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Professor Amann
OUTLINE DETAILS:
Author: Anonymous
School: University of California, Davis School of Law
Course: Con Law II
Year: Spring, 2004
Professor: Professor Amann
Text: NA
Text Authors: NA
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Constitutional Law II Outline—Spring 2004 Page 2 of 59
Professor Amann
I. Articles of Confederation
A. Weak document
1. States retain too much sovereign power
2. Legislature is unicameral
3. Trade function of the national govt doesn’t work b/c
individual states coin own $$, charge taxes
4. Driven by notion of republicanism—i.e. having the govt
come together for the common good when necessary, but
otherwise remaining local
E. Frederick Douglass—argument
1. Born a slave of mixed heritage, abolitionist
2. Need strict construction of the Constitution—no room for
interpretation
a. Look to the plain language and if there is an answer,
don’t go further
3. Argues that “slave” is not in the Constitution
4. Art. IV, §2[3] is not a fugitive slave clause; is an escaped
indentured servant clause
5. Under Douglass’ interpretation, can have freed slaves (i.e.
free people) w/o a constitutional amendment
a. Reflections the idea of a living constitution, that the
Constitution can change over time
Constitutional Law II Outline—Spring 2004 Page 6 of 59
Professor Amann
b. Also demonstrates that Constitutional interpretation is
how one constructs it and which sources one believes
are relevant
G. Civil War
1. Lincoln elected
2. South Carolina secedes
a. Leads to a Constitutional crisis of whether a state could
secede or are they in the republic forever?
3. Emancipation Proclamation: Southern states have 3
months to rejoin the union and then slaves will not be free.
If they don’t rejoin the union, then slaves freed. All
Southern states refused. No immediate effect
a. Is this document even Constitutional? Can the prez
declare slavery unconstitutional—isn’t this the court’s or
states’ duty?
4. Post-Civil War:
a. States want to rejoin
b. No southern reps in legislature
Constitutional Law II Outline—Spring 2004 Page 7 of 59
Professor Amann
H. Reconstruction Amendments
1. 13th A (1865)—No slavery or involuntary servitude in
the US
a. Passed quickly b/c no opposition from absent Southern
states
2. 14th A (1868)—
a. Overrules Dred Scott: If born here, person is a citizen
(federal and state). No state can decide issues of
citizenship
b. P&I Clause: No state shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the US
(1)Broad and sweeping
(2)Does not apply to private action
c. Equal Protection/Due Process Clause
3. 15th A—Right to vote shall not be denied on account of
race, color, or previous condition of servitude
Plaintiff shows intent “a” motive; i.e. “b/c of” such intent
factors:
• disproportionate impact (alone does not
end the inquiry, but strong support)
• clear pattern otherwise unexplainable
• sequence of events to decision/act
• procedure, substance departure
• statements at decisionmaking
--cts seldom allow testimony
b. Defendant’s Response
Δ tries to establish that decision/act was based on a
neutral reason; that is, that same decision would have
been made/same act would have been done even if
impermissible purpose not considered.
c. Plaintiff’s Rebuttal
Constitutional Law II Outline—Spring 2004 Page 17 of 59
Professor Amann
π tries to show that the neutral reason that Δ asserted
was a pretext—i.e. was not the real reason—and that
but for Δ’s desire to discriminate on an impermissible
basis, the decision would not have been made/act would
not have been done.
d. In short, the ct requires:
(1) Prove intent through direct or circumstantial
evidence
(a) numbers about the impact/effect of the law—e.g.
stark numbers of yick wo
(2)Must be a motivating factor in the decision
F. Affirmative Action
1. Definition: Government program that uses a “suspect”
classification for affirmative/postive/benign
2. Controversy: Benign racial classification or reverse
discrimination?
a. 2 approaches
(1)“Race neutrality”—strong presumption that race is
never relevant to government decision-making
(2)“Discrete and insular minority”—government might
sometimes have legitimate reasons to consider race,
but not when the group disadvantaged by the
classification is a racial minority
b. Benign
(1)Justice Thomas: Govt affirmative action programs
perpetuate a sense of racial inferiority. Does more
Constitutional Law II Outline—Spring 2004 Page 19 of 59
Professor Amann
harm than good b/c saying that the group needs help
in order to succeed
c. Discrimination: Since EP is a personal right, is there
discrimination against an individual if allowing a
previously disadvantaged individual over them?
d. HOW? Even if level of scrutiny is determined, how to do
this?
(1)How much deference to give to government body
(e.g. school, city council, etc.)?
(2)The more deference given to the govt body, higher
assumption that they are doing the right thing.
3. Level of scrutiny: STRICT
a. Classifications based on race or ancestry are always
suspect
4. UC Regents v. Bakke (1978): UCDMC reserves 16 of its
100 spots for members of a disadvantaged group. Bakke
argues that he would’ve been admitted if not for the quota.
S.Ct. rules: 4 (brennan four); 1 (powell); 4 (statutory four)
a. Brennan four: Quota is ok b/c this is to remedy past
discrimination.
(1)Applies midlevel/intermediate levels of scrutiny (less
“fit” than necessity)
b. Powell: Not ok, but applies strict scrutiny. Diversity is
ok as a compelling state interest, but a bad “fit.”
(1)Quotas/numbers are bad. Does not assess the
quality of the non-minorities v. the “16”
(2)Numbers are too rigid that they become irrational.
c. Statutory four: Quota not ok, but on statutory grounds—
not constitutional grounds
5. General principles
a. Deference issue: The lower level of govt doing the
program, the more likely to strike the program. Ct is
likely to defer to Congress, e.g.:
(1)State/Local govt programs—struck as
unconstitutional
i) Bakke (medical school)
ii) Wygant (CBA agreement where minority
teachers were the last to be laid-off)
iii) Croson (city of richmond must contract at
least 30% of dollar amount to minority
businesses)
(2)Federal programs—upheld
i) Fullilove (fed. govt funds require that 10% of
funds to local govts must be spent on
minority businesses)
Constitutional Law II Outline—Spring 2004 Page 20 of 59
Professor Amann
ii) Metro (fed. race-based preferences for
increasing minority ownership of TV and
radio stations)
iii) Adarand (preference of a minority
construction company in road project)
b. The more the methodology is strictly numbers, the more
likely it will be struck. Ct uncomfortable w/ baldness
of pure numbers (quota, ## or %)
(1)But…ct favors flexible criteria.
(2)“Disadvantage” can be taken into account, but
economic or social criteria is race-neutral.
(a) May also have parallels that certain races are
considered disadvantaged, but is not purely race-
based
(3) e.g. bollinger: Not universally bad to take race into
account, but can’t have rigid pidgenholing of this
factor
c. Court prefers
(1)Race-neutral means
(2)Narrow-tailoring—Need to make a “fit”
(3)Under/Overinclusive Problem
(a) e.g. Overinclusive benefits more ppl than it means
to be benefitted
d. What are the sufficient interests?
(1) Until Bollinger, Powell in bakke was the only one to
say that diversity was a compelling govt interest
e. Complicating Factors
(1) “Majority minority” –e.g. Croson: Richmond City
Council sets 30% of city business for minority
owners, but a majority of the city council = black. Ct
sees this as “suspect”
(2) “Racial politics”—e.g. Predominantly African-
American city counsel is giving preference to this
group (i.e. african-american construction companies).
Appears neutral, but race-based effects
(3) Proxy—When advantage one group, may
disadvantage another
(4) Group v. individual preference
6. Grutter v. Bollinger (2003): Univ. of Michigan law school
has an affirmative action program set up that attempts to
achieve a critical mass in its student body. Grutter, a
white female w/ 3.85 GPA + 161 LSAT. Denied admission,
but is in the “iffy” category.
a. Level of scrutiny: STRICT
(1)This is a race-based classification
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(2)Strict scrutiny whether purpose of program is
affirmative or negative
(3)Ct challenges “strict in theory, fatal in fact”
b. State government actor = public law school
c. State interest: Diversity w/in the student body
(1)Academic freedom: school as a “marketplace of
ideas”
(a) This differs from UCDMC—where med school was
admitting students to return to the
underrepresented communities and serve them
(b)Deference to the public officials (i.e. law school
admissions committee)—They best understand
how best to obtain diversity of ideas
d. Thomas’ (dissent): Classifications are not benign.
(1)Fundamental premise is wrong—that programs bring
ppl up instead of bringing them down. Programs
perpetuate notion that racial minorities are inferior
(2)Narrow tailoring question is problematic—Umich did
not adequately exhaust all race-neutral
classifications
(a) Lottery idea
(3)Questions state interest in having an elite law school
e. Analysis
(1)Changes in this case:
(a) Increasing deference
(b)Strict scrutiny is NOT FATAL
(c) Diversity IS a compelling factor to ensure the free
exchange of ideas in the classroom
(2)Limitations of this holding:
(a) Does linking this situation to academic freedom
limit extending the need to diversity to civil
service and other areas of government?
(b)How far can “diversity” be pushed from the
academic setting?
f. Analytical Outline
(1) Treatment of Suspect Classifications
If classification is suspect, either:
- on its face, or
- by Yick Wo facially neutral classification
analysis
In context:
“Compelling governmental interest” =
“pressing public necessity”
(a) Yes:
i) National security/stop violence
ii) Correct govt’s own, specific acts of
past discrimination—i.e. Croson: City of
Richmond itself is not responsible for the
absence of black construction ks v. school
segregation cases where school bd itself is
responsible, so ct will permit it to
compensate for its own wrongdoing.
Likewise, cannot act on behalf of the rest of
the world—e.g. Freeman v. Pitts, need to
trace segregation to something the school
did—not housing patterns
iii) Promote diversity
(b) No:
i) Forment racial antagonism
ii) Perpetuate stereotypes
iii) Remedy societal discrimination
iv) Provide role models—e.g. Wiegand, laying
off teachers but retain teachers of color to
keep these teachers as role models. Ct says
no b/c lack of teachers of color is not the
school district’s fault
factors:
• disproportionate impact (e.g. Yick Wo)
• clear pattern otherwise unexplainable
(e.g. why only chinese launderers not qualifying
for a permit)
Constitutional Law II Outline—Spring 2004 Page 28 of 59
Professor Amann
• sequence of events to decision/act (e.g.
history of hostility towards chinese)
• procedure, substance departure (e.g.
suspension of procedures, decisions behind closed
doors)
• statements at decisionmaking (e.g. one
person saying the ‘real’ reason, can suspect that
other decision makers are saying the same thing)
B. Unconstitutional Conditions
VI. Symbolic Speech—or Hate Speech?
A. Flag-burning is protected speech under the 1st A
1. Texas v. Johnson (1989): Flag burner convicted under
statute which makes it a misdemeanor to desecrate,
intentionally or knowingly…a state/national flag. Δ burns
the flag in protest, and on-looker is offended and takes the
flag home to bury it.
a. Held: Flag burning is protected speech. Defer to the
marketplace of ideas. Notion that in a free market, the
exchange of ideas leads to the truth. The remedy for
“bad speech” is stimulating more speech into the
marketplace.
(1)Kennedy: 1st A is about having to listen to horrible
speech
(a) Ct fears the chilling effect
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(2)But, govt can regulate, if at some point, the market
becomes so unbalanced that rational speech has no
chance.
B. Hate speech (content-based restriction)
1. In general, it does not meet the exceptions to when govt
can regulate…fighting words, obscenity, libel.
a. Comes close to fighting words, but Brandenburg, need
imminent violence
b. If, on the facts, there is an assault or battery, then it will
be easier to prosecute on those charges and not the 1st
A.
(1)But if assault accompanies hate speech, can attach
motivation as hate-related
c. But for policy reasons, probably do not want to wait
until actual violence.
(1)Want to avoid fear, creating a hostile environment
(2)Don’t want the appearance that govt is endorsing the
speech or threats
(3)Issue: how long do you have to wait until the “harm”
has occurred?
(a) Consider: Attempt doctrine (crim law)—the point
at which there is enough circumstantial evidence
to concede harm
(b) Thus, under Brandenburg, STATE USUALLY LOSES
b/c tough to speculate whether there was a
danger of harm
i) But perhaps if other perspectives are
articulated (e.g. from the victim), then can
see the harm
a) e.g. Justice stevens, a WWII vet, who
wants to create an exception for the
symbol of the flag
2. Cross-burning cases
a. RAV v. City of St. Paul: St. Paul’s “Bias Motivated Crime”
statute makes it a misdemeanor for (disorderly conduct)
to place on public or private ppty/ a symbol, object, etc.,
including but not limited to a burning cross or swastika /
knowing or w/ rsbl grounds to know it / arouses others’
anger, alarm, resentment on the basis of race, color,
creed, religion, gender.
(1) Held: (Scalia’s opinion): This is content or viewpoint-
based which discriminates on the reasons individuals
display the symbol (e.g. movie on WWII in a
university class). Does not refer to all
viewing/display of swastikas or burning crosses—
Constitutional Law II Outline—Spring 2004 Page 50 of 59
Professor Amann
evidenced by the “end” of the statute which makes it
clear they’re looking @ content.
(2) VIEWPOINT DISCRIMINATION ≠ OK
(a) Viewpoint discrimination, i.e. punishing only
certain viewpoints, is when only one type of the
speech in question is proscribed.
(b) e.g. libel: Can regulate this speech, but can’t write
a law convicting libel only against the govt or
against nuns.
b. Virginia v. Black (2003): Opinion is rooted in the
meaning of the symbol. Cross burning is intimidating.
(1)True threats are not protected
(2) Still considered a breach of the peace. It is an
intentional utterance of words designed to instill fear
in others and in context, is likely to do so.
(a) In a narrow context, this is considered harmful to
society and the govt can regulate it
VII. Vagueness, Support/Advocacy, and Anti-Terror Measures
A. Idaho case: Δ is a 34-year-old grad student who is a
webmaster for Islamic, ME webpages (some advocate suicide
bombing). Doesn’t share FTO views. He is Muslim, against
suicide bombings and not anti-American. Is on trial for the
statute in Humanitarian Law Project—i.e. providing “material
support” to FTOs, including “expert guidance and assistance”
[even though he doesn’t subscribe to the ideas]. Can this
survive a 1st A challenge?
1. Press? speech?
a. No—he is only functioning as a publisher or allowing the
e-mails to go out
b. Yes—he has discretion over the content—which is part
of a system of expressive conduct. Argument that he is
a speech enabler. 1st A jurisprudence includes
cyberspace. The ct’s 1st amendment definition of
speech = broad
2. Govt is acting as a sovereign; no public forum implicated
3. Content-based or content neutral?
a. Δ would argue: content-based.
(1)Govt is only after terrorist speech, advocacy.
(2)Thus, apply strict scrutiny
b. Govt would argue: content-neutral.
(1) Any infringement to speech is incidental. Actually
concerned w/ the secondary effects (national
security).
(a) National security = important governmental
interest
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(b)Ct defers to the executive since this may
implicate “foreign relations”
(2)Must be tailored = “less restrictive means”
(a) Lots of deference to the govt
(3)Thus, apply intermediate level of scrutiny
4. Also argue the VAGUENESS ARGUMENT
a. IF you put ppl in jail, they must be given notice, the
message must be clear.
(1) Here, training by UN-recognized NGOs. Can still pass
Brandenburg and still be prosecuted.
(2) Humanitarian Law. Ct: no one knows how to define
“training.” US claims it is in the US Atty’s Manual.
Ct: That is not enough…uncomfortable to limit the
scope of regulations as they get to the 1st A, even in
a post-9/11 world.
VIII. FIRST AMENDMENT FLOW CHART
A. Does the regulation implicate “speech” or “press”
1. The courts modern interpretation is broad
2. if there is an expressive component (i.e. verbal, written,
non-verbal—e.g. music or dance--, speech plus conduct—
e.g. flag/draft card/ cross burning)
a. If an expressive component, S.Ct pretends it is a
content-neutral regulation and will look @ secondary
effects
B. IF YES, is the regulator = govt actor?
1. Usually an easy case
2. Sometimes the govt actor looks like a private actor (and is
treated like a govt actor)
a. Company town (marsh v. alabama)—private town
exercising the functions of govt
b. Extraordinary paradigm (parking structure)—
extraordinary entanglement of public and private
c. Extraordinary govt endorsement (shelley v. kraemer or
edmonson)—asking the govt to enforce or force private
action
C. IF YES, is the govt acting as SOVEREIGN OR
PROPRIETOR?
1. Sovereign (e.g. bandshell in Central Park)
2. IF Proprietor, is it a traditional or designated public
forum? OR nonpublic forum?
a. If govt acts as proprietor in nonpublic forum (e.g.
military base) → rational basis scrutiny
D. IF THE GOVT ACTS AS SOVEREIGN OR AS PROPRIETOR
IN A TRADITIONAL/DESIGNATED PUBLIC FORUM,
ORDINARY ANALYSIS APPLIES—i.e. Is the regulation
content-based or content-neutral (that is, content-neutral
Constitutional Law II Outline—Spring 2004 Page 52 of 59
Professor Amann
= not aimed at suppressing expression; rather,
“predominantly” aimed at goals unrelated to speech)? **Ct’s
answer is not always clear. Content-neutral will have an
impact on speech, but there is another purpose for the govt to
stop that, and the speech is only an incidental side effect.
1. Exam tip: A party subject to the regulation will argue
content based, the Govt will argue content neutral
2. If content based → strict scrutiny (i.e. the least
restrictive means to achieve a compelling govt
interest) This gives low deference to the govt…if a party
can give ways to prevent harm w/o infringing speech as
much, then the regulation is probably unconstitutional.
a. Strong presumption against the regulation,
particularly if criminal sanctions involved
b. Areas where the govt’s interest is surely
compelling, therefore, this harmful/low-value
speech is unprotected (i.e. will make an exception to
regulating speech). But govt should still use the least
restrictive means.
(1) Libel (i.e. saying false things to ruin one’s reputation
often regulated via tort law, but no criminal
sanctions)
(2) Obscenity (per Miller definition)
(3) Fighting words—3 forms
(a) Brandenburg, “Illegal advocacy,” → inciting harm
to others
(b) Chaplinsky, “fighting words,´→ inciting harm to
self (still considered a breach of the peace)
(c) Virginia v. Black, “true threat,” → instilling fear in
the hater (and in context, is likely to do so)
(4) Not offensive or pornographic speech not
fitting above (3 categories)
(a) Fuck the draft, RAV = need real fear, real harm
(b)Pornography—protected if not @ Miller lvl
(c) Child Porn—content protect, but has secondary
harm
3. If content neutral → intermediate scrutiny (i.e. less
restrictive means to achieve substantial or
important govt interest)
a. Allows govt leeway to impose some TMP
restrictions, but not total ban (“suppression”)—
must leave rsbl alternative avenues of
communication (e.g. Renton, as long as % of mkt
available for the buyer to enter the market, that is all
the govt is required to do)
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Professor Amann
b. Sufficient govt interests (secondary effects
against which govt may protect
(1) Preserve the quality of urban life (Renton)
(2) Avoid traffic congestion, blocking of
entrances
(3) Assure public safety or security (e.g. dirty book
stores leads to prostitution, speaker in the middle of
the intersection)
(4) Minimize harm to children (child
pornography/indecent speech cases)—harm:
stigmatizes children, puts them in a coercive
situation. But ct is skeptical in child porn cases
where harm to children is not as clear (e.g. computer
child actors or using adult actors as kids)
(5) Minimize noise (Rock against racism)
4. CAVEAT APPLICABLE IN ALL CIRCUMSTANCES
a. Discrimination based on viewpoint = not
constitutional (will not even pass rational basis
review)
(1) Content v. Viewpoint
(a) OK: select for suppression a subset at
“core” of reason for proscription (ala Scala in
RAV)
i) e.g. Regulate libel to publication of 100k ppl
(OK) v. regulate libel against republicans
(not ok b/c distinguishes a viewpoint)
ii) e.g. Obscenity: Can suppress only “more
lascivious” obscenity, but NOT only
obscenity that includes a message of
religion
iii) e.g. Fighting words: Only regulating
desecration of the flag, not burning as a
sign of respect.
b. True Threat statements: Speaker means to
communicate serious expression of intent to
commit unlawful violence to a particular
individual or group [but speaker need not actually
possess that intent; pivotal ? = did the hearer
reasonably understand the statement as a
threat?]
(1)O’Connor: Proof—presumption to infer intent is
unconstitutional, but can be regulated
EPC ATTACK
(How to Analyze an EPC Question)
I. First ask, State Action—who is the actor? Is the person being
accused of discrimination a government actor, or can they be
considered a government actor?
A. Federal Govt → 5th A
B. State Govt → 14th A
CHARTS!!
Treatment of Suspect Classifications
If classification is suspect, either:
• on its face, or
• by Yick Wo facially neutral classification analysis
Yes:
→ National security/stop violence
→ Correct govt’s own, specific acts of past discrimination
→ Promote diversity
No:
→ Forment racial antagonism
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Professor Amann
→ Perpetuate stereotypes
→ Remedy societal discrimination
→ Provide role models
MIDDLE-TIER SCRUTINY
(generally only applied in sex-discrimination cases)
Midlevel classification is subject to heightened scrutiny; i.e., must be:
→ substantially related to accomplishing
→ “important” government interest