.
.. leaves o,en a1,le alternative channels of co11unication.
2. is narrowl& tailored.
#. content3Aased. If it is+ &ou a,,l& strict scrutin&.
4ote that content3Aased cate%ories are o$ aAove+ in the cha,lisns$& test of what is un,rotected
s,eech to Ae%in with. =hether it is content3Aased at this ,oint is a se,arate question.
<ou could sa& instead+ that the content3Aased re%ulations aAove are narrowl&3tailored. ThatHs not
the wa& the doctrine wor$s or what thin$s.
In fact+ there is a less3,rotected for1 of s,eech+ in Aetween 8un,rotected9 and 8,rotected9 aAove(
that a,,lies to co11ercial s,eech.
In Clayboy+ the& a,,l& strict scrutin&Rit $as a content3Aased law. It is the ,ro%ra1Hs content
that is creatin% the effects.
=hat aAout the re%ulation of Ae%%in%+ under RentonG
In the ala1eda Aoo$s case+ the court holds that the law is content3Aased. The court is tr&in% to
deal with the idiotic holdin% in renton. That court clai1ed a content3Aased law was content3
neutral. >n 1!. in ala1eda+ the& sa& it was fi;ed. If the statute descriAes s,eech A& its content it
is on its face+ content3Aased.
Renton causes ,roAle1s. The court is Aac$in% awa& fro1 that anal&sis Aut u,holdin% that
conclusionRthat a law is suAKect to inter1ediate scrutin& even thou%h it was content3Aased.
S,lit o,inions later sa& inter1ediate scrutin& is o$ in these cases even thou"h it is content3Aased.
This contradicted ,la&Ao&. Justice $enned&Hs concurrence in ala1eda Aoo$s reKects this+ sa&s we
*-
shouldnHt Ae so ri%id in our fra1ewor$Rthis is adult+ in its Kust ,lace+ not a total Aan+ so IH1
satisfied that inter1ediate scrutin& a,,lies.
So+ ,ut Renton aside. >f course it was content Aased. The real question is whether to ,ut a crac$
in the first a1end1ent rule that if it is content Aased &ou e1,lo& strict scrutin&. In renton the&
are aAle to avoid the ,roAle1 A& ,retendin% it is not content Aased. #ut in ala1eda the& canHt %et
a 1aKorit& who will sa& that.
"la1eda Aoo$s doesnFt square with ,la&Ao&. Renton squares with ,la&Ao& Aut onl& Aecause it
falsel& contends that the law is content neutral. 6enned& and - Kustices in the dissent arenHt
willin% to en%a%e in the fiction an&1ore.
- Kustices in the ,luralit& donHt %o so far as to sa& this is a content3Aased law. the& stic$ with
renton. - other Kustices in the dissent a,,l& strict scrutin& Aecause it is content Aased and the&
want to stri$e it down. 6enned& alone is ,re,ared to sa& it is content Aased+ lets face it+ Aut we
should a,,l& inter1ediate scrutin& an&wa&.
So+ for now+ it see1s li$e there is an e;ce,tion for Donin% re%ulations of adult 1aterial.
In ,la&Ao& we are not dealin% with oAscene s,eech. >Ascenit& is not ,rotectedL laws a%ainst it
are not scrutiniDed. #ut 1uch indecent 1aterial is not oAscene. The :iller test essentiall&
se,arates hardcore and softcore ,orn+ althou%h those are la& ter1s. If it was oAscene the& could
Kust Aan it alto%ether+ Aut #ere ,orno%ra,h& is ,rotected+ as in Clayboy.
The courtHs decision in CohenR8fuc$ the draft9R$noc$s out ,rofanit& fro1 the un,rotected
cate%or&. The co1,ellin% %overn1ental interest of ,rotectin% children is u,held under strict
scrutin&.
#ut Cohen sa&s &ou canHt throw so1eone in Kail for havin% that word on his Aac$. #ut this see1s
wron% to . Cohen is Kust re%ulatin% one #anner of e;,ressin% an anti3draft o,inion. So what if
he canHt use that word in a courthouseGG It should have Aeen tested under the lenient T+P+: test.
=h& isnHt Cohen wron%l& decidedG
0irst+ we need to distin%uish Aetween content and view,oint. Can &ou tell 1e whether Cohen
Aro$e the law without tellin% 1e what he saidG 4o. Therefore+ the law is content3Aased. Cohen
restores ,rofanit& to content+ $noc$in% it out of the un,rotected cate%or&.
'oes the doctrine confor1 to this definitionG Ever& case does e;ce,t Renton.
In the 'oooDe case+ as$in% whether ,eo,le can carr& ,ic$et si%ns near an e1Aass&+ in the *?s+ the
court aAandoned the renton anal&sis. The %ovt ar%ued that it was the secondar& effects li$e in
renton. The court sa&s+ listenersH reactions are not the secondar& effects we 1eant in renton+
whatever we 1eant in renton. If the su,,osed har1 the law is tr&in% to ,revent runs thru the
reactions of the listeners+ then it is content3Aased.
So the law is consistent in ever& case e;ce,t renton.
#e%%in% in 0t. auderdale )11
th
cir/(
*5
#e%%in% is s,eech+ not conduct.
It is ,rotected s,eech )the& do not raise the ar%u1ent that it is co11ercial s,eech/
The Aeach is a ,uAlic foru1 full ,rotection
Content3neutral test+ since the cit&Hs interest is in ,rovidin% a safe+ ,leasant environ1ent+ and
touris1. The& for1ulate the narrow tailorin% and sa& that it doesnHt overAurden free s,eech to
fulfill this %oal. 6his narro$ tailorin" is not strict scrutiny narro$1tailorin". It is 1ore lenient
under T+P+: anal&sis. It need not Ae the least restrictive or least intrusive 1eans. ItHs Kust that it
canHt Aurden substantially 1ore s,eech than it needs to. This is a lenient narrow3tailorin% test.
( of course itHs content3Aased. =hat is Ae%%in%G <ou canHt solicit 1one& for charit& for
&ourself.
=hat would Ae wron% with the sa1e anal&sis if 0t. auderdale tried to Aan the solicitation of
votesG
The court fails to see that it is content Aased. <ou canHt u,hold a Aan on Ae%%in% and not
solicitin% votes. The doctrine is tr&in% to do so1e sort of wei%hin% of values.
To have an o,inion that sa&s cities can declare whether the interest in touris1 outwei%hs the
interest in free s,eech should Ae unconstitutional+ sa&s . To sa& Ae%%in% is different+ &ou need
to )1/ Ka1 it in an un,rotected cate%or&+ or )./ sa& it is lower3value s,eech.
"s$in% ,eo,le for 1one& is not a stron%l& ,rotected value A& the first a1end1ent+ this ar%u1ent
%oes. ( it is li$e co1,arin% a ,ound of iron to the nu1Aer 5. 'o &ou need sociolo%ists and
cultural studies e;,erts to tell &ou how i1,ortant+ e.%.+ 8s,orts s,eech9 isG
JR( The first a1end1ent ,rotects every o,inion. <ou cannot Ae ,unished for e;,ressin% an
o,inion that the 1aKorit& disa%rees with+ even A& so1e Aalancin% test Aecause touris1 would
suffer+ e.%. thin$s that o$ for oAscenit& Aut not for an& other un,rotected cate%or&. =ith the
e;ce,tion of oAscenit& we should not view the Aasic structure of first a1end1ent law in a wa&
that divides the world into hi%h+ 1ediu1+ and low value s,eech. =e shouldnHt have Kud%es
sa&in% how valuaAle o,inions aAout the weather are. Jud%es arenHt called u,on to ta$e an o,inion
on that.
That shows that we donHt question the social value of the o,inion.
#ut so1eti1es thatHs what it loo$s li$e the court is doin%.
( The reason the court a,,lied the TP: test and not >#rien in the slee,in%3in3the3,ar$ case is
Aecause the& are the sa1e test. This 1a$es sense Aecause every re"ulation o! conduct re"ulates
a #anner o! e:pression. Slee,in% in the ,ar$ is li$e the e;,ressive s,eeder. So it does 1a$e
sense that the two tests are the sa1e.
( verAal and e;,ressive conduct should not Ae treated differentl&. The question should Ae what
is the state tr&in% to doG
Cate%ories of un,rotected s,eech
*6
2;6i#es v. ,ullivan( liAel law is suAKect to constitutional li1itations. iAel is not 1erel&
un,rotected s,eech. There is the odd feature that liAel o,erates thru ,rivate ri%hts of action.
)liAel Y written+ slander Y oral/.
Creates a s,ecial rule( in cases of liAel a%ainst ,uAlic officials+ there can Ae no liAel unless the
,laintiff can show actual 1alice. This does not 1ean ill3will. 8actual 1alice9 is a ter1 of art+
1eanin% $nowin% the1 to Ae false or with rec$less disre%ard of truth or falsit&. 8,uAlic official9
is e;,anded later to cover ,uAlic fi%ures. There is deAate aAout how to define that ter1.
In EertD+ a rule for liAel a%ainst ,rivate fi%ures. The constitution ,rotects false ideas Aut not false
facts. 0alse facts enKo& no ,rotection A& the first a1end1ent. 0or ,rivate individuals+ states can
1a$e liaAilit& laws )liAel is a tort/ as lon% as the& donHt i1,ose strict liaAilit&.
Torts(
)1/ intentionalI$nowin%
)./ rec$less
)2/ ne%li%ent
)-/ 8strict liaAilit&+9 or 8no fault9
8"ctual 1alice9 covers )1/ and )./Rthat is the ,uAlic fi%ure standard.
=ith result of ,rivate fi%ures+ states can co1e down into )2/ Aut not )-/.
If &ou 1a$e a reasonaAle atte1,t to chec$ that so1ethin% is true )as$ 15 ,eo,le+ e.%./ then &ou
are not ne%li%ent. Stic$in% so1eone with no3fault liaAilit& is unconstitutional. ,. 11.5.
=h& is liAel un,rotected when the& 1eet these standardsG
". thereHs so1ethin% aAout false state1ents that 1a$es the1 less valuaAleL the& donHt
contriAute to deAateL the& are unworth& of ,rotection Aecause the& donHt have the ri%ht
characteristics. This section+ ,. 11.-+ cites Cha,lins$& for un,rotected+ low3value
s,eech(
a. no essential ,art of an& e;,osition of ideas.
A. of such sli%ht social value that the interest in order and 1oralit& outwei%h it.
#. 0alse state1ents do har1.
#ut( that the& are har1ful to individuals is not the reason the& are not ,rotected.
This ,ara%ra,h is not su,,osed to o,en the door to the su,,ression of ideas.
'oes the Cha,lins$& assertion %ive &ou a handle on what s,eech is reall& ,rotected and what
isnHtG The lecture on deconstruction is not su,,osed to Ae un,rotected. =hat aAout #eethovenHs
0ifth S&1,hon&G ThatHs not an idea or an o,inion. It is not a ste, to truth+ etc. It doesnHt see1
to 1eet the Cha,lins$& for1ula.
If art fits into this sentence wh& is it ,rotectedG >r if it is ,rotected then wh& are the un,rotected
cate%ories un,rotected.
If &ou sa&+ wh& is oAscenit& un,rotected+ and &ou answer+ Aecause of cha,lins$&+ then &ou have
also ruled #eethoven un,rotected.
*!
If &ou ta$e out 8as a ste, to truth+9 then &ou are dealin% in Kust a test of social value+ and art has
social value.
=e could sto, thin$in%+ as the court does+ that there are cate%orical e;clusions fro1 the first
a1end1ent+ since so1e false state1ents of fact do have constitutional value+ as fiction.
" novel+ it could Ae said+ is not full of false state1ents of fact+ ever&Aod& $nows it is a wor$ of
fiction. That 1eans it doesnHt hold itself out as a state1ent of fact. 'oes this end our ,roAle1sG
4o+ Aecause if we too$ the cha,lins$& test seriousl&+ &ou could still as$ whether the novel is an
essential ,art of an& e;,osition of ideas. =hether it has value as a ste, to truth. Even if we
e;,and truth+ then it see1s false state1ents of fact would Ae Aac$ in too.
So if &ou are %oin% to tr& to 1a$e sense of cha,lins$& the Aest thin% to do is Kust %et rid of the
lan%ua%e aAout ste,s to truth.
There are ,lent& of false state1ents of fact that are ste,s toward truth+ as in science.
#ut intentional lies and careless errors )EertD/ are different fro1 false state1ents of fact. If
thereHs no strict liaAilit&+ then what is not ,rotected is Kust intentional lies and 1isleadin%s. =h&
is that un,rotectedG
)aura S1olowe/
=hat are the cate%ories of un,rotected s,eechG
0ro1 Chaplins(y we have(
o ewd and ascivious
o Profanit&
o iAel
o Insultin% or 80i%htin% =ords9
>ther(
o Threats
o Incite1ents
o Solicitations )of unlawful conduct+ e.%. AriAes and ,rostitution/
o Cons,irac&
o 0raud
o PerKur&
o :isre,resentation
2 #asic SuAdivisions of Un,rotected S,eech
1. >ffensive S,eech )ewd and ascivious+ Profanit&+ >Ascenit&/
a. ( fro1 a Pur,osivist view+ no s,eech can Ae ,rohiAited Aecause it is offensive
A. >nl& oAscenit& is still un,rotected. thin$s oAscenit& should Ae no e;ce,tion
)thou%h &ou could still restrict the ti1e and ,lace/
.. 0alse S,eech
a. This has Aeen e;tre1el& restricted since Chaplins(y
A. It has to Ae false state1ents of fact to Ae un,rotected
c. =h& should this Ae un,rotectedG
**
i. 1
st
a1end1ent %ives less ,rotection to state1ents of fact than state1ents
of o,inion
ii. <ou can Ae Kailed for disclosin% true facts if the& are confidential
iii. 0acts can Aelon% to ,eo,le
iv. #ut no one can Ae ,enaliDed for darin% to i1a%ine an&thin%L we have
freedo1 of s,eculation aAout the world+ Aut not of state1ents of fact in
a narrow sense
2. #reach of the Peace s,eech )this is an& cri1inal s,eech+ e.%. cri1es and unlawful
conduct/
a. Thin$ aAout %u& who is ,artici,atin% in Aan$ roAAer& throu%h s,eech. 5e can
Ae ,unished as an acco1,lice so lon% as the law doesnHt sin%le hi1 out because
he ,artici,ated throu%h s,eech
on )
st
A%en-%ent tests/
Conduct
i. E;,ressive ),pence/ Use the =F'rien 6est
ii. 4on3E;,ressive 4o ,rotection
,peech )a,,l& Chaplins(y( 4ot all s,eech is ,rotected A& the 1
st
a1end1ent
i. 0ull Crotection )if it doesnHt fall into one of the narrow cateo%ories of
un,rotected s,eech+ itHs ,rotected/+
1. To see if %overn1ent can ,ass laws restrictin% Protected S,eech+
&ou as$ whether the law is
". Content3neutral
i. If so+ use the 6i#e, Clace and Manner test+ see , 1.?7
1. has to further a suAstantial %overn1ent interest
.. has to leave a1,le alternative avenues of
co11unication
2. has to Ae narrowl& tailored
a. see e.%. 5nited ,tates v. ?race+ ,. 1.-7 at
Aotto1
#. Content3Aased+ use strict scrutin&+ 1ust Ae the least restrictive alternative
C. Eovern1ent Pro,ert&
i. If a non3,uAlic foru1 test to see if itHs a reasonaAle restriction
and is view,oint neutral )not content3neutral/
ii. If a ,uAlic foru1%ets full 1
st
"1end1ent Protection
'. Private Pro,ert&full 1
st
"1end1ent ,rotection
ii. <ess Crotected speech
1. This has a 1iddle tier test+ used for such thin%s as co11ercial
s,eech )that is content3Aased/
( the 1
st
"1end1ent ,rotects E@ER< o,inion and we shouldnHt do a Aalancin% test
i. >Ascenit& is Aanned Aecause ,eo,le thin$ itHs i11oral
ii. >ther than that+ we shouldnHt view 1
st
a1end1ent as hierarchical+ and shouldnHt
question the social value of s,eech
Re!tionship @etween OF1rien Test !n- Ti%e P!ce !n- 9!nner Test
>H#rien test(
)1/ 5as to Ae within %overn1ental ,ower
)./ 5as to suAstantiall& further si%nificant %overn1ent interests
)2/ 5as to Ae unrelated to the su,,ression of e;,ression
*7
)-/ 5as to use the least restrictive 1eans
4>TES
Pron% 1 has nothin% to do with the 1
st
a1end1ent
The 8least restrictive9 ,ron% has never Aeen a,,lied after =F'rien. SC has Aeen 1uch 1ore
lenient.
The TP: test(
)1/ 5as to Ae content3neutral
)./ 5as to Ae narrowl& tailored to further a si%nificant %overn1ental interest
)2/ 5as to leave a1,le alternative channels of co11unication.
4>TES( these tests are ver& si1ilar Aecause ever& re%ulation of conduct is so1e $inds of ti1e+
,lace+ or 1anner re%ulation. It 1a$es sense that the&Hd A e Aasicall& the sa1e.
.. 8Indecenc&+9 Porno%ra,h&+ >Ascenit&
Cohen 3 C!i0orni! (14.1, p. 118/)
F!cts/ Paul RoAert Cohen was arrested and convicted in " 1unici,al court for violatin% an "
ordinance that ,rohiAited 8willfull& disturAin% the ,eace or quiet9 for wearin% a shirt that said
80uc$ the 'raft9
Iss"e/ Can California e;cise as 8offensive conduct9 this one ,hrase 80uc$ the 'aft9 fro1 ,uAlic
discourse without violatin% the 1
st
"1end1entG
8o-ing 4o
Justice 5arlan
o This s,eech IS ,rotected+ so use strict scrutin&
o The s,eech is o$ Aecause
It was not directed at an&one
It was not ai1ed as a ,ersonal insult
There was no intentional ,rovocation of a hostile reaction
There was no incite1ent to riot or violence
o The aAilit& of Eovern1ent to shut off discourse solel& to ,rotect others fro1
hearin% it is de,endent on a showin% that suAstantial ,rivac& interests are Aein%
invaded in an essentiall& intoleraAle 1anner
o To allow this re%ulation would Ae to %ive Aoundless authorit& to the statehow
would &ou distin%uish it fro1 other offensive wordsG
o If &ou forAid words &ou are forAiddin% certain ideas as well+ which isnHt >6
'issentRJustice #lac$1un
o This was conduct and not reall& s,eech
o Re%ardless+ ,rofanit& should fall under the Chaplins(y test and should not Ae
,rotected
4>TES(
o Pro0!nit& is no onger in the "nprotecte- c!tegor&
Can Ae re%ulated to ,rotect $ids
CanHt re%ulate it Kust Aecause itHs reall& dis%ustin%
CanHt throw so1eone in Kail for their 1essa%e
o This canHt Ae considered Kust a 1anner re%ulation Aecause &ou donHt %et to the
TP: test until &ou deter1ine that the act is content neutral
7?
o Since &ou have to sa& what Cohen said or did or wrote to sa& how he Aro$e the
law+ the law is not content neutral
)4#( a law could also Ae content neutral Aut enforced in a discri1inator&
1anner+ which would not Ae >6 either/
9ier 3 C!i0orni! (14.3, p 11.1)
F!cts/ :iller sent ,orno%ra,hic ,a1,hlets advertisin% adult 1aterial in the 1ail to rando1
,eo,le. 5e was convicted under a C" cri1inal oAscenit& statute for sendin% unsolicited oAscene
1aterial throu%h the 1ail.
Iss"e/ Is C"Hs cri1inal oAscenit& statute constitutionalG
8o-ing/ <es
#ur%er(
o The lawHs require1ent that the Kur& evaluate the 1aterials with reference to
conte1,orar& standards of the state of California is constitutionall& adequate
o >Ascene 1aterial in %eneral 4>T ,rotected A& 1
st
a1end1ent
o Test to see if oAscene 1aterials have 1
st
a1end1ent ,rotection
'oes the wor$ a,,eal to the avera%e ,ersonHs ,rurient interestG
'oes the wor$ de,ict or descriAe se;ual conduct as defined A& a,,licaAle
state lawG
'oes the wor$ lac$ serious literar&+ artistic+ ,olitical+ and scientific value
)Aut doesnHt have to Ae UTTER< without social value/G
'issentR'ou%las
o Jud%es shouldnHt Ae definin% what is oAsceneR,eo,le should ,ass a
constitutional a1end1ent if the& want it
'issentR#rennan
o Statute is unconstitutionall& overAroad+ and so invalid on its face
FCC 36 P!ci0ic! Fo"n-!tion (14.8, p 1142)
F!cts( Eeor%e Carlin recorded a 1onolo%ue entitled 80ilth& =ords9+ which included lots of
swearin%. " 4ew <or$ radio station owned A& Pacifica Aroadcast it+ and a listener co1,lained to
the 0CC. The 0CC decided that the Aroadcast was indecent under 1* U.S.C. Z 1-6-. The 'C
Circuit Court reversed+ and the SC reversed Aac$.
Iss"e/ Can the 0CC re%ulate a radio Aroadcast that is offensive Aut not oAscene on the Aasis of its
contentG
8o-ing/ <es
Re!soning79!4or Points
3 Justice Stevens(
o The words were not the s,ea$ersH ideas+ if the& had Aeen+ even offense would not
have Aeen enou%h to su,,ress the1
o Patentl& offensive thin%s on the radio affect the listener in the ,rivac& of his own
ho1e+ where he has the ri%ht to Ae left alone
o The radio is availaAle to $ids+ shouldnHt Ae e;,osin% $ids to this $ind of stuff
o 0CCHs decision was >6 Aecause it was 1ade on a nuisance rationale Aased on a host
of variaAles
3 Concurrence3 Powell and #lac$1un
o 0CC sou%ht to channel the 1onolo%ue to a ti1e when fewest $ids could hear itRon
a ti1e ,lace and 1anner rationale this leant su,,ort to 0CCHs decision
o The Aroadcast is har1ful to $ids
71
o #roadcastin% co1es directl& into the ho1e
o Peo,le can still ,urchase CarlinHs record on their own
o Jud%es should 4>T decide what is 1ore valuaAle and deserves 1
st
a1end1ent
,rotection vs what is less valuaAle and does not
3 'issent C#rennan and :arshall
o The 0CC failed to accord ,ro,er wei%ht to ,eo,le who wanted to hear the Aroadcast
o The idea that the content of a 1essa%e can Ae divorced fro1 the words that are the
vehicle for its e;,ression is trans,arentl& fallacious
o So1e reasonaAle ,eo,le in this countr& thin$ differentl& fro1 the court
S!@e Co%%"nic!tions$ Inc6 3 FCC (1484 p. 1148)
F!cts 0ederal statute ,rohiAited the interstate trans1ission of 8indecent9 co11ercial tele,hone
1essa%es )8'ial3a3,orn9/
Iss"e Is the statute constitutionalG
8o-ing 4o
3 Justice =hite )for a unani1ous court/
a. 'ial3a3,orn is different fro1 radio )see 0CC v. Caci!ica, supra) Aecause here
ever&one involved is an active ,artici,ant
A. Eovern1entHs interest in ,rotectin% children could Ae achieved A& 1eans other than a
total Aan
c. This statute has the invalid effect of li1itin% the content of adult conversations to that
which is suitaAle for $ids to hear
Unite- St!tes 3 P!&@o& Entert!in%ent Dro"p$ Inc (2000, p. 1202)
F!cts/ Z 5?5 of the1776 Teleco11unications "ct required caAle o,erators to scra1Ale ,orn or to
li1it showin% it to Aetween 1?,1 and 6a1. Since scra1Alin% is so e;,ensive+ 1an& o,erators
chose to Kust li1it the trans1ission to those hours
Iss"e Is Z 5?5 constitutionalG
8o-ing 4o
3 Justice 6enned& )for a 53- court/
a. Statute is content Aased has to withstand strict scrutin&
A. Peo,le can Aloc$ channels the1selves+ and ,roAaAl& would if the& didnHt want to see
the1
c. Eovern1ent has not shown that this Aloc$in% alternative would Ae insufficient to
secure its oAKective of $ee,in% this 1aterial fro1 $ids
3 'issent+ Justice #re&er
a. The s,ecific question is whether the o,t out alternative is less restrictive "4'
si1ilarl& ,ractical and effective to ,rotect children
A. The o,t out alternative is 4>T as effective+ so Z5?5 should Ae constitutional
3 4>TES(
a. The SC is ri%ht in Clayboy not to use the Ti1e+ Place+ and :anner test. The Court
correctl& used Strict Scrutin& Aecause the law is content3Aased
A. This case squares with Renton officiall& Aecause the SC in Renton ,retended the law
was content3neutral )wasnHt reall& thou%h/
1. 5owever+ this case doesnHt reall& square with 8la#eda 'oo(s+ which uses
Inter1ediate Scrutin& Aecause itHs a TP: re%ulation and not an all3out Aan
E@E4 thou%h the SC reco%niDed the law was content3Aased
7.
.. 5ere+ in Clayboy+ we have a TP: re%ulation and not an all3out Aan Aut the
SC uses Strict Scrutin&
c. >ne wa& to reconcile(
1. >Ascenit& is un,rotected s,eech+ Aut lots of ,orno%ra,h& is not oAscene
.. The Clayboy test )havin% to use the least restrictive 1eans/ onl& co1es into
,la& #EC"USE the %overn1ent was tr&in% to Aan so1ethin% that was 4>T
oAsceneRie+ lots of the Porn Aein% re%ulated was ,rotected s,eech so needed
Strict Scrutin&
Ashcro0t 3 The Free Speech Co!ition (2002, ,upp p. 1>>)
F!cts/ The Child Porno%ra,h& Protection "ct ,rohiAited child ,orn with co1,uter3%enerated $ids
Iss"e Is the statute constitutionalG
8o-ing 4o
Re!soning79!4or points
3 Justice 6enned&
a. Pros,ect of cri1e A& itself does not Kustif& laws su,,ressin% ,rotected s,eech
A. Statute ,roscriAes the visual de,iction of an idea that is a fact of 1odern societ& and
has Aeen a the1e in art and literature throu%hout the a%es
c. @irtual child ,orn is not intrinsicall& related to the se;ual aAuse of $ids
1. Eovern1ent has shown no 1ore than a re1ote connection Aetween s,eech
and resultin% child aAuse
S%ith 36 Cit& o0 Fort L!"-er-!e$ Fori-! (11
th
Cir. 1444, handout)
Cit& in 0lorida Aans Ae%%in% on Aeach Aoardwal$
See 0ootnote .+ the court doesnHt discuss whether or not this is constitutional
Court deter1ines Ae%%in% IS full& ,rotected s,eech Aecause it is a charitaAle solicitation in a
,uAlic foru1
i. ItHs content neutral so use the TP: test
ii. It leaves alternative channels o,en+ is narrowl& tailored+ and serves a si%nificant
%overn1ental interest )eli1inatin% nuisance activit& on the Aeach+ ,reservin% a
safe and ,leasant environ1ent+ ,ro1otin% touris1/
iii. It doesnHt Aurden suAstantiall& 1ore s,eech than is needed to serve the
%overn1ental interest
Q ProAle1 with this anal&sis is that the law IS content3Aased+ so it should Ae strict scrutin& instead
of the TP: test
2. 80i%htin% =ords9I 85ate S,eech9
#lac$ etter( To Ae considered 80i%htin% =ords9 the& 1ust tend to incite an i11ediate Areach of
the ,eace
Doo-ing 3 Wison (14.2, p. 10.0, note c)
F!cts/ 'urin% an anti3war de1onstration when a ,olice officer was tr&in% to restore access to an
"r1& Induction Center+ Eoodin% said to ,olice 8 &ou white son of a Aitch+ IHll $ill &ou9. 5e was
convicted under a E" statute ,rohiAitin% OaAusive lan%ua%e that tends to cause a Areach of the
,eace.9
Iss"e/ Is statute constitutionalG
8o-ing/ 4o
72
3 SC did not decide whether E" could constitutionall& ,unish Eoodin%Hs s,eech
3 Invalidated statute on its face as overAroad
a. State courts had inter,reted the statute as reachin% clearl& ,rotected e;,ression+ e.%.
s,eech that 1i%ht cause a Areach of the ,eace in so1e future ti1e
'eauharnais v. Ellinois (14-2, p 1211)
F!cts/ #eauharnais+ ,resident of =hite Circle ea%ue+ distriAuted leaflets and a ,etition callin%
for the :a&or and the Cit& of Chica%o to unite and ,revent the encroach1ent of Alac$ ,eo,le and
their 8a%%ressions+ ra,es+ roAAeries+ $nives+ %uns+ 1ariKuana.9 The leaflets included an a,,lication
for 1e1Aershi,. #eauharnais was arrested and convicted an under I statute that ,rohiAits
ne%ative characteriDations Aased on race+ color+ creed+ or reli%ion.
Iss"e Can a state constitutionall& ,unish liAels ai1ed at %rou,s or certain races as o,,osed to at
individualsG
8o-ing <es
3 Justice 0ran$furter )53- decision/
a. If a state can ,unish it when itHs aAout an individual+ it can ,unish it aAout a %rou,
)unless it is a ,ur,oseless restriction unrelated to the ,eace and well3Aein% of the
state/
A. iAels aAout racial and reli%ious %rou,s ,ro1ote strife
c. To Ae aAle to e;cuse liAel on the %rounds that it is the truth &ou need the facts to Ae
true "4' &ou have to have %ood 1otives and KustifiaAle ends. Even assu1in% the
first is true+ #eauharnais didnHt have the second.
d. 'onHt have to %et to the Clear and Present 'an%er anal&sis+ Aecause liAel is
un,rotected here
3 'issent3 #lac$ and 'ou%las
a. This 8%rou, liAel9 law is Kust state censorshi,
A. 80i%htin% =ords9 are not the 1ain ,art of what was %oin% on+ 1ostl& #eauharnais
was Kust tr&in% to %et ,eo,le into his %rou,shouldnHt aArid%e freedo1 of the ,ress
and s,eech Aecause incidentall& there was this 8%rou, liAel9
4>TES(
3 'eauharnais would not ,ass constitutional 1uster toda& Aecause
a. In 2; 6i#es v ,ullivan SC said liAel is not i11une fro1 constitutional li1itations
i.e. itHs so1ewhat ,rotected
3 iAel is now considered of 8low9 first a1end1ent value
R6A6E6 36 Cit& o0 St6 P!" (1442, p. 1214)
F!cts/ R"@ char%ed with Aurnin% a cross on a Alac$ fa1il&Hs lawn under a St Paul :4
ordinance that ,rohiAits Aurnin% a cross+ swasti$a+ or other s&1Aol that one $nows or has reason
to $now 8arouses an%er+ alar1+ or resent1ent in others on the Aasis of race+ color+ creed+ reli%ion+
or %ender.9 :4 State Su,re1e Court u,held conviction. US SC reversed
Iss"e/ Is the statute constitutionalG
8o-ing 4o
3 Justice Scalia
a. >rdinance is faciall& unconstitutional Aecause it li1its s,eech solel& on the Aasis of
suAKect 1atter+ even thou%h the s,eech is alread& classified as un,rotected
A. <ou can ,roscriAe liAel+ Aut not liAel onl& on a ,articular suAKect
1. Eovern1ent can cri1inaliDe threats of violence+ Aut not onl&+ for e;a1,le+
those threats that 1ention PresidentHs forei%n ,olic& on aid to inner cities
7-
.. This would Ae a$in to a state Aannin% liAel onl& a%ainst Re,uAlicans+ Aecause
that would Ae vie$point discri#ination.
c. This ordinance onl& a,,lies to words that ,rovo$e violence on the Aasis of color+
creed+ etcthis ordinance ,rohiAits Aias31otivated hatred
d. Should tr& and confront this Ai%otr&+ Aut not A& selective li1itations on s,eech
e. 80i%htin% =ords9 are un,rotected Aecause their content e1Aodies a ,articularl&
intoleraAle )and sociall& unnecessar&/ 1ode of e;,ressin% their idea
f. ProAle1 is that St Paul has not ,rohiAited all threatenin% lan%ua%eRAut onl& that that
is threatenin% on the Aasis of racial+ %ender+ etc.
%. The %overn1ent 1a& 4>T discri1inate a1on% suA3classes of 80i%htin% =ords9
Aased on hostilit& or favoritis1 towards a non1proscribable 1essa%e )e.%. racial
intolerance/ the& contain. The re%ulation of S0i%htin% =ordsS 1a& not Ae Aased on
non3,roscriAaAle content.
h. ",,l& strict scrutin&+ Aut law doesnHt ,ass(
1. There IS a co1,ellin% oAKective )ensurin% Aasic hu1an ri%hts of 1e1Aers of
traditionall& discri1inated %rou,s/
.. #UT there "RE other content neutral alternatives+ and dan%er of censorshi,
1eans that content3Aased statutes should onl& Ae used when aAsolutel&
necessar& to further the co1,ellin% %overn1ental interest
3 ConcurrenceR=hite+ #lac$1un+ >HConnor+ Stevens )in ,art/
a. ItHs inconsistent to sa& that the %overn1ent can ,roscriAe an entire cate%or& of s,eech
Aecause of content+ Aut 1a& not treat a suAset differentl& without violatin% 1
st

a1end1ent
A. The& would decide this case on over3Areadth %rounds instead
1. The 1ere fact that an activit& causes hurt feelin%s+ offense+ or resent1ent
does not render the e;,ression un,rotected
4>TES(
3 1!c? etter Test fro1 R"@ is that when content Aased discri1ination in a cate%or& of
un,rotected s,eech is Aased on the ver& sa1e thin% that 1a$es the content un,rotected that
discri1ination is unconstitutional
3 SC honors the state courtHs inter,retation and stri$es the statute down Aecause it is under3
Aroad )it doesnHt ,rohiAit all fi%htin% words+ onl& so1e words/
a. #UT if " fi%htin% words are un,rotected )includin% these at issue/ how is this a 1
st
a1end1ent case at allG
1. If the statute has a view,oint3discri1inator& ,ur,ose it is unconstitutional
.. This 1a& Ae a case of view,oint discri1ination =IT5I4 an un,rotected
s,eech cate%or&
Wisconsin 3 9itche (1443, p 122/)
F!cts/ "fter watchin% Mississippi 'urnin"+ in which a white $id Aeats u, a Alac$ $id+ :itchell
)Alac$/ and friends Aeat u, a white $id. :itchell was convicted of a%%ravated Aatter& and %iven
1ore than the usual 1a;i1u1 sentence Aecause it was a 8hate cri1e9 under state law+ Aecause
the victi1 was sin%led out A& his race. =I Su,re1e Court said the statute violated 1
st

a1end1ent.
Iss"e/ Is the hate cri1e statute constitutionalG
8o-ing <es
3 Rehnquist )for a unani1ous court/
a. Ph&sical assault is 4>T e;,ressive conduct ,rotected A& 1
st
a1end1ent
A. 'ifferent fro1 R"@+ Aecause that was s,eech+ )or 1essa%es/ this is conduct
75
c. StateHs desire to redress har1s is an adequate e;,lanation for ,enalt&3enhance1ent
4>TES( this case is so1ewhat inconsistent with R83
Eirgini! 3 1!c? (2003, ,upp p. 1./)
F!cts/ #arr& #lac$+ Richard Elliott+ and Jonathan >H:ara were each convicted of violatin% @"Hs
cross Aurnin% statute )#lac$ for leadin% a 666 rall&+ Elliot and >H:ara for Aurnin% a cross on a
nei%hAorHs lawn/
Iss"e/ Is @"Hs statute unconstitutionalG
8o-ing/ <es
3 Justice >HConnor
a. It treats an& cross Aurnin% as ,ri1a facie evidence of intent to inti1idate+ and so is
overAroad and unconstitutional
1. 5>=E@ER+ the Eovern1ent C>U' have Aanned " cross Aurnin% with
intent to inti1idateRthatHs >6
A. #urnin% a cross is not alwa&s 1eant to inti1idate+ Aut often 1eans ,eo,le to fear for
their lives
c. The State 1a& ,unish 8true threats9+ this t&,e of content3discri1ination doesnHt
violate 1
st
a1end1ent
d. @" can Aan cross Aurnin% with intent to inti1idate+ without havin% to Aan all
inti1idatin% 1essa%es can re%ulate this suAset in li%ht of cross Aurnin%Hs
,ernicious histor& as a s&1Aol of i1,endin% violence
e. 5ere+ the 8,ri1a facie9 ,art is unconstitutional Aecause ,rohiAits "4< cross Aurnin%+
even if it was Kust ,olitical s,eech+ which is Kust the t&,e of s,eech 1
st
a1end1ent
desi%ned to ,rotect
1. E.%. cross Aurnin% at a rall& 1a& arouse a lot of an%er and resent1ent+ Aut
unli$e a cross Aurnin% on a Alac$ ,ersonHs lawn+ it 1a& not Ae desi%ned to
inti1idate or Ae a threat of i1,endin% violence
3 'issent3 Tho1as
a. Cross Aurnin% is 4>T e;,ressive+ Kust conduct+ so no need to ,ass 1
st
a1end1ent
tests
A. Even if it is e;,ression+ there is no constitutional ,roAle1 with allowin% a Kur& to
infer intent to inti1idate Kust fro1 the cross Aurnin% itself
3 Scalia3 dissent in ,art and concur in ,art
a. State can Aan cross Aurnin% with intent to inti1idate
A. ShouldnHt invalidate the ,rovision on its face Aecause ,ri1a facie evidence doesnHt
,rove so1ethin% for %ood+ Kust ,roves intent to inti1idate until defendant co1es
forward with reAuttal evidence
3 Souter+ 6enned&+ EinsAer%3 dissent in ,art+ concur in ,art
a. @" statute 1a$es a content3Aased distinction within cate%or& of ,unishaAle
inti1idatin% or threatenin% e;,ression+ and thatHs >6
A. #ut should invalidate the statute an&wa&s Aecause it doesnHt fall into the R"@
cate%or& of >6 to re%ulate Aecause the R"@ e;a1,le was not clearl& associated with
a ,articular view,oint
c. The effect of this law is to s$ew Kur& deliAerations toward conviction where evidence
to inti1idate is wea$s$ews the statute towards su,,ressin% ideas
4>TES(
3 5ow can we 1a$e sense of this case in the conte;t of R83G
a. The 1aKorit& said an& cross Aurnin% that is actuall& a threat would Ae >6 to ,rohiAit
#EC"USE itHs a threat )not Aecause itHs cross Aurnin%/. ItHs true that this would
76
sin%le out one ,articular e;,ression+ which we associate with a ,articular 1essa%e+
Aut it doesnHt sin%le out a view,oint Aecause an& such conduct is "="<S ille%al
when it has an intent to inti1idate
A. R83 said &ou could cri1inaliDe onl& a ,art of un,rotected s,eech
c. So+ 3ir"inia satisfies R"@ Aecause &ou can have an under3Aroad statute as lon% as
there is no view,oint discri1ination.
E. The 80reedo1 of E;,ressive "ssociation9
Ro@erts 36 >!&cees (148/, p. 13-3)
F!cts/ Ja&cees was a non3,rofit 1e1Aershi, cor,oration whose oAKective is to ,rovide &oun%
1en with o,,ortunit& for ,ersonal develo,1ent and achieve1ent and an avenue for intelli%ent
,artici,ation in the affairs of the co11unit&. Re%ular :e1Aershi, was li1ited to 1en a%ed 1*3
25+ and "ssociate :e1Aershi, was e;tended to older 1en and wo1enRthese "ssociate
1e1Aers canHt vote+ hold office+ or ,artici,ate in certain leadershi, trainin% ,ro%ra1s. :4 'e,t
of 5u1an Ri%hts found this ,olic& violated :4 5u1an Ri%hts "ct+ which ,rohiAits
discri1ination on the Aasis of se;
Iss"e/ 'oes the :4 law violate Ja&ceesH 1
st
a1end1ent freedo1 of e;,ressive associationG
8o-ing/ 4o
3 Justice #rennan
a. The ri%ht to associate not aAsolute
A. Test( infrin%e1ents are >6 if the& serve co1,ellin% state interests+ unrelated to the
su,,ression of ideas+ that canHt Ae achieved throu%h less restrictive 1eans
1. :4Hs co1,ellin% interest in %ettin% rid of se; discri1ination Kustifies i1,act
on Ja&cees
.. The "ct doesnHt ai1 at the su,,ression of s,eech and doesnHt distin%uish
activit& Aased on view,oint
2. Ja&cees failed to de1onstrate that the "ct i1,oses an& serious Aurden on
their freedo1 of association )i.e. ad1ission of wo1en as full votin% 1e1Aers
vs onl& associate 1e1Aers is not a serious Aurden+ sa&s the SC/
1o&sco"ts o0 A%eric! 36 +!e (2000, p. 13->)
F!cts/ 'ale was fired fro1 his scout1aster ,osition when #o& Scouts learned he was %a& and a
%a& activistR4J PuAlic "cco11odations aw+ which ,rohiAits discri1ination on Aasis of se;ual
orientation was inter,reted A& state courts to forAid Ao& scouts fro1 doin% this.
Iss"e/ 'oes the 4J law violate Ao& scouts ri%ht to e;,ressive associationG
8o-ing/ <es
3 Justice Rehnquist
a. Test( a Statute infrin%es on freedo1 of association if affects in si%nificant wa&
%rou,Hs aAilit& to advocate ,uAlic or ,rivate view,oints
A. #o& Scouts see$ to trans1it values into &oun% Ao&s this is ,rotected e;,ressive
conduct
c. 0orced inclusion of 'ale would si%nificantl& affect aAilit& to advocate view,oints+
sa& the #o& Scouts+ Aecause the& donHt want to ,ro1ote ho1ose;ualit& as le%iti1ate
d. SC will defer to #o& Scouts own view of what would i1,airIAurden their %oal and
acce,t that 'aleHs ,osition as assistant scout 1aster Aurden this %oal
e. So 4J law violates 1
st
a1end1ent
7!
1. 'istin%uishes fro1 Ja&cees Aecause ad1ittin% wo1en wouldnHt
alterIinterfere with ideas sou%ht to e;,ress
3 'issentREinsAer%+ Souter+ #re&er+ Stevens
a. 4ever Aefore has Ri%ht to E;,ressive "ssociation Aeen allowed as a 1eans to tru1,
anti3discri1ination laws
A. 0reedo1 of association isnHt a ri%ht to discri1inate at will+ nor a ri%ht to 1aintain an
e;clusionar& 1e1Aershi, ,olic& si1,l& out of fear of what the ,uAlic reaction would
Ae if the %rou,Hs 1e1Aershi, was o,ened u,
c. "n&wa&s+ 'aleHs inclusion wouldnHt si%nificantl& Aurden the #o& Scouts 1essa%e )ie
'>4HT defer to #o& Scouts own definition of what would Aurden their 1essa%e/
d. :aKorit&Hs reasonin% is that %a&s are so different fro1 ever&one else that the& can Ae
sin%led out this is tanta1out to a Aad%e of inferiorit&
4>TES(
+ this case is inconsistent with the holdin% in >!&cees+ no 1atter what the court sa&s
3 Unli$e in Haycees+ the SC as$s here if the law i1,airs what the association clai1s its 1essa%e
is+ and this is a lot of deference[
3 #UT333this law is re%ulatin% C>4'UCT+ not s,eech+ "4' itHs a content3neutral law+ so wh&
are we not usin% the =F'rien 6est+ how did we even %et into strict scrutin&G
a. SC sa&s itHs doin% the strict scrutin& Aalancin% test+ Aut doesnHt actuall& Aalance 4JHs
interest in ,reventin% discri1ination a%ainst the Ao&scoutsH ri%ht to e;,ress
the1selvesL there is no discussion of how the SC actuall& ,lans to Aalance these
interests
A. ( 8This is Kust a conclusor& state1ent with no anal&sis9
3 ots of conduct i1,airs ,eo,leHs aAilit& to e;,ress the1selves the wa& the& want )e.%. I want
to drive 1& car at *5 1,h/
3 The onl& wa& to resolve this case is to see a s,ecial 1
st
a1end1ent ri%ht to association that
1a$es it 1ore s,ecial than other conduct
3 SC has identified . t&,es of freedo1 of association
a. 0reedo1 of inti1ate association
A. 0reedo1 of e;,ressive association
3 E@ER< anti3discri1ination law Aurdens )A/ Aecause discri1ination is ver& e;,ressive
3 "ll cases Aefore this one that challen%ed anti3discri1ination laws on free s,eech %rounds lost+
this is the first one that won
on )st !%en-%ent !w+
3 1st a1end1ent law is structured A& the sa1e $ind of hei%htened scrutin& we saw in Equal
ProtectionI1-
th
a1end1ent lawstrict scrutin& that is tri%%ered A& content3Aased re%ulations
and se1i3strict scrutin& for other laws that are not3content3Aased
3 "ll 8Scrutinies9 can Ae loo$ed at as 1/ consequentialist+ or ./ ,ur,osivist
1/ If &ou ta$e the consequentialist ,osition &ou have to do a Aalancin% test
a. <ou %et decisions li$e ,#ith )e.%. the #e%%ersH interestIvalue in Ae%%in% s,eech v.
the Cit&Hs interest in touris1+ etc/
A. >r &ou 1i%ht find+ as in 'oy ,couts+ that anti3discri1ination laws can Aurden s,eech
Aecause discri1ination is e;,ressive too
c. Since we use strict scrutin& for racial discri1ination Aut onl& inter1ediate scrutin&
for %ender+ on the consequentialist )effects Aased/ view we 1i%ht have to assu1e that
the stateHs interest in eradicatin% racial discri1ination is 1ore i1,ortant than
eradicatin% %ender discri1ination
./ If &ou use a ,ur,osive anal&sis &ou donHt have to do this
7*
d. Instead+ %ender discri1ination uses inter1ediate scrutin& Aecause we have lots of
laws )li$e Aathroo1 laws/ that donHt auto1aticall& evo$e sus,icion that so1e
unconstitutional PURP>SE is at foot+ Aut not Aecause state interest is less stron% in
eradicatin% se;is1
8pplyin" purposivist vie$ to 1
st
a#end#ent la$+
>n 0reedo1 of "ssociative E;,ression
i. There is no freedo1 of association in the 1
st
a1end1ent
ii. "ssociation A& itself is conductL the reason wh& anti3discri1ination law s are
>6 to sto, ,eo,le fro1 onl& sellin% to whites is not Aecause in a Aalancin% test
the stateHs interest wins+ Aut Aecause sellin% onl& to whites is conduct so donHt
%et into a strict scrutin& anal&sis
iii. That conduct is e;,ressive )all conduct is/ doesnHt 1ean it %ets hei%htened
scrutin& whenever so1eone wants to violate the law
iv. There is no ri%ht to e;e1,tions fro1 %enerall& a,,licaAle conduct laws for
,eo,le who want to violate the1 for e;,ressive reasons )unless state is
s,ecificall& tar%etin% the 1essa%e that conduct is e;,ressin%/
v. If the state %oes after so1eone #EC"USE of anti,ath& towards views or
1essa%es Cthis is where 1
st
a1end1ent a,,lies and has to %o throu%h
1. e.%. 4""CP 1e1Aershi, list cases )state canHt de1and the lists/
.. Could state de1and that 666 reveal 1e1Aershi, listsG ProAaAl&
not.
2. #ut where an otherwise %enerall& a,,licaAle conduct law a,,lies
to a s,ecific or%aniDation+ clai1s that 1a$in% us follow the law
would force us to send a 1essa%e that we endorse those law
'>ES4HT %ive it 1
st
a1end1ent scrutin&
-. Just as a restaurant owner cannot use race as a ,ro;& to see if
&ouHll Ae a %ood e1,lo&ee+ an association cannot use race as a
,ro;& for Aeliefs to see if &ouHll Ae a %ood 1e1Aer
This enco1,asses all 1
st
a1end1ent law EJCEPT 'oy ,couts,eo,le al1ost "="<S lose
the =F'rien cases Aecause &ou donHt Kust %et a free ,ass out of %enerall& a,,licaAle conduct laws
Aecause it inhiAits &our e;,ression
0. EqualiDin% Political S,eech
9i!%i 8er!- P"@ishing Co6 36 Tornio (14./, p. 1384)
F!cts/ 0lorida had a 8Ri%ht of Re,l&9 statute that said that if a candidate for ,olitical officeHs
,ersonal character or official record was assaulted A& an& news,a,er+ he had the ri%ht to de1and
that the news,a,er ,rint+ free of char%e to the candidate+ the candidateHs re,l& to the char%es.
Re,l& 1ust Ae in as cons,icuous a ,lace and sa1e $ind of t&,e as the char%es which ,ro1,ted
the re,l&
Iss"e/ Is 0Hs 8ri%ht of re,l&9 statute constitutionalG
8o-ing/ 4o
3 Chief Justice #ur%er )for a unani1ous court/
a. This statute is tanta1ount to ,rohiAitin% news,a,ers fro1 ,rintin% s,ecific 1atter
C"4T 0>RCE the ,a,er to ,rint so1ethin%
A. The statute e;acts a ,enalt& on the content of the ,a,er in the for1 of the cost of
,rintin%
77
c. =ere this statute to stand+ news,a,ers 1i%ht well deter1ine that itHs Aetter to avoid
controvers& and not ,rint lots of stuffthis would da1,en the vi%or and variet& of
,uAlic deAate
d. Even if didnHt cost news,a,ers an&thin%+ the statute would still Ae unconstitutional
Aecause ille%iti1atel& intrudes into e;ercise of editorial control and Kud%1ent
3 Concurrence #rennan
a. This decision i1,lies no view on the constitutionalit& of 8retraction9 statutes
affordin% ,laintiffs who are aAle to ,rove defa1ator& falsehoods a statutor& ri%ht of
action to require ,uAlication of a retraction
Re- Lion 1ro!-c!sting Co6 36 FCC (14>4, p. 1341)
F!cts/ 0CC had a 80airness 'octrine9 that included a re%ulation %overnin% ,ersonal attac$s and
,olitical editorialiDin%. This doctrine i1,osed on Radio and T@ Aroadcasters the require1ent
that discussion of ,uAlic issues Ae ,resented on Aroadcast stations+ and that each side of deAate
1ust Ae %iven fair covera%eL when ,ersonal attac$s are 1ade+ the attac$ed ,erson 1ust Ae %iven
notice+ a transcri,t+ and a reasonaAle o,,ortunit& to res,ond. There was also a ,olitical
editorialiDin% rule that a Aroadcaster+ when he endorses or o,,oses a candidate+ 1ust notif& the
o,,osed candidate or o,,onents of endorsed candidate and %ive the1 reasonaAle o,,ortunit& to
re,l&.
Iss"e/ Is the 0airness 'octrine constitutionalG
8o-ing/ <es
3 Justice=hite
a. 4ot ever&one can Aroadcast1ore ,eo,le would li$e to Aroadcast than there is roo1
on the air for. >nl& so1e can Ae licensedso there is not an unli1ited ri%ht to
Aroadcast
A. =hen so1eone is licensed+ he has no constitutional ri%ht to 1ono,oliDe a radio
frequenc& to the e;clusion of fellow citiDens
c. The ,uAlic has a 1
st
a1end1ent ri%ht to receive suitaAle access to social+ ,olitical+
1oral+ and other ideas and e;,eriences
d. If the 0CC didnFt force Aroadcasters to ,er1it answers to ,ersonal attac$s+ etc+ the&
would have unfettered ,ower to 1a$e ti1e availaAle onl& to hi%hest Aidder+ and
,eo,le with who1 the& a%reed
e. There is no sanctuar& in the 1
st
a1end1ent for unli1ited ,rivate censorshi, when
o,eratin% in a 1ediu1 o,en to all
4>TES(
3 Thin$ aAout 6ornillo and its a,,lication to news,a,ers
a. Can &ou a,,l& the 0airness 'octrine fro1 Red <ion to news,a,ersG
A. 6ornillo is distin%uishaAle fro1 Red <ion Aecause the Eovern1ent does not %rant
licenses to news,a,ers
1"c?e& 36 E!eo (14.>, p. 132/)
F!cts/ The 0ederal Election Ca1,ai%n "ct of 17!1 and related ,rovisions of the Internal
Revenue Code of 175-+ all were a1ended in 17!- so that a/ individual ,olitical contriAutions and
e;,enditures relative to a clearl& identified candidate were li1ited+ and ca1,ai%n s,endin% A&
candidates for various federal offices was suAKect to ,rescriAed li1itsL A/ contriAutions and
e;,enditures aAove certain threshold levels 1ust Ae re,orted and ,uAlicl& disclosedL c/ a s&ste1
for ,uAlic fundin% of the Presidential ca1,ai%n activities was estaAlishedL and d/ a 0ederal
Election Co11ission )80EC9/was estaAlished to ad1inister and enforce the le%islation
Iss"e/ 'o the challen%ed ,rovisions violate 1
st
a1end1ent freedo1 of co11unicationG
1??
8o-ing/ <es and 4o. The SC u,held the individual contriAution li1its+ the disclosure and
re,ortin% ,rovisions+ and the ,uAlic financin% sche1e+ Aut invalidated the co1,osition of the
0EC and the li1itations on e;,enditures
3 Per curia1
a. To u,hold contriAution and e;,enditures ,rovisions ",,eals Court relied on =F'rien
A. 'onHt a%ree with lower court. ShouldnHt Ae the =F'rien test here Aecause althou%h it
see1s li$e conduct+ itHs actuall& s,eech should Ae strict scrutin&
3 ContriAution li1itations are >6
a. ContriAutions are acts of e;,ressive association that ,eo,le have a ri%ht to+ restrictin%
contriAutions restricts freedo1 of ,olitical association
A. That freedo1 is not aAsolute
1. Test( use strict scrutin& to see if the restriction is >6 here )ie 8sufficientl&
i1,ortant %overn1ental interest and closel& drawn 1eans9
.. Prevention of corru,tion is an acce,taAle %overn1ental interest sufficient to
Kustif& W1??? contriAution ceilin% for 1aKor3,art& challen%ers and 1inor
,art& candidates and W5??? A& ,olitical co11ittees
2. 0urther+ the e;,ression of contriAution doesnHt de,end on how 1uch 1one&
&ou have+ all &our contriAution leads to the sa1e e;,ressionCa,s are >6
as lon% as &ou are still allowed to %ive S>:E 1one&
3 E;,enditure i1itations are not >6
a. E;,enditures are different fro1 contriAution Aecause the a1ount of 1one& &ou %ive
directl& relates to how 1uch e;,ression &ou %et
A. So usin% strict scrutin&+ ca,s are unconstitutionalRwhile neutral as to ideas
e;,ressed+ the& li1it ,olitical e;,ression
c. Eovern1ent canHt restrict the s,eech of so1e in order to enhance the relative voice of
anotherthe interest in equaliDin% voices is not a constitutionall& ,er1issiAle interest
1. <ou donHt %et to a Aalancin% test here Aecause the ends are ille%iti1ate
d. Eovern1ent canHt decide that too 1uch s,endin% to ,ro1ote ,olitical views is
wasteful+ e;cessive+ or unwise
3 #ur%er+ concur in ,art and dissent in ,art
a. ContriAution li1itations should Ae unconstitutional too
3 =hite+ concur in ,art and dissent in ,art
a. E;,enditure li1itations should Ae o$ too
A. Co1,ulsor& Aar%ainin% is o$+ so is this
c. E;,enditure li1its hel, %et rid of corru,tion
d. ItHs i1,ortant to restore ,uAlic confidence in elections
4>TES(
3 This la&s the %roundwor$ for all develo,1ents and loo,holes in ca1,ai%n finance laws
3 SC sa&s 1
st
a1end1ent is aAout a strict scrutin& Aalancin% test ),. 12.7/L so &ou %ive the facts
and infor1ation+ and Aalance at the interests the lawIaction is said to further v. the freedo1 it
i1,in%es u,on.
3 SC sa&s interest is equaliDin% voices is not constitutionall& ,er1issiAle
3 Can this Ae squared with Red <ion+ which ="S a case where the Eovern1ent restricted the
s,eech of so1e to enhance the relative voice of othersL
3 doesnHt thin$ there is an& contradiction Aetween 'uc(ley and Red <ion Aecause there is
Eovern1ental licensin% and e;tre1e Aandwidth scarcit& in Red <ion so itHs 1ore
understandaAle that the Eovern1ent would Ae re%ulatin%
a. Still+ the e;traordinar& thin% aAout Red <ion is that one is ,rett& sur,rised that the
court does not a,,l& the Red <ion reasonin% to 6ornillo
1?1
A. Red <ion ,. 127.+ SC writes that the 1
st
a1end1ent is not a ri%ht of individuals to
e;,ress their views Aut the collective ri%ht of the ,uAlic to receive 8suitaAle access to
social+ ,olitical+ esthetic+ 1oral+ and other ideas and e;,eriences donHt want one
Aroadcaster with too 1uch influence
1. This ,ara%ra,h su%%ests a radicall& different conce,tion of the 1
st

"1end1ent
.. 'uc(ley reKects this conce,tion
c. If &ou ta$e this seriousl&+ &ou 1i%ht ta$e issue with the 4ew <or$ Ti1es Aein% so
influential+ Aut this is not the "1erican 1
st
a1end1ent as we $now it
3 ar%u1ent for 'uc(ley
a. If &ou Aelieve in the ,uAlic ri%ht to suitaAle access a la Red <ion then the
Eovern1ent will have to decide what is a,,ro,riate or suitaAle access+ and this is
,roAle1atic
A. #etter to ta$e a PURP>SI@IST account of the 1
st
a1end1ent( the Eovern1ent
cannot ta$e action with the ,ur,ose of correctin% certain $inds of har1s
1. Eovern1ent canHt sto, co11unication Aecause the& are worried that the
ideas 1i%ht Ae ,ersuasive and acce,ted
c. The ,ur,osivist view is 4>T that &ou can su,,ress a Aoo$ even if &ou are o,,osed to
what the 1essa%e 1i%ht lead to as lon% as &ou are not o,,osed to the 1essa%e
itselfthat is Ae co11unicative su,,ression too
1. Eovern1ent canHt act with the ,ur,ose of su,,ressin% co11unication no
1atter what har1 down the road its worried aAout
d. If &ou acce,t the ,ur,osivist view+ the ,roAle1 with the E;,enditure ca,s is the idea
of equaliDin% s,eech in the ,uAlic foru1
1. The Interest in equaliDin% voices is 4>T a constitutional interest
.. There is no ,roAle1 with rich ,eo,le Au&in% u, ti1e so the& will influence
elections( if ,eo,le see their ads and are ,ersuaded and vote accordin%l& that
should Ae fine. The alle%ed har1 is in the effectiveness of the s,eech+ Aut the
Eovern1ent shouldnHt Ae aAle to sto, this
e. 'uc(ley %ot it ri%ht Aecause the contriAution li1itations were reall& intended to curA
corru,tion while the e;,enditure li1its were worried that too 1an& ,eo,le would Ae
convinced A& the s,eech
3 So what does the 1
st
"1end1ent ,rotectG
a. Chaplins(y su%%ests that s,eech is usuall& valuaAle to societ& and where it isnHt
valuaAle it isnHt ,rotected. #ut if &ou ta$e this view &ou are co11itted to a cost3
Aenefit anal&sis
A. R83 confuses this
1. If s,eech isnHt ,rotected when not valuaAle+ then it shouldnHt 1atter what &ou
do to a suAsection of the un,rotected s,eech Aecause its alread& un,rotected
.. #ut R83 sa&s that even within un,rotected s,eech the Eovern1ent canHt
discri1inate Aased on view,oint
c. 1
st
a1end1ent is aAout ,rohiAitin% the Eovern1ent fro1 actin% in a certain wa&
towards certain ideas
First N!tion! 1!n? o0 1oston 36 1eotti (14.8, p. 13/0)
F!cts/ :" statute ,rohiAited cor,orations fro1 1a$in% contriAutions or e;,enditures to
influence the vote or voters e;ce,t on issues 1ateriall& affectin% the ,ro,ert&+ Ausiness+ or assets
1?.
of the cor,oration )ta; doesnHt count/. State court u,held the statute sa&in% that cor,orationHs 1st
a1end1ent ri%hts are li1ited to those 1ateriall& affectin% its Ausiness+ ,ro,ert& or assets
Iss"e/ 'oes the statute aArid%e e;,ression that the 1
st
a1end1ent was 1eant to ,rotectG
8o-ing/ <es
3 Justice Powell )for a 53- court/
a. Protected s,eech doesnHt lose its ,rotection Kust Aecause itHs a cor,oration and not a
,erson thatHs s,ea$in%
A. Cor,orate advertisin% 1a& influence the electorate+ Aut the fact that the cor,orationHs
advocac& 1i%ht wor$ is not reason to su,,ress it )see 'uc(ley+ su,ra/
c. Peo,le can 1a$e their own Kud%1ents aAout whether the cor,orationHs views are
worth su,,ortin%
3 'issent+ =hite #rennan and :arshall
a. Cor,orate e;,ression doesnHt at all further 8,rinci,al 1
st
a1end1ent e;,ression+9
which is the use of co11unication as a 1eans of self3e;,ression+ self3realiDation+ or
self3fulfill1ent
A. :" has a le%iti1ate interest in ,reventin% institutions which have Aeen ,er1itted to
a1ass wealth as a result of s,ecial advanta%es e;tended A& the state !or econo#ic
purposes fro1 usin% that wealth to acquire unfair advanta%e in political arena
3 'issent+ Rehnquist
a. The cor,oration is an artificial Aein%+ and has onl& those ,ro,erties which its charter
%ave it. It doesnHt auto1aticall& %et freedo1 of s,eech.
A. State news,a,er has freedo1 of ,ress Aecause that is necessar& to its Ausiness+ Aut
the ri%ht of ,olitical e;,ression is not necessar& for a cor,oration
A"stin 36 9ichig!n Ch!%@er o0 Co%%erce (1440, p. 13/2)
F!cts/ Z 5-)1/ of the :ichi%an Ca1,ai%n 0inance "ct ,rohiAited cor,orations fro1 usin%
cor,orate treasur& funds for inde,endent e;,enditures in su,,ort of or in o,,osition to an&
candidate for state office+ Aut allowed e;,enditures fro1 se%re%ated funds )e.% a Political "ction
Co11ittee/ to Ae used solel& for ,olitical ,ur,oses.
Iss"e/ Is the statute constitutionalG
8o-ing <es
3 Justice :arshall )for a 632 court/
a. Cor,orations can a1ass resources in econo1ic 1ar$et,lace to oAtain unfair
advanta%e in ,olitical arenathis is not an indication of ,o,ular su,,ort for
cor,orationHs ,olitical ideas+ Aut of econo1icall& 1otivated decisions of investors
and custo1ers
A. The state has articulated sufficientl& co1,ellin% rationale to su,,ort restrictions
c. It is narrowl& tailored Aecause it is ,recisel& tar%eted to eli1inate the distortion
caused A& cor,orate ,olitical s,endin% while also allowin% cor,orations to e;,ress
their ,olitical views throu%h se,arate se%re%ated funds
3 'issent+ Scalia
a. Cor,orationHs lar%e Aan$ accounts are not a sufficient Kustification for the
su,,ression of ,olitical s,eech the %overn1ent canHt discri1inate Kust Aecause
cor,oration is rich
3 'issent+ 6enned&+ Scalia+ >HConnor
a. "r%u1ent that a Political "ction Co11ittee is an alternate 1eans is a costl& and
Aurdenso1e disincentive to s,eech
1?2
E. SuAsidies+ Penalties+ and Eovern1ent S,eech
9!her 36 Roe (14.., p. 83-)
F!cts/ " state re%ulation %ranted :edicaid Aenefits for childAirth Aut denied the1 for non3
1edicall& necessar& aAortions.
Iss"e 'oes this statute unconstitutionall& i1,in%e u,on a funda1ental ri%ht e;,licitl& or
i1,licitl& ,rotected A& the Constitution or violate the 1-
th
a1end1ent Equal Protection clauseG
8o-ing( 4o
3 Justice Powell )for a 632 court/
a. 'oesnHt violate equal ,rotection
1. State doesnHt have to ,a& for ,oor ,re%nant wo1enHs care+ Aut when it does+
1anner is suAKect to constitutional li1itations
.. 5owever+ here there is no discri1ination a%ainst a sus,ect class )Poor
,re%nant wo1en are not a sus,ect class. Indeed+ 0inancial need alone has
never Aeen held a sus,ect class/
A. Roe v. Wade onl& ,rotects wo1en fro1 undul& Aurdenso1e interference with her
freedo1 to decide whether to ter1inate her ,re%nanc&RShe does not have an
unqualified ri%ht to an aAortion
c. Statute ,laces no oAstacles on ,oor wo1en
d. =o1en suffer no disadvanta%e Aecause the state ,a&s for childAirth Aut not aAortions+
and the statute i1,oses no restrictions that were not alread& there
e. There is a Ai% difference Aetween this case and Roe Aecause in Roe there was direct
state interference and here it is si1,l& state encoura%e1ent of alternative activit&
f. So it ,asses rational Aasis test Aecause %overn1ent has a rational interest in
encoura%in% nor1al childAirth and ,rotectin% unAorn life
3 'issent+ #rennan+ :arshall+ #lac$1un
a. :aKorit& shows a distressin% insensitivit& to ,li%ht of ,oor wo1en
A. The statute infrin%es on a ,rivac& ri%ht A& Arin%in% financial ,ressures on indi%ent
wo1en that force the1 to Aear $ids the& otherwise wouldnHt have
c. SC has held other withholdin% of %rants and financial Aenefits unconstitutional )see
e.%. ,herbert v. 3erner+ when the SC held unconstitutional a statute that denied
une1,lo&1ent co1,ensation to a wo1an who for reli%ious reasons could not wor$
on Sunda&s/ this is the sa1e thin%
d. This restriction '>ES undul& Aurden ri%ht to choose
3 'issent+ :arshall
a. Eovern1ent is si1,l& tr&in% to i1,ose a ,articular 1oral view,oint here
8!rris 36 9cr!e (1480, p. 838)
F!cts/ The Con%ressional 85&de "1end1ent9 ,rohiAited the use of federal :edicaid funds for
aAortions e;ce,t in cases of life endan%er1ent+ ra,e or incest.
Iss"e/ 'oes this a1end1ent unconstitutionall& i1,in%e on a wo1anHs ri%ht to aAortionG
8o-ing/ 4o
3 Justice Stewart )for a 53- court/
a. Just Aecause a wo1an has a ri%ht to aAortion doesnHt 1ean she has constitutional
ri%ht to the financial resources to avail herself of full ran%e of choices
A. Thou%h the state canHt i1,ose Aurden on the ri%ht to aAortion+ it does not have to
re1ove the1 either
c. 'onHt use strict scrutin& here Aecause there is no sus,ect class and no invasion of a
funda1ental ri%ht
1?-
d. 5&de "1end1ent ,asses rational Aasis test easil&
3 'issent+ #rennan+ :arshall+ #lac$1un
a. Sa1e Aasic reasons as Maher+ su,ra
R"st 36 S"i3!n (1441, p. 1243, 1-->)
F!cts/ Title J of the 17!? PuAlic 5ealth Service "ct ,rovides that no Title J funds should Ae
used in ,ro%ra1s that ,rovide aAortions as a 1ethod of fa1il& ,lannin%L or%aniDations receivin%
these funds canHt ,rovide aAortion counselin% or referral+ even u,on request. The& also canHt
en%a%e in activities that 8encoura%e+ ,ro1ote+ or advocate aAortion9+ and have to Ae ,h&sicall&
and financiall& se,arate fro1 ,rohiAited aAortion activities
Iss"e/ 'oes this statute violate the 1
st
a1end1ent A& discri1inatin% Aased on view,ointG
8o-ing/ 4o
3 CJ Rehnquist )for a 53- court/
a. Eovern1ent can 1a$e a value Kud%1ent favorin% childAirth over aAortions
A. To hold that con%ress unconstitutionall& discri1inates on the Aasis of view,oint A&
choosin% to fund a ,articular ,ro%ra1 would render 1an& %overn1ent ,ro%ra1s
constitutionall& sus,ect+ e.%. when Con%ress estaAlished a 4ational Endow1ent for
'e1ocrac& it didnHt have to estaAlish co1,etin% ones for co11unis1 and fascis1
c. Con%ress is not sin%lin% out a disfavored %rou, on the Aasis of s,eech+ Aut is onl&
refusin% to fund certain activities+ includin% s,eech+ which are s,ecificall& e;cluded
fro1 the sco,e of the ,roKect funded
d. Eovern1ent is not den&in% a Aenefit+ Kust insistin% that ,uAlic funds %o to certain
,ur,oses
3 'issent+ #lac$1un+ :arshall+ Stevens
a. This is the first ti1e SC has u,held view,oint3Aased su,,ression of s,eech si1,l&
Aecause that su,,ression was a condition u,on the acce,tance of ,uAlic funds
A. Eovern1entHs interest in distortin% doctorI,atient dialo%ue falls far short of that
necessar& to Kustif& su,,ression of truthful infor1ation and ,rofessional 1edical
o,inion re%ardin% constitutionall& ,rotected conduct
Leg! Ser3ices Corp6$ 36 Ee!s("eA (2001, ,upp. 14>)
F!cts/ Con%ress estaAlished the e%al Services Cor,oration in 17!- to distriAute %overn1ent
funds to eli%iAle %rantees for le%al assistance to ,oor ,eo,le+ and included the restrictions that
&ou couldnHt challen%e the le%alit& or constitutionalit& of welfare laws
Iss"e/ 'o the ,rohiAitions on challen%in% welfare laws violate1st a1end1ent and constitute
view,oint discri1inationG
8o-ing/ <es
3 Justice 6enned& )for a 53- court/
a. 'istin%uished fro1 Rust
1. @iew,oint Aased restrictions are >6 when the %overn1ent is the s,ea$er as
in Rust+ where the %overn1ent used ,rivate s,ea$ers to trans1it infor1ation
,ertainin% to its own ,ro%ra1
.. #ut here+ the suAsidiDin% funds are there to encoura%e a diversit& of ,rivate
s,eech and view,oints+ %overn1ent canHt Kust e;e1,t welfare s,eech
2. 4ote( this is a ,rett& wea$ distinction+ are the doctors in Rust really the
equivalent of %overn1ent actorsG
A. 'istorts the le%al s&ste1 when the Eovern1ent restricts what law&ers can sa& to their
clients
1?5
c. Particularl& ,roAle1atic Aecause if the attorne& withdraws+ ,oor ,erson 1a& not Ae
aAle to find another law&er
1. 4ote( a%ain+ isnHt this the sa1e ,roAle1 with the aAortion cases+ that if the
doctor doesnHt ,rovide aAortions the wo1an 1a& not %et oneG #ut there the
SC said that it didnHt 1a$e her an& worse off than if she had never had the
doctor in the first ,laceGGGG See dissentP
3 'issent+ Scalia+ Rehnquist+ >HConnor+ Tho1as
a. These ,eo,le donHt have an& ri%hts to this 1one&+ itHs Kust a suAsid&
A. 'oesnHt 1atter if there is no other o,tion for the welfare reci,ient+ Aecause he would
Ae in no worse a ,osition than Aefore he had the law&er
4>TES(
3 In 3elasAueD SC chan%es direction fro1 cases li$e Rust
3 In Aannin% view,oint discri1ination in the allocation of Eovern1ent funds 3elasAueD see1s
in conflict with Rust v. ,ullivan
a. The SC turned Title J clinic doctors into Eovern1ent e1,lo&ees to 1a$e this
ar%u1ent+ which see1s a Ait of a stretch
3 6e& ,oint( when the Eovern1ent s,ea$s it C"4 e;,ress o,inions+ there is no require1ent of
view,oint neutralit&. I.e. an or%an of the Eovern1ent can e;,ress ,ro3de1ocratic and anti3
co11unist o,inions
3 ine of cases( distinction Aetween suAsidies and ,enalties
a. If itHs onl& a suAsid& and not a ,enalt& it is ,roAaAl& >6+ unless the ,ur,ose is
ille%iti1ate or if the suAsid& ,enaliDes ,eo,le for e;ercisin% their constitutional ri%hts
Unite- St!tes 36 A%eric!n Li@r!r& Associ!tion (2003, ,upp. 201)
F!cts/ Two federal ,ro%ra1s ,rovide funds to ,uAlic liAraries to hel, the1 e;,and onto the
internet+ Aut the ChildrenHs Internet Protection "ct )CIP"/ sa&s liAraries will not %et 1one&
unless the& install oAscenit& Aloc$s. iAraries+ liArar& ,atrons+ and weA sites sued. ower court
held the CIP" unconstitutional.
Iss"e( 'oes the statute violate 1
st
a1end1ent A& attachin% restrictions onto freedo1 of s,eech as
a condition of receivin% these fundsG
8o-ing/ 4o
3 Rehnquist )for the ,luralit& of Rehnquist+ >HConnor+ Scalia+ and Tho1as/
a. =hile itHs true that so1eti1es non3,orn sites %et Aloc$ed too+ the liArar& can delete
s,ecific Aloc$s to 1ini1iDe this
A. Con%ress has wide latitude to attach conditions to the recei,t of federal assistance
%overn1ent has Aroad discretion to 1a$e content3Aased Kud%1ents in decidin% what
,rivate s,eech to 1a$e availaAle to the ,uAlic
c. The %oal of ,uAlic liAraries is not to ,rovide universal covera%e Aut to ,rovide
requisite and a,,ro,riate 1aterials that would Ae of the %reatest Aenefit and interest
to the co11unit&
d. :i%ht Ae e1Aarrassin% to have to as$ a liArarian to unAloc$ a site+ Aut Constitution
doesnHt %uarantee the ri%ht to acquire info at a ,uAlic liArar& without e1Aarrass1ent
e. =hen the %overn1ent a,,ro,riates ,uAlic funds for a ,ro%ra1 it can define the li1its
of that ,ro%ra1
f. #ecause ,uAlic liAraries use of Aloc$in% software doesnHt violate their 1
st
a1end1ent
ri%hts+ CIP" doesnHt induce liAraries to violate constitution and is a valid e;ercise of
Con%ressH s,endin% ,ower
3 Concurrence( 6enned&
1?6
a. "dults can unAloc$ it easil&+ so the& are not ver& Aurdened statute is certainl& not
unconstitutional
3 Concurrence( #re&er
a. Should a,,l& hei%htened scrutin&Rnot rational Aasis )Aecause CIP" does restrict
,uAlicHs recei,t of infor1ation/ Aut shouldnHt a,,l& strict scrutin& either
1. oo$ at the le%iti1ac& of statuteHs oAKectives+ the e;tent to which it will
achieve that oAKective+ and whether its har1 is out of ,ro,ortion with its
oAKective
.. Eovern1ent has le%iti1ate and co1,ellin% oAKectives to restrict access to
oAscenit& and child ,orn+ which are har1ful to 1inors
2. #loc$in% software is over and under3inclusive Aut there is no Aetter
alternative
-. There is an e;ce,tion to the over3Aloc$in% Aecause adults can as$ to unAloc$
a site
3 'issent( Stevens
a. =e should leave this issue to local decision31a$ers
A. CIP" is too i1,reciseL Eovern1ent 1a& not su,,ress lawful s,eech as the 1eans to
su,,ress unlawful s,eech
3 'issent+ EinsAer%
a. ItHs censorshi,
3EEE. ,686) 8C6E=2
The 1-
th
"1end1ent has a State "ction require1ent( states cannot den& Equal Protection and
'ue Process. So there is a condition that the state actor 1ust Ae doin% the violation to Arin% a
clai1. The cases Arou%ht in this Aloc$ are the difficult cases. :ost cases are not difficultRif an&
state official has ta$en the action in question+ itHs oAviousl& state action.
#ut what ha,,ens when ,rivate actors ta$e the action in questionRare there an& circu1stances in
which ,rivate action can Ae seen as state actionG
There are 2 different wa&s that ,rivate ,artiesH actions can Ae attriAuted to the State(
1/ >"-ici! inter3ention. Callin% on the courts to settle a dis,ute.
./ Ent!nge%ent6 'id state actors %et entan%led in a 1anner that 1a$es a ,rivate ,art&Hs
action State actionG
2/ P"@ic 0"nction6 'oes the ,rivate ,art& ,erfor1 a ,uAlic function that 1a$es it a state
actorG
". #ac$%round
The Ci3i Rights C!ses (1883, p. 1-02)
F!cts/ The Civil Ri%hts "ct of 1*!5 1andated equal ri%hts to the enKo&1ent of acco11odations+
advanta%es+ facilities+ and ,rivile%es of inns+ ,uAlic conve&ances+ on land or water+ theatres+ and
other ,laces of ,uAlic a1use1ent to ever&one re%ardless of color or ,revious condition of
servitude+ and was ,unishaAle A& fines and cri1inal ,enalties
Iss"e/ Is this statute unconstitutional Aecause it is not authoriDed A& an& suAstantive %rant of
,ower to the federal %overn1entG
8o-ing/ <es
3 Justice #radle& )for *31 court/
a. Con%ress has no ,ower to do this in 12+ 1- or 15
th
a1end1ents
1?!
A. 1-
th
a1end1ent is ,rohiAitor& in character and ai1ed at the statesL invasion of
individual ri%hts not covered
1. This "ct ste,s into the do1ain of local %overn1ent A& la&in% down rules for
individual Aehavior
c. 12
th
a1end1ent ar%u1ent doesnHt wor$ Aecause the refusal to serve so1eone in
,uAlic acco11odation was no 1ore than an ordinar& civil inKur& and not a Aad%e of
slaver&
3 'issent+ 5arlan
a. 8The suAstance and s,irit of the a1end1ents have Aeen sacrificed A& a suAtle and
in%enious verAal criticis19
A. #lac$ freedo1 necessaril& involves i11unit& fro1 and ,rotection a%ainst all
discri1ination
c. 1-
th
a1end1ent isnHt all ,rohiAitor&L Z 1 )includin% ,rivile%es and i11unities clause/
is ver& affir1ative
d. Civil Ri%hts "ct Aenefits citiDens of ever& race and color
+eSh!ne& 36 Winne@!go Co"nt& +ep!rt%ent o0 Soci! Ser3ices (1484, p. 1-0.)
F!cts/ Custod& of Joshua 'eShane& was %iven to his father when Josh was 1 &ears old. The&
1oved to =inneAa%o Count&+ then 'ad Aeat Josh. Social Services had re,orts on this Aut did
nothin%. "t -3&ears3old 'ad Aeat Josh so Aad he %ot ,er1anent Arain da1a%e+ retarded+ and
confined to an institution for life. This case was an action A& Josh and his 1other clai1in% that
state conduct de,rived Josh of liAert& in violation of 1-
th
a1end1ent due ,rocess.
Iss"e 'oes the stateHs I4"CTI>4 here constitute a state action that ta$es liAert& without 'ue
Process in violation of the 1-
th
a1end1entG
8o-ing/ 4o
3 CJ Rehnquist
a. State doesnHt have to ,rotect individualsH life liAert& and ,ro,ert& fro1 other citiDens
A. State onl& has an affir1ative dut& when it i1,oses li1its on ,ersonsH liAert& itself+
'>ES 4>T have a dut& arisin% fro1 its $nowled%e of the individualHs ,redica1ent
or fro1 its e;,ression of intent to hel, hi1
3 'issent+ :arshall+ #lac$1un
a. 0ocus on the action that =isconsin 5"S ta$en towards Josh and other $ids li$e hi1+
rather than inaction of state
A. This action invites citiDens and other %overn1ent entities to de,end on social services
to ,rotect $ids li$e Josh
c. So+ $ids are 1ade worse off when a ,ro%ra1 e;ists and then ,eo,le donHt do their
KoAs
F!gg 1rothers 36 1roo?s (14.8, p. 1-04)
F!cts/ #roo$s was evicted fro1 her a,art1ent. The cit& 1arshal arran%ed for stora%e in a
warehouse )A& 0la%% #rothers/+ and then dis,utes arose over ,a&1ents for 1ovin% and stora%e.
0la%% #rothers threatened to sell all the %oods in accordance with 4ew <or$ Unifor1 Code Z!3
.1?+ and #roo$s filed suit+ sa&in% that violated 1-
th
a1end1ent denial of ,ro,ert& without 'ue
Process.
Iss"e/ Is a warehouse1anHs ,ro,osed sale of %oods entrusted to hi1 for stora%e+ as ,er1itted A&
4< Unifor1 Code Z!3.1? an action ,ro,erl& attriAutaAle to the state of 4< and thus a violation
of 'ue ProcessG
8o-ing/ 4o
1?*
3 CJ Rehnquist
a. #roo$s na1ed no ,uAlic officials as defendants
A. #roo$s sa&s 4< dele%ated its authorit& to 0la%% #rothers+ Aut #roo$s could have
sou%ht a contractual waiver Aarrin% warehouse fro1 sellin% her stuff
c. Settle1ent of dis,utes Aetween deAtors and creditors is not a traditionall& ,uAlic
function
d. #roo$sH 1ain ar%u1ent is that state has refused to act+ Aut statutor& refusal is no
different fro1 an ordinar& statutor& li1itations
3 'issent( Stevens+ =hite+ :arshall
a. Fuestion is reall& whether a state statute which authoriDes a ,rivate ,art& to de,rive a
,erson of his ,ro,ert& without consent 1ust 1eet require1ents of 'ue Process clause
A. "nswer has to Ae &es unless state has unli1ited ,ower to transfer interests in ,rivate
,ro,ert& without ,rocedural ,rotections
c. :aKorit& ar%ues that state PER:ITS Aut doesnHt co1,el the sale+ and doesnHt
dele%ate a ,ower EJCUSI@E< reserved to the state. :aKorit& characteriDes this
as ,urel& ,rivate action
d. #ut &ou canHt draw a Ari%ht line Aetween the ,rivate and the ,uAlic+ this Aorders on
the ,uAlic
L"g!r 36 E-%on-son Oi Co6 (1482, p. 1-13)
F!cts/ u%ar was indeAted to Ed1ondson >il+ who filed an e; ,arte ,etition for attach1ent of
u%arHs ,ro,ert&then sequestered the ,ro,ert&. u%ar sued sa&in% that the State and
Ed1ondson de,rived hi1 of ,ro,ert& without 'ue Process
Iss"e/ 'id the attach1ent of u%arHs ,ro,ert& constitute state action and so violate 1-
th

a1end1ent 'ue ProcessG
8o-ing/ <es
3 Justice =hite )for 53- court/
a. Private use of challen%ed state ,rocedures with the hel, of state officials constitutes
state actionu%ar has alle%ed sufficient state involve1ent to 1a$e out a due
,rocess violation
A. To Ae state action the conduct has to Ae fairl& attriAutaAle to the state
c. 5as to Ae caused A& the e;ercise of so1e ri%ht or ,rivile%e created A& the state or rule
of conduct i1,osed A& the state or a ,erson for who1 the state is res,onsiAle
d. :ust Ae a ,erson who can fairl& said to Ae a state actor
e. 'istin%uished fro1 0la"" 'rothers
1. Unli$e in 0la"" where there was no real state action+ here the ,art&Hs Koint
,artici,ation with state officials in seiDure of dis,uted ,ro,ert& is sufficient
to characteriDe that ,art& as a state actor
3 'issent( Powell+ Rehnquist+ >HConnor
a. This is a ,rivate citiDen who did no 1ore than co11ence a le%al action of a $ind
traditionall& initiated A& ,rivate ,arties 4>T state action
#. Judicial Intervention
Shee& 36 Ir!e%er (14/8, p. 1-18)
F!cts/ #lac$ fa1ilies ,urchased ho1es Aurdened A& restrictive covenants )Court enforce1ent of
,rivate ho1eowner a%ree1ents e;cludin% Alac$s/. 6rae1er sued in state court to enforce
covenants+ state court u,held the covenants and ordered inKunction
1?7
Iss"e/ "re these ,rivate discri1inator& covenants covered A& the 1-
th
a1end1ent and so
unconstitutionalG
8o-ing/ <es
3 CJ @inson
a. 1-
th
a1end1ent ,rotects ,ro,ert& ri%hts and ri%hts of occu,anc&
A. Restrictive a%ree1ents alone are constitutional+ Aecause there is no state action
c. #ut Aecause of ,artici,ation of state courts in enforcin% the covenants+ there is state
action and so unconstitutional
3 4>TES(
a. If this lo%ic was e;tended an& enforce1ent of ,rivate ri%hts could Ae considered
,uAlic action this has not Aeen the case over the &ears
1. #UT in 'arro$s v. Hac(son (14-3, p. 1-23 2ote. /a), SC held ,helley lo%ic
did e;tend to 1one& da1a%es i.e. Alac$s 1oved into nei%hAorhood in s,ite
of restrictive covenant and white %u& sued for 1one& da1a%es a%ainst the
white %u& who Aro$e the covenant A& sellin% to the Alac$s. SC said ,helley
Aarred the suit.
C. Entan%le1ent
,tate )n!orce#ent o! discri#inatory testa#entary and inter vivos dispositions o! property )4ote
-)A/ p. 1-2/)
3 Cennsylvania v. 'oard o! *irectors o! City 6rusts (14-.)+ SC held that a ,rivate will that
estaAlished a school for 8,oor white 1ale or,hans9 to Ae run A& the cit& of Philadel,hia was
unconstitutional. >n re1and+ state court a,,ointed ,rivate trustees instead Aut Court of
",,eals held this suAstitution was unconstitutional as well
3 )vans v. 2e$ton (14>>)+ US Senator #acon e;ecuted a will that left a tract of land to Ae used
as a ,ar$ in :acon+ E" for white ,eo,le onl&+ cit& was the trustee. =hen cit& Ae%an to
ad1it Alac$ ,eo,le+ the Aoard of 1ana%ers sued as$in% that the cit& Ae re1oved as trustee.
Cit& resi%ned+ and state court a,,ointed ,rivate trusteeSC held that ,ar$ could not Ae run
on a se%re%ated Aasis. Par$ should Ae treated as a ,uAlic institution Aecause it was servin% a
,uAlic function.
3 )vans v. 8bney (14.0) Aac$ fro1 the re1and of )vans v. 2e$ton. State court said Senator
#aconHs will was i1,ossiAle to fulfill and land should revert to his heirs. SC affir1ed+ sa&in%
that E" eli1inated the discri1ination A& eli1inatin% the ,ar$ itself
a. 'issent( #rennan
1. ,helley stands for the ,ro,osition that where ,arties of different races are
willin% to deal with each other a state court cannot $ee, the1 fro1 doin% so
A& enforcin% a ,rivatel& devised racial restrictionthis is a case where a
state court is enforcin% a racial restriction to ,revent willin% ,arties fro1
dealin% with each other and is thus a violation of 1-
th
a1end1ent Equal
Protection
.. Closin% the facilit& conve&s an una1Ai%uous 1essa%e of co11unit&
involve1ent in racial discri1ination
1"rton 36 Wi%ington P!r?ing A"thorit& )1761+ ,. 15.!/
0acts( Ea%le Coffee sho, refused to serve #urton Aecause he was Alac$. Ea%le was in a Auildin%
owned and o,erated A& the =il1in%ton Par$in% "uthorit&+ which was an a%enc& of the state of
'elaware.
11?
Iss"e/ 'oes Ea%leHs action constitute discri1inator& state action in violation of 1-
th
a1end1ent
Equal ProtectionG
8o-ing/ <es
3 Justice Clar$
a. and and Auildin% were ,uAlicl& owned
A. #uildin% was dedicated to ,uAlic use
c. Ea%le received such Aenefits as+ for e;a1,le+ no increased ta;es Aecause it resided in
a Auildin% owned A& a ta; e;e1,t %overn1ent a%enc&
d. Could not have a Auildin% wherein one ,art ever&one has equal ri%hts+ Aut one ,art
discri1inates
e. This is not a universal test Aecause SC doesnHt $now how to create one to 1easure
state a%enc&+ )<I6ES[+ weHll Kust do it on an ad hoc Aasis/ Aut in this case+ this is
definitel& state action
f. SC thin$s its i1,ortant that there were state and national fla%s han%in% out of the roof
of the Auildin%e;e1,lifies ,uAlic ,ro,ert&
3 Concurrence( Stewart
a. Su,re1e Court of 'elaware in sa&in% it wasnHt state action relied on a statute sa&in%
&ou can e;clude ,eo,le who would Ae offensive to 1ost custo1ers. There were no
su%%estions that #urton would Ae offensive to 1ost custo1ers.
Ren-eB1!?er 36 Iohn (1482, p. 1-33)
F!cts/ Petitioners were e1,lo&ees of 4ew Pers,ectives School+ a school for ,roAle1 $ids. The
school was re%ulated A& the state+ %ot 1ost of its students fro1 ,uAlic institutions+ and 77V of
o,eratin% Aud%et ca1e fro1 ,uAlic funds. Petitioners were dischar%ed for disa%reein% with
school ,olicies+ and clai1ed their dischar%e violated free s,eech and ,rocedural due ,rocess
Iss"e/ Can these dischar%es Ae considered state actionG
8o-ing/ 4o
3 CJ #ur%er
a. SchoolHs recei,t of ,uAlic funds doesnHt 1a$e dischar%es a state action
A. There is no s&1Aiotic relationshi, Aetween school and state li$e in 'urton
3 'issent( :arshall+ #rennan
a. State dele%ated to the school its statutor& dut& to educate $ids with s,ecial needs
A. School receives al1ost all of its funds fro1 the state and is heavil& re%ulated
c. 4e;us Aetween school and state is so suAstantial that the schoolHs action 1ust Ae
considered state action
4>TES(
3 5ad the school Aeen discri1inatin% on racial %rounds it ,roAaAl& would have Aeen considered
a state actor+ e.%. 'urton
3 :a&Ae SC felt that Aecause it was not the Eovern1ent that influenced or was the induce1ent
for the dischar%es+ there was not a ver& stron% case for Entan%le1ent
3 SC ,retends to Ae a,,l&in% the sa1e anal&sis as in 'urton Aut with racial discri1ination the&
see1 to 1ore li$el& to find Entan%le1ent than in Procedural 'ue Process cases li$e Rendell1
'a(er
a. :a&Ae this is Aecause the SC thin$s itHs ulti1atel& a question of res,onsiAilit&+ and
wants the Eovern1ent to ta$e 1ore res,onsiAilit& for race discri1ination so itHs a
quic$er tri%%er
3 >fficial 'octrine( 'urton and Rendall1'a(er have the sa1e official doctrine Aut the& donHt
square too well
111
S!n Fr!ncisco Arts K Athetics$ Inc6 36 Unite- St!tes O&%pic Co%%ittee (148., p. 1-3/)
F!cts/ Con%ress %ranted US >l&1,ic Co11ittee the e;clusive ri%ht to word 8>l&1,ic.9
Co11ittee sued San 0ran " B " for the slo%an 8%a& >l&1,ic %a1es.9 S0 " B " res,onded that
co11ittee had let other %rou,s use ter1 >l&1,ic+ and this was state action and discri1inator&
selection in violation of 5
th
a1end1ent 'ue Process.
Iss"e/ 'oes Co11itteeHs action constitute State "ction and therefore violate 5
th
a1end1ent 'PG
8o-ing/ 4o
3 Justice Powell
a. Co11itteeHs choice on how to enforce its ri%ht isnHt state action
A. The 0act that Con%ress %ranted the co11ittee a cor,orate charter does not render it a
%overn1ent a%ent. 4or is the trade1ar$. "ll enforceaAle ri%hts in trade1ar$s are
created A& so1e %overn1ental act.
3 'issent( #rennan+ :arshall
a. There is a s&1Aiotic relationshi, here Aetween the %overn1ent and the >l&1,ic
Co11ittee as well as a connection in the ,uAlic e&e
A. It confers 1utual Aenefits+ there are financial and le%islative lin$s
c. This connection is enou%h to render Co11itteeHs action state action
4>TES(
3 This case 1i%ht Ae inconsistent with 'urton
3 =h& isnHt the lower courtHs action in enforcin% the trade1ar$ state action a la ,helleyG
3 4o one even ar%ued this Aecause ,helley is ,rett& 1uch dead lawL courts do not hold that
when a lower court enforces the ri%hts of ,rivate ,arties that constitutes state action Aecause
this would 1ean no real distinction Aetween state and ,rivate action
3 #ut once we canHt ta$e ,helley on its face+ how can we ta$e 2; 6i#es v. ,ullivanL
a. The difference is that the liAel law in 2; 6i#es sin%led out s,eech for ,unish1ent+
while in ,helley the onl& law &ou have is a race neutral law of ,ro,ert& and the ,art&
that is actin% on the Aasis of race is a ,rivate ,art&
P"@ic Utiities Co%%ission 36 Po!c? (14-2, p. 1-3.)
F!cts/ Ca,ital Transit+ a Aus and streetcar co1,an&+ installed a 81usic as &ou ride9 ,ro%ra1+
wherein a radio ,ro%ra1 was ,la&ed throu%h louds,ea$ers in the streetcars and Auses. In 17-7+
the PuAlic Utilities Co11ission+ which re%ulated Ca,ital+ ordered an investi%ation of the ,ro%ra1
and said ,ro%ra1 was >6 Aecause it was consistent with ,uAlic convenience+ co1fort and safet&.
So1e ,assen%ers a,,ealed. The ",,eals Court reversed and said de,rived ,assen%ers of liAert&
without due ,rocess
Iss"e/ 'oes Ca,ital and the Co11issionHs action constitute state action and 1a$e this a violation
of the 1
st
and 5
th
a1end1entsG
8o-ing/ <es and 4o
3 Justice #urton
a. This is State "ction
1. 1
st
and 5
th
a1end1ent '> a,,l&
A. #ut not unconstitutional
9oose Lo-ge No6 )05 3 Ir3is (14.2, p. 1-38)
F!cts/ :oose od%e was onl& for whites and ,rohiAited 1e1Aers fro1 Arin%in% Alac$s into the
dinin% roo1 and Aar. " #lac$ %uest sued :oose and the Penns&lvania iquor "uthorit& and
11.
sou%ht an inKunction requirin% that the liquor authorit& revo$e :oose od%eHs license so lon% as
it continued its discri1inator& ,ractices. ower court ruled for hi1.
Iss"e/ 'oes the fact that P" liquor authorit& %ave :oose od%e a liquor license 1a$e :oose
od%eHs discri1inator& service ,ractices state action and thus unconstitutional under 1-
th

a1end1ent Equal ProtectionG
8o-ing/ 4o
3 Justice Rehnquist
a. If the i1,etus for the action is ,rivate+ the state 1ust Ae invidiousl& involved for it to
Ae state action
A. There is no s&1Aiotic relationshi, li$e there was in 'urton
c. P" law doesnHt discri1inate in %ivin% liquor licenses or to ,urchase and consu1er in
,uAlic acco11odation
3 'issent( 'ou%las+ :arshall
a. In P" it is hard to %et liquor+ &ou Aasicall& have to %o to ,rivate cluAs. #& %rantin%
licenses to estaAlish1ents that discri1inate+ the State is unconstitutionall& restrictin%
the aAilit& of Alac$s to oAtain liquor
3 'issent( #rennan+ :arshall
a. There is an intertwinin% of the P" liquor licensin% Aoard with :oose od%e that
unconstitutionall& lends the stateHs authorit& to racial discri1ination
>!c?son 36 9etropoit!n E-ison Co (14./, p. 1-/0)
F!cts/ :etro,olitan Edison is a ,rivatel& owned utilit& that has a certificate of ,uAlic
convenience issued A& a state utilit& co11ission. It is suAKect to e;tensive state re%ulation+ and
can disaAle service for non3,a&1ent. It disaAled Jac$sonHs+ who sued for a violation of the 1-
th

a1end1ent A& ta$in% ,ro,ert& without 'ue Process.
Iss"e/ 'oes the EdisonHs ter1ination of Jac$son constitute state action and so is unconstitutionalG
8o-ing/ 4o
3 Justice Rehnquist
a. The 1ere fact that a Ausiness is suAKect to state re%ulation does not A& itself convert
its action into state action for ,ur,oses of the 1-
th
a1end1ent+ nor does the fact that
the state re%ulation is e;tensive and detailed+ as it is with 1ost ,uAlic utilities
A. That the state 1a& have %ranted a 1ono,ol& also doesnHt 1a$e it state action
necessaril&
c. Thou%h the state a,,roved the ter1ination ,rocess+ it did not order Jac$sonHs
ter1ination )unli$e in Collac(+ where the PuAlic Utilities Co11ission actuall&
co11enced its own investi%ation of Ca,italHs radio ,ro%ra11in%/
3 'issent( :arshall
a. SCHs distinction is that utilities are 8natural 1ono,olies9+ therefore so1ehow the
state involve1ent is less si%nificant Aecause the stateHs ,ur,ose in re%ulatin% it is not
to aid the co1,an& Aut to ,revent its char%in% 1ono,ol& ,rices
A. Too 1uch turns on this narrow distinction
1rentwoo- Ac!-e%& 36 Tennessee Secon-!r& Schoo Athetic Associ!tion (2001, ,upp. 23.)
F!cts( T4 Secondar& School "thletic "ssociation was incor,orated to re%ulate interscholastic
athletic co1,etition a1on% ,uAlic and ,rivate secondar& schools. 4o school is forced to Koin+ Aut
1ost ,uAlic schools do. :e1Aer schools can onl& ,la& a%ainst another 1e1Aer tea1+ without
s,ecial dis,ensation to do otherwise. "ssociation char%ed #rentwood "cade1& with violatin% a
112
rule aAout recruitin% for writin% to ,ros,ective students and ,arents aAout s,rin% footAall.
#rentwood was fined+ ,ut on ,roAation for - &ears+ and was ineli%iAle to ,artici,ate for . &ears
Issue( 'oes enforce1ent of the rule constitute state action so that the "ssociation can Ae ,ro,erl&
na1ed as a Z 17*2 defendantG
8o-ing/ <es
3 Justice Souter
a. Statewide "ssociation re%ulatin% interscholastic athletic co1,etition is state action
A. There is a ,ervasive entwine1ent of ,uAlic officials and institutions with the
"ssociation
c. So #rentwood does ,ro,erl& na1e the "ssociation as defendant in a Z17*2 co1,laint
d. 'onHt decide whether the& should win or lose on their constitutional clai1s+ Kust
decide whether it can Ae state action
3 'issent( Tho1as+ Rehnquist+ Scalia+ 6enned&
a. Entwine1ent not enou%h for state action
A. Co11on sense shows the "ssociation to Ae a ,rivate actor
c. There is no s&1Aiotic relationshi,
d. The "ssociation does not fulfill a function traditionall& reserved to the states
e. The "ssociation is not an entit& controlled and created A& the %overn1ent
f. State of Tennessee e;ercised no coercive ,ower
'. PuAlic 0unction
9!rsh 36 A!@!%! )17-6+ ,. 15--/
F!cts( Chic$asaw is a suAurA of :oAile+ " that is owned A& Eulf Shi,Auildin% Cor,oration.
>ther than its cor,orate ownershi, itHs e;actl& li$e an& other town. :arsh is a JehovahHs =itness
who ca1e into town and wanted to distriAute reli%ious literature. There were si%ns in store
windows sa&in% that it was ,rivate ,ro,ert&. :arsh was told she needed a ,er1it to distriAute his
literature and that no ,er1it would Ae issued to her. Sheriff arrested her and char%ed her in state
court with violatin% a statute that 1a$es it cri1inal to re1ain on ,rivate ,ro,ert& after Aein%
as$ed to leave. :arsh sued sa&in% this violates 1
st
and 1-
th
a1end1ents. State courts convicted
her.
Iss"e/ Can ,eo,le who co1e to Chic$asaw Ae denied freedo1 of ,ress and reli%ion Aecause a
sin%le co1,an& has le%al title to the townG
8o-ing/ 4o
3 Justice #lac$
a. >wnershi, doesnHt settle the issue+ the 1ore an owner o,ens u, his ,ro,ert& for the
,uAlic use+ the 1ore he Aeco1es circu1scriAed A& the statutor& and constitutional
ri%hts of those who use it
A. So owners of ,rivate Arid%es+ ferries+ etc cant o,erate the1 as freel& as would a
far1er his far1
c. =hether a 1unici,alit& or cor,oration owns it+ there is an identical interest in the
functionin% of the co11unit& so that the channels of co11unication re1ain free
neither can den& constitutional ri%hts
d. Use a #""4CI4E test( constitutional ,ro,ert& ri%hts of owners vs freedo1 of
,ress and reli%ion. Individual freedo1s win.
3 'issent( Justice Reed
a. The Court shouldnHt allow ,eo,le to sta& on ,rivate ,ro,ert& a%ainst ownersH will
sli,,er& slo,e
3 4>TES(
11-
a. In the last 2 decades+ SC has de1onstrated a %rowin% reluctance to use the PuAlic
0unction doctrine to Aurden ,rivate entities with constitutional require1ents
A. @er& few functions are now 8,uAlic functions9 for ,ur,oses of the state action
doctrine
c. #"C6 ETTER '>CTRI4E( a function 1ust Ae traditionall& an e:clusive state
function )e;haustivel& and traditionall& ,erfor1ed A& the state/ in order to Ae suAKect
to the Constitution
1. So+ sho,,in% center owners 4>T Aound A& the constitution+ nor are ,uAlic
utilities co1,anies
.. Marsh is an e;ce,tion to this that 1a$es us thin$ aAout wh& we have the
P"@ic F"nction +octrine
3 =h& do we have a State "ction doctrineI on how to inter,ret ,helley
a. There are so1e entitiesIco11unities that we want not to Ae Aound A& the state as
,laces of resistance and inde,endent fro1 the stateReven fro1 the stateHs
constitutional values
A. ( Parents send their children to the churches of their choice. If the state tried to do
that it would Ae unconstitutional under the 1st a1end1ent. <ou could sa&+ itHs
wron% for ,arents to coerce children into reli%ion. #ut our constitution doesnHt sto,
that. " constitution that did sto, that would Ae a ver& different constitution. ThatHs
wh& &ou need so1ethin% li$e a state action doctrine. =hat &ou allow ,arents to do is
not what &ou allow the state to do.
c. There are constitutional values that 1a$e no sense without a state action doctrine+
e.%. freedo1 of s,eech
1. This does not 1ean that ever& ti1e the State "ction doctrine does not a,,l&
itHs constitutional
d. =hen should an actor Ae Aound A& the state action doctrineG
1. =hen so1ehow or other ,eo,le collectivel& start ,assin% laws to %overn
their own and other ,eo,les lives
.. If ,eo,le elect and incor,orate their town+ elect a cit& council+ and the
council sa&s that no one can sell their ,ro,ert& to ,eo,le of another race
This tri%%ers the State "ction doctrine Aecause this is a 8,olitical
entit&9 ,erfor1in% a state action. It incor,orated and ,assed laws
2. =hat if it hadnHt incor,orated Aut had Kust ,assed ,ro,ert& laws+ i.e. cleverl&
had not 1ade itself faciall& a state actor Aut ,ut this raciall& discri1inator&
covenant in its deedsG
This is effectivel& state action alsoL we canHt let ,eo,le %et awa&
with this Kust Aecause the& donHt call the1selves a 8,olitical %rou,9
Aecause in effect it is a lawAasicall& a ,uAlic function
4ote 2)a/+ ,. 15-!
=hite Pri1ar& cases
o SC held that discri1inator& ,olicies of ,rivate ,arties could Ae attriAutaAle to the
states
2i:on v 7erndon (142.)B 1-
th
a1end1ent violated when Alac$s denied
Aallots in the state 'e1ocratic ,ri1ar&
2i:on v Condon (1432) Cdenial of franchise to Alac$s unconstitutional+
even thou%h the State E;ecutive Co11ittee and not the state was now
runnin% the ,ri1aries )TJ had chan%ed the law after 2i:on v. 7erndon/
115
?rovey v 6onsend (143-) C SC held no state action and >6 when the
state ,art& convention ado,ted a racial e;clusion ,olic&
#ecause there was no s,ecific statutor& authoriDation
@>U4T"RI< ado,ted A& the 'e1ocratic ,art&+ it was not
state action and thus was >6
,#ith v 8ll$ri"ht (14//) C overruled ?rovey+ 'e1ocratic Part&Hs
e;clusionar& ,olic& C>U' in fact Ae attriAuted to the state and thus
was unconstitutional )SCHs reasonin% for suddenl& 1a$in% this state
action was a Ait unclear/
6erry v 8da#s (14-3) C SC held that the ,rivate ,ri1ar& held A& Ja&Aird
'e1ocratic "ssociation+ a Te;as ,olitical association that was ,rivate
Aut the winner "="<S %ot the 'e1ocratic Aid+ couldnHt e;clude
Alac$s
6ash%ian v. Republican Carty (148>)ISC u,held Re,uAlican ,art&Hs
constitutional challen%e to a state law that ,rohiAited non3,art& 1e1Aers
fro1 votin% in the ,ri1ar&. Re,uAlicans wanted to let Inde,endents vote
in their ,ri1ar&. SC said statute i1,licated 0reedo1 of "ssociation and
was unconstitutional
>!c?son 36 9etropoit!n E-ison Co. (14./, p. 1--1)
"s relates to PuAlic 0unction doctrine. 0or detailed facts and issues in this case see
8Entan%le1ent9+ su,ra.
8o-ing( 4ot a state actor
3 Rehnquist
a. 0urnishin% of utilit& services is neither a state function nor a 1unici,al dut&
A. If &ou let :etro,olitan Ae 8affected with the ,uAlic interest+9 then sli,,er& slo,e(
ever& store+ doctor+ ever&thin% would Ae affected with the ,uAlic interest.
c. That as,ects of it are in the ,uAlic interest or that it is re%ulated A& the state doesnHt
necessaril& 1a$e it a state actor
3 'issent( 'ou%las
a. ItHs true that doctors+ law&ers+ etc are not transfor1ed into state actors Aecause
,rovide %oods re%ulated A& the state.
A. #ut in this case+ itHs the onl& ,uAlic electric utilit& in the state. =ithout ,ower the
ho1e is unlivaAlethis can le%iti1atel& Ae considered state action
3 'issent( :arshall
a. That Edison su,,lies an essential ,uAlic service should wei%h heavil&
A. :aKorit& sa&s a ,articular service is not a ,uAlic function if the state hasnHt required
that it Ae %overn1ent o,erated+ Aut this defeats the whole ,ur,ose of the ,uAlic
function cases+ which is to loo$ Aehind a stateHs decision to ,rovide ,uAlic services
throu%h ,rivate ,arties
c. " utilit& service is traditionall& identified with the State throu%h universal ,uAlic
re%ulation or ownershi, sufficient to render it a ,uAlic function
d. There are no interests furthered A& ,rotectin% ,rivatel& owned utilit& co1,anies fro1
1eetin% the constitutional standards that would a,,l& if the co1,anies were state
owned
Cost Hac(son *evelop#ents (2ote 1, p. 1--2)
a. Sho,,in% Centers
116
1. 8#al"a#ated 0ood )#ployees 5nion v. <o"an 3alley ClaDa (14>8) SC held
that sho,,in% centers covered A& Marsh
.. <loyd Corp. v. 6anner (14.2) SC li1ited <o"an A& holdin% that it was
ina,,licaAle to hand3Aillin% ,rotestin% the @ietna1 =ar at a ,rivate sho,,in%
center
'istin%uished <o"an Aecause in that case ,ic$eters would have Aeen
effectivel& denied the o,,ortunit& to conve& their 1essa%e to ,atrons
of the store in question had the& Aeen denied access to the sho,,in%
center whereas in <loyd the center was surrounded A& ,uAlic
sidewal$s and the ,ic$eters could Kust wait there.
2. 7ud"en v. 2<R' (14.>)+ SC held that reasonin% in <o"an 3alley couldnHt Ae
squared with <loyd and so overturned <o"an 3alley
A. 'is,ute Resolution
a. 0la"" 'rother v. 'roo(s (see above) SC held that resolution of dis,utes
Aetween deAtors and creditors is not a ,uAlic function
c. Schools
a. Rendell1'a(er v. 9ohn (supra) SC held that ,rivate school for trouAled $ids
not suAKect to constitutional constraints+ des,ite the fact that students were
,laced in the ,ro%ra1 A& ,uAlic officials and that virtuall& all of the schoolHs
fundin% ca1e fro1 ,uAlic sources
d. 4ursin% 5o1es
a. 'lu# v. ;arets(y (1482) SC held that nursin% ho1es in recei,t of federal
:edicaid fundin% were not ,erfor1in% a ,uAlic function when the& decided
on a level of care for their ,atients.
e. "1ateur S,orts
a. ,an 0rancisco 8rts and 8thletics, Enc. v. 5nited ,tates =ly#pic Co##ittee
(supra) SC held that the US >l&1,ic Co11ittee was not a state actor
f. Pere1,tor& Challen%es
a. )d#onson v. <eesville Concrete Co. (1441) SC relied in ,art on the ,uAlic
function doctrine to hold that ,rivate liti%ants in civil cases were state actors
for constitutional ,ur,oses when the& utiliDed ,ere1,tor& challen%es to
eli1inate Kurors on the Aasis of their race Aecause a Kur& is a quintessential
%overn1ental Aod&+ havin% no attriAutes of a ,rivate actor.
A. ?eor"ia v. McCollu# (1442) SC held that a defense attorne& in a cri1inal
trial who utiliDes ,ere1,tor& stri$es on a raciall& discri1inator& Aasis is a
%overn1ental actor for constitutional ,ur,oses
EK. R)<E?E=2
". #ac$%round
E3erson 36 1o!r- o0 E-"c!tion (14/., p. 1/11)
F!cts/ 4ew Jerse& authoriDed its local school Aoards to re,a& ,arents with children in ,rivate
schools for the cost of Aus trans,ortation to the schools. :ost of the ,rivate schools were Ro1an
Catholic ,arochial institutions.
Iss"e/ 'oes 4JHs action violate the estaAlish1ent clauseG
8o-ing/ 4o
3 Justice #lac$ )53-/
11!
a. State can ,a& the fares 8as ,art of a %eneral ,ro%ra1 under which it ,a&s the fares of
,u,ils attendin% ,uAlic and other schools9
A. This satisfies the 1
st
"1end1ent require1ent that the 8state Ae neutral in its relations
with %rou,s of reli%ious Aelievers and non3Aelievers
c. 5istor& of reli%ion in the countr&,eo,le were ,ersecuted for their reli%ious Aeliefs+
and all dissenters co1,elled to ,a& tithes and ta;es to su,,ort %overn1ent3s,onsored
churches
d. This aroused indi%nation 1
st
a1end1ent arose out of conviction that individual
reli%ious liAert& could Ae achieved Aest under a %overn1ent that was stri,,ed of all
,ower to ta;+ su,,ort+ or otherwise assist an& or all reli%ions+ or to interfere with the
Aeliefs of an& reli%ious individual or %rou,
e. EstaAlish1ent Clause 1eans that neither a state nor 0ederal %overn1ent can set u, a
church+ nor aid one reli%ion or all reli%ions+ or ,refer one reli%ion over
anotherestaAlish1ent clause intended to erect 8a wall of se,aration Aetween church
and state9
f. 4J law doesnHt violate that wall
3 'issent
a. "%reed with Justice #lac$Hs descri,tion of the histor&+ Aut ar%ued that 4J statute
Areached the wall
#. 0ree E;ercise
E%po&%ent +i3ision$ +ep!rt%ent o0 8"%!n Reso"rces 36 S%ith (1440, p. 1/.>)
F!cts( S1ith was a 1e1Aer of the 4ative "1erican Church+ which has as ,art of its reli%ious
ritual the su,ervised consu1,tion of Pe&ote+ a 8controlled suAstance9 under >re%on law. S1ith
was fired fro1 his KoA at a ,rivate dru% rehaAilitation clinic )Ironic+ an&oneG/ Aecause he too$
Pe&ote as ,art of church ritual. 5e sou%ht une1,lo&1ent Aenefits+ Aut was denied Aecause heHd
Aeen fired for wor$3related 1isconduct. >re%on Su,re1e Court held that state cri1inal laws did
not contain e;e1,tions for reli%ious consu1,tion of Pe&ote+ so the cri1inal Aan was
unconstitutional in this settin% and S1ith should %et the une1,lo&1ent Aenefits.
Iss"e/ 'oes >re%onHs %eneral ,rohiAition on Pe&ote violate 1
st
"1end1ent 0ree E;ercise of
reli%ion of ,eo,le li$e S1ith+ for who1 ta$in% Pe&ote is ,art of their reli%ionG
8o-ing/ 4o
3 Justice Scalia
a. 0ree e;ercise 1eans the ri%ht to Aelieve and ,rofess whatever reli%ious doctrine one
chooses
A. 0ree e;ercise does 4>T 1ean the ri%ht to o,t out of a %enerall&3a,,licaAle law
Aecause it ha,,ens to violate &our reli%ious ,rinci,les )e.%. ,eo,le whose reli%ions
are a%ainst ta;es arenHt e;e1,t fro1 ,a&in% the1/
c. ReKects S1ithOs ar%u1ent that SC should use the Aalancin% Strict Scrutin& test fro1
,herbert v. 3erner, which holds that individual has an oAli%ation to oAe& a law that
%oes a%ainst his reli%ion onl& after the %overn1ent de1onstrates a co1,ellin%
interest
1. this would ,roduce a ,rivate ri%ht to i%nore %enerall& a,,licaAle
lawsconstitutional ano1al&
.. Cannot afford the lu;ur& of dee1in% ,resu1,tivel& invalid+ as a,,lied to the
reli%ious oAKector+ ever& re%ulation of conduct that does not ,rotect an
interest of the hi%hest order
11*
2. =ould force courts to deter1ine the centralit& of a ,articular reli%ious Aelief
in that reli%ion+ and that is not the KoA of the courts
-. This situation is not co1,araAle to the other ,laces where strict scrutin& is
used )Equal Protection+ 0reedo1 of S,eech stuff/ which is used to ,roduce
equalit& of treat1ent and an unrestricted flow of contendin% s,eech
d. :an& states have 1ade e;e1,tions for reli%ious Pe&ote use in their laws. #ut Kust
Aecause itHs ,er1itted doesnHt 1ean itHs required
3 Concurrence( >HConnor+ )B #rennan+ :arshall+ #lac$1un as to the result Aut not the
reasonin%/
a. Reli%ious conduct should Ae ,resu1,tivel& ,rotected A& the 1
st
a1end1ent
A. Should use the co1,ellin% interest test+ case3A&3case deter1ination
c. >re%onHs ,rohiAition satisfies the co1,ellin% interest test )desi%ned to ,revent the
har1 of ille%al dru%s/
3 'issent( #lac$1un+ #rennan+ :arshall
a. Should use the co1,ellin% state interest Aalancin% test
A. >re%onHs interest is not co1,ellin% Aecause it is aAstract and s&1Aolic
1. >R never sou%ht to ,rosecute S1ith or other reli%ious users of Pe&ote
.. S&1Aolic ,reservation of an un3enforced ,rohiAition
c. >R offered no evidence that the reli%ious use )su,ervised/ or Pe&ote ever har1ed
an&one
d. :an& states have an e;e1,tion+ clearl& it can Ae easil& done
e. 'urin% ,rohiAition e;e1,ted CatholicsH ri%ht to ta$e co11union with wine[
f. This lo%ic wouldnHt wor$ with ever& dru%. =ith those )li$e :ariKuana and heroin/
that have si%nificant ille%al traffic a reli%ious e;e1,tion would not Ae ,ractical
without co1,ro1isin% the dru% laws. #ut the reli%ious use of Pe&ote is not
inco1,atiAle with dru% laws
%. Pe&ote is essential to the reli%ious rituals. If >R can constitutionall& ,rosecute the1+
the& 1i%ht Ae forced to 1oveCourts have to ,rotect their reli%ious freedo1
4>TES(
Pre3,#ith law was a Aalancin% test
o =hen a law Aanned conduct that restricted an individualHs reli%ious freedo1+ state
had to satisf& a Aalancin% test( costs of 1a$in% the e;e1,tion v. reli%ious freedo1
,#ith is a reKection of Aalancin% test a,,roach to 0ree E;ercise
The reasonin% here is the sa1e as in the free s,eech cases. <ou donHt %et a s,ecial e;e1,tion
Aecause the reason &ouHre doin% so1ethin%+ li$e s,eedin% or not ,a&in% ta;es+ is reli%ious )or
e;,ressive/. ,#ith 1a$es reli%ion law consistent with free s,eech law and 1a$es the1 Aoth
consistent with the Pur,osivist 1odel.
o The Ai% e;ce,tion of course is 'oy ,couts.
Ch"rch o0 the L"?"%i 1!@!" A&e 36 Cit& o0 8i!e!h (1443, p. 1/8- 2ote 2(e))
F!cts( 5ialeah Aanned 8ritual slau%hter9 and reli%ious $illin%s and Santeria $illin%s e;,licitl& Aut
e;e1,ted secular $illin%s. The Church conducted ani1al sacrifices as ,art of its ,ractice of the
Santeria reli%ion.
Iss"e/ 'oes this Aan violate 0ree E;erciseG
8o-ing/ <es
3 Su,,ression of Santeria worshi, service was the oAKect of the ordinances
3 'e1onstrates ani1osit& towards Santeria 1e1Aers
3 Su,,ress 1uch 1ore reli%ious conduct than necessar&
117
3 4ot drawn in narrow ter1s to achieve oAKectives of ,rotectin% ani1als fro1 inhu1ane
slau%hter or avoidin% unhealth& 1ethods of dis,osin% of ani1al carcasses.
Q Concurrence( >HConnor+ #lac$1un
3 when a law discri1inates a%ainst reli%ion as such+ it auto1aticall& fails strict scrutin&.
4>TES(
Two ,rinci,les articulated in these cases
o "nti3estaAlish1ent ,rinci,le( @iolated when the Eovern1ent tries to ,ro1ote
reli%ion
o 0ree e;ercise( @iolated when the Eovern1ent tries to su,,ress reli%ion
C. EstaAlish1ent
L&nch 36 +onne& (148/, p. 1/38)
F!cts/ In coo,eration with the downtown retail 1erchantsH association+ the Cit& of Pawtuc$et+
Rhode Island+ erects a Christ1as dis,la& as ,art of its oAservance of the holida& season. 'is,la&
is located in a ,art of the cit& owned A& a non3,rofit in the heart of the sho,,in% district. The
dis,la& includes+ a1on% other thin%s+ a Santa Clause+ a Christ1as tree+ and a 4ativit& scene )the
8Cr`che9 at issue/. Court of ",,eals held that it violated the estaAlish1ent clause.
Iss"e/ 'oes the 8cr`che9 violate the estaAlish1ent clauseG
8o-ing/ 4o
3 There is no sin%le test or criterion to Ae used when evaluatin% an estaAlish1ent clai1
a. So1e useful ones are whether the law or conduct has a secular ,ur,ose+ whether its
,rinci,le or ,ri1ar& effect is to advance or inhiAit reli%ion+ and whether it creates an
e;cessive entan%le1ent of %overn1ent with reli%ion
3 =hen viewed in the conte;t of the holida& season+ there is insufficient evidence to estaAlish
that the inclusion of the cr`che is a ,ur,oseful or surre,titious effort to e;,ress so1e $inds of
suAtle %overn1ental advocac& of a ,articular reli%ious 1essa%e
3 Cit& is si1,l& ta$in% note of a si%nificant historical event lon% celeArated in the =estern
=orld
3 'is,la& is s,onsored A& the Cit& to celeArate the 5olida& and to de,ict the ori%ins of that
holida& this is a le%iti1ate secular ,ur,ose
3 There is no threat here that the %overn1ent is tr&in% to i1,ose a state3s,onsored church
Co"nt& o0 Aeghen& 36 A%eric!n Ci3i Li@erties 5nion (1484, p. 1/// 2ote 1)
F!cts/ There was a freestandin% dis,la& of a nativit& scene on the 1ain staircase of a count&
courthouse and a dis,la& of a Jewish 1enorah ,laced ne;t to the cit&Hs Christ1as tree andne;t to
a state1ent declarin% the cit&Hs 8salute to liAert&9.
Iss"e/ 'o the 4ativit& scene and the 1enorah violate the estaAlish1ent clauseG
8o-ing( <es and 4o+ res,ectivel&
3 Justice #lac$1un for hi1self
a. "do,ted >HConnorHs 8no endorse1ent9 anal&sis as a %eneral %uide in estaAlish1ent
clause cases
A. 4ativit& scene is unconstitutional
c. :enorah is >6 Aecause its 1essa%e is not e;clusivel& reli%ious and it stood ne;t to
the Christ1as tree and the liAert& si%n effectivel& creatin% an 8overall holida&
settin%9
1.?
3 #rennan+ :arshall+ and Stevens
a. 'issent onl& as to the 1enorah
A. #rennan( the Christ1as tree was a reli%ious s&1Aol and Chanu$ah did not have
secular di1ensions
c. Eovern1entHs use of reli%ion to ,ro1ote its 8liAert&9 cause was undouAtedl&
offensive to those whose reli%ious Aeliefs were not Aound u, with their attitudes
towards the nation
3 6enned&+ Scalia+ Rehnquist+ =hite
a. ReKect 8no endorse1ent9 test Aecause it is unKustifiaAl& hostile towards reli%ion
A. "Asent coercion+ the ris$ of infrin%e1ent of reli%ious liAert& A& ,assive or s&1Aolic
acco11odation is 1ini1al
9cDow!n 36 9!r&!n- (14>1, p. 1//8)
F!cts/ Certain laws required 1ost lar%e3scale co11ercial enter,rises to re1ain closed on
Sunda&s.
Iss"e/ 'o the& violate the estaAlish1ent clauseG
8o-ing/ 4o
3 Sunda& laws were ori%inall& efforts to ,ro1ote church attendance+ Aut are toda& of a secular
rather than a reli%ious character. The %oal is to ,rovide a unifor1 da& of rest for all citiDens
3 To sa& that states cannot ,rescriAe Sunda& as a da& of rest for those ,ur,oses solel& Aecause
centuries a%o such laws had their %enesis in reli%ion would %ive a constitutional inter,retation
of hostilit& to the ,uAlic welfare rather than one of 1ere se,aration of church and state
W!A 36 T!x Co%%ission (14.0, p. 1//8)
F!cts/ Ever& state had a ,ro,ert& ta; e;e1,tion for churches.
Iss"e/ 'oes this e;e1,tion violate the estaAlish1ent clauseG
8o-ing/ 4o
3 Ever& state has one
3 0ederal inco1e ta; since its ince,tion e;e1,ted reli%ious or%aniDations
3 This histor& shouldnHt li%htl& Ae cast aside
Q Concurrence( #rennan
a. The 1ore lon%standin% and widel& acce,ted a ,ractice+ the %reater its i1,act u,on
constitutional inter,retation
A. There are two secular ,ur,oses for the e;e1,tion
1. Churches+ li$e other e;e1,t %rou,s+ contriAute to the well3Aein% of the
co11unit& in a variet& of non3reli%ious wa&s
.. Churches uniquel& contriAute to the ,luralis1 of "1erican societ&
9!rsh 36 Ch!%@ers (1483, p. 1//8)
F!cts/ e%islative sessions o,ened with ,ra&ers led A& a state3e1,lo&ed cha,lain
Iss"e/ 'oes this ,ra&er violate the estaAlish1ent clauseG
8o-ing/ 4o
3 Relied on the 8unique histor&9 ar%u1ent
3 5istor& ran fro1 colonial ti1es to the ,resent and included the first Con%ressHs hirin% a
cha,lain in 1!*7+ onl& 2 da&s Aefore it reached the final a%ree1ent on the lan%ua%e of the 1
st

a1end1ent
1.1
Q 'issent( #rennan+ :arshall
a. e%islative ,ra&er intrudes on the ri%ht to conscience A& forcin% so1e le%islators
either to ,artici,ate or to 1a$e their disa%ree1ent a 1atter of ,uAlic co11ent
A. SC shouldnHt rel& on actions ta$en A& first con%ress
1. e%islators do not alwa&s ,ass soAer constitutional Kud%1ent on ever& ,iece
of le%islation the& enact
The Schoo Pr!&er C!ses :p6 )*,0 Note 3=
3 ,tone v. ?raha# (1480)3 SC held unconstitutional a 6< statute requirin% that a co,& of the
1? co11and1ents Ae ,osted on the walls of each ,uAlic class roo1 Aecause it had 8no
secular le%iti1ate ,ur,ose9
3 )n"el v. 3itale (14>2)ISC said it was unconstitutional 4< #oard of Re%ents to reco11end
school districts to recite a ,ra&er Aecause %overn1ent canHt co1,ose official ,ra&ers
3 8bin"ton ,chool *istrict v. ,che#pp (14>3)RSC held unconstitutional a state law requirin%
that ten verses fro1 the #iAle Ae read aloud at the o,enin% of each ,uAlic school da&. Usin%
#iAle as reli%ious instru1entL can onl& use for non3reli%ious ,ur,oses.
3 Wallace v. Ha!!ree (148-)RSC held unconstitutional an "laAa1a statute authoriDin% schools
to set aside one 1inute at the start of each school da& for 81editation or voluntar& ,ra&er9.
Statute a1ended an earlier statute authoriDin% a 1o1ent of silence for 1editation. SC said
statute served 4> secular ,ur,ose not alread& authoriDed A& the 1editation statute
Corpor!tion o0 Presi-ing 1ishop o0 the Ch"rch o0 >es"s Christ o0 L!tterB+!& S!ints 36
A%os (148., p. 1/8.)
F!cts/ Z !?. of the Civil Ri%hts "ct of 176- e;e1,ts reli%ious or%aniDations fro1 Title @IIHs
,rohiAition a%ainst discri1ination in e1,lo&1ent on the Aasis of reli%ion. "1os was a Kanitor at
the 'eseret E&1nasiu1+ a non,rofit facilit& o,en to the ,uAlic Aut run A& the :or1on church.
5e was fired after he failed to qualif& for a certificate statin% he was a 1e1Aer of the church
eli%iAle to attend its te1,les Aecause he oAserved the churchHs standards involvin% church
attendance+ tithin%+ and aAstinence fro1 coffee+ tea+ alcohol+ and toAacco.
Iss"e/ 'oes a,,l&in% the Z !?. e;e1,tion to the secular non3,rofit activities of reli%ious
or%aniDations violate the EstaAlish1ent clauseG
8o-ing/ 4o
3 Justice =hite
a. ",,l& the <e#on test
1. aw at issue 1ust serve a 8secular le%islative ,ur,ose9 Aut doesnHt 1ean
lawHs ,ur,ose 1ust Ae unrelated to reli%ion,ur,ose here is to alleviate
%overn1ental interference with the aAilit& of reli%ious or%aniDations to define
and carr& out their reli%ious 1issions
It is a si%nificant Aurden on a reli%ious or%aniDation to require it to
,redict which of its secular activities a court will find to Ae reli%ious
in nature
.. awHs ,ri1ar& or ,rinci,le effect canHt advance or inhiAit reli%ion Aecause
%overn1entHs ,ur,ose is to lift a re%ulation that Aurdens the e;ercise of
reli%ion+ itHs o$ that the statute sin%les our reli%ious entities for Aenefit
2. Passes <e#on test+ so donHt have to ,ass strict scrutin&+ onl& rational Aasis
test
-. Z !?. is rationall& related to the %overn1entHs le%iti1ate ,ur,ose
3 Concurrence( #rennan+ :arshall
1..
a. " case3A&3case inquir& of whether the nature of non,rofit activit& is reli%ious or
secular is ina,,ro,riate Aecause it would ,roduce e;cessive %overn1ent
entan%le1ent with reli%ion and create the dan%er of chillin% reli%ious activit&
3 Concurrence( >HConnor
a. There is a tension in the SCHs use of the <e#on test to evaluate an estaAlish1ent
clause challen%e Aecause on the one hand it invalidates le%islation e;e1,tin%
reli%ious oAservers fro1 %enerall& a,,licaAle %overn1ent oAli%ation to ,ro1ote the
free e;ercise of reli%ion Aut on the other hand+ Kudicial deference to all le%islation that
,ur,orts to facilitate 0ree E;ercise would 1ean an& statute ,ertainin% to reli%ion
could Ae allowed
A. In this case the court is tendin% towards the second Aecause the& are sa&in% that the
second ,ron% of the <e#on test isnHt i1,licated as lon% as the %overn1ent action can
Ae characteriDed as 8allowin%9 reli%ious or%aniDations to advance reli%ion in contrast
to %overn1ent action directl& advancin% reli%ion
c. Inquir& should Ae whether the %overn1entHs ,ur,ose is to endorse reli%ion+ it isnHt
here so should Ae >6
Tex!s 9onth& 36 1"oc? (1484, p. 1/41)
F!cts/ Statute e;e1,ted reli%ious ,uAlications fro1 a state sales ta;.
Iss"e/ 'oes the e;e1,tion violate the estaAlish1ent clauseG
8o-ing/ <es
Re!soning79!in Points/
3 Justice #rennan )Koined A& :arshall and Stevens/
a. Eovern1ent ,olicies with secular oAKectives 1a& incidentall& Aenefit reli%ion+ Aut
Aenefits have to flow to a lar%e nu1Aer of non3reli%ion %rou,s as well
A. This e;e1,tion isnHt >6 Aecause it is a suAsid& e;clusivel& for reli%ious
or%aniDations that is not required A& the 0ree E;ercise clause and that either Aurdens
non3Aeneficiaries 1ar$edl& or cannot reasonaAl& Ae seen as re1ovin% a state3
i1,osed deterrent to the free e;ercise of reli%ion
c. Instead+ it ,rovides unKustifiaAle awards of assistance and so conve&s %overn1ent
1essa%e of endorse1ent of reli%ion
3 Concurrence( #lac$1un+ >HConnor
a. E;e1,tion is unconstitutional Aecause it was li1ited to the sale of reli%ious literature
A& a reli%ious or%aniDation
3 'issent( Scalia+ Rehnquist+ 6enned&
a. Ta; e;e1,tion was ,er1issiAle acco11odation of reli%ion Aecause i1,osin% a
%eneral sales ta; on the sale of reli%ious ,uAlications was ar%uaAl& unconstitutional
as a Aurden on reli%ion
4>TES( This case ,re3dates ,#ith. 4oAod& %ets a 0ree E;ercise ri%ht to an e;e1,tion an&1ore.
Content o0 3iewpointB@!se- -iscri%in!tion :p6 )*J5 Note )=
Envolves disAurse1ent of universit& funds for secular Aut not for reli%ious activities.
Unconstitutional view,oint discri1ination.
3 Capitol ,Auare Revie$ and 8dvisory 'oard v. Cinette (144-) C SC held no estaAlish1ent
clause violation in allowin% a ,rivate %rou, to dis,la& a atin cross on ,uAlic ,ro,ert& and so
required the Aoard to ,er1it the dis,la&
Pe%!n 36 Si%%onsB8!rris (2002, ,upp. 224)
1.2
F!cts/ >hio school voucher s&ste1 %ave tuition aid for certain students in the Cleveland Cit&
School 'istrict to attend ,artici,atin% ,uAlic or ,rivate schools of their ,arentHs choosin% and
tutorial aid for students who chose to re1ain in ,uAlic school. In 17773.??? *.V of the
,artici,atin% ,rivate schools had a reli%ious affiliation+ no ,uAlic schools ,artici,ated+ and 76V of
,artici,atin% students were enrolled in reli%ious schools.
Iss"e/ 'oes the school voucher ,ro%ra1 violate the estaAlish1ent clauseG
8o-ing/ 4o
3 Rehnquist
a. Pro%ra1 enacted for the valid secular ,ur,ose of ,rovidin% educational assistance to
,oor $ids in a de1onstraAl& failin% ,uAlic school s&ste1
A. The incidental advance1ent of a reli%ious 1ission or the ,erceived endorse1ent of a
reli%ious 1essa%e is reasonaAl& attriAutaAle to the individual reci,ient+ not the
%overn1ent
c. >nl& %overn1ent ,reference is for low3inco1e fa1ilies+ not for reli%ion
d. That 1ost schools ,artici,atin% are reli%ious doesnHt violate estaAlish1ent clause+
would onl& Ae a violation if >hio was coercin% $ids into %oin% to reli%ious school+
and this is not the case
3 'issent( Souter+ Stevens+ EinsAer%+ #re&er
a. Es,oused neutralit& is Kust verAal for1alis1. :aKorit& sa&s there is neutralit&
Aecause 1ost of T>T" state educational e;,enditure %oes to ,uAlic schools. #ut if
re%ular ,uAlic schools )which %et no voucher ,a&1ents/ 8,artici,ate9 in a voucher
sche1e with schools that do %et ,a&1ents and ,uAlic e;,enditure is still
,redo1inantl& on ,uAlic schools+ the SC would find neutralit& even if there were no
secular ,rivate schools at all in the sche1eRthis is Kust a verAal neutralit& and
nothin% 1ore
4>TES(
3 This is a law of %eneral a,,licaAilit&
3 ots of law su,,ort reli%ious value+ Aut when one t&,e of value is ,ro1oted+ is raises the
EstaAlish1ent Clause antenna.
3 4eutralit& re%i1e is relativel& recent and doesnHt handle the Sunda& laws.
3 4eutralit& re%i1e is %ettin% stron%er and stron%er+ 1ore and 1ore s&ste1aticall& a,,lied.
a. #ut Court wonHt stri$e down ,ol&%a1& or other laws thou%h the& 1a& ,ro1ote
reli%ion.
on )stablish#ent+
3 EstaAlish1ent clause as first enacted 1eant(
a. Con%ress canHt estaAlish national church
A. Con%ress canHt ,ass laws that restrict the aAilit& of States to estaAlish reli%ion
c. These laws werenHt thou%ht of as estaAlishin% reli%ion
3 CJ 6ent )Ceople vs. Ru""els 2;, 1811/( :an convicted of Alas,he1&+ for callin% Jesus a
Aastard and his 1other a whore.
a. Court u,held conviction+ sa&in% that weHre not required to ,unish all attac$s equall&
A. Case assu1es we are a Christian countr&
3 Two hundred &ears later+ the Constitution has Aeen Auilt u, to an e;tent to where we have a
real ,aradi%1 of reli%ious neutralit&
a. #ut still doesnHt sit well with lawsI,ractices that still reco%niDe Christian herita%e
1.-
K. 67) H5,6 C=MC)2,86E=2 C<85,)
". The 8PuAlic Use Require1ent9
8!w!ii 8o"sing A"thorit& 36 9i-?i00 (148/, p. 4-8)
F!cts/ and Refor1 "ct of 176! created a 1echanis1 for conde1nin% residential tracts and for
transferrin% ownershi, of the conde1ned land to the e;istin% lessees. 5awaii le%islature intended
to 1a$e the land sales involuntar& to 1a$e the federal ta; consequences less severe while still
facilitatin% the redistriAution of land. Tenants livin% on sin%le3fa1il& residential lots are entitled
to as$ the 5awaii 5ousin% "uthorit& )55I/ to conde1n their ,ro,ert&.
Iss"e/ 'oes this constitute a ta$in% and so require co1,ensationG
8o-ing( 4o
3 >HConnor
a. 'ealin% with the ,olice ,ower
A. =here the e;ercise of the e1inent do1ain ,ower is rationall& related to the a
conceivaAle ,uAlic ,ur,ose+ itHs not a ta$in%
c. 5awaii "ctHs ,ur,ose is to reduce ,erceived social and econo1ic evils of land
oli%o,ol&. Re%ulatin% oli%o,ol& is a classic e;ercise of a StateHs ,olice ,owers+ and
is a co1,rehensive and rational a,,roach to correctin% 1ar$et failure
3 4>TES(
a. EstaAlishes that so1eti1es ta$in% fro1 " to %ive to # is >6
A. This translated into a 8,uAlic ,ur,ose9 require1ent le%iti1ate state interest
1ere rationalit&+ so then it was eas&
c. "Aandons an& effort to define 8,uAlic use9 narrowl& so as to i1,ose so1e
suAstantive constraints on the suAKect of 8,uAlicness9
#. 'eter1inin% whether a 8ta$in%9 has occurred
3 =hat $inds of laws de,rive ,eo,le of ,ro,ert& or ,ro,ert& ri%hts constitute ta$in%sG
a. Eovern1ent e;ercisin% E1inent 'o1ain is definitel& a ta$in%
A. =hat if %overn1ent leaves &ou in ,ossession+ Aut does other thin%sG
3 The constitution has a ver& different require1ent when the state Kust de,rives &ou of
,ro,ert&( the 5
th
"1end1ent
a. The constitution articulates . different ,rotections. State onl& has to ,a& when it
ta$es so1ethin% for ,uAlic use. =hen the state doesnHt use it+ it 1ust onl& co1,l&
with due ,rocess.
Penns&3!ni! Co! Co6 36 9!hon (1422, p. 4>0)
F!cts/ Suit Arou%ht A& :ahon to ,revent P" Coal fro1 1inin% under their ,ro,ert& in such wa&
as to re1ove the su,,orts and cause a suAsidence of the surface and of their ho1e. Rel& on the
6ohler "ct+ a P" law that forAids the 1inin% of anthracite coal in such wa& as to cause the
suAsidence of+ a1on% other thin%s+ an& structure used as a hu1an haAitation.
Iss"e/ Is this a ta$in%G
8o-ing <es
3 5ol1es
a. "ct canHt Ae sustained as ,olice ,ower so far as it affects 1inin% of coal under streets
or cities or ,laces where the ri%ht to 1ine has Aeen reserved
A. Pro,ert& 1a& Ae re%ulated+ Aut if it %oes too far itHs a ta$in%
c. This is a ta$in%
1.5
3 'issent( #rennan
a. Coal is land here+ and the ri%ht of the owner to use his land is not aAsolute
1. CanHt create a ,uAlic nuisance or seriousl& threaten the ,uAlic welfare
A. Restrictions i1,osed to ,rotect the ,uAlic health+ safet&+ or 1orals fro1 dan%ers is
not a ta$in%
4>TES(
3 EstaAlished that there could Ae re%ulator& ta$in%s
3 =as a ta$in% Aecause it rendered the ,ro,ert& valueless.
9ier 36 Schoene (1428, p. 4>3)
F!cts/ "ctin% under the Cedar Rust "ct of @ir%inia+ the state ento1olo%ist ordered :iller to cut
down lar%e nu1Aer of orna1ental red cedar trees on their ,ro,ert& Aecause the& were infected
with a disease )Cedar Rust/ which would $ill the a,,le orchards ne;t door.
8o-ing/ 4o
3 Justice Stone
a. State had to choose Aetween ,reservation of one class of ,ro,ert& and that of another.
In such a case state doesnHt e;ceed its constitutional ,owers A& decidin% u,on the
destructions of one class of ,ro,ert& to save another of %reater ,uAlic value
Other T!?ings c!ses (p. 4./ 2ote 2)
3 8ndrus v. 8llard (14.4)IThe Ea%le Protection "ct Aanned the sale of Aald or %olden ea%le
,arts ta$en Aefore the effective date of the statute. SC said no ta$in%+ where owner ,ossesses
a full 8Aundle9 of ,ro,ert& ri%hts+ the destruction of one 8strand9 is not a ta$in%
3 7odel v Ervin" (148.)RIn 17
th
centur& Con%ress divided co11unal Siou; ,ro,ert& into
individual allot1ents. In 17*2 Con%ress ,assed Indian and Consolidation "ct which
,rovided that &ou couldnHt have undivided fractional interest in land Aut land would %o to
triAe if the interest re,resented .V or less of the total acrea%e. SC held this unconstitutional
Aecause &ou have the ri%ht to ,ass &our land to &our $ids.
3 )uclid v. 8#bler Realty Co (142>)RSC u,held a Donin% ordinance that too$ certain
industrial land and li1ited to certain residential ,ur,oses+ thereA& decreasin% the value
3 9aiser 8etna v. 5nited ,tates (14.4)I"r1& Cor,s of En%ineers atte1,ted to %rant access to
6ua,a Pond+ a la%oon in 5awaii that was conti%uous to a navi%aAle Aa&. 6aiser owned land
and didnHt want to ,er1it co11ercial use. SC said there ="S a ta$in% Aecause it was an
actual ,h&sical invasion.
3 Riverside 'ayvie$ 7o#es v. 5nited ,tatesI"r1& Cor,s of En%ineers required landowners
to %et ,er1its Aefore dischar%in% fill 1aterial into adKacent wetlandsRSC said not a ta$in%
Aecause requirin% a ,er1it doesnHt actuall& T"6E the land
3 Cruneyard ,hoppin" Center v. RobinsISC held that requirin% sho,,in% centers to allow
,rotesters on the ,ro,ert& doesnHt constitute a ta$in%
3 <oretto v. 6elepro#pter Manhattan C863 Corp (1482)ISC held that a 4< law ,rovidin%
that landlords 1ust ,er1it caAle T@ co1,an& to install caAle facilities ="S a ta$in%
3 0CC v. 0lorida Co$er Corp (148.)ISC u,held a federal statute authoriDin% the 0CC to
re%ulate rates that utilit& co1,anies char%e caAle o,erators for the use of utilit& ,oles.
'istin%uishaAle fro1 <oretto Aecause that REFUIRE' landlords to ,er1it caAle co1,an&Hs
occu,ation. 5ere the act si1,l& authoriDes the 0CC to review rents of landlords who have
alread& voluntaril& entered into leases with caAle co1,an& tenants
3 Connolly v. Cension 'ene!it ?uaranty Corp (148>)ISC u,held a statute requirin% an
e1,lo&er withdrawin% fro1 a 1ultie1,lo&er ,ension ,lan to ,a& its ,ro,ortionate share of
the ,lanHs unfunded vested Aenefits
1.6
3 5nited ,tates v Causby (14/>)RSC held that frequent fli%hts i11ediatel& aAove a
landownerHs ,ro,ert& ="S a ta$in%
3 'o$en v ?illiard (148.)RSC held 4> ta$in% in the a1end1ent to "id to 0a1ilies with
'e,endent Children )"0'C/ that required reci,ient fa1ilies to assi%n to the %overn1ent
child su,,ort ,a&1ents received fro1 a non3custodial ,arent for a child livin% in the covered
household+ the effect of which was to reduce the level of su,,ort ,a&1ents received A& the
household. Con%ress is allowed to reduce the Aenefit level.
L"c!s 36 So"th C!roin! Co!st! Co"nci (1442, p. 48/)
F!cts/ In 17*6 'avid ucas ,aid W7!5+??? for . residential lots on the Isle of Pal1s in
Charleston Count& to Auild sin%le3dwellin% ho1es. In 17** SC le%islature ,assed #eachfront
:ana%e1ent "ct+ which had direct effect of Aarrin% ucas fro1 erectin% an& ,er1anent haAitaAle
structure on the land.
8o-ing/ Re1and for lower courtsRAut direct what anal&sis is to Ae used
3 Scalia
a. =hen state see$s to sustain re%ulation that de,rives land of all econo1icall&
Aeneficial use+ itHs a ta$in% unless the state can show that the ,roscriAed use interests
were not ,art of his title to Ae%in with
A. So re1and+ Aut to win its case South Carolina will have to do 1ore than sa& that
ucasH desired uses are inconsistent with the ,uAlic interest+ it will have to identif&
Aac$%round ,rinci,les of nuisance and ,ro,ert& law that ,rohiAited the uses he
intends.
3 Concurrence( 6enned&
a. Should Ae loo$in% at whether the state re%ulations were in accord with the ownerHs
reasonaAle e;,ectations and so was sufficient to su,,ort a severe restriction on
,ro,ert&
3 'issent( #lac$1un
a. State has full ,ower to re%ulate ,ro,ert& if the use would Ae har1ful to the ,uAlic
A. =h& this Aac$%round ,rinci,le stuffG If Kud%es in the 1*
th
and 17
th
centuries could
distin%uish har1 fro1 a Aenefit+ Kud%es toda& can too
3 'issent( Stevens
a. CourtHs new rule is arAitrar&+ Aecause landowner whose ,ro,ert& is di1inished 75V
will %et nothin% Aut 1??V will %et ever&thin%
A. =e should allow the co11on law to ada,t+ donHt Kust loo$ at what it was li$e in the
1*
th
centur&
c. So1e le%islative redefinitions of ,ro,ert& will effect a ta$in% and need co1,ensation+
Aut not ever& 1ove1ent awa& fro1 the co11on law will do this
d. Even if the "ct rendered ucasH ,ro,ert& valueless+ there was no ta$in%
4>TES(
3 These cases are a question of econo1ic loss and di1inution of value
3 If the ,ro,ert& loses 1??V of its value+ itHs a Ta$in%+ if it loses less+ then there is a Aalancin%
test
3 'id <ucas overrule 8ndras v. 8llanG
a. In 8ndras there was a co1,lete loss of value+ how was that not a Ta$in%G
A. 4o+ it didnHt overrule 8ndras Aecause 8ndras Kust eli1inated a ,articular 8strand9 of
usa%e+ not the 8whole Aundle9
1. "lso+ <ucas a,,lies to land+ not ,ro,ert&
)#inent *o#ain
1.!
3 =hen the Eovern1ent ta$es over &our ,ro,ert& for a s,ecial use )ie =e need to Auild a :ill/+
itHs a Ta$in%
3 If Aac$%round nuisance ,rinci,les alread& ,revented &ou fro1 doin% it+ then the Eovern1ent
can co1e and ta$e it without it Aein% a Ta$in%
a. =hat aAout contraAand lawsG If+ sa&+ ci%arettes suddenl& Aeco1e ille%al+ would
,eo,le holdin% ci%arettes have to Ae co1,ensatedG
1. 4o Aecause its har1ful
A. ContraAand is a situation where the Eovern1ent Kust ta$es it awa& )not for a
,articular use/+ &ou donHt %et co1,ensated here
1.*

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%onus4 Jed on the >enea Conention and Unla!ful Co'2atants

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