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Judicial Review
- Judges will not decide constitutional questions if there is another basis/method arriving at a decision. Marbury
- Judiciary can review executive and legislative conduct. Marbury.
- The Constitution is superior to ordinary acts of legislature, supreme law of the land.
- Laws repugnant to the Constitution are void.
- Argument for judicial review: judges are free from political process and majority’s will because they are appointed for life.
- Criticism: Nowhere in the constitution does it say court have power of judicial review.
- When can judiciary review executive conduct? A. If President is making discretionary decision, Court cannot review this. Political question. Why can the court not do this? The president is already checked by election process. Court will not hear cases that require deciding a political question. 6 elements (one of which must be present to invoke political question doctrine) : 1. Textually demonstrable in the Constitution that the provision is clearly committed to another branch of government (Court has no business handling the issue.) Ex: impeachment 2. If you present your argument to the court and it lacks judicially manageable or discoverable standards for resolving the issue.
- If the impossibility of deciding the case without making an initial policy decision invoking non-judicial discretion. Court doesn’t like us to think they are making policy. Ex: reason Court doesn’t deal with 9th^ Amendment
- Impossibility of the courts undertaking independent resolution w/o disrespecting a coordinate branch of government. Ex: burning of draft cards (speech was okay; action was improper)
- Unusual need for unquestionable adherence to a political decision already made. (don’t want to embarrass executive branch) Ex: IEEPA
- Dealing with matters international in scope, the potentiality of embarrassment from multifarious department on one question. The need for a single, unified voice. (Leave the President alone).
B. Where the law creates a legal duty the President must perform, Judiciary may review this.
How do we know what the Constitution means?
<_________________________________________________________________________________> Originalists Non Originalists Scalia Ginsburg, Breyer, Stevens Thomas
- D.C. v. Heller illustrates this continuum.
- Scalia (majority) beings analysis with Constitution, then dictionary, founding era documents, common usage in late 1700s, historical purpose, other parts of Constitution, Miller precedent, Quaker history, what other states did.
- Justice Breyer (dissent) looked at crime statistics/experts, intent
- Originalists : Start with plain meaning, then framer’s intent, then legislative intent. Traditions of the people and history. Glucksberg
- Non Originalists: Start with text, but they are not as receptive to framer’s intent or legislative intent. They tend to look at a wider array of sources. They want the Constitution to evolve with modern society. Generally, nonoriginalists are more likely to recognize or create individual rights. Nonoriginalists might say that it is fundamental if it is required for liberty. This position is hard to justify because lends to judicial activism and judges deciding what is fundamental based on their judgment of which rights are important enough to protect. Vital liberty interests to be protected that individuals need to be protected from whims of the majority. Look at Griswold (privacy rights), Roe
- A major criticism of this judicial standpoint is that a judge that imposes his/ her own values on US/ legislating from the bench.
- (^) Are justices being principled or disingenuous in different decisions.
- When is it legitimate for the court to overrule itself?
Original vs. Appellate Jurisdiction
- Original: Decide Fact Art. 3, Supreme court has original and exclusive jurisdiction over AMC = ambassabor, public minister, counsels; SP = state as party,
- Appellate: Decides questions of Law, everything else not in Art. III, including writs of mandamus
- Limited vs. General Jurisdiction: Federal courts are courts of limited jurisdiction. Article III. Cases that fall under original jurisdiction that have serious federal questions. Jurisdiction in federal court must be established. Jurisdiction in state court is presumed.
- Concurrent vs. Exclusive Jurisdiction: A. If Plaintiff has a federal question, he can choose between state and federal court = “concurrent jurisdiction.”
- If states can decide federal questions, the states/people have a bit more sway on what Constitution means. B. Sometimes, if Plaintiff has X type of case, he must bring it to federal court = “exclusive jurisdiction.”
- Exceptions Clause Art. III Marbury v. Madision
- (^) Art. 3, Sect.2, in an exception, appears to give legislature right to move things from appellate to original.
- Congress, in Judiciary Act, tried to give Supreme Court original jurisdiction over some cases in addition to those enumerated in the constitution. Congress tried to give Supreme Court power to issue writ of mandamus in original jurisdiction. ■ In Marbury , Marshall declared the Judiciary Act unconstitutional. ■ Marshall did not did not even acknowledge the exceptions clause. For this case, it is necessary for the exceptions clause to be without effect. The way this is written, this clause has no meaning because the clause would mean that congress to do what it wants, Congress would be able to move everything to original jurisdiction. Marshall said Every clause in the Constitution is presumed to have meaning. If we allowed Supreme Court to exercise original jurisdiction over mandamus,
If you believe in checks and balances, you might support a certain model. Look at Hamdi to answer this. Justices say we don’t need to go to IEP paradigm because Congress’ view.
Nixon v. US
- This case probably fits best into theory #3 that judiciary branch is the ultimate arbiter of the constitution because the Court decided scope of executive privilege. - Recognizing an absolute privilege would gravely impair the role of the courts. ■ The assertion of president’s privilege must yield to the need for a fair trial. The court seems to say this is especially so when the executive privilege is not mentioned in the Constitution. - The SOP doctrine alone cannot sustain an absolute unqualified presidential privilege of immunity. SOP were not intended to operate with absolute independence. - (^) The court seeks to preserve the essential functions of each branch and doing so requires that it maintain fair administration of criminal justice system and due process. Court has a duty to require production of relevant evidence.
- This case says each branch must give utmost deference to the interpretation every other branch affords to an interpretation of the constitution. The court talks about each of the theories.
- For the sphere of expertise model #2, the issue would have to be one of diplomatic secrets, military etc.
- Court decided scope of executive privilege (this could fit into model #3 or #2.)
Federalism
- To what extent can states/Congress regulate individual rights?
- To what extent can Congress regulate realm traditionally left to states?
McCulloch v. Maryland Does Congress have power to create a national bank? Begin with Art.I, Sect. 8 Does Marshall read the Necessary and Proper clause as enhancing or limiting congress’ power? He says that Congress must act reasonably, but at the same time says this clause should be read broadly.
- Broadly construed Congress’ power
- Narrowly limited the authority of state govt to impede federal govt
- Historical practice established power of Congress to create the bank
- People are sovereign, they ratified the Constitution.
- Necessary and proper clause - congress may choose any means not prohibited by the Constitution
- The other view is that it is a limit on congress’ power. Gov’t action must be necessary to achieve the goal.
Is an act of Congress constitutional?
- Does Congress have authority under Constitution to legislate?
- If Congress has power to legislate, does the law violate another constitutional provision or doctrine, such as infringing separation of powers or interfering with individual liberties?
Only states, not fed gov’t, have police powers. Police power allows state and local gov’t to adopt any law that is not prohibited by the Constitution. Congress has police power in District of Columbia and territories.
Heller illustrates that what we decide may be influenced by personal values.
What is the relationship between the 10th^ Amendment and Art. I?
TUNICK’S Notes Constitution and Federalism
- No fed standards regulating commerce. States had a lot of autonomy. Constit. Convention: establish new gov’t that was nonexistent before, with powers and limits to powers; states agree to give up some powers. A. authorizes national legislative action (Art. I, sect. 8 - enumerated clauses). 1st interpretation: Congress can do what it wants to promote general welfare 2 nd^ interpretation: Congress’ power to tax can be used to promote general welfare. Clause 18 - “Necessary and proper” only to carry out foregoing powers in sect. Powers: police power, power to tax, military power, power of eminent domain. Congress only has police power because of Commerce Clause. B. Clauses such as “no title of nobility” may prove that the writers of the constitution wrote an exhaustive list. Another person said, the framers removed the word “expressly” when referring to powers of Congress, therefore, the list does not include everything they wanted to delegate to Congress. C. Article II - Presidential Power - “faithfully execute…” - broad powers? D. Judicial power (Article III) - does not mention how many justices on Supreme Court E. This Constitution does not authorize or is source of state power. The Constitution authorizes Congress. F. Bill of Rights - sets limits to federal, not state, powers. The 14 th^ extended Bill of Rights to states. G. Limits on state powers
- Art. I, sec. 10 (“No state shall…”)
- Commerce Clause - Gibbons v. Ogden: state regulation must yield to federal regulation where there is a conflict, by virtue of the Supremacy Clause (Art 6, cl. 2)
- Art IV, Sect. 2 - ex. Camden can’t enforce an ordinance requiring at least 40% of workers on city construction projects to be Camden residents.
- 14th^ Amendment (1869) - limitation on states. “due process” “equal protection” 2 nd amendment does not apply to states.
- Limits on individual citizens of the states - States can set limits through police powers. Congress can set limits as long as in accordance with Constitution. Provisions in Constitution that protect individual rights set restrictions on what government can do, not what other individuals can do to you.
Power has to have a legitimate source!
- It gets legitimacy by being consented to by the people.
- Who gives the national government power? The people, not as part of states, but as part of the U.S. - The Constitution is ratified by the People, and hence emanates its authority from the People, not the states. As such, it is the supreme law of the United States.
- The people did not intend to make the government dependent on the states.
- The constitution and laws made in pursuance thereof are supreme, they control the constitution and laws and sovereignty of the states, and cannot be controlled by them.
- How important are the states to Marshall in McCulloch on scale of 1-10? About a 2. There is not much left for the states to do.
- If the answer is #2, Court will check President. Douglas said the Pres here was usurping Congres’ spending power. Pres may act without express constitutional or statutory authority, so long as pres does not usurp powers of congress or courts. Ex. Consitution does not mention pres. Power to recognize foreign gov’t or to remove presidential appointees from office, yet the present has these powers. Hamdi because court says its their sphere of influence for due process. Nixon Clinton v. NY
- If the answer is #3, Congress will check president. Frankfurter said congress had rejected notion that pres could seize steel mills in
Jackson’s 3 zones. Second zone concerns inherent pres powers. In second zone, when pres acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and congress can have concurrent authority. War Powers Resolution- political question Dames & Moore - If the answer is #4, Court. Federal laws restricting president’s power are unconstitutional. President may act as long as constitution does not forbid it, because the president is bound to serve the people. Curtiss-Wright supports this. Hamdi because pres was acting with congress, but still unconstitutional; congress didn’t give permission Clinton v. NY
- If answer is Always, Voters. Curtiss-Wright - foreign policy
- #1 Why would you not want the answer to be NEVER, because in the case of an emergency, you want someone to be able to act. It takes the legislature a long time to act. We want president to have limited power, but not so limited that he/ she cannot do anything.
- #2 and #3 Political pressures: President may not want to push the envelope with Congress even if he thinks he has power to request something. Congress may not want to refuse the president because elected leaders are expected to act certain way. Who will back down first? If legislation is in place, it is difficult politically for the president to ignore it. Ex. He could be impeached.
- #3 Just because President and Congress are acting together, this does not mean they are acting constitutionally. When they work together, there is strong presumption that what they are doing is constitutional. (Jackson, concurring)
- It is highly unlikely that #5 ALWAYS is an answer because the president would be able to trample individual rights.
- Youngstown suggests President has inherent executive power. Twilight Zone - When President acts in absence of either congressional grant or denial of authority, he can only rely upon his own independent powers (Jackson, concurring)
- EXAM*** If you can’t find a constitutional provision authorizing president to exercise power, look at 1, 2, or 3. Use cases to illustrate point that you are making. With critiquing, you talk about limitations of theories. With normative, you say which one should work.
INS v. Chadha
- Non-delegation doctrine : At one time congress had no power to delegate some of its power to other branches.
- After industrial revolution, Supreme Court changed its mind to allow Delegation. Ex. FAA, EPA, IRS. Rise of the administrative state. Congress takes its power under Art. 1, passes legislation, and gives power to executive to create agency to execute the law. - Why couldn’t Congress just create the agency itself without going through executive? Congress can’t administer the laws it enacts. We would still need people to carry out activities of the agency. - Art. I, Sect.8 - Congress has power to regulate immigration (naturalization). - Checks and balances is also based on premise that each branch acts independently. - The legislative veto is unconstitutional. If Congress does a legislative act, there must be bicameralism (both houses act) and presentment (to president so he may veto/accept it). - Bicameralism was intended to erect checks on each branch. It maintains the separation of powers. - Cumbersomeness in complying with constitutional requirements is not enough of an argument to do something unconstitutional. - Congress must “let go”….it must let other branches or agencies it creates do their job.
- Neither congress nor executive can violate individual rights. This is a matter for the courts.
- The majority treats the Resolution and legislative veto as a new Act, and as such much go through bicameralism and presentment. One could argue the other way, and say that the Act was passed according to Constitutional procedures (bicameralism, presentment), and so the resolution would be constitutional.
Clinton case - Line Item Veto
- This case stands for overdelegation of Congress. It gives president too
much legislative power.
- The line item veto injects the President into the legislative process. See Notes
about compromising between congress members. This is a profound violation
of separation of powers.
- Presentment clause: after a bill has passed both houses of Congress, but before, it becomes law, it must be presented to the president. It requires approval or veto of the entire bill.
- Simply passing a law that Congress and president agree on does not mean it is constitutional.
- Passing multiple bills is an alternative to the line item veto, but it would require thousands of spending bills.
Curtiss-Wright - President’s foreign powers.
- The President is the sole organ of the nation in its external relations, and
its sole repetitive with foreign nations.” (371) It would be embarrassing if
President didn’t have this power. The people give the president power in
foreign affairs.
1887-1937: Court was cutting down on Congress’ power because of laissez-faire and non-delegation doctrine. It said commerce doesn’t include manufacturing, production
Division of Federal/State Power over time Congress State Check
begin
Plenary= exercise power as if no state govt existed.
Expansive view of power. “intercourse between nations, all phases of business. Restriction on state gov’t. State is not important; can’t be trusted. Congress could regulate intrastate commerce if it had an impact on interstate activities. If purely within State, Congress cannot regulate b/c it is limited by pretext. State has police powers to regulate Health, Safety, Welfare, Morality of citizens.
Political process checks Congress’ power. Court will not participate much in crafting limits of Congress’ power.
1887-
Less than plenary. Congress may not regulate things that have indirect effect on commerce
Narrow def’n commerce. Laissez-faire. State are important/trusted. 10th amendment acts as limit on congress’ power Commerce is one state of business, distinct from manufacturing, mining, production. Fed govt may not regulate manufacture/production. Restrictively definted “among the states” as allowing Congress to regulate only when there was a substantial effect on interstate commerce Test: Direct/Indirect – hard to make this distinction Economic vs. moral regulations. See below
Court.
- 1937- mid 1990s
Bigger than plenary
States have almost nothing, or a square case. Fed power to regulate commerce is power to enact all appropriate legislation for its protection and advancement. Congress can regulate any activity that, looked at cumulatively across the country, have a substantial effect on commerce. Direct/indirect test rejected. Cumulative effect theory
- 1990’s on
Smaller than #3, bigger than, #1.
A little more than #3. States are labs of experimentation. Traditional state concerns (education, crime, marriage). Square = 10th^ amendment. states are independently important Maybe we should be looking at a square. NY v. US, Printz
Circle – def’n of commerce. Square - not about definition of commerce. 10th^ amendment. It is about federal/ state vertical power. Congress has power to regulate the activity under commerce clause, but we are looking at what degree of regulation is appropriate. No matter how big Congress’ power is, you can’t encroach on state power protected by 10th amendment. Printz and New York.
On exam, you have to explain your reasons for setting relative amounts of power in each period.
#1: beginning to 1887 Gibbons : Congress’s power may affect matters occurring within a state, so long as the activity had some commercial connection with another state. No area of interstate commerce is reserved for state control. 10 th^ amendment is not an independent limit on Congress’ power.
#2 - 1887-
- Court was less willing to adhere to these principles and most willing to uphold federal laws when it was moral regulation. Less willing to uphold when economic regulation.
- Economic regulation
- Shreveport Rate case – The law related wholly intrastate railroad rates. Congress can regulate all matters having such a close and substantial relation to interstate traffic that control is essential to the security of that traffic.
- Police power regulations – Direct/Indirect effects test
- Lottery case, Champion v. Ames – Prohibiting interstate transport of certain items, usually of “morally evil” articles.
- Regulation of intrastate affairs as a means of enforcing interstate transport is constitutional.
- Hammer v. Dagenhart – child labor case. Court struck down federal law that prohibited interstate transport of articles produced by companies which employed children younger than certain ages or under certain conditions. The goods being transported were not evil themselves. Manufacture is something state should control. ■ Holmes’ dissent: became the majority view after 1937. He said as long as the congressional regulation is in Congress’ commerce power, the fact that it has a collateral effect upon local activities otherwise left to state control does not render the statute unconstitutional. 10 th amendment does not limit federal authority. ■ Overruled by Darby
- Carter Coal – Fed law set maximum hours and minimum wages for coal mine workers. It is unconstitutional. Production is purely local and the production did not directly affect interstate commerce.
- Schechter Poultry - Defendant corporation buys the poultry in state and sells the poultry in state for in state consumption, the corporation is not involved in interstate commerce. Therefore, the Commerce Clause does not give Congress the power to regulate the defendant corporation.
- Substantial economic effect
- NLRB v. Jones & Laughlin – ■ The Act says that the denial of employers of the right of employees to organize “lead to strikes, which have the intent or necessary effect of burdening or obstructing commerce by a)
basis of race if you engage in interstate commerce. Congress is trying to regulate morality. ■ Should government be able to do one thing under one part of the constitution when it can’t do it under a different part of the constitution?
- Katzenbach v. McClung – Ollie’s Barbecue. 46% of food was purchased by the restaurant from supplier who had bought out of state. Civil Rights Act covered any establishment which buys food, a substantial portion of which has moved in commerce.
1990 to present
- Lopez – school zone gun law unconstitutional
- No jurisdictional nexus (nothing in the law mentioned being related to interstate commerce)
- No findings by congress.
- Not a commercial activity.
- Not part of a larger regulation of economic activity, as in Wickard.
- US v. Morrison – Violence against Women
- Noneconomic -
- It is a regulation and punishment of intrastate violence not directed at the instrumentalities, channels, or good involved in interstate commerce, and so is within control of the States.
- Dissent: It shouldn’t matter that the activity is noneconomic if it still has substantial effect on IC.
- Gonzales v. Raich
- (^) Also noneconomic, but, the regulation here is constitutional because Congress reasonably believes failure to regulate these intrastate activities would jeopardize the success of the overall regulatory scheme.
- Wickard says Congress can regulate purely intrastate activity that is not itself “commercial” in that it is not produced for stale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national legal and illegal market.
Modern View Summary
- Channels – Congress may regulate things reasonably related to highways, waterways, air traffic
- Instrumentalities – people, machines, or things used in carrying out commercial activities
- Articles moving in interstate commerce
- (^) Substantially affecting commerce
- Commercial activities – Is the activity part of a general class of activities, that, collectively, substantially affect interstate commerce? Wickard, Raich
- Noncommercial activities – the effect must be greater than Lopez or Morrison. The aggregate impact of a noncommercial activity must be great in order for court to recognize congress’ power to regulate.
- The court will not defer to Congress. It will decide for itself whether there is a substantial effect. What is the role of the court? To decide whether
Congress’s decision to regulate had a rational basis? Or is it to decide whether there is a substantial effect? Your task: figure out why one is right/ wrong, which is better than the other as far as which one is more true to the constitution? What is the task of the legislature vs. Court? Court decides issues of law, legislature wrestles with facts.
- If the area is one traditionally left to the states (education, family, criminal law), court will be more likely to leave it alone. But, if it is a problem that requires a national solution, like environment, Court is more willing to allow regulation.
Emmanuel’s Supplement Commerce power: a way for Congress to exercise police powers Test:
- Substantially affects commerce
- Means chosen are reasonably related to Congress’ objective
10 th^ AMENDMENT
- Marshall in Mv.M said every clause is Constitution has meaning.
- (^) Congress may not commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Congress can’t force states to legislate or regulate in a certain way. NY v. US (radioactive waste) - So what can Congress do? Spending power, directly regulate through commerce - State may not force a state executive branch personnel to perform ministerial function. Printz v. US
14 th^ AMENDMENT DUE PROCESS
PRIVILEGES AND IMMUNITIES
- Protects right to travel
- Person who has recently become citizen of a state has the right to the same privileges enjoyed by longer-standing citizens of that state. Saenz v. Roe. ■ California enacted a law limiting the welfare benefits for citizens who lived in California for less than 12 months ■ The state’s legitimate interest in saving money provides no justification for its diction to discriminate among equally eligible citizens.
- Distinguish 14th^ P&I clause from Art. IV clause: 14 th^ bars state from abridging any US citizen’s right of national citizenship. Art IV protects right of state citizenship, but only when a nonresident of the state is not treated the same as a resident with respect to an important state right, essentially a right involving commerce.
Substantive Due Process: Some state limits on human conduct are held to so unreasonably interfere with important human rights that they amount to an unconstitutional denial of liberty.
- Simply because an individual is protected because a right has been incorporated to the state, it does NOT mean that the government cannot pierce it.
- Incorporation is implied.
Exam: find your tipping point where it is not okay to incorporate bill of rights to states. Then justify it.
SOP -> Exec Legislature Judicial Federalism
States Individuals
Just because a right is fundamental (which is the court‘s tipping point), it doesn’t mean state can’t regulate it.
SUBSTANTIVE DUE PROCESS BEFORE 1934
- Slaughterhouse cases – ■ 13 th^ amendment applies to people and the states. No state action requirement. No one can own slaves, be indentured servant. Protects against badges of slavery. Does not apply to the modern things, like the draft or pro bono requirements. ■ First sentence of 14th^ makes slaves freed citizens. ■ 14 amend 2nd^ sentence -No state shall deprive any person of the privileges and Immunities, due process or equal protection of the laws. Holdings ■ Due process is about procedural due process, notice, opportunity to be heard. It is not about being able to practice your trade or business. ■ Equal Protection - it is about people, not rights. Equal protection is not about how government treats one set of butchers versus another set, it is about how government treats people based on their race. ■ Privileges and Immunities: It is the same as the privileges and immunities clause in Art. IV Sect.2. This is the only clause in 14th^ that has anything to do with rights. Ex. Right to enter the seaports. Court does not address the Bill of Rights. ■ (^) Whatever privileges and immunities a state gives to its citizens, the equal protection clause dictates that the state shall treat other people in the state the same. States cannot deny you the right/privilege to travel. This is also what the Saenz case is about. Saenz does not really add anything to the Slaughterhouse case. ■ State cannot deny you what privileges and rights you have from the federal government.
POST CIVIL WAR
- Laissez-faire economic philosophy guided court after Civil War. Minimize gov’t interference
- Civil Rights Cases – ■ Narrow view of state action
■ Holdings: 14 th^ amend only applies to state action, private discrimination okay, it said that denying blacks use of public accommodations did not amount to “badge of slavery” in violation of 13th^ amendment (since overruled)
- Munn v. Illinois – defer to public regulations of contracts. For private contracts, use rational basis standard.
- Weaver - A consumer protection act was passed that prohibited the use of shoddy as a filler for comforters. A restriction on the manufacturing of items is an interference with the contractual bargain between buyer and seller that can only be upset in the interests of state policing power.
- Lochner v. NY – struck down maximum hour work law as abdrigment of liberty of contract. ■ Did not accept “health and safety” rationale because bakers were not an endangered group (unlike mine workers). ■ Did not defer to legislative findings of fact. ■ Test: close “fit” between statue and objectives. It had to be a “real and substantial relationship”. ■ Readjustment of economic resources or economic power or bargaining power not a legitimate state goal.
- Muller v. Oregon – labor hours for women upheld ■ Women needed special protection
- Adkins v. Children’s hospital – minimum wage law for women struck down because of freedom of contract. Why was this struck down? Probably because it was seen as only promoting economic equality, not protecting women’s bodies.
MODERN APPROACH TO ECONOMIC and SOCIAL WELFARE REGULATION NONFUNDAMENTAL
- Greater deference to legislature
- Test: minimum rationality standard: The economic regulation must fall in state’s police power (health, safety, general welfare). Presumption of constitutionality unless legislature has acted in an “arbitrary and irrational” way.
- Nebbia v. NY (milk prices) – states may adopt policies reasonably deemed to promote public welfare.
- West Coast Hotel v. Parrish – upheld minimum wage law for women. State had legitimate interest in redressing women’s inferior bargaining power.
- Carolene Products (filled milk)– presumption of constitutionality for state economic regulations + minimum rationality standard
- Court hypothesizes reasons that would support legislature’s action
- Williamson v. Lee Optical – rational health measure
FUNDAMENTAL RIGHTS
- The right to decide how to rear one’s children
■ Had the mother cut off the right of grandparent’s visitation, the court might have said the grandparents have a constitutional interest in continuing to see and have relationship with their children. ■ Do you have to show that visiting will benefit the children or that no visitation will hurt them.?
- Boyfriend/girlfriend is not really fundamental.
- Right to marry. Loving v. Virginia, Zablocki v. Redhail,
- Establish a home,
- (^) Right to privacy ■ The 9th^ amendment is used to provide textual justification for the Court to protect nontextual rights, such as right to privacy. ■ Contraception. Griswold ■ Abortion. Not fundamental , but not ordinary right either. Undue Burden standard.
- Waiting period, informed consent requirements, fetus viability tests,reporting and recording requirements, parental consent for unmarried minor as long as judicial bypass procedure is available, parental notification requirements, is not an undue burden.
- Law prohibiting partial birth abortions, spousal consent, pose undue burden. ■ Right to expression in intimate conduct. Lawrence
- (^) worship God
- Travel - EP clause
- Right to vote - EP and 15th^ amendment
- Bill of Rights that have been incorporated
What is the standard that makes a right fundamental? Possibilities:
- Bill of Rights
- Natural rights
- Rights essential to orderly pursuit of happiness
- History/tradition
- Rights that are embedded in the moral census that exists in society
- Originalists say fundamental rights are those explicitly stated in the text or clearly intended by the framers.
- How does court analyze Constitution? text Constitution, then history of text, traditions surrounding the word, then dictionary, founding era documents, common usage in late 1700s, other parts of Constitution, precedent, purpose of value underlying phrase, what are consequences of adopting this purpose.
Nonfundamental Rights Housing Food States can always give people more rights and put certain rights above the line in their own constitution. There is an argument out there that “liberty” is above the line and a broad array of rights falls into this category.
Right to drive education
STATE ACTION DOCTRINE : No state shall deny your privileges and immunity, due process, equal protection.
- Why do we have this? There is a fundamental principle protected by requiring this.
- See Civil Rights cases
- the state/municipalities cannot discriminate on basis of race. Enhances federalism by preserving zone of state sovereignty. Structuring legal relationships of private citizens was for the state, not the national government. - The court is more likely to apply a state action exception to race discrimination cases.
- Individuals have a right to discriminate on basis of race, discrimination. They are not held to constitutional standards. But, the government can still regulate discrimination through its commerce clause powers. - Always competing with state action doctrine is the principle that private people are not held to constitutional standards, they can discriminate. - Harlan dissent: he is afraid individuals will discriminate because majorities passed discriminatory state laws. 14 th^ amendment has a spirit, so Harlan would read into the 14 th^ that individuals can’t discriminate because the 14th^ says no state shall enforce discriminatory -laws. He says the state has to stop individual discrimination. It is hard to determine when the state is acting and when the people are acting.
- When state passes a law, it is state action.
- If state actors, it is state action.
- Is what the private individual is doing attributable to the state? Public function exception (private entity must comply with the constitution that if it is performing a task that has been traditionally, exclusively done by gov’t
- The state convention of Democrats hold a primary election in which only whites could vote to see who is the candidate
- state action. Smith v. Allwright
- Private person who performs public or government function - state action. Ex. A private company owns a town
- Shopping centers – not a public function. Lloyd v. Tanner Private property is not considered public property just because the public is invited to use the property for its intended purpose.
- Someone bequeaths land to be used as a park in the city - state action.
- Operation of a privately-owned utility licenses and regulated by the state was not a public function.
- Private nursing home that receives a lot of funding from government still does not have to follow Bill of Rights.
- Private school funded by public grants is not a public function
