1. con law outline docx.docx

8/17/2019 1. Con Law Outline docx.docx

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CONSTITUTIONAL LAW

I. CONSTITUTION AND THE SUPREME COURT

Branches of Govt.

• Legislative Branch:

o 1st branch of govt. created in the constitution.

o Established under Article I of the constitution.

• Executive Branch:

o Technically, electoral-college votes for resident. Everyday citi!ens vote for

electoral-college.

o Established under Article II of the constitution.

• "udicial Branch:

o Aointed by the resident and confir#ed by senate.

o Established under Article III of the constitution.Age Req!re"ents for Off!c!a# Pos!t!ons$

• Pres!%ent$ $% years old

• Senator: $& years old

• Re&resentat!ve: '% years old

• S&re"e Cort 'st!ce: (o age restriction and do not have to be attorney )life tenure*

+laves counted as $% vote to #ae slaves votes count less and to give slave states #ore oer.

A. Constitution SummaryArt!c#e ( ) Congress!ona# r!ghts an% Po*ers

• +ection 1 - there is a senate and /ouse of 0e

• +ection ' - /ouse 0e ualifications

o 2oted in every ' years

o (eed to be '% yrs old

o Be a citi!en of the 3+ for 4 years and live in the state in hich they run

• +ection $ - +enate 5ualifications

o To senators for each state

o 2oted in every 6 years 7 ith elections done ever to years so 1$ is changing

o (eed to be at least $& yrs old and citi!en of the 3+ for 8 and be living in the state

in hich he ran for

o +enate has sole oer to try all i#each#ents, and no erson shall be convicted

ithout the concurrence of '$ of the #e#bers resent


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o I#each#ent 9udg#ents rendered can go no further than to re#ove fro# office

and dis5ualification to hold any office of honor, trust or rofit under the 3+, butcould otentially be liable according to the la.

• +ection 7 ;ongress #eeting ti#es

o ;ongress ill asse#ble at least once every year and be on the first 7 ;ongress duties

o ;ongress has the oer to lay and collect taxes, duties, i#osts and excises, to

ay the debts and rovide for the co##on defense and general elfare of the3nited +tates?

o ;ongress can borro #oney on the credit of the 3+

o 0egulate co##erce ith foreign nations and a#ong the states, and ith Indian

tribes

o To establish a unifor# rule of naturali!ation and unifor# las on the sub9ect of

banrutcies throughout the 3+

• +ection 8 7 Taxing

o (o taxing on interstate co##erce

• +ection 1&- Things states cannot due

o (o state can enter into a treaty, alliance or confederation

o =on@t coin anything else but gold and silver

o o consent don@t lay any i#osts or duted on i#orts or exerst, excet hennece

Art!c#e +. , E-ect!ve ranch

• +ection 1 -

o residency and 2 and Electors

o re! holds office for yrs 7 has to be a natural born citi!en of the 3+, at least $%

and been 1 yrs old

o Each state #ust aoint a nu#ber of electors to the a#ount of res and senators

that state has. But it cannot be a senator or a 0e

o /ave to be at least $% and a natural born citi!en to be 3+ resident

o

• +ection '

o 7 re! is co##ander in chief of the Ar#y and (avy of the 3+

o re! can grant ardons

• +ection $


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o re! #ust tae care the la are executed

o 0eceive a#bassadors and #inisters

Art!c#e / , 0%!c!a# ranch

• "udicial oer should be vested in +ure#e ;ourt,

(st a"en%"ent$ Creedo# of religion and exercise of it, freedo# of seech and ress and right toasse#nle and to etition the Dov for redress of grievances

+n% A"en%"ent$ 0ight to bear ar#s 7

%th a#end 7 sets u =ue rocess, ersons cannot be derived of life, liberty or roerty ithoutdue rocess of the la

6th a#end 7

B. BASIC FRAMEWORK OF THE SUPREMECOURT

Marr1 v Ma%!son$

+et u 9udicial revie of the constitutiono '%!c!a# rev!e* , +; has the constitutional authority to revie executive actions

and legislative acts

congress couldn@t exand the constitution, #ust be done by a#end#ents

if to las conflict ith each other the courts #ust decide on the oeration of each

'r!s%!ct!on of the S&re"e Corts

• Jurisdiction in General 7 Cor constitutional uroses, the 9urisdiction of the +ure#e;ourt is set out in Article III. But congress has never granted litigants access to the ;ourtin all cases for hich Article III rovides authori!ation

• To rincial routes to the +ure#e ;ourt:

o )1* Cirst is through #andatory aeal )rare*

o )'* Through ;ertiorari

• is generally said that the ;ourt@s aellate 9urisdiction is #andatory: If a arty ho has

lost belo sees revie, the ;ourt #ust hear any case that falls ithin its aellate 9urisdiction

• Today, the to largest classes of cases falling ithin the ;ourt@s #andatory 9urisdiction

concern 9udicial regulation of the olitical rocess

o ;hallenging the aortion#ent of ;ongressional districts

o 2oting 0ights Act

• ;ertiorari 9urisdiction is discretionary 7 The ;ourt #ay deny cert for a range of reasons

other than its agree#ent ith the decision belo

Sorces of '%!c!a# Dec!s!ons


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• Text - ften but not alays understood by reference to the original understanding

• +tructural Aroaches 7 =erive #eaning fro# the overall structure and urose of the

;onstitution, including the reinforce#ent or i#rove#ent of the de#ocratic rocesses

• (atural la and (atural 0ights 7 +o#eti#es understood in the #odern era as a #oral or

hilosohical argu#ent about rights

o +ure#e ;ourt has considered other sources

Necessar1 an% Pro&er C#ase$

besides the enu#erated oers ;ongress also has i#lied oers given by the

constitution and the necessary and roer clause: F

to #ae all las hich shall be necessary and roer for carrying into execution the

foregoing oers and all the oers vested by this constitution, in the gov of the 3+ or inany deart thereof.

Case or Controvers1 Req!re"ents

the 9udicial oer shall extend to only cases and controversies

Cor an issue to go before the sure#e court it #ust arise out of a case or controversy

• This rovision forbids the courts fro# invalidating legislative or executive action.

G#erelyH because it is unconstitutional.

This #eans that courts #ay not issue advisory oinions, decide olitical 5uestions, and

#ust have so#eone before the# ith Gstan%!ng2 or ith so#e ind of ersonal stae inthe controversy, and #ay not decide issues that are either Gre#ature or #oot

To reasons that the court only rule on cases or controversies

o


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• A discri#inatory in9ury accords a basis for standing only to those ersons ho are

ersonally denied e5ual treat#ent by the challenged discri#inatory conduct

• The federal 9udiciary #ay not redress an in9ury unless standing re5uire#ents are #et

• hen the suit is one challenging the legality of govern#ent action or inaction, the nature

and extent of facts that #ust be averred or roved in order to establish standing deendsconsiderably uon hether the laintiff is hi#self an ob9ect of the action at issue

o If he is, there is ordinarily little 5uestion that the action or inaction has caused hi#in9ury, and that a 9udg#ent reventing or re5uiring action ill redress it

o hen a laintiff@s asserted in9ury arises fro# the gov@ts allegedly unlaful

regulation of so#eone else, #uch #ore is needed

Stan%!ng conta!ns / e#e"ents3 In0r14 Casat!on an% Re%ress

1. laintiff #ust have suffered an Gin9ury in factH an invasion of a legally 7rotected interesthich is a concrete and articulari!ed that is actual or i##inent not con9ectural orhyothetical

o The in9ury alleged #ust be for exa#le distinct and alable and not abstract or

con9ectural or hyotheticalo the in9ury #ust be fairly traceable to the challenged action and relief fro# the

in9ury #ust be liely to follo fro# a favorable decision

o T1&es of !n0r!es

In0r1 !n fact , The arty seeing revie #ust have hi#self suffered an

in9ury

In0r!es to th!r% &art!es 7 The notion that a laintiff #ay not litigate the

rights of third arties is closely related to the in9ury in fact re5uire#ent.The laintiff #ust litigate on the basis of an in9ury to hi# or her? it is u to

third arties to litigate their on rights. Threatene% In0r1 , The in9ury in fact re5uire#ent is usually #et by

those ho can sho a sufficient threat of future in9ury. This threat #ust,hoever, be real and i##ediate rather than #erely seculative orhyothetical.

5!%e#1 %!ffse% har"s 7 0arely recogni!ed standing

'. There #ust be a casual connection beteen the in9ury and conduct co#lained of thein9ury has to be Gfairly traceable to the challenged action of the defendant and not theresult of the indeendent action of sa#e third arty not before the court

$. It #ust be liely as oosed to #erely seculative that the in9ury ill be redressed by afavorable decision

The &art1 !nvo6!ng fe%era# 0r!s%!ct!on ear the r%en of esta#!sh!ng these

e#e"ents

;ausation and redressability ordinarily hinge on the resonse of the regulated third arty

to the govern#ent action or inactionJand erhas on the resonse of others as ell

The existence of one or #ore of the essential ele#ents of standing deends on the

unfettered choices #ade by indeendent actors not before the courts and hose exerciseof broad and legiti#ate discretion the courts cannot resu#e either to control or to redict


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T*o Stran%s of Stan%!ng$

Article $ standing 7 hich enforces the constitution case or controversy re5.

rudential +tanding 7 hich e#bodies 9udicially self-i#osed li#its on the exercise of

federal 9urisdiction

Po#!t!ca# 7est!ons

hen a 5uestion is en#eshed ith any other to branches of the govern#ent it resents

a olitical 5uestion and the ;ourt ill not anser it ithout further clarification fro# theother branches.

/aving olitical issues is not the sa#e thing as a olitical 5uestion case


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D. UESTIONS OF TIMING!Doctr!ne of R!&eness

the case is brought too soon

• Bars courts fro# deciding cases that are re#ature, too seculative, or re#ote to arrant

9udicial intervention

• E: a case brought to challenge a cri#inal statute before a rosecution is initiated, in

circu#stances in hich the #ere existence of the statue is not alleged to roduce actualhar#

Doctr!ne of Mootness: case is brought too late

• revents courts fro# hearing cases hen changed circu#stances derive the laintiff of a

stae in the action

• revents courts fro# rendering advisory oinions hich are outside the 9urisdiction c

• E: a case brought by a laintiff challenging a statute rohibiting her fro# obtaining

e#loy#ent here the laintiff has been given the 9ob before the aeal

• $ excetions

o ;aabale of reetition

o ;lass action suits

o = voluntarily 5uits action and is free to act again in ay alleges is illegal

II. 8REEDOM O8 E;PRESSIONContent)netra# restr!ct!ons 7 restrict co##unication ithout regard to the #essage conveyed.E. are Las:

• rohibiting noisy seeches near a hosital

• banning the erection of billboards in residential co##unities

• re5uiring the disclosure of the na#es for all leaf letters

The court has long adhered to the vie that there a certain categories of exression that don@tareciably further the values underlying the 1st a#end. The +; has held that such categories ofexression are either unrotected or only #arginally rotected by the 1 st a#end.

• Ex: bscenity, co##ercial ads and false state#ents of fact

A. CONTENT BASED RESTRICTIONS!DANGEROUS IDEAS AND INFO

Content) ase% restr!ct!ons ) restrict co##unication because of the #essage conveyed. Ex thefolloing las:

• rohibiting the ublication of GconfidentialH info?

• forbidding the hiring of teachers ho advocate violent overthro of the gov.?


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• Banning the dislay of the sastia in certain neighbors

Overv!e*$

• The Cirst A#end#ent rovides that G;ongress shall #ae no la abridging the freedo#

of seechH

• The ;ourt held that the =ue rocess ;lause of the Courteenth A#end#ent rotects

freedo# of seech fro# state infringe#ent

• Dovern#ent can regulate the ti#e, lace, #anner, and substance of seech

• Las regulating the ti#e, lace, and #anner of exression #ust serve significant state

interests and leave oen alternative channels of co##unication.

• The Cirst A#end#ent er#its restrictions uon the content of seech in a fe li#ited

areas including, for exa#le, obscenity, defa#ation, threats, and incite#ent.

• one cannot counsel or advise others to violate the la as it stands

S&eech that Cases Un#a*f# Con%ct$

• The ;ourt states that character of every act deends uon the circu#stances in hich it

done

• The #ost stringent rotection of free seech ouldn@t rotect a #an in falsely shouting

fire in a theater, and causing anic.

• A state #ay unish utterances endangering the foundations of organi!ed govern#ent and

threatening its overthro by unlaful #eans

• Creedo# of seech and ress does not derive a +tate of the ri#ary and essential right of

+elf reservation

• Cear of serious in9ury cannot alone 9ustify suression free seech and asse#bly. To

9ustify the suression, #ust be a reasonable ground to fear that serious evil ill result if

free seech is ractice. There #ust be reasonable ground to believe that the dangerarehended is i##inent,

• The court /eld that seech as rotected by the 1st a#end#ent because the "ere

a%vocac1 of the use of force or violence does not re#ove seech fro# the rotection ofthe 1st a#end,

• ;ourt also stated that hen such aeals do not incite i##ediate laless action, they

#ust be regarded as rotected seech

C#ear an% Present Danger Doctr!ne

• hether the ords used in such circu#stances and are of such a nature as to create a clear

and resent danger that they ill bring about the substantive evils that congress has aright to revent

S&&ress!on of 8ree S&eech

• Cor govern#ent to suress seech, there #ust be reasonable ground to believe the

danger arehended is i##inent. A(= There #ust be the robability of serious danger tothe +tate.

Cear of serious in9ury alone ill not 9ustify suression of free seech and asse#bly (or

The fact that seech is liely to result in so#e violence of roerty


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"st have &roa!#!t1 of ser!os !n0r1

Inc!te"ent Test 7 +eech hich incites to the violent overthro of govern#ent is not CirstA#end#ent seech:

• Intentional advocacy of lalessness?

• Advocacy #ust call for i##ediate or i##inent lalessness?

• Lalessness #ust be liely to occur?

• That it in fact #ust occur. ;aveat that cos can intervene if it@s 9ust about to occur. But

looing bac on an event can@t unish if no illegal conduct ever ca#e of it.

S&eech that Provo6e a Host!#e A%!ence React!on

• ;ourt held that the urose of the freedo# of seech granted by the 1st a#end#ent is to

encourage disute, and conditions of unrest or even stirs eole to anger.

• ;onstitutional 3nless shon liely to roduce clear and resent danger of a serious

substantive evil that rises far above ublic inconvenience, annoyance, or unrest.

• hen clear and resent danger of riot disorder interference ith traffic uon the ublic

streets or other i##ediate threat to ublic safety, eace, or order, aears, the oer ofthe +tate to revent or unish is obvious

The ;ourt stated that they are certain ell defined and narroly li#ited classes of

seech, the revention and unish#ent of hich have never been though to raise anyconstitutional roble#. These include the led and obscene, the rofane, the libelous andthe insulting or fighting ord

o Lo social value is outeighed by the interest to have it banned

o


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• +; is looing #ore and #ore to rotect seech

S&eech on P#!c Isses$

+eech deals ith ublic concerns hen it can be fairly considered as relating to any

#atter of olitical, social or other concern to the co##unity 0 hen it is a sub9ect oflegiti#ate nes interest? that is a sub9ect of general interest and of value and concern tothe ublic

o


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• A rior restraint #ay be invalid even if the articular exression at issue could

consituionally be restricted by so#e other #eans.

• Any syste# of rior restraints of exression has a heaving resu#tion against its

constitutional validity

• rior 0estraint is revieed ith strict scrutiny

• The ord security is broad vague generality and should not be raised to get around the 1st

a#end

There are e-tre"e#1 narro* c#ass of cases !n *h!ch &r!or restra!nt "a1 e #a*f#

o hen (ation is at ar

o Dov. ants to revent actual obstruction ot its recruiting service or the ublication

of the sailing dates of transorts or the nu#ber and location of troos.

o ;an revent the ublication of obscene #aterial

o hen the security of the co##unity life #ay be rotected against incite#ents to

acts of violence and the overthro by force of orderly Dov.

C. CONTENT BASED RESTRICTIONS #$OW%"A$UE

8a#se State"ent of 8act

• Dov #ay not restrict the exression of an idea or oinion because its deter#ination that

the ide or oinion is false

• Acta# Ma#!ce Stan%ar% - A ublic official #ay not recover da#ages for a defa#atory

falsehood relating to his official conduct unless he roves that the state#ent as #adeith actual #alice? )ne that the state#ent as false or acted in recless disregard of itstruth or falsity.*

• 3BLI; CID30E+, ho bring a defa#ation suit #ust also sho that =efendant had

actual #alice

• 0I2ATE Individuals, do not need the +ullivan

• ublic figures and ublic officials #ay not recover for the tort for intentional infliction of

e#otional distress by reason of ublications o shoing in addition that t eublicationscontains a false state#ent of fact hich as #ade ith actual #alice

• arody of ublic figures and ublic officials are rotected under the first a#end#ent

Other 8a#se State"ents of 8acts$

• Even though false state#ents en9oy little rotection fro# the 1 st A#end, that doesn@t

#ean they receive no rotection at all

• +o#e false state#ents should be restricted such as defa#atory state#ents, er9ury, and

fraudulent state#ents intended to extract so#ething fro# another.

• In order to satisfy Gexacting scrutinyH the restriction #ust be Gactually necessaryH to

achieve the govern#ents interest.

• If Dov. ere alloed to 9ust unish lies then it ould case a chilling effect on the 1 st

a#end.


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Nonne*s*orth1 %!sc#osres of Pr!vate Infor"at!on$

• The Cirst and Courteenth A#end#ents of the 3nited +tates ;onstitution ill not allo

exosing the ress to liability for truthfully ublishing infor#ation released to the ublicin official court records.

• nce true infor#ation is disclosed in ublic court docu#ents, oen to ublic insection,

the ress cannot be sanctioned for ublishing it

Threats$• hether a state#ent is considered a threat is based off an ob9ective standard

• hether a reasonable erson ould foresee that the state#ent ould be interreted by

the victi# as a serious exression of intent to har# or assault

• It is not necessary that the defendant intend to or be able to carry out his threat

• nly intent re5 for a true threat is that the defendant intentionally or noingly

co##unicate the threat ith the intent to inti#idate,

• Advocating for violence is rotected,unless har# is BT/ liely and i##inent

• True threats ere defined to include state#ents here the seaer #eans to co##unicatea serious exression of intent to co##it an act of unlaful violence to articularindividuals or grous.

• A rohibition on true threats rovides rotection to individuals fro# the fear of violence,

the disrution such fear occasions and fro# the ossibility that the threatened violenceill actually occur.

o ;ross burning ith intent to inti#idate is a for# of true threat.

Co""erc!a# A%vert!s!ng$

• It is the content of the co##unication, rather than the seaer@s co##ercial or rofit

#otivation that is deter#inative.

o If there is a ind of co##ercial seech that lacs all Cirst A#end#ent rotection

it #ust be distinguished by its content

• the lines of co##unication, including aid co##unication about a co##ercial roduct,

should be generally oen to Cirst A#end#ent constitutional rotection

• A state #ay not co#letely suress the disse#ination of concededly truthful

infor#ation about entirely laful activity, fearful of that infor#ation@s effect uon itsdisse#inators and its reciients.

• +; holds Nou cannot go solicit clients fact to face if you@re a layer, but you can

advertise the#.

8or &art ana#1s!s for Co""erc!a# S&eech Cases$

o )1*


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o )* If the govern#ental interest could be served as ell by a #ore li#ited

restriction on co##ercial seech, the excessive restrictions cannot survive

Oscen!t1$

• bscenity is outside the rotection intended for seech and resss

•


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An!"a# Cre#t1$

• Ani#al cruelty 7 in hich a living ani#al is intentionally #ai#ed, #utilated tortured,

ounded or illed

• The ;ourt reasoned that deictions of ani#al cruelty are not categorically unrotected by

the Cirst A#end#ent. The ;ourt further reasoned that because a Psubstantial nu#berP ofthe statutes alications are unconstitutional, the la is overbroad and, thusunconstitutional

o Bull fights in +ain rovide a historical value

o (es reorts on Ani#al ;ruelty have a 9ournalistic value

o Instructional hunting videos have a educational value

The


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• If an utterance directed at an individual #ay be the ob9ect of cri#inal sanctions, the court

cannot deny to a +tate oer to unish the sa#e utterance directed at a defined grou,unless the court can say that it is a illful and uroseless restriction unrelated to the eace and ell being of a state

• Defense of Trth ,


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(either a +tate nor the Ced Dov can oenly or secretly articiate in the affairs of any

religious organi!ations or grous and vice versa

A (e "ersey la alloed rei#burse#ents of #oney to arents ho sent their children to schoolon buses oerated by the ublic transortation syste#. ;hildren ho attended ;atholic schoolsalso 5ualified for this transortation subsidy

• =id not violate the Establish#ent ;lause

•

+ervices lie bussing and olice and fire rotection for arochial schools are Psearateand so indisutably #ared off fro# the religious functionP that for the state to rovidethe# ould not violate the Cirst A#end#ent.

• The la did not ay #oney to arochial schools, nor did it suort the# directly in

anyay. It as si#ly a la enacted as a Pgeneral rogra#P to assist arents of allreligions ith getting their children to school

B. ESTAB$ISHMENT C$AUSEThe Ant!)coerc!on &r!nc!e:

• A ublic school cannot sonsor clerics to conduct even a non-deno#inational rayer as

art of a graduation cere#ony as the ;onstitution guarantees that govern#ent #ay notcoerce anyone to suort or articiate in religion or its exercise or otherise act in aay, hich establishes a state religion, or tends to do so

• ;ourts say that by having school ran rayer it can create subtle and indirect coercion

forcing students to act in ays that establish a state religion

• The cornerstone rincile of the Establish#ent ;lause is that govern#ent #ay not

co#ose official rayers to recite as art of a religious rogra# carried on by govern#ent

Non)en%orse"ent Pr!nc!e an% De facto Esta#!sh"ents$

• Establish#ent clause rohibits Dov. fro# #aing adherence to a religion relevant in any

ay to a ersons@ standing in the olitical co##unity

o To ays for govern#ent to breach this rohibition

Excessive entangle#ent ith religious institutions hich #ay interfere

ith the indeendence of the institutions give the institutions access toDov. or govern#ental oers not fully shared by no adherents of the

religion and foster the creation of olitical constituencies defined alongreligious lines

Dov. endorse#ent or disaroval of religion

hen the court is scrutini!ing a challenged legislation or official conduct to deter#ine

hether in reality it establishes a religion or religious faith or tends to do so byconducting the Le#on Test


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(ot satisfied by the #ere existence of so#e secular uroses

roer in5uiry is hether the Dov. intend to convey a #essage of

endorse#ent or disaroval of religion

Ai#s at reventing a govern#ental decision #aer fro# abandoning

neutrality and acting ith the intent of ro#oting a articular oint ofvie in religious #atters

This does not #ean that las uroses #ust be unrelated to religion,rather 9ust ai#s at reventing congress fro# abandoning neutrality andacting ith the intent of ro#oting a articular oint of vie in religious#atters

o 5hether !ts &r!nc!&a#9&r!"ar1 effect !s to a%vance or !nh!!t re#!g!on.

A la is not unconstitutional si#ly because it allos churches to

advance religion for la to be forbidden it #ust be fair to say that the Dov.itself has advanced religion through its on activities and influence

o

5hether !t creates an e-cess!ve entang#e"ent of gov *!th re#!g!on• Diving sectarian religious seech referential access to a foru# close to the seat of

govern#ent ould violate the Establish#ent ;lause

• The goal of avoiding govern#ental endorse#ent does not re5uire eradication of all

religious sy#bols in the ublic real#. The ;onstitution does not oblige govern#ent toavoid any ublic acnoledg#ent of religion@s role in society.

• (ativity scenes #ust be acco#anied by secular counterart and counterarts fro# other

religions.

There is a difference beteen freedo# of orshi and freedo# of free exercise of religion. The

free exercise is broaderI"&er"!ss!#e Pr&oses$ Schoo# Pra1er Cases

It@s (o art of the business of Dov. to co#ose official rayers for any grou of the

A#erican eole to recite as a art of a religious rogra# carried on by Dov.

+tatutes that authori!ed school to set aside 1#in for #editation or voluntary rayer, the

;ourt stated that this as the +tate@s endorse#ent and ro#otion of religion and a articular religious ractice.

• La re5uiring osting of 1& ;o##and#ents in schools is unconstitutional.

• ;o#elled education hich conflicts ith core rinciles of a religion is

unconstitutional.

8ac!a##1 Netra# Stattes that !nc!%enta##1 a!% re#!g!on

• hen a govern#ent aid rogra# is neutral ith resect to religion and rovides

assistance directly to a broad class of citi!ens ho, in turn, direct govern#ent aid toreligious school holly as a result of their on genuine and indeendent rivate choice,the rogra# is not readily sub9ect to challenge under the Establish#ent ;lause.

• 3nder the Establish#ent clause a state #ay enact an education rogra# that rovides

indirect financial assistance to religious schools if the rogra# truly roves individuals


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the oortunity to choose even if the selection is redo#inately folloed ith rivateschools ith religious affiliation

;ourt 0E"E;T+ the notion that any rogra# hich in so#e #anner aids an institution

ith a religious affiliations violates the Establish#ent ;lause

o A state #ay rei#burse arents for exense incurred in transorting their children

to school, an

o

+tates #ay loan secular textboos to all schoolchildren ithin the state• +tates decision to defray the cost of educational exenses incurred by arents regardless

of the tyes of schools their children attend, evidences a urose that is both secular andunderstandable

• +tate rogra#s that are holly neutral in offering educational assistance to a class denied

ithout reference to religion do not violate the 'nd art of the le#on test

• "ust because #ore eole ho receive scholarshis decided to use it on religious schools

does not #ean anything

C. FREE E&ERCISE C$AUSE! REUIREDACCOMMODATIONS

8ree E-erc!se C#ase$

• Dov. cannot interfere ith religious beliefs, hoever it can interfere ith religious

ractices

• Dov. cannot unduly burden the free exercise of religion

• Cree exercise clause has to concets

o Creedo# to believe 7 this is absolute

o Creedo# to act 7 this is not absolute, conduct re#ains sub9ectto regulation for the rotection of society

• If the +tate regulates conduct by enacting a general la ithin its oer, the urose and

effect of hich is to advance the +tate@s secular goals, the statute is valid desite itsindirect burden on religious observance unless the +tate #ay acco#lish its uroses by#eans hich do not i#ose such a burden

• nly those interests of the highest order and those not otherise served can overbalance

legiti#ate clai#s of free exercise of religion

• The govern#ent@s action #ust not constitute a substantial burden on an individual@s

ability to exercise a sincere religious belief. IC + Q.

o then Dov. #ust rove that it is acting in furtherance of a co#elling state interest

and that the interest is ursued in a #anner that it is the least restrictive or burdenso#e on the religion

• 0ight of free exercise does not relieve an individual of the obligation to co#ly ith a

valid and neutral la of general alicability on the ground that the la roscribes or rescribes conduct that his religion rescribes or roscribes.


19/31

o E;ETI(: 1st a#end can bar the alication of a neutral la to religiously

#otivated action if it involves the Cree exercise clause and other constitutional rotections such as freedo# of seech and of the ress.

• A state cannot deny une#loye#ent co#ensation #erely because the alicant 5uit a

9ob rather than or on a holy day on hich religious beliefs forbid or

Re#!g!os 8ree%o" Restorat!on Act @R8RA

•

0C0A rohibits the govern#ent fro# substantially burdening a erson@s exercise of religion even if the burden results fro# rule of general alicability unless the Dov.=e#onstrates the alication of the burden is in a furtherance of a co#elling Dov.Interest and least restrictive #eans of furthering that co#elling govern#ental interest

• 3nder an 0C0A analysis #ust as

o 1. Is it interfering ith a religious exercise

o '. Is the burden in furtherance of a co#elling interest Dovern#ental interest

o $. Is it the least restrictive #eans

Exa#le of 0C0A: +; states sa#e sex


20/31

• Reconstrct!on Era$

o +everal a#end#ents ere assed after the ;ivil ar

o 1$th a#end#ent as assed Ended +lavery

neither slavery nor involuntary servitude, excet as a unish#ent for

cri#e hereof the arty shall have been duly convicted, shall exist ithinthe 3+ or any lace sub9ect to their 9urisdiction

;ongress shall have the oer to enforce this article by aroriatelegislation

o 1th a#end#ent as assed =ue rocess and E5ual rotection

Drants citi!enshi at birth to the 3+?

Drants =ue rocess and E5ual rotection to ersons

• Plessy v Fergueson-

o ;ourt held that A la, hich authori!es or re5uires the searation of the to races

on ublic conveyances, is consistent ith the Courteenth A#end#ent of the

3nited +tates ;onstitution unless the la is unreasonableo The Courteenth A#end#ent of the ;onstitution does, hoever, re5uire that the

exercise of a +tate@s olice oers be reasonable. Las enacted in good faith, forthe ro#otion of the ublic good and not for the annoyance or oression ofanother race are reasonable

• Sweat v Painter

o , a blac la student, as denied ad#ission to the 3T +chool of la on the

ground that a arallel blac school had oened after the litigation co##enced andhad a substantially e5ual facility

o ;ourt held that the facility as not in fact e5ual and that could no be deniedad#ission

Brown v Board of Education I $ O=ERRU


21/31

o The burden rests on the school authorities to establish that such ti#e is necessary

in the ublic interest and is consistent ith good faith co#liance at the earliest

• The difference beteen Bron )1* and Bron )'* is that in the first decision the ;ourt

told the school districts that they had to desegregate but alloed the# to figure out hoto do it. In the second decision the ;ourt gave instructions for ho to desegregate because the school districts ere not doing it on their on

B. EUA$ PROTECTION ANA$'SIS! $E"E$SOF SCRUTIN'


22/31

• ;lassifications based on race, nationality, alienage, or that infringe uon funda#ental

rights or liberties: the govern#ent #ust advance a co#elling state interest by the leastrestrictive #eans available.

• If the restriction serves a olitical function no +trict scrutiny

• 0ace base classification strict struntiy? + Dov. interests has to be co#elling

• ;o#elling interests are

o 0e#edy the effects of ast discri#ination 7 not 9ust in education, anyhere

o


23/31

Ana#1s!s !f a #a* !s %ee"e% %!scr!"!nator1

• The cases resented above de#onstrate that the crucial initial in5uiry in dor#ant

;o##erce ;lause cases is hether the la is discri#inatory against out-of-staters.

• In City of Philadelphia v. New Jersey, the ;ourt said Ghere si#le econo#ic

rotectionis# is effected by state legislation, a virtually er se rule of invalidity has beenerected.

•

In Carbone, the ;ourt declared: G=iscri#ination against interstate co##erce in favorlocal business or invest#ent is er se invalid, save in a narro class of cases in hichthe #uniciality can de#onstrate, under rigorous scrutiny, that it has not other #eans toadvance a legiti#ate local interest.H

• In Hunt v. Washington State Apple Advertising Coission, the ;ourt stated: Ghen

discri#ination against co##erce of the tye e have found is de#onstrated, the burdenfalls on the +tate to 9ustify it both in ter#s of the local benefits floing fro# the statuteand the unavailability of non-discri#inatory alternatives ade5uate to reserve the localinterests at stae.H

H1&othet!ca# reasons to s&&ort act$ Thus, the ;ourt is illing to hypothesize reasons hich

ould suort the legislature@s action, even though there is no evidence hatsoever that thesereasons in fact motivated the la#aers

• Conseqence$ A conse5uence of the ;ourt@s tendency to hyothesi!e reasons in suort

of econo#ic legislation is that one ho attacs such legislation has the burden ofrebutting not only reasons given by the legislature, but also all reasons hich thelegislature G#ight haveH considered. +o#e of these hyothetical reasons #ay not evensurface until the ;ourt rites its oinion, #aing the 9ob of attacing such legislationdifficult indeed.

D. HEIGHTEND SCRUTIN' AND THEPROB$EM OF RACE

Intro$

• Best established case for heightened revie )strict scrutiny revie* is for classifications

based on race. /oever the alication of strict scrutiny as not alied till after Bronv Board of Edu.

• hen court uses G0aceH they #ean (ational rigin

•

Nou do not have to rove so#eone is a certain race, you can argue they are discri#inated based off their national origin

• Analysis is

o 1. Is this a race based discri#ination

o '. are the eole in the rotected class

Or!g!ns an% Rat!ona#e for He!ghtene% Scrt!n1 !n Race S&ec!f!c C#ass!f!cat!ons


24/31

;ourt has held that all legal restrictions hich curtail the civil rights of a single racial

grou are i##ediately susect, not dee#ed to be unconstitutional B3T courts #ustsub9ect the# to the #ost rigid scrutiny.

A co#elling Dovern#ent interest can 9ustify the existence of racial restrictions B3T

racial antagonis# never can

• 0estricting the freedo# to #arry solely on the basis of race violates the central #eaning

of the E5ual rotection ;lause

• The #ere fact that a statute is one of e5ual alication does not #ean that the statute is

exe#t fro# strict scrutiny revie

• The E5ual rotection ;lause of the ;onstitution rohibits classifications dran by any

statute that constitutes arbitrary and invidious discri#ination

Rac!a# %!scr!"!nat!on c#ass!f!cat!on ana#1s!s

• Cirst deter#ine hether it constitutes a racial classification, either by exlicitly daing

racial lines r #otivated by a racial urose, then court ill use strict scrutiny.

• If classification is non race secific the court ill use a rational basis revie desite the

classifications disroortionate i#act on the #inority grou and robably uhold it.

8ac!a# nonrac!a# c#ass!f!cat!ons that D!sa%vantage Rac!a# M!nor!t!es

• A rule that is neutral on its face and rationally rational to a legiti#ate state interest is

constitutional even thought it #ay i#act a race disroortionately

• roof of a disroortionate i#act is not enough, standing alone, to ground a finding that

a la a#ounts to unconstitutional discri#ination

• =isroortionate i#act is not irrelevant, but it alone does not trigger the rule that racial

classifications are sub9ect to the strict scrutiny standard of revie.

•

;an deter#ine if a la is discri#inatory by looing to the relevant facts including thefact, if its tre that the la bears #ore heavily on one race than another

• A court should aly strict scrutiny to a facially nonracial Dov. action only if the can

sho that the action as taen for discri#inatory urose

o =iscri#inatory urose i#lies that the decision#aer selected or reaffir#ed a

atiucluar course of action at least in art because of , not #erely in site of itsadverse effects uon an identifiable grou

• A defendant ho alleges an e5ual rotection violation has the burden of roving the

existence of uroseful discri#ination

Race)S&ec!f!c C#ass!f!cat!ons Des!gne% to Benef!t Rac!a# M!nor!t!es$

• All racial classifications including those suosedly benefiting racial #inorties ere

susect and should be sub9ect to strict scrutiny

• hen race-based action is necessary to further a co#elling govern#ental interest, such

action does not violate the constitutional guarantee of e5ual rotection so long as thenarro-tailoring re5uire#ent is also satisfied


25/31

• to be narroly tailored a race conscious ad#issions rogra# cannot use a 5uota syste#---

it cannot insulate each category of alicants ith certain desired 5ualifications fro#co#etition ith all other alicants,

• A university #ay consider a race or ethnicity only as a GL3+H in a articular alicant@s

file, ithout insulating the individual fro# co#arison ith all other candidates for theavailable seats.

• (arroly tailored does not re5uire exhaustion of every conceivable race-neutral

alternative

• (arro tailoring does, hoever re5uire serious good faith consideration of orable race

7neutral alternatives that ill achieve the diversity the university sees.

T*o reason race ase% c#ass!f!cat!on are &he#% n%er str!ct scrt!n1

o To re"e%1 &ast %!scr!"!nat!on

o Tr1!ng to create a %!verse h!gher e%cat!on

• Ad#ission criteria based on race #ust be narroly tailored to achieve a co#elling

interest. 0ace #ay be considered in an individual assess#ent, but not as a sole or

contributing factor for ad#ission

Race s&ec!f!c vot!ng %!str!cts

a redistricting lan Is unconstutional hen though race neutral on its fact it rationally

cannot be understood as anything other than an aeffort to searate voters into differentdistricts on the basis of race and that the searation lacs sufficient 9ustification

race #ust be a redo#inant factor #otiviating the legislatures redistricting decision to

enforce strict scrutiny

S1nthes!s of Bro*n an% Aff!r"at!ve Act!on

• A ublic school cannot classify students by race and then rely uon that classification in

#aing school assign#ents

• +chool lans that use race alone as a 5ualifying criterion for school assign#ents is

unconstitutional

racial balancing is not a co#elling Dov. interest

E. HEIGHTENED SCRUTIN' AND THEPROB$EM OF GENDER

Ear#1 cases$

the ;ourt only alied lo scrutiny in the early days to gender classifcations,

MODERN COURTS =IE5 Regar%!ng gen%er c#ass!f!cat!on:

• a revieing court #ust deter#ine hether the roer 9ustification is exceedingly

ersuasive, the burden rests on the state. The state #ust sho at least that theclassification serves i#ortant govern#ental ob9ectives and that the #eans e#loyed aresubstantially related to the achieve#ent of those ob9ectives )Inter#ediate scrutiny*

Poss!#e reason segregat!ng on as!s of gen%er$


26/31

• All #ale and all fe#ale locer roo#s? Interests are

o


27/31

• ;ourts actually aly a lo lvl of scrutiny

• If ealth classification infringes on a funda#ental right than court is #ore liely to hold

that the classification is unconstitutional

=. IMP


28/31

R!ght to Pr!vac1

The right to rivacy is not exlicitly #entioned in the 3nited +tates ;onstitution

A la, hich sees to achieve its goals by #eans having a destructive i#act on a

relationshi lying ithin the !one of rivacy #ay not be achieved by #eans that seeunnecessarily broadly and thereby invade that area of freedo#

•


29/31

o +et forth the tri#ester standard for hen a govern#ent #ay have a legiti#ate

interest in restricting abortion

o It is reasonable, hoever, for a +tate to conclude at so#e stage of a regnancy

that the interest in a otential hu#an life is co#elling:

1. Cor the first tri#ester, the abortion decision #ust be left to the 9udg#ent

of the o#an@s hysician?'. =uring the second tri#ester the +tate #ay choose to regulate abortions in

ays that are reasonably related to #aternal health?$. =uring the third tri#ester, a +tate #ay regulate or roscribe abortions,

excet here necessary to reserve the life or health of the #other.o T0I


30/31

o Believes the tri#ester fra#eor of 0oe v ade suffers fro# the basic flas such

as it #isconceives the nature of the regnant o#an@s interest and in ractice itundervalues the +tate@s interest in otential life as recogni!ed in 0oe

• D(SALE+ 2 ;A0/A0T:

o Issue Is the artial-Birth Abortion Ban Act of '&&$ an unconstitutional violation

of ersonal liberty rotected by the Cifth A#end#ent because the Act lacs anexcetion for artial-birth abortions necessary to rotect the health of the #otherK

o /olding not unconstituonally vague and didn@t i#ose an undue burden on the

right to abortion

o 0ule undue burden standard

o Analysis the #a9ority found that the Act alies only to a secific #ethod of

abortion, it held that the ban as not unconstitutionally vague, overbroad, or anundue burden on the decision to obtain an abortion.

8a"!#1 an% other Interests$

• court stated that hen a city undertaes such intrusive regulation of the fa#ily the usual

9udicial deference to the legislature is inaroriate

a due rocess right to resence of the fa#ily

• The constitution rotects the sanctity of the fa#ily recisely because the institution of the

fa#ily is deely rooted in the this (ation@s history and tradition. It is through the fa#ilythat e inculcate and ass on #any of ou #ost cherished values, #oral and cultural

• The due rocess clause has a substantive co#onent enco#assing the funda#ental right

of arents to #ae decisions concerning the care, custody , and control of their children

• 0ights of the #other) arents* overrule the rights of the grandchild, have the right of ho

visits.

• A statute #aing it a cri#e for to ersons of the sa#e sex to engage in certain inti#ate

sexual conduct violates the =ue rocess ;lause

• The right to sexual liberty is funda#ental, and govern#ent cannot intrude on that right,

via the cri#inal la, ithout shoing a co#elling interest

• +tate cannot de#ean their)* existence or control their destiny by #aing their rivate

secual conduct a cri#e

• Their right to liberty under the =ue rocess clause gives the# the full right to engage in

their conduct ithout intervention of the govern#ent

• Liberty rotects the erson fro# unarranted govern#ent intrusions. Creedo# extends beyond satial bounds. Liberty resu#es an autono#y of self that includes freedo# ofthought, belief, exression, and certain inti#ate conduct. The defendants are adults andtheir conduct as in rivate and consensual.

• The right to rivacy is the right of the individual, #arried or single, to be free fro#

unarranted govern#ental intrusion into #atters so funda#entally affecting a erson asthe decision hether to bear or beget a child

RIGHT TO DIE$

• =ue rocess ;lause


31/31

• A +tate #ay condition the exercise of a atient@s right to ter#inate life-sustaining

treat#ent on a shoing of clear and convincing evidence of the desire of the atient toexercise such a right

• rior decisions suort the rincile that a co#etent erson has a constitutionally

rotected liberty interest in refusing #edical treat#ent under the =ue rocess ;lause.

• But inco#etent ersons do not en9oy the sa#e rights, because they cannot #ae

voluntary and infor#ed decisions. The right to ter#inate life-sustaining treat#ent of aninco#etent, if it is to be exercised, #ust be done for such inco#etent by a surrogate.

• The GlibertyH rotected by the =ue rocess ;lause of the 3nited +tates ;onstitution does

not include the right to assist suicide

• 0ational Basis +tandard because no funda#ental right

Therefore4 ass!st!ng s!c!%e !s not a fn%a"enta# r!ght. The Const!tt!on req!res the

state an to e rat!ona##1 re#ate% to #eg!t!"ate govern"ent !nterests.

•

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