Limitation on Govt'al Pwr: Recurring Concepts, Proced. D/P, Prop. Based Rts, & Rt 2 Privacy

Limitation on Govt'al Pwr

  1. No gen. rule
  2. Three Issues
    1. Justiciability
    2. Sources of govt'al pwr
    3. Const'al limit on govt'al axn
      1. Implicit: institutional capacity of Ct 2 find implicit Const'al limit but quest's on if creating rts & where the rt. comes from
      2. Implicit limitation rise from insulation from maj. & can tell maj. of the restraint
  3. Recurring Concepts
    1. State Axn
      1. Civil Rts Cases
        1. Const. limit on govt not priv. cit. except 4 13th amend. of no slavery
        2. Must est. that actor was govt'al official
        3. Grey areas such as state axn in licensing & health
      2. Alt. way 2 dec. subst. Const'al limit probably
      3. Dif. Tests But All Subj.: Based on finding State Axn
        1. Symbiotic Test (Burton v. Wilmington Partking Auth.): when state subK & each derive cert. benefit from rel. then symbiotic so state liab.
        2. Govt Fn Test: act involved gen'ly perf'ed by the govt
        3. Joint Enterprise Test: Similar 2 symbiotic, when govt & priv. in jt enterprise, priv. actor subj. 2 Const. limit
    2. Nat. Rts v. Positivism (Calder v. Bull)
      1. Rel's 2 interp. approaches of text, case law, custom, intent, & fn
      2. Hard 2 ID b/c ct. shifts w/o any princ. but custom not applicable b/c that's maj. oriented
      3. Nat. Rt's
        1. Law of the creator, god, etc. OR
        2. Can deduce cert. gen. princ's & those princ's R nat's moral mandate OR
        3. Moral concl's deduced from pure rsn
        4. Kant & Rawls 4 3rd approach w/1 concl. idea
      4. Positivism
        1. Rules by people & only id'ed by empirical work 2 discov. what human believe rule 2 B by their behav.
        2. No such thing as nat. law
    3. Incorporation
      1. Trying 2 incorporate B/R through 14th amend.'s priv. & immunity (P&I), = protection (E/P), / due process (D/P)
        1. No state shall ...abridge the priv's / immunities
          1. Leg. history said most wt but Sup Ct didn't & read out of the Const.
        2. Nor deprive any person of life, liberity, / prop
        3. W/O due process
        4. Moved back & forth btwn E/P & D/P but now D/P princ. vehicle 2 apply B/R
          1. Incorp. Some but Not All B/R Possibility
          2. Incorp. All B/R
          3. Incorp. All B/R + Additional Unenumerated Rts
      2. Barron v. Baltimore said B/R not apply 2 states
      3. Slaughterhouse (S-H) Cases
        1. Construed P&I clause narrowly so no incorp. through that
      4. D/P & Incorp. Stand's
        1. 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.
        2. 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.
        3. Black's Dissent (Adamson v. CA): full incorp. 2 B obj. but still subj. b/c not incorp. things in 9th amend.
        4. Ff'er 4 justice of Eng. speaking people & positivist approach
        5. 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
      5. Use of D/P is oxymoron b/c lang. 4 proced. but we derive subst.
      6. W/soc. changes, D/P changes
  4. Proced. D/P
    1. Self int. 2 protect all whether good / bad in proced.
    2. Two Prongs (Mathews v. Eldrige)
      1. Was prop. / lib. int. violated (K, statute, / ordinance)
        1. Board of Regents v. Roth Entitlement Test: K, statute / ordinance entitles Roth 2 cert. benefits which can't B deprived
        2. Hewitt Case: Escape paradox by nat. rt. as source of lib.
        3. 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
        4. Bishop v. Wood: No stigma of reputation & no lib. int. violated b/c not publicized
        5. Paul v. Davis: But reputation in itself not lib. int. so must B tied 2 more tangible thing like job not just defamation
        6. Vitek v. Jones: K'al statutory entitlement 4 bein in prison not mental hospital
      2. If so, then what process due (hearing, / notice)
    3. Incorp. & Proced. D/P not rise a lot anymore

Prop. Based Rts

  1. K Clause
    1. Const'al Text: Art I, 10, cl2: No state shall pass any law impairing the oblgn of K's
    2. All leg. in some way excl. indiv's from getting into K's so need def. stand. not plain meaning
    3. Priv. K's
      1. Home Bldg & Loan Ass'n v. Blaisdell 5 Prong Stand. (statute upheld)
        1. Emergency
        2. Basic soc. int.
        3. Approp. tailored
        4. Rsbl
        5. Duration limited
        6. Delay enforcing K's by pub. good test but goes against framers' intent
      2. Allied Structural Steel v. Spannaus 3 Prong Test (statute struck down)
        1. Gen'ed soc. prob.
        2. Temp / perm.
        3. Area subj. 2 reg.
      3. 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
    4. Pub. K's
      1. US Trust Co. v. NJ (statute struck down) 2 Prong Test
        1. K Valid when adopted?
          1. Reserved pwrs can't B K'ed away (police & eminent domain)
          2. Nonreserved pwrs can B K'ed away like spending & taxing
        2. Impairment rsbl & nec?
        3. Brennan's arg. that uphold even if impair b/c mkt can correct but that's 4 any sit.
    5. Exxon v. Eagerton's Reformulation
      1. Impairment incidental 2 promotion of broader soc. int. then not apply K clause
      2. Leg. didn't intend 2 impair K's
  2. Takings Clause
    1. Fifth Amend.: Nor shall priv. prop. B taken 4 pub. use w/o just compensation
    2. Taking
      1. Focus on prop. rt
      2. Poss'n by govt temp'ly can B taking
    3. Just Compensation
      1. Const. not def. so not know what just is & can't say fair mkt value
    4. Princ's 2 Apply
      1. Beneficiary Princ.
        1. Those benefitting should pay by tax / user's fee
        2. Rejects wealth transfer
      2. Internalization Princ.
        1. Internalize externality in econ. terms so that resources will B valued properly
        2. Allocate res's eff'ly when res. reflect proper value
        3. This is used 2 take things w/o just compensation
      3. Notice Princ.
        1. Rsbl expectation that w/notice, no real prop. int. in reg'ed area so can take w/o just compensation
      4. Beneficiary & Internalization Princ's R econ. princ's of allocating eff'ly but soc. cares more than econ.
    5. Best Summary From Case Law
      1. When internalization & benefic. both mandate cert. outcome then ct. would probably use those outcomes
      2. Taking dep's on variables, notice, & prop. int's which all overlap & shape each other
      3. Notice gen'ly isn't enough 2 justify taking b/c no such thing as free lunch & somebody will have 2 pay
    6. Case Law
      1. Hadachek v. Sebastian: Notice that activity creating nusiance has been reg'ed
      2. Nollan v. CA Coastal Comn.: Benefic. princ. that pub. benefits w/o paying
      3. 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
      4. Penn Coal v. Mahon: Notice after not before & prop. owners benefit so should pay
      5. Keystone Bituminous Coal Ass'n v. De Benedictis: Here uphold b/c disting. surface rt. & notice so coal co. internalize cost of lost profit
    7. Expert Theories on Taking
      1. Michelman
        1. Perm. phys. occupation even if trivial
        2. One portion of prop. taken wholly & compl'ly (NC Beach Case & Lucas Case)
        3. Distinct investment backed expectation undermined
        4. Totally elim's the prop's econ. value (Lucas Case)
        5. Nollan case shows this is flawed b/c no expectation since no notice
      2. Sax
        1. Denies L all econ'ly viable use of land
        2. Govt not asking L 2 solve prob. L created
        3. Land can B disputed b/c Penn Central goes 2 prop. rt. not land & can broaden / narrow terms
      3. Peterson
        1. If govt intentionally forces
        2. Unless lawmakers seek 2 prevent / punish axn / rsbly believe 2 B wrongful
        3. Purpose of govt looked @ not effect
        4. Purpose also dep's on what prop. means (Nollan)
        5. Quest'able on wrongful
    8. Prop. Definition
      1. Penn Central: Parcel as a whole & no rational justification of not splitting up
      2. Keystone: Refused 2 focus on 1 aspect of parcel
      3. Prunyard Shopping Center v. Robins: Suppressed speech if Const'ly protected by state law
      4. Nollan: econ'ly valued freedom
      5. Lochner v. NY: Freedom of K but can go toward K impairment not taking
  3. Subst D/P
    1. Focusing on rep., process, & insular & discrete minorites, jud. intervene if polit. process malfn
    2. Strict Scrutiny
      1. Lochner v. NY
        1. Strict Scrutiny 2 see if prop. rt. of lib. violated & found lib. rt. from nat. rt.
        2. As long as not harm others, indiv. has sphere 2 do whatever so rt. 2 K
        3. Should've used rational basis & deferred 2 leg. b/c pub. health & consumer should B protected & not impose judge's econ. philsophy
        4. Should only intervene if polit. process broken
      2. Near v. Minn. (1st amend. case)
        1. Strict scrutiny 4 1st amend. rt. so doc. of no prior restraint but can impose penalty after
        2. Need more than rational basis
        3. Polit. process & integrity of channels of rep. feeding polit. process
    3. Ftnt 4 Test: US v. Carolene Prod's Co.
      1. Rep. reinforcement: process malfn so need strict scrutiny 4 14th amend. prob's
      2. Discrete & insular minorities
      3. Two prongs focus on group & purpose of rt. not which rt.
      4. This is neutral princ. & obj. stand.
    4. Rational Basis After Lochner (All same outcome by applying Ftnt 4 as well)
      1. Nebbia v. NY
        1. Rational basis stand. overruled Lochner by upholding milk statute
        2. Rsbl rel. 2 proper purpose, not discrim.,/ arb. then statute satisfies D/P
      2. Williamson v. Lee Optical Co. (uphold silly statute)
        1. Rational basis stand. not abused by saying this is irrational b/c if did, then would B unpredictable like before
      3. Ferguson v. Skrupa (uphold Kansas law)
      4. Not 4 Jud. 2 det. if wise statute
    5. Death of Subst D/P unless specif. Const'al rt. otherwise jud. would B doing leg.

Rt 2 Privacy

Rt 2 Privacy

  1. Implied Rt.
    1. Prob. of trying not 2 re-Lochnerize
    2. Use D/P even though subst. is outcome b/c need 2 apply 2 states by incorp'ing amend's which implies privacy
    3. Privacy Cases Before Griswold
      1. Meyer v. Neb.
      2. Pierce v. Soc. of Sisters
      3. Skinner v. OK
    4. Griswold v. Conneticut
      1. Douglas: Penumbras & emanation of 1,3,5,7,.9th amend.(associational) 4 zone of pers. autonomy & implied rt 2 privacy
      2. Goldberg: 9th amend.
      3. White: Ordered liberty & 14th amend. (incorp. stand.)
      4. Black & Stewart: Dissents
      5. If apply Ftnt 4 of Subst D/P, then wrongly dec'ed
  2. Harmonize Griswold v. Subst D/P Closed
    1. Griswold is fund'al rt. / zone of autonomy where govt can't interfere but not in Lochner
    2. Category of Rts
      1. Rts of access which has 2 do w/structuring the polit. sys., place in it, & benefit derived from the rt is @ top
      2. Econ. rts R derivative & 2nd order
      3. So econ rts not entitled 2 same strict scrutiny
      4. But lots of overlaps & quest. why accept this as is
    3. Marbury said follow precedents & there R privacy cases from before
    4. Ninth Amend.
      1. Tells judges 2 look elsewhere 4 rts
      2. Can't dismiss as meaningless but not mean jud'ly enforceable b/c of slippery slope
    5. 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
    6. Leg'ing Morality
      1. How 2 tell rt from wrong & 2 det. threshold if disting. based on morality in Griswold but not in Lochner
  3. Ely's Approaches 4 Sources (Value choice in Proced.)
    1. Ftnt 4 (but not 1 of Ely's)
      1. Princ'ed approach but all privacy cases would come out dif'ly
      2. Not go far enough even though gives preferential status of being member of class discrim'ed
    2. Nat. Law: Subj. & not explain why rely on Judeo Christian
    3. Judge's Own Values: Subj. when law req's obj. proced. but it would explain case outcomes
    4. Predicting Prog.: But mkt could predict prog. & could B conservatism not liberalism
    5. Tradition: Eng. speaking / implicit in ordered liberty but circular rsning b/c maj. dictates trad.
    6. Rsn: Common sense so would explain cases but only tells us outcome not maj. premises
    7. Not really choice but hybrid of dem & non-dem. so not simple choice
    8. Concl. that ultimately, need 2 look @ substance of the law, not just proced.
  4. Theories & Approaches 4 Subst. Privacy Cases
    1. Objectivist, Nat. law, Intuitionism / Deontological
      1. Oblgn as condition of being / act of being impose cert. oblgn
      2. Find truth not max. happiness b/c obj. truth can B discov'ed & is universal
      3. Kant: we all nec'ly accept categorical stuff & act according 2 maxim that can b adopted as universal rule of human cond.
      4. Rawls: Justice is fairness & 1 can rsn 2 concl. by designing soc. behind a veil of ignorance
      5. Maj. is not the norm but good v. evil
    2. Utilitarianism (Mill)
      1. Indiv. pref. & search 4 external source if in vain
      2. Law from soc. norms of heredity & other factors so culturally variant norms
      3. Govt 2 id & max. positive utils & min. neg. utils b/c this is all we have & supports dem.
    3. Biological / Psyhological
      1. Instinct 2 survive by ordering priorities / hierarchy of needs
      2. Food, clothing, & shelter more imp. than ed. / welfare
    4. Post-structuralist
      1. Lang. prob. so all approaches R puzzles of lang. not philosophy
  5. Family Rel. Cases\
    1. Trad. & Fund'al Rt
      1. Moore v. E. Cleveland: Trad. & fund'al rt 2 family so zoning reg. invalidated but not know where trad. comes from
        1. Institutional capacity that judges can better id nat law / pure rsn b/c maj. irrelev.
        2. Leg. better id trad. by contemp. consensus
        3. Admit Subst D/P here & intervene b/c poor discrim'ed maybe
        4. Lang. prob. of det'ing what's pers v. econ. rt
      2. Zablocki v. Redhail
        1. E/P instead of D/P or privacy b/c purposefully trying 2 mask from doing D/P
        2. Trad. & fund'al rt. 2 marry
      3. Bower v. Hardwick
        1. Trad & fund'al rt. that says sodomy btwn homosexuals is immoral
        2. Rt. only if overcome maj. resistance but conflict w/Brown v. Board of Ed.
        3. Maj. derives positive utils of suppressing which is greater than neg. utils of min.
  6. Abortion
    1. Roe v. Wade
      1. Good Result but Bad Process
      2. No Const'al Rt 2 Fetus
        1. Const'al Rt begins @ birth
      3. Woman has Const'ly protected rt. & state has int. in unborn life which is not dispositive
      4. Trimester Rule (strict scrutiny)
        1. Woman 1st tri, compelling state int. in 3rd tri, & stricter scrutiny 4 middle of all reg's
        2. Embodies compromise of rt. & int. b/c woman's & state's int. R in a spectrum
      5. Sources
        1. Douglas: Trad. & customary rt.
        2. Blackmun: 14th amend. of pers. lib. & there's no obj. moral ans. when everybody has no consensus on when life begins
      6. Disparate Results btwn Rich & Poor
        1. Dif. impact not in itself Const'al violation / trigger E/P b/c need invidious intent
        2. Leg. invidious intent hard 2 prove & state can always arg. value choice
    2. Normative Source Prob's
      1. D/P & E/P indisting'able
      2. Leg. 4 utilitarian / empirical but jud. 4 deontological / formal
      3. Ftnt 4 has prob's id'ing insular & discrete minority
      4. 14th Amend. & E/P need invidious intent w/disparate outcome
      5. CC arg. that people couldn't travel but health implication of 14th amend.
    3. Roe's Tri-partite Bright Line Rule
      1. Test @ viability criticized b/c not supposed 2 write statutes but b/c reconcile competing int's, good as statute
    4. Case Law
      1. Danforth: No spousal consent but Roe's test can B looked as balancing test where husb's int. should B taken into acct
      2. Belloti v. Baird: No parental consent w/o jud. bypass
      3. 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
      4. Ashcroft: 2nd physician reqt o.k.
      5. PPSP v. Casey: Viability testing reqt o.k.
      6. Common Denominator: State wanted 2 restrict rt. 2 abortion
    5. Stand. of Rev: Strict Scrutiny 4 All Burdens on Fund'al Rt. Restrictions & Need Compelling State Int.
    6. Case Law Det. of Fund. Rt
      1. State can't leg. addressing all the quest's so deal w/them case by case
      2. Ct grabbed pwrbut undercut legit'cy of it by dec'ing arb'ry
    7. Undue Burden Stand. (PPSP v. Casey)
      1. Overturn Roe b/c it's just balancing test so ask instead if reg. unduly burdens women
      2. Subj. stand. by who's on ct
  7. Rt 2 Die
    1. Cruzan v. Director, Missouri Dept of Health
      1. Need clear & convincing evid. of her intent
        1. Const'al rt. & momentous dec. so high stand. o.k.
        2. Not impinge on rt. 2 die b/c only want high stand.
    2. Compassion in Dying v. Washington (Ct of Appeal Case)
      1. Threshold quest. of ripeness 4 justiciability also present
      2. Factors of dif. from Cruzan
        1. Ommission v. commission (here aff. step 2 die)
        2. Intent v. unintended (here need med. treatment & not under coma)
        3. Final v. nonfinal (all terminally ill here)
      3. State int.
        1. Gen. int. in preserving life
        2. Specif. int. in preventing suicide
        3. Avoid involving 3rd parties & precl. use of arb., unfair, / undue influence
        4. Protecting family members & loved ones
        5. Protecting medical profession's integrity
        6. Avoiding adverse conseq's if statute is unConst'al
    3. Unans'able paradox & arb. dec'al exercise


Advisory Opinion

  1. No Advisory Opinion in Fed Sys
    1. Sec. of State can look 2 leg., atty gen., / gen. counsel 4 any ans's but not from jud.
    2. Artificial restraint b/c if judge really wants 2 write, then that opinion would B written
  2. Case in Controv. Reqt
    1. Limits jud. pwr but price 2 pay 4 S/P
  3. Decl. Jgmt
    1. Remedy @ law
    2. Prefer this 2 announce law by judges
    3. Dif. from advisory opinion b/c case in controv. reqt of Art 3 met
  4. Arg's Against Advisory Opinion
    1. Jud. econ. & want 2 B final
    2. Wait 4 cases b/c no pt in talking about hard cases if not arise
    3. Unmanageable stand.
    4. S/P issues of incr'ing Sup Ct's pwr b/c like leg'ing
    5. But can also undercut Jud. pwr b/c not final / binding
    6. Only hear 1 side
    7. Fn'al consid. that no Const. text / custom


  1. Who Quest. w/2 Reqt's
    1. Concrete pers. injury in fact which is dif. from person on the st.
    2. 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
  2. Sometimes, who quest. overlaps w/when quest.
  3. Taxpayer
    1. Frothingham v. Mellon
      1. No taxpayer standing b/c if really cared, then can go & vote
      2. Per se bright line so wouldn't get 2 many cases
    2. Flast v. Cohen (Violated est. clause)
      1. Exception 2 Frothingham when taxpayer shows statute exceeds specif. Const. limit imposed by Tax & Spending pwr
      2. Statute must rely on tax & spending pwr
    3. Valley Forge Christian College v. Amer. United (change of form by giving land)
      1. Although exceeds specif. Const'al limit violating Est. Clause, not part of tax & spend pwr b/c prop. transfer so no standing
  4. Citizen
    1. Schlesinger v. Reservists Comm. (Cong. in air force)
      1. Prohibited by Incompatability Clause in Art 1, 6 b/c of S/P concerns
      2. Citizen standing rejected b/c gen. grievance not concrete, pers. but driven by prudential rsns
    2. US v. Richardson (CIA Budget)
      1. By Statement & Acct Clause of Art 1, 9, should B pub. but no concrete pers'ed grievance
      2. All aggrieved, then nobody has standing (pub. trust doc. of Rome is opposite)
    3. Kennedy v. Sampson (Cong.'man w/vote)
      1. Said pers. concrete int. b/c vote nullified & disenfranchised of his exercise 2 B responsible 2 Const. so got standing as Cong'man
    4. Split of Auth. on Standing 4 Cong'man
    5. US v. SCRAP (P's injury by pollution)
      1. No reqt of actual meas'able econ. injury but subseq. cases insist on higher threshold
  5. Causation
    1. LA v. Lyons (chokehold)
      1. Didn't suffer cognizable injury in fact
    2. Warth v. Seldin (housing proj)
      1. No standing b/c not show if no zoning restriction, housing would B built
  6. Expanding Standing Reqt 2 Allow Constrictions of Subst. Rts.
  7. Cong'al Control of Standing
    1. Zone of Int.
      1. Statute imposes benefit / penalties so create zone of int. people
      2. But can't dir. Ct 2 give advisory opinion by saying all taxpayers can challenge
  8. 3rd Party Standing
    1. Gen. Rule: can't b/c P must assert own Const'al rt. violation
    2. Exception: Chilling Effect
      1. If no one would ever challenge violation b/c govt enacts statute that has chilling effect of Const'ly protected speech then allow exception
      2. Harder 2 get into ct. through this
      3. Laird v. Tatum: classic paradox that no standing b/c no chilling effect

Mootness & Ripeness

  1. When quest.
    1. If in ct. 2 early, then not ripe
    2. If overly ripe, no longer case in controv. so moot
  2. Moot
    1. Lot of sit's won't B litig'ed
    2. Exception 2 moot when likely 2 occur but evade rev. like abortion / adm. of school policy
  3. Ripeness
    1. United Pub Workers v. Mitchell (Fed ee's w/campaign)
      1. Not justiciable b/c no imminence / threat of injury 2 sep. from people on st.
      2. LR view of prudence
    2. Adler v. Board of Ed.: same thing
    3. LA v. Lyons
      1. Not ripe b/c must show every police would choke 4 imminent threat
      2. Being in group that's discrim'ed against isn't good enough
      3. Said need 2 meet case in controv. again 4 injunction
    4. Abbott Lab's v. Gardner
      1. Balancing Approach
        1. How much lost v. how much gaine by waiting
        2. 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
        3. Also takes cost & gravity of injury into acct
    5. Dellums v. Bush (War Pwr Resolution)
      1. Const'al v. Statutory Case: went 4 Const'al b/c precedents set against statute 4 nonjusticiability
      2. Victory bigger if had won but can't address specif. statute prob. of 60 day per.
      3. Not ripe b/c no confrontation as Powell said in Goldwater v. Carter
        1. Seems weird 2 wait until Cong. can xerox Const. into law 4 ripe case
        2. Chadha implication that need 2/3 vote & joint resolution b/c told needed maj.

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