Limitation on Govt'al Pwr: Recurring Concepts, Proced. D/P,
Prop. Based Rts, & Rt 2 Privacy
Limitation on Govt'al Pwr
- No gen. rule
- Three Issues
- Sources of govt'al pwr
- Const'al limit on govt'al axn
- Implicit: institutional capacity of Ct 2 find implicit Const'al
limit but quest's on if creating rts & where the rt. comes
- Implicit limitation rise from insulation from maj. & can
tell maj. of the restraint
- Recurring Concepts
- State Axn
- Civil Rts Cases
- Const. limit on govt not priv. cit. except 4 13th amend. of
- Must est. that actor was govt'al official
- Grey areas such as state axn in licensing & health
- Alt. way 2 dec. subst. Const'al limit probably
- Dif. Tests But All Subj.: Based on finding State Axn
- Symbiotic Test (Burton v. Wilmington Partking Auth.): when
state subK & each derive cert. benefit from rel. then symbiotic
so state liab.
- Govt Fn Test: act involved gen'ly perf'ed by the govt
- Joint Enterprise Test: Similar 2 symbiotic, when govt &
priv. in jt enterprise, priv. actor subj. 2 Const. limit
- Nat. Rts v. Positivism (Calder v. Bull)
- Rel's 2 interp. approaches of text, case law, custom, intent,
- Hard 2 ID b/c ct. shifts w/o any princ. but custom not applicable
b/c that's maj. oriented
- Nat. Rt's
- Law of the creator, god, etc. OR
- Can deduce cert. gen. princ's & those princ's R nat's
moral mandate OR
- Moral concl's deduced from pure rsn
- Kant & Rawls 4 3rd approach w/1 concl. idea
- Rules by people & only id'ed by empirical work 2 discov.
what human believe rule 2 B by their behav.
- No such thing as nat. law
- Trying 2 incorporate B/R through 14th amend.'s priv. &
immunity (P&I), = protection (E/P), / due process (D/P)
- No state shall ...abridge the priv's / immunities
- Leg. history said most wt but Sup Ct didn't & read out
of the Const.
- Nor deprive any person of life, liberity, / prop
- W/O due process
- Moved back & forth btwn E/P & D/P but now D/P princ.
vehicle 2 apply B/R
- Incorp. Some but Not All B/R Possibility
- Incorp. All B/R
- Incorp. All B/R + Additional Unenumerated Rts
- Barron v. Baltimore said B/R not apply 2 states
- Slaughterhouse (S-H) Cases
- Construed P&I clause narrowly so no incorp. through that
- D/P & Incorp. Stand's
- Immutable Princ. of justice which is inalienable (Twining
v. NJ): inalienable rt. exist before state formation that state
can't take away & immutable so indep. of state but subj. stand.
- Ordered Liberty (Palko v. Conn.): more predictable by looking
@ other countries w/ordered liberty & draw concl. on essential
incorp. of rts but still prob. of arb.
- Black's Dissent (Adamson v. CA): full incorp. 2 B obj. but
still subj. b/c not incorp. things in 9th amend.
- Ff'er 4 justice of Eng. speaking people & positivist approach
- MODERN APPROACH (Duncan v. LA): fund'al 2 the Amer. scheme
of just. so broader than orig. ordered liberty but narrower than
full incorp. b/c some B/R not fund'al but still sub. b/c not say
how 2 recog. rts beyond B/R
- Use of D/P is oxymoron b/c lang. 4 proced. but we derive subst.
- W/soc. changes, D/P changes
- Proced. D/P
- Self int. 2 protect all whether good / bad in proced.
- Two Prongs (Mathews v. Eldrige)
- Was prop. / lib. int. violated (K, statute, / ordinance)
- Board of Regents v. Roth Entitlement Test: K, statute / ordinance
entitles Roth 2 cert. benefits which can't B deprived
- Hewitt Case: Escape paradox by nat. rt. as source of lib.
- Perry v. Sinderman: Custom arg. 4 prop. int. (statute) but
threw in 1st amend. rt. so should've really said even when no
entitlement, state can't act cert. way
- Bishop v. Wood: No stigma of reputation & no lib. int.
violated b/c not publicized
- Paul v. Davis: But reputation in itself not lib. int. so must
B tied 2 more tangible thing like job not just defamation
- Vitek v. Jones: K'al statutory entitlement 4 bein in prison
not mental hospital
- If so, then what process due (hearing, / notice)
- Incorp. & Proced. D/P not rise a lot anymore
Prop. Based Rts
- K Clause
- Const'al Text: Art I, §10, cl2: No state shall pass any
law impairing the oblgn of K's
- All leg. in some way excl. indiv's from getting into K's so
need def. stand. not plain meaning
- Priv. K's
- Home Bldg & Loan Ass'n v. Blaisdell 5 Prong Stand.
- Basic soc. int.
- Approp. tailored
- Duration limited
- Delay enforcing K's by pub. good test but goes against framers'
- Allied Structural Steel v. Spannaus 3 Prong Test
(statute struck down)
- Gen'ed soc. prob.
- Temp / perm.
- Area subj. 2 reg.
- Both Blaisdell & Spannaus: balance by impairment v. justification
of impairment but difficult 2 def. elements on each side &
wt. of each element so unpredictable & bad 4 investment
- Pub. K's
- US Trust Co. v. NJ (statute struck down) 2 Prong Test
- K Valid when adopted?
- Reserved pwrs can't B K'ed away (police & eminent domain)
- Nonreserved pwrs can B K'ed away like spending & taxing
- Impairment rsbl & nec?
- Brennan's arg. that uphold even if impair b/c mkt can correct
but that's 4 any sit.
- Exxon v. Eagerton's Reformulation
- Impairment incidental 2 promotion of broader soc. int. then
not apply K clause
- Leg. didn't intend 2 impair K's
- Takings Clause
- Fifth Amend.: Nor shall priv. prop. B taken 4 pub. use w/o
- Focus on prop. rt
- Poss'n by govt temp'ly can B taking
- Just Compensation
- Const. not def. so not know what just is & can't say fair
- Princ's 2 Apply
- Beneficiary Princ.
- Those benefitting should pay by tax / user's fee
- Rejects wealth transfer
- Internalization Princ.
- Internalize externality in econ. terms so that resources will
B valued properly
- Allocate res's eff'ly when res. reflect proper value
- This is used 2 take things w/o just compensation
- Notice Princ.
- Rsbl expectation that w/notice, no real prop. int. in reg'ed
area so can take w/o just compensation
- Beneficiary & Internalization Princ's R econ. princ's
of allocating eff'ly but soc. cares more than econ.
- Best Summary From Case Law
- When internalization & benefic. both mandate cert. outcome
then ct. would probably use those outcomes
- Taking dep's on variables, notice, & prop. int's which
all overlap & shape each other
- Notice gen'ly isn't enough 2 justify taking b/c no such thing
as free lunch & somebody will have 2 pay
- Case Law
- Hadachek v. Sebastian: Notice that activity creating nusiance
has been reg'ed
- Nollan v. CA Coastal Comn.: Benefic. princ. that pub. benefits
- Penn Central Transportation Co v. NY: Notice dep's on which
pt. in X, free rider prob. in benefic., mkt incompl., & externalize
cost 2 make Penn pick up all b/c can't come up w/fair soln
- Penn Coal v. Mahon: Notice after not before & prop. owners
benefit so should pay
- Keystone Bituminous Coal Ass'n v. De Benedictis: Here uphold
b/c disting. surface rt. & notice so coal co. internalize
cost of lost profit
- Expert Theories on Taking
- Perm. phys. occupation even if trivial
- One portion of prop. taken wholly & compl'ly (NC Beach
Case & Lucas Case)
- Distinct investment backed expectation undermined
- Totally elim's the prop's econ. value (Lucas Case)
- Nollan case shows this is flawed b/c no expectation since
- Denies L all econ'ly viable use of land
- Govt not asking L 2 solve prob. L created
- Land can B disputed b/c Penn Central goes 2 prop. rt. not
land & can broaden / narrow terms
- If govt intentionally forces
- Unless lawmakers seek 2 prevent / punish axn / rsbly believe
2 B wrongful
- Purpose of govt looked @ not effect
- Purpose also dep's on what prop. means (Nollan)
- Quest'able on wrongful
- Prop. Definition
- Penn Central: Parcel as a whole & no rational justification
of not splitting up
- Keystone: Refused 2 focus on 1 aspect of parcel
- Prunyard Shopping Center v. Robins: Suppressed speech if Const'ly
protected by state law
- Nollan: econ'ly valued freedom
- Lochner v. NY: Freedom of K but can go toward K impairment
- Subst D/P
- Focusing on rep., process, & insular & discrete minorites,
jud. intervene if polit. process malfn
- Strict Scrutiny
- Lochner v. NY
- Strict Scrutiny 2 see if prop. rt. of lib. violated &
found lib. rt. from nat. rt.
- As long as not harm others, indiv. has sphere 2 do whatever
so rt. 2 K
- Should've used rational basis & deferred 2 leg. b/c pub.
health & consumer should B protected & not impose judge's
- Should only intervene if polit. process broken
- Near v. Minn. (1st amend. case)
- Strict scrutiny 4 1st amend. rt. so doc. of no prior restraint
but can impose penalty after
- Need more than rational basis
- Polit. process & integrity of channels of rep. feeding
- Ftnt 4 Test: US v. Carolene Prod's Co.
- Rep. reinforcement: process malfn so need strict scrutiny
4 14th amend. prob's
- Discrete & insular minorities
- Two prongs focus on group & purpose of rt. not which rt.
- This is neutral princ. & obj. stand.
- Rational Basis After Lochner (All same outcome
by applying Ftnt 4 as well)
- Nebbia v. NY
- Rational basis stand. overruled Lochner by upholding milk
- Rsbl rel. 2 proper purpose, not discrim.,/ arb. then statute
- Williamson v. Lee Optical Co. (uphold silly statute)
- Rational basis stand. not abused by saying this is irrational
b/c if did, then would B unpredictable like before
- Ferguson v. Skrupa (uphold Kansas law)
- Not 4 Jud. 2 det. if wise statute
- Death of Subst D/P unless specif. Const'al rt. otherwise
jud. would B doing leg.
Rt 2 Privacy
Rt 2 Privacy
- Implied Rt.
- Prob. of trying not 2 re-Lochnerize
- Use D/P even though subst. is outcome b/c need 2 apply 2 states
by incorp'ing amend's which implies privacy
- Privacy Cases Before Griswold
- Meyer v. Neb.
- Pierce v. Soc. of Sisters
- Skinner v. OK
- Griswold v. Conneticut
- Douglas: Penumbras & emanation of 1,3,5,7,.9th amend.(associational)
4 zone of pers. autonomy & implied rt 2 privacy
- Goldberg: 9th amend.
- White: Ordered liberty & 14th amend. (incorp. stand.)
- Black & Stewart: Dissents
- If apply Ftnt 4 of Subst D/P, then wrongly dec'ed
- Harmonize Griswold v. Subst D/P Closed
- Griswold is fund'al rt. / zone of autonomy where govt can't
interfere but not in Lochner
- Category of Rts
- Rts of access which has 2 do w/structuring the polit. sys.,
place in it, & benefit derived from the rt is @ top
- Econ. rts R derivative & 2nd order
- So econ rts not entitled 2 same strict scrutiny
- But lots of overlaps & quest. why accept this as is
- Marbury said follow precedents & there R privacy cases
- Ninth Amend.
- Tells judges 2 look elsewhere 4 rts
- Can't dismiss as meaningless but not mean jud'ly enforceable
b/c of slippery slope
- CLS says don't assume neutral princ. w/o any predilection
by the judges b/c that's deceiving people & Ct saying it's
not subst D/P is simply wrong
- Leg'ing Morality
- How 2 tell rt from wrong & 2 det. threshold if disting.
based on morality in Griswold but not in Lochner
- Ely's Approaches 4 Sources (Value choice in
- Ftnt 4 (but not 1 of Ely's)
- Princ'ed approach but all privacy cases would come out dif'ly
- Not go far enough even though gives preferential status of
being member of class discrim'ed
- Nat. Law: Subj. & not explain why rely on
- Judge's Own Values: Subj. when law req's obj.
proced. but it would explain case outcomes
- Predicting Prog.: But mkt could predict prog.
& could B conservatism not liberalism
- Tradition: Eng. speaking / implicit in ordered
liberty but circular rsning b/c maj. dictates trad.
- Rsn: Common sense so would explain cases but
only tells us outcome not maj. premises
- Not really choice but hybrid of dem & non-dem. so not
- Concl. that ultimately, need 2 look @ substance of the law,
not just proced.
- Theories & Approaches 4 Subst. Privacy Cases
- Objectivist, Nat. law, Intuitionism / Deontological
- Oblgn as condition of being / act of being impose cert. oblgn
- Find truth not max. happiness b/c obj. truth can B discov'ed
& is universal
- Kant: we all nec'ly accept categorical stuff & act according
2 maxim that can b adopted as universal rule of human cond.
- Rawls: Justice is fairness & 1 can rsn 2 concl. by designing
soc. behind a veil of ignorance
- Maj. is not the norm but good v. evil
- Utilitarianism (Mill)
- Indiv. pref. & search 4 external source if in vain
- Law from soc. norms of heredity & other factors so culturally
- Govt 2 id & max. positive utils & min. neg. utils
b/c this is all we have & supports dem.
- Biological / Psyhological
- Instinct 2 survive by ordering priorities / hierarchy of needs
- Food, clothing, & shelter more imp. than ed. / welfare
- Lang. prob. so all approaches R puzzles of lang. not philosophy
- Family Rel. Cases\
- Trad. & Fund'al Rt
- Moore v. E. Cleveland: Trad. & fund'al rt 2 family so
zoning reg. invalidated but not know where trad. comes from
- Institutional capacity that judges can better id nat law /
pure rsn b/c maj. irrelev.
- Leg. better id trad. by contemp. consensus
- Admit Subst D/P here & intervene b/c poor discrim'ed maybe
- Lang. prob. of det'ing what's pers v. econ. rt
- Zablocki v. Redhail
- E/P instead of D/P or privacy b/c purposefully trying 2 mask
from doing D/P
- Trad. & fund'al rt. 2 marry
- Bower v. Hardwick
- Trad & fund'al rt. that says sodomy btwn homosexuals is
- Rt. only if overcome maj. resistance but conflict w/Brown
v. Board of Ed.
- Maj. derives positive utils of suppressing which is greater
than neg. utils of min.
- Roe v. Wade
- Good Result but Bad Process
- No Const'al Rt 2 Fetus
- Const'al Rt begins @ birth
- Woman has Const'ly protected rt. & state has int. in unborn
life which is not dispositive
- Trimester Rule (strict scrutiny)
- Woman 1st tri, compelling state int. in 3rd tri, & stricter
scrutiny 4 middle of all reg's
- Embodies compromise of rt. & int. b/c woman's & state's
int. R in a spectrum
- Douglas: Trad. & customary rt.
- Blackmun: 14th amend. of pers. lib. & there's no obj.
moral ans. when everybody has no consensus on when life begins
- Disparate Results btwn Rich & Poor
- Dif. impact not in itself Const'al violation / trigger E/P
b/c need invidious intent
- Leg. invidious intent hard 2 prove & state can always
arg. value choice
- Normative Source Prob's
- D/P & E/P indisting'able
- Leg. 4 utilitarian / empirical but jud. 4 deontological /
- Ftnt 4 has prob's id'ing insular & discrete minority
- 14th Amend. & E/P need invidious intent w/disparate outcome
- CC arg. that people couldn't travel but health implication
of 14th amend.
- Roe's Tri-partite Bright Line Rule
- Test @ viability criticized b/c not supposed 2 write statutes
but b/c reconcile competing int's, good as statute
- Case Law
- Danforth: No spousal consent but Roe's test can B looked as
balancing test where husb's int. should B taken into acct
- Belloti v. Baird: No parental consent w/o jud. bypass
- City of Akron v. Akron Center of Reprod. Health: No prohibition
of 2nd tri abortions in outpatient clinics but can arg. classic
state police pwr
- Ashcroft: 2nd physician reqt o.k.
- PPSP v. Casey: Viability testing reqt o.k.
- Common Denominator: State wanted 2 restrict rt. 2 abortion
- Stand. of Rev: Strict Scrutiny 4 All Burdens on Fund'al
Rt. Restrictions & Need Compelling State Int.
- Case Law Det. of Fund. Rt
- State can't leg. addressing all the quest's so deal w/them
case by case
- Ct grabbed pwrbut undercut legit'cy of it by dec'ing arb'ry
- Undue Burden Stand. (PPSP v. Casey)
- Overturn Roe b/c it's just balancing test so ask instead if
reg. unduly burdens women
- Subj. stand. by who's on ct
- Rt 2 Die
- Cruzan v. Director, Missouri Dept of Health
- Need clear & convincing evid. of her intent
- Const'al rt. & momentous dec. so high stand. o.k.
- Not impinge on rt. 2 die b/c only want high stand.
- Compassion in Dying v. Washington (Ct of Appeal
- Threshold quest. of ripeness 4 justiciability also present
- Factors of dif. from Cruzan
- Ommission v. commission (here aff. step 2 die)
- Intent v. unintended (here need med. treatment & not under
- Final v. nonfinal (all terminally ill here)
- State int.
- Gen. int. in preserving life
- Specif. int. in preventing suicide
- Avoid involving 3rd parties & precl. use of arb., unfair,
/ undue influence
- Protecting family members & loved ones
- Protecting medical profession's integrity
- Avoiding adverse conseq's if statute is unConst'al
- Unans'able paradox & arb. dec'al exercise
- No Advisory Opinion in Fed Sys
- Sec. of State can look 2 leg., atty gen., / gen. counsel 4
any ans's but not from jud.
- Artificial restraint b/c if judge really wants 2 write, then
that opinion would B written
- Case in Controv. Reqt
- Limits jud. pwr but price 2 pay 4 S/P
- Decl. Jgmt
- Remedy @ law
- Prefer this 2 announce law by judges
- Dif. from advisory opinion b/c case in controv. reqt of Art
- Arg's Against Advisory Opinion
- Jud. econ. & want 2 B final
- Wait 4 cases b/c no pt in talking about hard cases if not
- Unmanageable stand.
- S/P issues of incr'ing Sup Ct's pwr b/c like leg'ing
- But can also undercut Jud. pwr b/c not final / binding
- Only hear 1 side
- Fn'al consid. that no Const. text / custom
- Who Quest. w/2 Reqt's
- Concrete pers. injury in fact which is dif. from person on
- Causation that if rederess 4 desired axn exists / if give
recov., then injury would B remedied & intertwined w/ worries
of advisory opinion if no causation
- Sometimes, who quest. overlaps w/when quest.
- Frothingham v. Mellon
- No taxpayer standing b/c if really cared, then can go &
- Per se bright line so wouldn't get 2 many cases
- Flast v. Cohen (Violated est. clause)
- Exception 2 Frothingham when taxpayer shows statute exceeds
specif. Const. limit imposed by Tax & Spending pwr
- Statute must rely on tax & spending pwr
- Valley Forge Christian College v. Amer. United (change of
form by giving land)
- Although exceeds specif. Const'al limit violating Est. Clause,
not part of tax & spend pwr b/c prop. transfer so no standing
- Schlesinger v. Reservists Comm. (Cong. in air force)
- Prohibited by Incompatability Clause in Art 1, §6 b/c
of S/P concerns
- Citizen standing rejected b/c gen. grievance not concrete,
pers. but driven by prudential rsns
- US v. Richardson (CIA Budget)
- By Statement & Acct Clause of Art 1, §9, should B
pub. but no concrete pers'ed grievance
- All aggrieved, then nobody has standing (pub. trust doc. of
Rome is opposite)
- Kennedy v. Sampson (Cong.'man w/vote)
- Said pers. concrete int. b/c vote nullified & disenfranchised
of his exercise 2 B responsible 2 Const. so got standing as Cong'man
- Split of Auth. on Standing 4 Cong'man
- US v. SCRAP (P's injury by pollution)
- No reqt of actual meas'able econ. injury but subseq. cases
insist on higher threshold
- LA v. Lyons (chokehold)
- Didn't suffer cognizable injury in fact
- Warth v. Seldin (housing proj)
- No standing b/c not show if no zoning restriction, housing
would B built
- Expanding Standing Reqt 2 Allow Constrictions of Subst.
- Cong'al Control of Standing
- Zone of Int.
- Statute imposes benefit / penalties so create zone of int.
- But can't dir. Ct 2 give advisory opinion by saying all taxpayers
- 3rd Party Standing
- Gen. Rule: can't b/c P must assert own Const'al rt.
- Exception: Chilling Effect
- If no one would ever challenge violation b/c govt enacts statute
that has chilling effect of Const'ly protected speech then allow
- Harder 2 get into ct. through this
- Laird v. Tatum: classic paradox that no standing b/c no chilling
Mootness & Ripeness
- When quest.
- If in ct. 2 early, then not ripe
- If overly ripe, no longer case in controv. so moot
- Lot of sit's won't B litig'ed
- Exception 2 moot when likely 2 occur but evade rev. like abortion
/ adm. of school policy
- United Pub Workers v. Mitchell (Fed ee's w/campaign)
- Not justiciable b/c no imminence / threat of injury 2 sep.
from people on st.
- LR view of prudence
- Adler v. Board of Ed.: same thing
- LA v. Lyons
- Not ripe b/c must show every police would choke 4 imminent
- Being in group that's discrim'ed against isn't good enough
- Said need 2 meet case in controv. again 4 injunction
- Abbott Lab's v. Gardner
- Balancing Approach
- How much lost v. how much gaine by waiting
- If wait, more concrete by factual dev. wait but s.t.'s if
based on quest. of law, not matter if wait & would cause hardship
- Also takes cost & gravity of injury into acct
- Dellums v. Bush (War Pwr Resolution)
- Const'al v. Statutory Case: went 4 Const'al b/c precedents
set against statute 4 nonjusticiability
- Victory bigger if had won but can't address specif. statute
prob. of 60 day per.
- Not ripe b/c no confrontation as Powell said in Goldwater
- Seems weird 2 wait until Cong. can xerox Const. into law 4
- Chadha implication that need 2/3 vote & joint resolution
b/c told needed maj.
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