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Constitutional Law
Fall 1999
Professor George Garvey
Outline by
Christopher S. Lee
I.
The Judicial Function in Constitutional Cases
A. Judicial
Review – The power of the SC to define its own powers, as well as review the
powers of other Branches of Government.
1.
Marbury v. Madison
2.
Legitimacy of Judicial Review
3.
Authority of Supreme Court
a) Legislative
Branch creates Laws
b) Executive
Branch Executes Laws
c) Judicial
Branch Interprets the Laws
B. Constitutional
& Prudential Limits
1.
Standing
a) Must
show Injury-in-Fact.
b) Must
be Case-in-Controversy.
c) Cannot
assert rights of 3rd parties. No generalized grievances.
d) Constitutional
v. Prudential Bases
(1) Constitutional
Barrier – Congress can’t waive.
(2) Prudential
Basis
(a) SC
acts as self-regulator imposing own juris.
(b) SC decides
it is unwise for it to decide case.
2.
Mootness & Ripeness
3.
Nonjusticiable Political Questions
a) Political
Questions assigned to Political Branches.
b) Prudential
reasons to refuse (assuming case-in-controversy)
(1) Case
embarrassing to Gov’t.
(2) Treaties
& Foreign Policy Issues.
C. Supreme
Court Authority to Review State Court Judgments
1.
Martin v. Hunter’s Lessee
a) Supremacy
of the Federal Constitution, Laws, Treaties,…
b) Uniformity
of Interpretation of Laws.
c) SC
does have Authority & Juris to review ST decisions.
2.
Cohens v. Virginia Supreme Court
a) SC
- Original Jurisdiction v. Appellate Jurisdiction
b) Federal
Judge appointees v. State Judge Electees
D. Article
III – Framework for Judicial Branch
1.
Size
2.
Terms
3.
Creation of Lower Courts.
E. Congressional
Restraints on the Judicial Branch
1.
Senate confirmation of Judges
2.
Appellate Jurisdiction created by Congress
3.
Federal Question issues subject to Congressional Changes.
4.
Impeachment
F. Political
Restraints on the Supreme Court: May Congress Strip the Court of Its
Jurisdiction?
SC – The
case, not the party, determines Jurisdiction.
1.
Ex Parte McCardle
a) Issue: Did SC have Jurisdiction to hear
case?
b) Congress
creates Jurisdiction, and removed prior to this case.
c) Therefore,
SC can’t hear case, dismisses.
d) SC
can’t review Congress’s motives; must accept at value.
e) When
Congress removes SC Jurisdiction, ST CT’s decide.
2.
Internal and External Restraints
3.
Congressional Control of Lower Courts
G. SC
Background and Present
1.
Initially all matters regarding Federal Rights were
appealable.
2.
1920’s – Certiorari & Right of Appeal.
3.
1988 – Certiorari only. SC given discretion on all matters.
4.
Certiorari requires 4 Justices to vote for hearing case.
5.
Denial of Certiorari means no Prejudice
6.
Types of cases
a) Split
among Circuits
b) Split
between State SC’s
II.
The Structure of Government: Nation and States in the Federal Systems
A. National
Powers and Local Activities:
Origins and Recurrent Themes
1.
Federalism – Relationship between the State and Federal
Gov’t.
a) Categorical
Approach
(1) Pigeon
Hole Federal & State Ownership
(2) CT’s
determine Ownership
(3) Enumerated
Powers of Federal Government.
(4) Everything
else belongs to States.
b) Pragmatic
Functional Approach
(1) Goals
& Purpose of Government
(2) Gets away
from Categorizing
(3) Goal-measured.
(4) What is
the function of Government?
(5) Prompted
by collapse of Articles of Confederation
c) SC
– Picks & chooses which ones to use
d) States
(1) Promotes
democracy by keeping power close to people.
(2) Policies
tailored to local needs, tastes.
(3) Autonomy
to organize as chose.
Experimentation.
e) Federal
Government
(1) Provides
for what States can’t provide; Defense
(2) Avoids
States creating negative externalities; exporting problems elsewhere
(3) Avoids
Balkanization – Trade wars between states.
(4) Dealing
with other Nations
(5) Protection
of Constitution & Principles
(6) Mediate
conflicts between states.
(7) Prevent
states from engaging in “race to bottom”.
2.
McCulloch v. Maryland
a) Marshall
- SC has ONLY authority to resolve issue.
b) Source
of Federal Power is the People.
c) Ultimate
Source of Power is the People.
d) Within
enumerated powers – Fed is Supreme.
e) Constitution
supports Supreme Powers
f)
Superior to States
g) Necessary
& Proper Clause
h) Marshall
– It’s a Constitution we are interpreting.
i)
Constitution doesn’t provide details; therefore
j)
Allows for Interpretation & IMPLIED Powers
k) Incidental
& Implied Powers to make enumerated powers.
l)
Marshall – creates Doctrine of Implied Powers
(1)
It’s a Constitution we are interpreting.
(2)
Framers left room for Interpretation
(3)
Federalist Papers
(4)
Establishes Strong Central Government
(5)
Necessary – Enlargement of Federal Powers
(6)
Necessary – Appropriate
(7)
Necessary – Convenient
(8)
“Let the ENDS be legitimate.”
(9)
Pretext – Proper beginning to achieve unfair end prohibited.
(10) Plenary
Power – Any power chosen by Congress
(11) Power
to tax is power to destroy. One
sovereign cannot hold power to destroy a higher sovereign.
3.
Implied Powers and the Necessary & Proper Clause
a) Articles
of Confederation
b) Constitutional
Convention
4.
National Bank
5.
Restraints on Congressional Power
a) Political
Safeguards
b) Term
Limits Case
(1) J. Stevens
– States can’t retain what doesn’t exist.
(2) J. Thomas
– States are repositories of all powers not vested in the Constitution to
Federal Gov’t. Strong supporter
of States’ Rights, weak Federal Government.
A. Development
of the Commerce Power from 1824 - 1936
1.
Gibbons v. Ogden
a) Power
to regulate Interstate Commerce.
b) Effects
Test - Power to regulate Intrastate Commerce which affects Interstate
Commerce.
c) Broad-reaching
Federal Powers
2.
Champion v. Ames – Lottery Case
a) Were
the ends proper?
b) Pestilence
c) Regulation
of Morality
d) Majority
(1) Congress
has power to limit evils
(2) Plenary -
Expanding Federal Powers
e) Minority
(1) Lottery
Regulation is State Police Power Issue
(2) Pretext
Issue – Beyond Federal Powers
3.
Hipolite Egg v. U.S.
a) Adulterated
Food
b) Federal
Gov’t can adopt rules to protect the public.
4.
Hammer v. Dagenhut
a) Child
Labor Case
b) Majority
(1) Doesn’t
affect IC.
(2) Thing
being shipped is not evil.
(3) Unfair
competition between States.
(4) Goods of
Child Labor will compete with other ST laws.
c) Holmes
Dissent – If there is any evil, it is Child Labor
d) Sets
stage for future clash with FDR’s New Deal
5.
Schechter v. U.S.
a) Code
and Price Setting Case; Attacks
FDR’s New Deal
b) SC
(1) Doesn’t
affect IC directly.
(2) Effect on IC
is indirect.
(3) Constitution
governs Direct Commerce.
(4) Sale of
chickens not IC, not Direct effect.
c) Cardozo
Concurrence
(1) Delegation
of legislative responsibilities to private parties.
(2) Delegation
will run riot.
(3) Commerce –
Sale of chickens not IC.
(4) Rejects
Categorical “Direct v. Indirect” approach.
(5) Looks at
the big picture and looks at whether there is a justification for Federal
Regulation.
(6) Balancing
Approach - Judges must balance competing issues
6.
Carter Coal
a) Regulation
of Coal Mining Industry controlling prices and collective bargaining.
b) Fed
Gov’t. – National Issue & National Problem
c) SC
(1) Distinguishes
labor relations and commerce.
(2) Production
v. Commerce Issue
(3) Production
can’t be regulated by Fed Gov’t.
(4) Local
activities can’t be regulated by Fed Gov’t
(5) Test
(a) Commerce
– Fed Gov’t Regulation
(b) Production
– State Gov’t Regulation
(6) Powers of
Fed Gov’t not expanded by Nat’l Problem.
d) Dissent
– Cardozo
(1) Effects
Test
(a) What
is the effect on IC?
(b) Is it
being applied evenly to not do harm?
(2) Schechter
went too far.
(3) Carter
Coal is appropriate use of CC.
7.
FDR’s Court Packing Plan/Threat
B. Decline
of Limits on the Commerce Power: 1937
1.
NRLB v. J&L Steel Corp.
a) Test
– Effect on Commerce and not Specific Case
If
Substantial Effect – Fed. can regulate
b) Overturns
Schecter & Carter Coal
c) Majority
– Follows Cardozo’s Carter Coal decision
d) Fed
Gov’t follows up with
(1) Throat of
Commerce Test
(2) Stream of
Commerce Test - Some corps. Industries are so connected to the stream of
commerce the effect Commerce and can be regulated.
e) SC
Test – Does it effect IC?
f)
Practical Effects Test – Determines power of Congress
2.
Wickard v. Filburn
a) Allows
Fed. to aggregate effect.
b) Cardozo
– Too remote to consider.
c) Political
arena has power to check Judicial responses if too far reaching.
3.
U.S. v. Darby
a) Regulation
of wage and hours in local manufacturing.
b) SC
Explicitly overrules Hammer Child Labor Case.
c) Creates
Broad Reaching Powers for Fed Gov’t.
d) Lifts
difference between production and commerce.
e) Regulation
of working conditions, not commerce.
f)
SC – Substantial Effects Test
g) SC
– Congress may pursue own Public Policy Goals.
h) SC
– People will serve as check to Congress
i)
SC – Pretext Language
(1) If means
are Police Power, Federal Regulation can be struck down.
(2) If means
are Commerce Power, Federal Regulations can’t be struck down.
j)
10th Amendment is a Truism; All that the Fed has is All, but it isn’t a limitation.
4.
Darby Decision Outcome
a) States
are no longer barriers.
b) 10th
Amendment is a Truism
c) Congress
and Federal Gov’t can affect all commerce.
d) CC
can be used to arrest Immoral Activities – Civil Rights
C. External
Limits on the Commerce Power
1.
State Autonomy
a) U.S.
v. Lopez
(1) Tests
(a) Channel
of Interstate Commerce
(b) Instrumentality
of Commerce
(c) Substantial
Effects Test
(d) Cardozo
Balancing Test
(2) How far
should Fed v. ST rights go?
(3) When does the
Fed go too far?
(4) SC puts
breaks on Commerce Clause
(5) J. Thomas
Concurrence
(a) Wants
to return to pre-1937 Position
(b) Manufacturing,
production, labor not IC.
(c) Supports
Hammer Case
(d) Narrow
reading of CC.
(6) J. Bryer
Dissent
(a) Substantial
Effects Test
(b) Significant
Effects Test – Lower Standard.
(c) Rational
Basis – Congress Decides
(7) SC
(a) Strict
Scrutiny
(b) Intermediate
Scrutiny
(c) Rational
Basis – Congress Prevails
b) New
York v. U.S.
(1) Can Fed
Gov’t induce States? Yes
(2) Case
crosses line from inducement to coercion.
(3) Dormant
Commerce Clause
(a) States
can’t discriminate against other states.
(b) But
Congress can give states authority do so.
(4) Fed can’t
hand out money for unrelated reasons.
(5) Fed Gov’t
Pre-Emption Power – Take away and Regulate any industry it chooses to do so.
2.
Sovereign Concerns
a) Printz
v. U.S.
(1) Brady
Handgun Violence Act
(2) Fed can
commandeer ST CT’s to carryout Fed Policy.
(3) Fed can’t
commandeer ST/Local employees for Fed Policy enforcement.
3.
10th Amendment
D. Federalism-Based
Restraints on Other National Powers in the Constitution
1.
The Taxing Power as a Regulatory Tool
SC – Any
revenue raising Tax is Permitted.
2.
The Spending Power as a Regulatory Tool
a) U.S.
v. Butler (1936)
(1) SC
(a) Invasion
of States’ Rights
(b) Fed can’t
buy what can’t do directly.
(c) Fed
can’t induce by spending money.
(2) Dissent
(a) National
Problem requires Fed Regulations
(b) States
can’t deal with problem individually
(c) Exceptions
(i)
Must be a “True National Problem”
(ii)
Can’t coerce ST control.
(iii)
Conscience of Congress
3.
War, Foreign Affairs, and Federalism
a) South
Dakota v. Dole
(1) Drinking
Age and Transportation Grants case
(2) Congress
Shoehorns Necessary and Proper Clause
(3) Standard
of Review
(a) Power
(b) No Limits
(4) Express
Limits – Spending Power
(5) Emolument
– Perks
(6) Wraps
spending with Necessary and Proper Clause
E. Federal
Limits on State Power to Regulate the National Economy
1.
State Regulation and the Dormant Commerce Clause
DCC –
Unexercised Federal Gov’t acts as restraint on ST Gov’ts
Commerce v.
Police Power (all powers of state)
Purpose
(Johnston’s concurrence in Gibbons)
Direct v.
Indirect Test
States can regulate indirectly.
No clear roadmap to follow.
Direct v.
Incidental
Local v.
National
Cooley
Test – Newer SC following.
National
– Uniform
Rational
Basis Test – State always prevails
a) Early
Developments
(1) Gibbons v.
Ogden
(2) Wilson v.
Blackbird Creek
(a) Marshall
applies Balancing Test
(b) State’s
interest greater than Fed’s Interests
(3) Cooley v.
Board of Wardens
(a) Local
pilots for PA waterways
(b) Direct v.
Indirect Test
(c) Cooley
Test
b) The
Modern Court’s Approach
(1) Pike v.
Bruce Church, Inc.
(a) Is statute
Discriminatory?
(b) Incorporates
all tests
(c) State
prevails if statute not discriminatory, very local and incidental.
(2) Philadelphia
v. New Jersey
(a) Waste
Management Case
(b) SC
(i) Protectionism
– Always struck down
(ii) Legitimate
purpose, illegitimate means.
(iii) Virtual Per
Se Nullity
(iv) Redline Issue –
IC
(v) Necessary
& Proper Clause
(vi) Pike Test
(3) Waste
Management Cases
(4) Dean Milk
v. Madison County, WI
(a) Is
it discrimination against IC?
(b) SC –
Doesn’t use Virtual Per Se Test; law applies to in-state and out-of-state
products.
(c) SC –
Doesn’t use Rationality Test – Finding reasonable way to pursue issue.
(d) Prior
cases – Barrier imposed at ST border.
(e) SC –
Make other milk plants pay for Inspector travel costs. Effects Test burden; Use the least
discriminating method to resolve issue.
(f) Pike
Balancing Test
(i) CT
determines which options are best
(ii) Bad
to allow CT’s to decide options; Legislature & people should set &
choose options.
(g) Dormant
Commerce Clause
(5) Baldwin v.
GAF Seelig
(a) Economic
protectionism for in-state producers.
(b) Commerce
Clause Themes
(i) Economic
Argument; efficiency, free flow of trade, promotes economic growth;
Hamiltonian
(ii) Balkanization
Agreement; Barriers might split apart states; Potential for Economic Warfare.
(c) Protectionism
– ALWAYS Loses
(d) Balancing
Test – Used in Grey Areas
(6) Hunt v.
Washington State Apple Association
(a) Practical
Effect – Discrimination against out of state apple growers.
(b) After
Practical Effect BOP shifts to D to show
(i)
Benefit to D/State
(ii)
No less restrictive method/ discrim.
(7) Byrd v.
City of Alexandria
(a) Door-to-Door
Salesmen prohibited
(b) Pestilence
theory
(c) KEY: SC deals with problems differently.
(d) KEY: Different practices at different
times.
(8) SC Highway
v. Barnwell – Trucking Case
(a) South
Carolina prohibits large & wide trucks
(b) J. Stone
(i) Rational
Basis Test – Okay if not discriminatory.
(ii) Intra
& Interstate is not discriminatory.
(iii) Rely on
legis & political process to resolve issues
(iv) SC only
intervenes when law is arbitrary or irrational.
(9) Southern
Pacific v. Arizona
(a) Limits
numbers on Rail Cars
(b) DCC – No
Federal Regulation
(c) SC –
Cooley Test – Local v. National Regs.
(d) Rational
Basis Test – Tipped in favor of AZ.
(e) Rational
Basis Test not used.
(f) SC
(i) Evaluates
Multiple Factors
(ii) Ultimately
decides burden of free flow of commerce; Safety issues.
(iii) Rejects
Barnwell Non-Discrim. Test
(iv) RR historically
treated as Fed. Enterprise
(v) Highway
Regs treated as ST issue
(10)
Kassel v. Consolidated Freight
(a) IA
ST Reg prohibiting doubles > 60 FT
(b) State
Statutes – Given strong presumption of validity.
(c) Safety
v. Commerce Clause Balancing Test
(d) SC
(i) In
part questions motives.
(ii) Controlling
Factor – Actual Intent
(iii) Finds
Protectionism
(iv) Virtual Per Se
Invalidity
(v) If
bona fide safety reg – Rational Basis Test; left to legis. to decide.
(e) Dissent
(i) Majority
has overstepped bounds.
(ii) IA
law designed to keep trucks from damaging ST’s highways.
(11)
Exxon v. Maryland
(a) MD
ST divestiture law.
(b) Not
Discriminatory – All refiners affected.
(c) Expectation
– Virtual Per Se Invalidity
(d) Outcome –
MD Law upheld
(e) Exxon
is a Pestilence
(f) Local
Independent Dealers have Clout
(g) Discriminatory
law; but finds major problem is the Big Oil Refiners
(12)
Edgar v. MITE (1982)
(a) SC
strikes IL anti-takeover law.
(b) Violates
DCC
(c) Interferes
with Securities & Control of Corps.
(d) Protectionist
Model – Balancing Model
(e) Market
is Efficient
(13)
CTS v. Dynamics Corp (1987)
(a) IN law
discouraging takeovers
(b) SC –
Non-Discrim. because effects IN only.
(c) Law
aimed at NY Investment Bankers
(d) SC –
Tender Offers are Pestilence; Regs Okay.
(e) NOTE:
Inconsistency with Edgar case.
c) The
Market Participant Exception to the Dormant Commerce Clause
2.
The Privileges & Immunities Clause of Article IV
Prohibits discrimination by state against non-residents.
Promotes IC harmony.
Union through Individual Rights
Protection against Discrimination of Individuals.
National Citizenship – Right to Interstate Travel
Right to Employment protected by P&I Clause
P&I Test
1)
ST must show substantial reason to discriminate
(intermediate scrutiny); AND
2)
Substantially Related
Least
Restrictive Test = Strict Scrutiny; Rational Basis
a) United
Building v. City of Camden
(1)
40% set aside required for City Public Works K’s
(2)
NJ SC Rejects Statute – Discriminatory
(3)
US SC
(a) Reverses
– City can use set aside.
(b) P&I
Clause extends to subdivisions of ST.
(c) P&I
Clause doesn’t apply to Market Participant
(d) P&I
only applies to certain Fundamental Rights
(e) City
can engage as Market Participant and attach strings to K’s; Not a Regulation.
3.
Congressional Ordering of Federal- State Relationships by
Preemption and Consent
a) Preemption
of State Authority
PG&E v.
State Energy Commission of California
(a) Issues
(i)
Is CA ban preempted by U.S. Act?
(ii)
Is there preemption?
(iii)
What is the extent of preemption?
(iv)
What is explicit & implicit?
(b) SC – Can
find preemption of National issue with limited scope.
(c) Comparison
to DCC.
(d) What is
traditionally done by States?
(e) DCC
– State traditions left to states.
(f) Preemption
– State traditions left to states.
(g) Implicit
Preemption – SC won’t interfere with Congressional intent. Must have clear and implicit intent.
(h) Fed
– Safety Concerns; ST – Economic Concerns; roles reversed from traditional :
Fed-Econ; ST-Safe
(i) Real
ST issue – Political reaction to fear of Nuclear
(j) SC
– Safety not enough to curtail construction.
(k) Congress
can grant power to States for DCC issues, but CAN’T grant P&I Clause
power.
b) Consent
to State Laws
A. The
Authority to Make National Policy:
The Conflict between Executive Authority & Legislative Powers
1.
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure
Case)
a) Truman
seizes all steel mills after labor strike shut down.
b) SC
– Seizure not authorized by law
c) President
(1) Commander
and Chief exercising power during Korean War.
(2) Aggregate
Powers – Inherent to President; beyond strict, literal reading in Article II.
d) War
Powers – Shared by Executive & Legislative Branches
e) J.
Frankfurter Concurrence
(1) Look to
Tradition
(2) Experiential
Interpretation
(3) Past
Presidential behavior becomes accepted over time.
(4) Seizure
may be allowed in future; but not now.
f)
J. Jackson Concurrence
(1) FDR’s
Attorney General
(2) Defends
FDR’s Seizure powers during WWII
(3) Nature of
Power Relationship
(4) No clearly
defined Bright Lines of Power
(5) Independent
& Interdependent
(6) Too much
Presidential power can lead to tyranny
(7) Congress
must maintain own power.
(8) Congress
must protect itself from Presidential Power
g) Possible
Alternatives
(1) Grant from
Congress – Only struck if outside powers; President at Peak of Power; Extreme
approach
(2) President
defies Congress – Weakest (arguably strongest); Power so vested in President,
even Congress can’t stop; Extreme approach
(3) Presidential
action in light of Congressional Inaction or silence. Middle of the Road/Twilight approach.
h) J.
Vinson – Dissent
(1) President
should be able to act.
(2) President
is not a messenger boy.
(3) Pragmatic
approach.
(4) President
has power to do what he needs to do under the given circumstances. Congress can check the power if
necessary.
B. Separation
of Powers: Congressional
Encroachments on the Executive’s Domain.
Constitutional Law
Spring
2000
Professor
George Garvey
Outline
by
Christopher
S. Lee
I.
Separation of Powers
II.
Individual Liberties
III.
Substantive Due Process
IV.
Takings Clause
V.
Contracts Clause
VI.
Non-Economic Substantive Due Process
VII.
Equal Protection
VIII.
Freedom of Speech
NOTES: Focus on
Principles
Powers
Exercised
Limits
on Powers
Keep
Like Principles with Like Cases
Case Types:
Privacy – Abortion,
Suicide, Marriage, Contraception
Race
Alienage
Gender/Sex
Voting
Exam:
Identify Areas
where Substantial Due Process Applied/Expanded
See: Privacy, Work, Education, Race,
Voting, Gender, and Ethnicity
Personal
Autonomy protected, but not completely.
Note Potential
for Reversals
Due Process
1. Has
the gov’t violated a person’s interest in life, liberty, or property?
2. Does
the right fall into marriage, child bearing/raising (fundamental)?
3. What
is the substantive due process right being violated?
4. Is
it a fundamental right being violated? (Privacy/Autonomy)
5. Does
the State have a necessary means to achieve a compelling end?
6. Is
the State or the Federal Government imposing the burden?
5th v. 14th Amendments
Equal
Protection
7. Is
the government intentionally treating the class differently?
8. Is
there a legislative Classification?
9. Is
there discrimination? One class
being treated less favorably than another?
10. Is it facial or
as applied?
Facial –
Statute textually discriminates
As Applied –
How the statute is carried out
11. Is the statute a
state/local or Federal law?
12. What level of
review should be applied?
II. Substantive
Due Process – all persons affected
“[n]or shall any state
deprive any person of life, liberty, or property, without due process of
law…” 14th Amendment, Section 1.
Harlan’s Due
Process Formula
1. Liberty
2. Any
arbitrary imposition of purposeful restraint invalid
3. Rational
Basis Test
4. Continuum
5. Careful
scrutiny of the standards asserted to justify their abridgment
6. Eventually
ratchets up to strict scrutiny
Interpretative
v. Non-interpretative Modes – SEE Handouts
Contrast with
Procedural Due Process – taking a person’s life, liberty or property.
A. Fundamental
Rights – Strict Scrutiny
1. Privacy
– Right to Privacy
2. Personal
Autonomy
3. Voting
4. 1st
Amendment
5. Right
to work/travel
Non-Economic
Fundamental Rights
6. Sex
7. Marriage
8. Child-bearing/rearing
Fundamental
Right = Strict Scrutiny
Non-Fundamental
Right = Rational Basis
B. All
other Cases – Rational Basis
1. All
Economic Statutes Upheld since 1937
2. Slaughterhouse
Cases
a) 14th
Amendment protects
(1) Class
of former slaves
(2) not Class
butchers
b) P&I
Clause – Substantive Rights – Only Nat’l Citizenship
c) Holding
– No relation to fundamental substantive right
d) “Fundamental
Rights Drain” on Equal Protection
e) Traditional
– Implicit in the concept of ordered liberty.
f)
Modern – Fundamental to the American scheme of justice.
3. Palko
v. Connecticut
a) Due
Process implicit on “Ordered Liberty”
b) Natural
Law Approach – Fundamental inalienable rights. Justices make decisions on own principles; fundamental
rights. God given laws
c) Positive
Law Approach – Law is what is written.
Written laws.
4. Lochner
v. New York – Due Process – Strict Scrutiny
a) Life,
Liberty, or Property
b) Police
Powers v. Individual Rights
c) Health
& Safety v. Labor/Property/K rights
d) Majority
– Strict Scrutiny; Property Rights prevail
(1) Nature of
Job requires long hours
(2) Sui Juris
– Adult men can take care of themselves
(3) Women and
children can have protection
e) Harlan
Dissent
(1) Legality, not
wisdom of the law.
(2) Does the
power exist?
(3) Means/Ends
Test
(4) Real v.
Substantive Relationship? YES
f)
Holmes Dissent
(1) Economic
Theory
(2) Social
Darwinism
(3) Laissez
Faire
(4) State must
stay out of business issues
(5) Let the
political process decide
Rational
Basis for Socio-Economic Laws
Strict
Scrutiny for Fundamental Rights Laws
5. Nebbia
v. New York – Intermediate Scrutiny
a) 3
Decades after Lochner
b) Follows
Harlan’s Lochner dissent
c) Health
& Welfare v. Property Rights
d) Scrutiny
(1) Reasonable
relation
(2) Appropriate
purpose
(3) Not arbitrary
or discriminatory
6. Williamson
v. Lee Optical – Rational Basis with a Vengeance
a) Might
have rational relation to a legitimate state interest.
b) Almost
no scrutiny exists.
c) Legislatures
given great deference.
7. Carolene
Products – Rational Basis; Filled milk case
a) Minimal
level of scrutiny.
b) Political
Process Rationale
c) Discrete
& Insular Minority
(1) Limited
Powers
(2) Limited
response from Legislature
(3) Some
groups can’t achieve results through political process; therefore Judiciary
has special, protective responsibilities.
(4) Power v. Economics; Politics v.
Jobs/Income
(5) Existence
of facts support the legislative judgment is to be presumed. But Discrete and Insular minorities
have special protection when personal rights are burdened.
VI. Takings Clause
5th
& 14th Amendments – prohibits taking of private property “for
public use without just compensation.”
Intermediate –
Heightened/Strict Scrutiny
Higher burden
on State to take without compensation
A. Limitation
of Power, not Grant. Taking must
be for public purpose and just compensation must be paid.
B. Taking
v. Regulation
1. Economic
Impact
2. Extent
of the Interference
3. Nature
of the Action
C. Use
Restrictions
1. Denial
of Economic Value – Lucas v. SC Costal Council
2. Decreasing
Economic Value – Pennsylvania Coal & Keystone cases
a) Regulatory
Taking – Heightened Scrutiny
b) Health
& Safety v. K Rights
c) Balancing
Test
3. Zoning
Ordinances – Penn Central – Intermediate Scrutiny
4. Building/Development
Permits – Nollan & Dolan cases
a) Means-End
Analysis
b) Diminution
of value no longer SC focus
c) Dolan
(1) Nexus
(2) Rough
Proportionality
VII.
Freedom of Speech
Categorical v.
Balancing Test
A. Content
–
1. Content-based
Regulation – Strict Scrutiny
2. Content-neutral
Regulation - Intermediate Scrutiny
B. Conduct
1. Content-neutral
– Time, place, and manner regulations permitted
2. Public
Forums Regulations must be narrowly tailored to meet an important government
interest.
3. Non-Public
Forums Regulations must have a reasonable relationship to a legitimate regulatory
purpose.
C. Unprotected
Speech
1. Clear
and Present Danger of imminent lawless action.
2. Fighting
words defined by narrow, precise statute.
Chaplinsky v.
New Hampshire
Cohen v.
California
R.A.V. v.
City of St. Paul
3. Obscene
– Child Pornography.
a) SC
Definition
(1) Taken as a
whole;
(2) By the
average person;
(3) Applying
contemporary community standards.
b) Also
(1) Appeals to
prurient interest in sex;
(2) Portrays
sex in a patently offensive way;
(3) Has no serious
literary, artistic, political, or scientific value using reasonable person
standard
4. Defamation
via civil tort suit.
a) Public
figures must prove malice.
(1) Knowledge
of false stmt; or
(2) Reckless
disregard of truth or falsity
b) Private
figures must prove negligence
5. False
or deceptive advertising.
6. Compelling
government interest.
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