Docsity
Log inSign up
Docsity
Prepare for your exams
Prepare for your exams

Study with the several resources on Docsity

Earn points to download
Earn points to download

Earn points by helping other students or get them with a premium plan

Guidelines and tips
Guidelines and tips
Sell on Docsity
Sell on Docsity
Docsity AI
Docsity AI
Log inSign up

Prepare for your exams

Study with the several resources on Docsity

Find documents

Prepare for your exams with the study notes shared by other students like you on Docsity

Search for your university

Find the specific documents for your university's exams

Docsity AINEW

Summarize your documents, ask them questions, convert them into quizzes and concept maps

Explore questions

Clear up your doubts by reading the answers to questions asked by your fellow students

Earn points to download

Earn points by helping other students or get them with a premium plan

Share documents
download point icon20 Points

For each uploaded document

Answer questions
download point icon5 Points

For each given answer (max 1 per day)

All the ways to get free points
Get points immediately

Choose a premium plan with all the points you need

Study Opportunities

Choose your next study program

Get in touch with the best universities in the world. Search through thousands of universities and official partners

Community

Ask the community

Ask the community for help and clear up your study doubts

Free resources

Our save-the-student-ebooks!

Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors

Constitutional Law Outline, Study notes of Law

University of Florida (UF)Law

University of Florida (UF) Levin College of Law notes and outlines. Law school course outlines.

Typology: Study notes

2011/2012

Uploaded on 02/20/2012

ealpert
ealpert 🇺🇸

4.5

(8)

32 documents

1 / 43

Toggle sidebar

This page cannot be seen from the preview

Don't miss anything!

bg1
P a g e | 1
Constitutional Law Outline
Professor Mazur, Spring 2010
I. Constitutional Interpretation
A. Constitutional Interpretation Overview:
I. Methods of Interpretation
1. Textual - Power of argument derived from the actual words of the Constitution
2. Structural Analysis - arguments based on the interrelations between the various institutions of government
guiding interpretation
3. Original Understanding - argument based on framers’ original intent and the history of the founding
4. Precedent, Common Law Development - based on court’s previous interpretation of the Constitution
5. Pragmatism – looking at issues in a practical current way
6. Moral and Ethical Values
II. What does the constitution do?
1. Structure of federal government
a. Procedures how government will operate
2. Defines and limits powers of new federal government
3. Divides powers between federal and state governments
4. Divides powers among three branches of the newly created federal government
5. Protects certain rights of individuals
III. Supremacy Clause - Article 6 clause 2 “shall be the supreme law of the land; and judges in every state shall be
bound thereby, any Thing in the constitution or laws of any state to the contrary notwithstanding.”
B. District of Columbia v. Heller
I. Issue: Heller is raising a claim that DC’s ban on having a handgun at home without being registered, and it is
impossible to register, is against his second amendment right
II. Who gives DC the authority to pass such a law?
1. From article 1 § 8 clause 17 of the Constitution. Because it is not a state it does not have state legislative
authority, it is a district therefore the clause in the Constitution to control
III. Methods of constitutional reasoning
1. Sentence structure of the amendment by breaking it down from the prefatory (introductory clause) and
operative clause
a. “A well regulated militia, being necessary to the security of a free state,” purpose clause not a clause of
express limitation
b. Operative clause - the court takes the meaning of each word as they were being used. Here they use
dictionaries from that time period, and look at other historical documents to see how the words were
customarily used
2. Structural Analysis – the court uses the rest of the Constitution to understand the general meaning of the
phrases that are used.
3. Original Understanding – looking at how the people in the time period in which it was written understood
the Second Amendment
a. You have to be careful when looking at state constitutions that come after because you don’t know exactly
what they were trying to get at. Were they saying it was a good idea, where they expanding on it, where
they saying no it should be all the people or just some of the people?
4. Constitutional Precedent/ Common Law development
a. One of the most important methods of arguing for a constitutional interpretation.
b. U.S. v. Miller – holding of Miller is that the government can ban sawed off shotguns and that does not
violate the 2nd amendment right because the gun is not in the scope of the military what the second
amendment was designed to protect.
pf3
pf4
pf5
pf8
pf9
pfa
pfd
pfe
pff
pf12
pf13
pf14
pf15
pf16
pf17
pf18
pf19
pf1a
pf1b
pf1c
pf1d
pf1e
pf1f
pf20
pf21
pf22
pf23
pf24
pf25
pf26
pf27
pf28
pf29
pf2a
pf2b

Partial preview of the text

Download Constitutional Law Outline and more Study notes Law in PDF only on Docsity!

Constitutional Law Outline Professor Mazur, Spring 2010 I. Constitutional Interpretation A. Constitutional Interpretation Overview: I. Methods of Interpretation

  1. Textual - Power of argument derived from the actual words of the Constitution
  2. Structural Analysis - arguments based on the interrelations between the various institutions of government guiding interpretation
  3. Original Understanding - argument based on framers’ original intent and the history of the founding
  4. Precedent, Common Law Development - based on court’s previous interpretation of the Constitution
  5. Pragmatism – looking at issues in a practical current way
  6. Moral and Ethical Values II. What does the constitution do?
  7. Structure of federal government a. Procedures how government will operate
  8. Defines and limits powers of new federal government
  9. Divides powers between federal and state governments
  10. Divides powers among three branches of the newly created federal government
  11. Protects certain rights of individuals III. Supremacy Clause - Article 6 clause 2 “shall be the supreme law of the land; and judges in every state shall be bound thereby, any Thing in the constitution or laws of any state to the contrary notwithstanding.” B. District of Columbia v. Heller I. Issue : Heller is raising a claim that DC’s ban on having a handgun at home without being registered, and it is impossible to register, is against his second amendment right II. Who gives DC the authority to pass such a law?
  12. From article 1 § 8 clause 17 of the Constitution. Because it is not a state it does not have state legislative authority, it is a district therefore the clause in the Constitution to control III. Methods of constitutional reasoning
  13. Sentence structure of the amendment by breaking it down from the prefatory (introductory clause) and operative clause a. “A well regulated militia, being necessary to the security of a free state,” purpose clause not a clause of express limitation b. Operative clause - the court takes the meaning of each word as they were being used. Here they use dictionaries from that time period, and look at other historical documents to see how the words were customarily used
  14. Structural Analysis – the court uses the rest of the Constitution to understand the general meaning of the phrases that are used.
  15. Original Understanding – looking at how the people in the time period in which it was written understood the Second Amendment a. You have to be careful when looking at state constitutions that come after because you don’t know exactly what they were trying to get at. Were they saying it was a good idea, where they expanding on it, where they saying no it should be all the people or just some of the people?
  16. Constitutional Precedent/ Common Law development a. One of the most important methods of arguing for a constitutional interpretation. b. U.S. v. Miller – holding of Miller is that the government can ban sawed off shotguns and that does not violate the 2nd^ amendment right because the gun is not in the scope of the military what the second amendment was designed to protect.
  1. Pragmatism - Preamble to the constitution makes it clear that the drafters were motivated by a sense of the way people should live in a moral and ethical way. Moral and ethical content should reform the way we read the constitution IV. Holding: “We hold that the district’s ban on handgun possession in the home violates the 2nd^ amendment, as does it prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self- defense.” The 2nd^ amendment protects individual’s right to bear arms for handguns V. Dissent:
  2. Stevens : Original standing for the militia and now we don’t need the militia we don’t need guns. Must be a reasonable relationship to a well regulated militia. Stevens would also stick to the precedent of Miller
  3. Breyer : Pragmatic approach saying that our society today is different than it was back then and we no longer need and value guns. Uses an interest balance analysis which rational basis standard. This requires a court to uphold regulation so long as it bears a rational relationship to a legitimate governmental purpose. Allowing time, place, manner restrictions Level Strict Scrutiny Intermediate Scrutiny Rational Basis Burden State State Challenger Standard Necessary to achieve a compelling interest Substantially related to a legitimate government purpose (important) Rationally related to a legitimate government purpose Trigger Race, National Origin, Alien status Non-marital Children, Gender Anything other than the aforementioned Degree Narrowly Tailored Less narrowly tailored Even less II. Judicial Review – the power to declare a law unconstitutional A. Marbury v. Madison - “ it is emphatically the province and duty of the judicial department to say what the law is” I. Facts: established the authority of the judiciary to review the constitutionality of executive and legislative acts. II. Marshall held the court did not have jurisdiction to hear the case because Congress cannot expand the court’s original jurisdiction beyond Art. III. III. Grants the power to the court of judicial review IV. Section 13 of the judiciary act
  4. Interpretation 1- grants power to the Supreme Court to issue such a writ when it hears the case in appellate capacity. If you interpret the statute that congress passed that awards authority of ordering writs of mandamus in an appellate capacity then this is perfectly under their power a. The court has no jurisdiction to hear the claim originally however the court does not use this interpretation
  5. Interpretation 2 – the courts says that this act interprets this statute as ordering a writ of Mandamus as original jurisdiction to the supreme court. This is beyond congresses authority to do. Article 3 assigns a very specific and limited array of cases to the supreme courts jurisdiction and congress does not have authority to add more cases to that. It cannot be expanded. a. “it is emphatically the province and duty of the judicial department to say what the law is” V. Arguments for judicial review :
  6. Constitution imposes limits on government powers and limits are meaningless unless subject to review because someone has to police them.
  7. Checks and balances
  8. Inherent to the judicial role to decide the constitutionality of the laws, they are experts
  9. Protect against tyranny of the majority

E. Three questions in commerce clause analysis : I. What is commerce?

  1. One view that it is just one stage of business,
  2. Another view that it includes all aspects of business or even life in the US II. What does “among the several states” mean?
  3. One view that it means where there is a direct effect on interstate commerce
  4. another that any effect on interstate commerce will suffice III. Does the 10th^ amendment limit Congress’s commerce power?
  5. One view - 10th^ amendment is not constraint on Congress, rather a reminder that Congress can only legislate if it has the authority under the Constitution…thus a fed law will never be invalidated for exceeding the scope of Congress’s power under Article 1 of the Constitution.
  6. Other view - 10th^ protects state sovereignty from FEDS intrusion, thus a key protection of states rights and federalism. Reserving a “zone of autonomy” to the states, certain activity under their exclusive control F. Three Eras in the Commerce Clause I. Up until 1937 I. 1939- II. 1995 - present
  7. Narrowed the scope of the power and reiterated 10th^ as a limit G. Era 1 of Commerce Clause – Pre 1890 I. Gibbons v. Ogden - “Commerce is commercial intercourse and without navigation it would fail.”
  8. Facts: NY legislature granted a monopoly for operating steamboats in NY waters. Gibbons operated a competing ferry service in violation of state granted monopoly, but asserted that he had the right to operate his ferry because it was licensed under federal law.
  9. Holding: Supreme Court overruled state court decision against Gibbons. NY monopoly was preempted by federal law, and the NY monopoly was an impermissible restriction on interstate commerce. a. If commerce does not include navigation, the government of the US has no direct power over that subject and can make no law prescribing what shall constitute American vessels or requiring that they shall be navigated by American seamen. b. Commerce Defined – Describes the commercial intercourse between nations and parts of nations. Includes all phases of business, including transportation c. “Among the states” – means intermingled with. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior i. Some intrastate activity could be regulated by Congress if it impacted more than one state. Only completely internal commerce may be considered as reserved for the state. d. Art. 1 § 9 clause 6. Limits regulating ports and vessels in the way they have it but it implies that the framers believed the constitution gave the federal government the ability to regulate navigation. H. Era 2 of Commerce Clause - 1937- I. NLRB v Jones & Laughlin Steel Corp (1937)
  10. Facts: Challenge to the National Labor Relations Act, which created a right of employees for collective bargaining, prohibited unfair labor practices, and established a board to enforce the law. Law contained detailed findings on the relationship between labor and commerce.
  11. Holding: Supreme Court upheld act under the commerce clause. Explained how J & L are part of interstate commerce – company located in a number of states and industry employed thousands. a. In the law they try and protect union workers by anything affecting congress. The term affecting commerce means in commerce or burdening or obstructing commerce or the free flow of commerce or having left or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce II. United States v. Darby (1941)
  12. Facts: this is a challenge to Fir Labor Standards Act of 1938, which prohibited the shipment in interstate commerce goods made by employees who were paid less than minimum wage.
  1. Holding: The court upheld the act stated that Congress, under its plenary power conferred by commerce clause, may control production by regulating shipments in interstate commerce
  2. Putting the goods in interstate commerce is the hammer that allows the court to regulate
  3. Even though this ships in interstate, imposing a fair playing field has to start with the production because production is where law wages will give a company an unfair advantage to keep the prices low. III. Wickard v. Fillburn – 1942 – rational basis test for interstate commerce
  4. Facts: Challenged to Agricultural Adjustment Act. Under the act, secretary of agriculture set a quota for wheat production and each farmer was given an allotment. Filburn grew excess wheat for home consumption and to feed his livestock. Claimed federal law could not constitutionally apply to him because the wheat he grew was not part of interstate commerce.
  5. Holding: Court upheld application of federal law and ruled against Fillburn because home grown wheat cumulatively effects would be felt in the interstate market. Fillburn’s contribution to the market, taken together with others similarly situated made it not as trivial a. Court rules that it doesn’t matter that it is indirect on the effect of interstate commerce. The amount or degree of your effect is irrelevant if you add the aggregate together it would influence interstate commerce. Cumulative effect. IV. Test for Interstate Commerce Clause to this point
  6. Congress could regulate any activity if there was a substantial effect on interstate commerce. Supreme Court looked at cumulative effect of activity, not individual impact
  7. Some cases even delete “substantial,” and only required a rational basis for believing that there was an effect on commerce. Invalidated only if it’s clear that there is no rational basis for the finding that regulated activity affects interstate commerce, or that there is no reasonable connection between the regulation and its ends.
  8. Heart of Atlanta Motel Inc. v. United States – 1964 a. Facts: Motel, which had a policy of refusing accommodation to blacks, was located in downtown Atlanta, and about 75% of its registered guests from out-of-state. Challenged the constitutionality of Title II of the Civil Rights Act of 1964 which prohibited discrimination by places of public accommodation. b. Holding: Supreme Court upheld law under commerce clause. There was a two question analysis: i. Did congress have a rational basis for finding that racial discrimination affected commerce? ii. Were the means Congress selected to eliminate that evil reasonable and appropriate?  There was overwhelming evidence that racism impedes interstate commerce.
  9. Katzenback v. McClung – 1964 a. Companion case to Hear of Atlanta, and the court upheld applicability of Act to small, family owned restaurant in Birmingham. b. Holding: The court stated that Congress rationally believed the cumulative effects of discrimination in restaurants negatively impacted interstate commerce I. Era 3 Commerce Clause in the Present Day (1995 – Present) I. United States v. Lopez - 1995
  10. Facts: Kid brought a gun to school and was arrested under the federal law of a gun free school zone which does not allow anyone to bring a gun on campus or within 1000 ft.
  11. Holding: The act exceeds the authority of congress. To allow it would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that they never will be a distinction between what is truly national and what is truly local. This we are unwilling to do. a. This statute was missing a jurisdictional hook. There was nothing in the statute to know that Congress was thinking about commerce or anything else for that matter when they wrote the law. b. Siding with Congress on this statute would give them an enormous amount of police power and could relate anything back to commerce to justify their actions.
  12. Three broad categories of activity that congress may regulate under commerce clause : a. Congress may regulate the use of the channels of interstate commerce b. Congress is empowered to regulate and protect the instrumentalities of interstate commerce , or persons or things in interstate commerce, even though the threat may come only from intrastate activities
  1. Holding: “we conclude that while Congress has substantial power under the Constitution to encourage States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon congress the ability simply to compel the States to do so a. that (a) monetary incentives constituted permissible exercises of congressional power under the Commerce, Taxing, and Spending Clauses of the Constitution; (b) access incentives represented permissible conditional exercise of Congress' commerce power; but (c) the take title clause exceeded the constitution
  2. “ Take title” provision a. Congress can choose to regulate directly and displace any inconsistent state law under the supremacy clause and they chose not to do it. However, they chose to make the state regulate and the court says that’s not an option that you have. Congress cannot make the state an actor in their regulatory scheme b. The states are not sub-divisions or political municipalities of the federal government. They are different sovereigns and can only be regulated by the federal government by way that the constitution allows.
  3. The 10th^ Amendment does not prevent the federal government from commandeering the state judiciary because they are sworn to uphold the Constitution and the Constitution is the supreme law of the land.

V. Printz v. United States – “ Such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

  1. Facts: Congress established the Brady act to requires the attorney general to do background checks on gun purchases. Until it is able to be established, Congress mandated state and local law enforcement personnel must do background checks before issuing permit for firearms.
  2. Holding: “The Federal Government may not compel the States to enact or administer a federal regulatory program.” “We hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those in their political subdivision, to administer or enforce a federal regulatory program. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” a. US Congress could have directly regulated the gun sellers by making them do the background check or they could have made the government purchasers apply directly to the federal government. J. The Taxing and Spending Power I. Art 1 § 8 “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
  3. Court adopted the approach the Congress has the broad authority to tax and spend for the general welfare (U.S. v. Butler) II. Unites States v. Butler – Congress has broad power to tax and spend
  4. Facts: Agriculture Adjustment act declared that because of a crisis in agricultural production, the government can set limits on production of certain crops and impose taxes on production in excess of these limits
  5. Holding: Held unconstitutional on the ground that it violated 10th^ amendment because the regulation of production was left to the states. This part of holding not followed. Discussion of the scope of the taxing and spending powers remains good law. a. Congress could tax and spend for any purpose in promotion of the general welfare, as long it didn’t violate any other provision of the Constitution. Separate power distinct from other enumerated powers. III. Sabri v. United States
  6. The court unanimously upheld the constitutionality of a federal law which prohibits bribery of state, local, and tribal officials of entities that receive at least $10,000 in federal funds.
  7. Argument was that Congress could only prohibit bribery as to those state, local and tribal activities that actually got federal money. Court rejected this argument “Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar for dollar value.”
  8. Congress has the “power to bring federal power to bear directly on individuals who convert public spending into unearned private gain, not a means for bringing federal economic might to bear on a State’s own choice of public policy.”

IV. Conditions on Grants to State Governments

  1. The Court has held that Congress may place strings on such grants, so long as the conditions are expressly stated and so long as they have a relationship to the purpose of the spending program
  2. South Dakota v. Dole a. Facts: Congress enacted a statute which directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise allocable from states “in which the purchase or public possession…of any alcoholic beverage by a person who is less than twenty-one years of age is lawful b. Four requirements for exercise of spending power to be constitutional: i. Must be in pursuit of general welfare. ii. If Congress desires to condition the receipt of federal funds, it must do so unambiguously. iii. Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs. iv. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds.  Unless the percentage withheld is do much where it would force the states to do what Congress wanted. There is no exact measure so it leaves the question as to what is too much? c. Law served the general welfare because drinking ages in different states created incentives for young people to combine drinking and driving. d. Conditional grant was only 5% of funds otherwise obtainable, the prerogative of the state was preserved not just in theory but in fact. e. Constitutional even if Congress might lack the power to impose a national minimum drinking age directly. K. Dormant Commerce Clause – Foundation from Gibbons v. Ogden I. The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. There is no constitutional provision that expressly declares that states may not burden interstate commerce. Rather, the Supreme Court has inferred this from the grant of power to Congress in Article 1 § 8, to regulate commerce among the states II. If congress has legislated
  3. The question is whether the federal law preempts the state or local law. a. Even if Congress has not acted or no preemption is found, the state or local law can be challenged on the ground that it excessively burdens commerce among the states. III. The Central Question : Is the State Discriminating Against Out-of-Staters?
  4. State laws that discriminate are rarely upheld, which nondiscriminatory laws are infrequently invalidated. IV. Facially Discriminatory Laws
  5. City of Philadelphia v. New Jersey - “All objects of interstate trade merit Commerce Clause protection.” a. Facts: New Jersey law that effectively kept landfills in the state exclusively for NJ’s use by preventing the importation of any wastes from out of state. There is without a doubt there is a real health and safety concern here which is why they enacted this legislation. There was a NJ company that had an agreement with the city of Philadelphia to use their landfill. Accepting and disposing of trash for money. b. Holding: Just as congress has power to regulate the interstate movement of these wastes, states are not free from constitutional scrutiny when they restrict that movement. The commerce clause will protect NJ in the future, just as it protects her neighbors now, from efforts by one state to isolate itself in the stream of interstate commerce from a problem shared by all i. The law makes a facial bias towards instate trash over out of state trash and the Court says it does not matter what their purpose was, it is irrelevant. ii. These laws will be invalidated unless the state identifies a valid purpose that cannot be achieved in a less discriminatory way
  6. Hughes v. Oklahoma “Do the minnows know?” – Strictest Scrutiny a. Facts: Oklahoma statute provides that “[n]o person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state…” The state believes that its

a. If YES: Invalid, except if strictest scrutiny has no alternative i. In almost all instances the law will be invalid b. If NO: Balancing health/safety against burden on interstate commerce i. How much a burden is too much? What is the baseline

  1. Congress can approve of policy decisions that we would not allow the states to do themselves. They, under the power of the commerce clause, can enact discriminatory laws because they have the power to regulate interstate commerce.
  2. Congress is supposed to be in a better position to make a legislation that is beneficial for everyone. They are represented by people from every state and states who matter have a say in the issue. VIII. Exceptions to the Dormant Commerce Clause
  3. If Congress approves state law; or
  4. Market Participant exception a. Allows states to favor their own citizens in receiving benefits from government programs and in dealing with government-owned businesses. IV. The Privileges and Immunities Clause of Article IV, § 2 Clause 1 & 14th^ Amendment. A. Privileges and Immunities Overview I. “ The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States ”
  5. The Supreme Court has interpreted this provision as limiting the ability of a state to discriminate against out- of-staters with regard to fundamental rights or important economic activities II. Most cases under the Privileges and Immunities Clause involve challenges to state and local laws that discriminate against out-of-staters with regard to their ability to earn a livelihood
  6. Such discrimination will be allowed only if it is substantially related to achieving a substantial state interest III. The Supreme Court has long held that the term “citizen” in the Privileges and Immunities Clause is limited to individuals who are Unites States Citizens
  7. Corporations and aliens cannot sue because by definition they are not citizens under Privileges and Immunities Clause. IV. The Dormant Commerce Clause and the Privileges and Immunities Clause overlap and can both be used to challenge state and local laws that discriminate against out of staters.
  8. Differences between Dormant Commerce Clause (“DCC”) and Privileges and Immunities Clause (PIC) a. The PIC can be used only if there is discrimination against out-of-staters. The DCC can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of staters b. Corporations and aliens can sue under DCC but not PIC c. There are two exceptions to the DCC that do not apply to the PIC i. If Congress approves state laws, the do not violate the DCC ii. There is a market participant exception to the DCC that allows states to favor their own citizens in receiving benefits from government programs and in dealing with government-owned businesses. B. Analysis Under the Privileges and Immunities Clause I. Two basic questions:
  9. Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords to its own citizens?
  10. If there is such discrimination, is there a sufficient justification for the discrimination? a. The clause is not absolute, but it creates a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental rights or important economic activity. II. What are the Privileges and Immunities of Citizenship?
  11. Has to be sufficiently fundamental to the promotion of interstate harmony
  12. The rights enumerated in the Bill of Rights seem are the most obvious. If a state were to prevent out of staters from engaging in religious worship, a challenge certainly could be brought under the clause.
  1. Test standard principal rule that the court sets out to determine whether the privileges and immunities doctrine has been violated. a. Whether state law has discriminated against the citizens of another state? i. If YES: What is a privileges and immunity  Civil liberties – constitutional rights (fundamental rights)  Important economic activity ii. If YES to both : is there a substantial reason for the justification and is it closely related or serving that reason. Sufficient Justification for discrimination
  2. Toomer v. Witsell a. Facts: South Carolina Code requires payment of a license fee of $25 for each shrimp boat owned by a resident, and of $2,500 for each one owned by a non-resident b. Holding: the statute plainly and frankly discriminates against non-residents, and the record leaves little doubt but what the discrimination is so great that its practical effect virtually exclusionary. Unless there is something to indicate that non-citizens constitute a peculiar source of evil at which the state is aimed it is unconstitutional, which this one is. i. “It was long ago decided that one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.”
  3. United Building & Construction Trades Council of Camden County v. Mayor & Council of Camden a. Facts: City of Camden requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. b. Holding: The court concludes that Camden’s ordinance is not immune from constitutional review at the behest of out of state resident merely because some instate residents are similarly disadvantaged. It would not be appropriate for this Court either to make factual determinations as an initial matter or to take judicial notice of Camden’s decay. The court deemed it wise to remand the case to the NJ Supreme Court to decide whether consistent with state procedure, on the best method for making the necessary findings. III. What Justifications are sufficient to Permit Discrimination
  4. Supreme Court of New Hampshire v. Kathryn A. Piper – Strict Scrutiny a. Facts: New Hampshire Bar limits bar admission to state residents. Piper lives 400 yards from the New Hampshire border and passed the bar exam but she would have to establish a home in New Hampshire prior to being sworn in. b. Holding: Appellant neither advances a substantial reason for its discrimination against nonresident applicants to the bar, nor demonstrates that the discrimination practiced bears a close relationship to its proffered objectives i. Rational basis review- could the legislature rationally believe that this distinction between in and out of states would advance these issues ii. Rational basis is enough in some standards for other types of cases but here this is not a rational basis case. This is a significant scrutiny kind of case without doing research V. The Executive Power A. Express and Inherent Presidential Powers I. Inherent Presidential Power
  5. Article 2 “The executive Power shall be vested in a President of the United States of America.”
  6. Youngstown Sheet & Tube Co. v. Sawyer a. Facts: in early 1952, the United Steelworkers Union announced a planned nationwide strike as a result of labor management dispute. A few hours before the strike was to being, President Truman issued Executive Order which directed the secretary of commerce to take possession of the steel mills and to keep them running
  1. Is it a formal “We declare war”
  2. Somewhat less formal – authorization for use of military forces
  3. Least formal – spending and funding a war IV. Back in the Founders time
  4. There was no standing army so if you were going to wage war there was a deliberate process of raising an army. Reality back then was slow and deliberate, and the president did not have the ability to pick up the phone and conduct a war or start a war.
  5. Now how should we think about the constitutional powers in a modern context. Modern reality with technology and standing army and a military presences around the world. V. Is the wars power resolution constitutional?
  6. Part of it is taken from the necessary and proper clause.
  7. It also makes the president consult with congress before and regularly throughout the war. a. also has to report to congress and terminate the use of troops within 60 days of introducing them if congress hasn’t declared war or extended it by law or specific authorization b. currently there are 2 statutes that authorize the use of military force for post 9-11 and the war in Iraq
  8. Congress is trying to assert its constitutionality for asserting war and regulating the president. How does it work with a commander in chief and a body that declares war. They are trying to define it
  9. These questions have never been answered by the Supreme Court because it is a very political question. “given the courts view that such foreign policy disputes constitute a political question, answers are unlikely to come from the judiciary” a. They are not talking about just politics; its talking about cases for some reason the court believes it is not appropriate for judicial resolution. The Supreme Court consistently has stepped away from the shared powers of the US congress and president with the power of war and how they overlap and separate. i. Could be possible that they do this because they do not want to take on 2 branches of government at one time and with their decision effecting one of them, getting their powers limited.
  10. Who would have standing to bring a case that says the president has overstepped his bounds by waging a war unauthorized by congress? Unanswered question. C. Executive Privilege I. The ability of the president to keep secret conversations with or memoranda to or from advisors. II. The Constitution does not mention such authority, but presidents have claimed it throughout American history
  11. Necessary in order for presidents to receive candid advice. “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process” U.S. v. Nixon
  12. Also important to protect national security; diplomacy is regarded as requiring security. III. United States v. Richard M. Nixon, President of the United States
  13. Facts: A subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. Nixon was named as an unindicted co-conspirator for obstruction of justice and conspiracy to defraud. (The tapes ended up showing that Nixon clearly had obstructed justice by ordering the FBI not to investigate the Watergate matter.
  14. Holding: First, the court held that it is the role of the court to decide whether the president has executive privilege and, if so, it's scope. Second , the court recognized the existence of executive privilege. It derives from the supremacy of each branch within its own assigned area of constitutional duties. Third , the court held that executive privilege is not absolute, but rather must yield when there are important countervailing interests. a. "The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III. The privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts."

b. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the court finds it difficult to accept the argument that even the very important interests in confidentiality of Presidential communications is significantly diminished by production of such material. c. Article I § 3 clause 1 Congress “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.” d. The Court leaves open to how it is used in the future where leaves the invitation to say it’s for national security but it also opens the door to the court being intrusive to looking into it. D. The Authority of Congress to Increase Executive Power I. William J. Clinton, President of the United States v. City of New York

  1. Facts: Line item veto gives the president the power to cancel in whole 1) any dollar amount of discretionary budget authority, 2) any item of new direct spending, or 3) any limited tax benefit. The cancelation must 1) reduce the Federal budget deficit, 2) not impair any essential Government functions, and 3) not harm the national interest.
  2. Holding: "We do not lightly conclude that their action was unauthorized by the Constitution. If there is to be a new procedure in which the President will play a different role in determining the final text of what 'becomes a law,' such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution." a. Article I § 7, cl. 2. "[If he approves it,] he shall sign it, but if not he shall return it, with the Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." b. "Our first President understood the text of the Presentment Clause as requiring that he either 'approve all the parts of a Bill, or reject it in toto.'"
  3. Kennedy Concurrence: "Liberty is always at stake when one or more of the branches seek to transgress the separation of powers."
  4. Breyer Dissent : With a population so much larger then when we first became a country it is impossible for congress to divide such a bill into thousands, or tens of thousands, of separate appropriations bill, each one of which the President would have to sign, or veto separately VI. The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties A. Overview I. Article I § 9, which places limits on Congress’s powers, declares that “the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it” also, “No Bill of Attainder or ex post facto Law shall be passed.” II. Article III § 2 states that “the trial of all Crimes, except in Cases of Impeachment, shall be by jury; and such Trials shall be held in the State where the said Crimes shall have been committed
  5. § 3 provides “Treason against the United States, shall consist only in levying War against them or, in adhering to their Enemies, giving them Aid and Comfort” III. Article VI concludes that “no religious test shall ever be required as a Qualification to any Office of public Trust under the United States” B. The Application of the Bill of Rights to the States I. Barron v. Mayor & City Council of Baltimore - (Book calls it a false start in the application)
  6. Facts: Barron sued the city for taking property without just compensation, violation of 5th^ Amendment. He contended that the City ruined his wharf by diverting streams, thereby made the water too shallow for boats.
  7. Issue : Whether the Takings Clause of the Fifth Amendment applied to the City
  8. Holding: “The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.” a. This was heavily criticized because the Amendment does not limit itself just to the Federal Government

b. Holding: “Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the 14th^ Amendment guarantees a right of jury trial in all criminal cases which – were they to be tried in a federal court – would come within the Sixth Amendment’s guarantee.” i. Test: 1) whether a right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions; 2) whether it is basic in our system of jurisprudence; 3) whether it is a fundamental right essential to a fair trial?

  1. Five Provisions of the Bill of Rights that never have been incorporated and do not apply to state and local governments. a. The Court has ruled that Second Amendment “right to bear arms” is not incorporated i. However, this will be reexamined because the Court found in Heller that the 2nd^ Amendment safeguards an individuals’ right to possess weapons b. The 3rd^ Amendment right to not have soldiers quartered in a person’s home never has been deemed incorporated. i. This is only because a case has never made it to the Supreme Court and if it did, the Court would likely find it to be incorporated c. The 5th^ Amendment’s right to a grand jury indictment in criminal cases. d. The 7th^ Amendment right to a jury trial in civil cases is not incorporated i. States can eliminate juries in some or all civil suits without violating the Constitution e. The Court has never ruled as to whether the prohibition of excessive fines in the 8th^ Amendment is incorporated E. The Application of the Bill of Rights and the Constitution to Private Conduct I. Requirement of “state action.” Private conduct generally does not have to comply with the Constitution. II. The Civil Rights Cases: United States v. Stanley
  2. The Court declared the Civil Rights Act unconstitutional for prohibiting private racial discrimination. Court ruled that the 14th^ Amendment applies just to state and local government actions, that private action was governed by state law and not by the U.S. Constitution. “Federal Constitutional rights do not govern the individual behavior and Congress lacks the authority to apply them to private conduct.” This is all unless they are sanctioned or authorized by the state. It is not within their section 5 authority under the 14th. III. Exceptions to State Action
  3. “ Public functions exception ” – private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government.
  4. “ Entanglement exception ” – private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct IV. Notes on State Action a. Since the 1960s, the Court has applied a much narrower definition of state action. The Court has been much more likely to apply the exceptions in cases involving racial discrimination than in cases involving other constitutional claims b. The adoption of the Civil Rights Act of 1964, which prohibited private discrimination by places of public accommodation and private employers, greatly lessened the need for constitutional litigation V. The Public Functions Exception:
  5. Marsh v. Alabama a. Facts: Δ was convicted of trespass after having been warned not to do so after she refused to leave a sidewalk in a town where she was handing out religious literature. The town had a business section with shops and sidewalks as well as residential neighborhoods. There was nothing in its appearance to distinguish the town from any other town, except that the title to the town property belonged to a private corporation. Δ claimed that the imposition of criminal punishment on her for distributing religious literature on the premises of a company-owned town violated the 1st^ and 14th^ Amendment b. Holding: Declared that a privately held town is not like a private homeowners, and by opening up the property substantially to the public, the more the property owner’s rights become more limited by the

constitutional rights of those using it. Running the city is a public function and the private town as stepped into the shoes of the state i. Used a balancing test and looks to whether the private property is used for a public purpose

  1. Jackson v. Metropolitan Edison Co. a. Much more narrow holding than Marsh. Court declared there is state action “in the exercise by a private entity of powers traditionally exclusively reserved for the State.” Held that a private utility company did not have to provide Due Process before it terminated a customer’s service. Plaintiff asserted that a private utility, with a state granted monopoly, performed a public function and should also have to provide due process. i. Court held that there was not a sufficiently close nexus b/w the state and the utility’s action, not traditionally associated with the sovereignty , not all business actions affecting the public interest are state interests. ii. The Dissent noted the broad interaction b/w the state and the utility, that they should be recognized as “joint participants” iii. Focuses on whether it is an activity that has been traditionally, exclusively done by the government
  2. Evans v. Newton a. Facts: The testator's will provided for a tract of land to be held in trust to be used as a segregated park. The trust's board of managers brought a suit against the city and the trustees of the residuary beneficiaries. The board of managers sought to enforce the racial limitations of the will. The state supreme court held that the testator had a right to leave his property to a limited class of beneficiaries and that charitable trusts were subject to the supervision of an equity court, which could appoint new trustees to avoid failure of the trust. b. Holding: Under the circumstances of the case, the public character of the park required that it be treated as a public institution subject to the command of the 14 th^ Amendment, regardless of who had title under state law. The tradition of municipal control of the park was firmly established; therefore, the Court could not take judicial notice that mere substitution of trustees instantly transferred the park from the public to the private sector. VI. The Entanglement Exception
  3. Shelley v. Kraemer a. Facts: Suits to enforce restrictive covenants in deeds of residential property whereby the owners agreed that the property could only be sold to someone who is white. b. Holding: The court reversed the state courts' decisions upholding the covenants because, in granting judicial enforcement of the covenants, the states denied petitioners the equal protection of the laws. Although there was no state statute regulating the matter, there was nonetheless state action within the meaning of the 14th^ Amendment. This was a denial of equal protection i. A private action can turn into state action when the courts step in to decide the controversy. To get something to be state action all you need to do is try and bring a suit.
  4. Edmonson v. Leesville Concrete Co. (Pg 573) a. Facts: During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Edmonson, who is black, requested the District Court to require Leesville to articulate a race-neutral explanation. The District Court denied the request and empanelled a jury of 11 white persons and 1 black person b. Courts Test : “Our precedents establish that, in determining whether a particular action or course of conduct is government in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, whether the actor is performing a traditional governmental function, and whether the injury caused is aggravated in a unique way by the incidents of governmental authority” c. Holding: “the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action. It cannot be disputed that, without the overt, significant participation of the
  1. POST 1937 : Court adopts a policy of great deference to government economic regulations. Freedom of K no longer protected under liberty of the DPC. III. Questions to ask:
  2. What is the appropriate degree of judicial protection of economic liberties?
  3. How important are the rights of property and contracting?
  4. What was the framers intent concerning these rights?
  5. Does the legislature have a special expertise that would justify a greater degree of judicial deference compared to when the Court deals with political and civil liberties?
  6. What, if anything, was wrong with Lochner era decisions?
  7. Post-1937 deference to government inappropriate? B. Lochner Era I. Lochner v. New York
  8. The Court declared unconstitutional a NY law that set a maximum hours that bakers could work. The NY law provided that no employee shall “work in a biscuit, bread or cake bakery or confectionery establishment more than 60 hours in any one week, or more than 10 hours in any one day.”
  9. Holding: The law violates the due process clause of the 14th^ Amendment because it interfered with freedom to contract and because it did not serve a valid police purpose. The court rejected the argument that the maximum hours law served a police purpose. The Court emphasized that limiting hours of work for bakers had no relationship to public health. “Clean and wholesome break does not depend upon whether the baker works but 10 hours per day or only 60 hours per week” a. Freedom of contract is a basic right protected as liberty and property rights under the due process clause i. “The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment.... The right to purchase or sell labor is part of the liberty protected by this amendment.” b. The government could interfere with freedom of contract to serve a valid police purpose: public safety, public health, or public morals. c. It was the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that is served a police purpose II. Cases Following Lochner
  10. Three themes that were followed until 1937 a. Freedom of contract was a right protected by the due process clauses of the 5th^ and 14th^ Amendments b. The government could interfere with freedom to contract only to serve a valid police purpose of protecting public health, public safety, or public morals c. The judiciary would carefully scrutinize legislation to ensure that it truly served such a police purpose
  11. Estimated that almost 200 state laws were declared unconstitutional after Lochner
  12. Muller v. Oregon – Female maximum hours law a. Facts: Oregon legislature passed an act that state no female shall be employed in any mechanical establishment or factory, or laundry in this state more than 10 hours during any one day. b. Holding: the Court upheld the hours law for woman because there was “widespread belief that women’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.” The court said that regulating the hours worked by woman was justified because of “women’s physical structure and the performance of maternal functions i. “Brandeis Brief: - Louis Brandeis wrote a 113-page brief purporting to document that women’s reproductive health required limited nondomestic work
  13. Adkins v. Children’s Hospital a. Facts: Appellant sought review of a lower court's determination that the Act which fixed minimum wages for female employees in private employment, was an unconstitutional interference with the freedom to contract. b. Holding: The Act interfered with 5th^ Amendment guaranties, as the Act prevented private employers and employees from bargaining for the best contractual terms. The Court also held that the wage fixed by the

Act had no relation to the capacity of female employees but, rather, was an invalid exercise of state police power by attempting to establish an arbitrary amount necessary to provide a living for women. Further, the Act required an employer to make an arbitrary payment to female employees without any causal connection to his business or the type of work the employee performed. C. Economic Substantive Due Process Since 1937 I. Enormous pressures were mounting for the court to abandon the laissez-faire philosophy of the Lochner Era. II. Legal realist attached the premise that the freedom of contract and related property rights were part of the natural liberties and argued that the law reflected political choices III. The end of Lochnerism

  1. West Coast Hotel Co. v. Parrish a. The Court upheld a state law that required a minimum wage for women employees and expressly overruled Adkins. Court made it clear that it was abandoning the principles of Lochner. It notes that the minimum wage law was challenged as interfering with the freedom of contract and he Justice Hughes replied "what is this freedom of contract? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law.... [R]egulation which is reasonable in relation to its subject and is adopted in the interests of community is due process." i. The court was emphatic that the government was not limited to regulating only to advance the public safety, public health, or public morals. ii. The court declared that it would no longer protect freedom to contract as a fundamental right, that government could regulate any legitimate purpose, and that the judiciary would defer to the legislature's choices so long as they were reasonable
  2. United States v. Carolene Products Co. – famous footnote 4 case. Discrete and insular minorities a. The Court upheld the Filled Milk Act of 1923 that prohibited "filled milk," a substance obtained by mixing milk and vegetable oil. b. Economic regulations should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved that it was the legislature's actual intent. "The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless…" there is no rational basis. i. Footnote 4 : Double standard of review. Generally, the Court would defer to the government and uphold laws so long as they were reasonable. But deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities.  The court generally would presume that laws are constitutional. However, this deference would be replaced by a "more searching judicial inquiry" when it is a law that interferes with individual rights, or a law that restricts the ability of the political process to repeal undesirable legislation, or a law that discriminates against a " discrete and insular minority ."
  3. Williamson v. Lee Optical of Oklahoma, Inc. a. Facts: The optician sought to have OK. Stat. declared unconstitutional because the effect was to forbid an optician from fitting or duplicating lenses without a prescription from an optometrist. In practical effect, it meant that no optician could fit old glasses into new frames or supply a lens without a prescription. b. Holding: Although the law might have exacted a needless, wasteful requirement in many cases, it was for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. i. Court very differentially accepts the legislature’s judgment helps under a rational basis standard ii. All the government has to show is that there is some conceivable purpose VIII. Equal Protection A. Introduction I. 14th Amendment "No state shall…deny to any person within its jurisdiction the equal protection of the laws." II. Equal protection rarely was found by the Court until the mid 1950s where it was referred to as "the last resort of constitutional arguments."