-Wanted the scope of the national government to be so large that no one faction would ever be capable of dominating it.

-large, powerful Congress

-Bicameral House

-Congress court veto laws made by state leg

-Congress would elect Pres.

-nat'l militia could act against member states

-Lost steam

9 Resolutions framed as amendments to Art. of Confed.

Unicameral leg, each state w/ 1 vote. 

Bicameral legislature: one proportional, one equal house.

Compromised CA and NJ Plan

-individual liberties (feared that w/o bill of rights, nat'l govt would abuse liberties of people

-too hard to amend

-thought Pres. would be a King

-Centralization of power

-feared harsh taxes

-loss of militia

Marbury v. Madison

Background

abolished the 16 circuit judgeships created by Adams

One of the "Midnight Judges"

-Wants writ of mandamus to force new Sec of State (Madison) to deliver his commission

-does Marbury have a right to his commission?

-If so and it's been violated, does he have a remedy?

-Is that remedy the writ of mandamus? (*Jurisdictional ?s should be asked 1st)

Marbury v. Madison

Holding

Said writ of mandamus couldn't come from Sup Ct b/c would only under appellate jurisdiction. Can only when orig. juris.

*Wrong

1. Constitutional explicit

2. Const'l implicit

3. Const'l Structure

4. Const'l Policy

5. Public Policy

Barron v. Baltimore

(Barron owned Fell's Point. City takes road and dirt spilt into water. Barron said Taking under 5th Amdt)

Significance: dealt w/ BOR in structural way for 1st time

Holding: The provision of the 5th Amdt declaring private property shall not be taken for public use w/o just comp'n is intended only as a limit on the power of the federal govt, not state govts

Reasoning: Original intent argument, Const'n says what applies to states

Incorporation Controversy

Who tried to rescind their vote to ratify the 14th Amdt?

OH and NJ

-attempted rescission ignored

-still unsolved on whether a state can rescind vote

spawned nat'l protection of wide range of individual rights, both procedural and subst'v

All 3 had enforcement clauses

P&I

Due Process

Equal Protection

Field: all fundamental liberties should be included

Binghams: 1st 8 amdts should be included

Miller's (Used in slaughterhouse): restricted to ltd list in Const'n

Effect: now Due Process and Equal Prot'n have to be used for was P&I was for

Slaughter House Cases

(La created slaughter house monopoly. Butchers claimed it deprived them of 13th - invol'y servitude - and 14th P&I - right to pursue your calling/exercise your trade

Court held: law was okay b/c...

13th: involuntary servitude argument doesn't work b/c that applied to af-amer slavery only

14th EP: applied only to African Slavery

14th DP: DP is procedural still

14th P&I: narrowly interpretted to only rights listed in Const'n

Field's Dissent: if so, then surplusage

Saenz v. Roe

CA Law distinguished between new and old state residents in dist'n of welfare benefits

Holding: Invalidated the law

Reasoning: under Art IV sec 2, P&I

State's reason of trying to save money is not a justification

Justice Cardozo in Palko Case:

Ask if it's a fundamental principle of liberty and justice which lies at the base of our civil and political instn's. Or of the very essence of a scheme of ordered liberty. Incorporate if so

Establishment Clause

What was TJ's quote to Conn church? What did he mean?

"Wall of Separation", but churches can't be completely separate bc they are civic instn's (need fire services, police, zoning codes compliance)

Can be seen as statement of Federalism.

Lemon Test

What clause used for?

1. Must be for secular purpose

2. primary effect not to aid or inhibit religion

3. no excessive entanglement between govt and rel'n

(State Must satisfy Each)

Edwards v. Aguillard

La had "Balanced Treatment for creation-science and evol'n". Couldn't teach evol'n w/o teaching creation-science

-Addressed 1st prong of Lemon Test (Secular purpose)

-Law did not pass Lemon Test b/c was for primary purpose of advancing a particular rel. belief.

-Violated 1st Amdt

-Would also fail "Excessive entanglement" prong

-Scalia's Dissent: Should do away w/ "purpose" prong b/c you can't find/determine purpose. Can't find intent of Leg'n

McCreary Co v. ACLU of KY

Put up 10 Commandments in Courthouse

Holding: Violated 1st Amdt

Fails Endorsement Test

-Endorsement Test is mod'n to 2nd prong of Lemon Test

Van Orden v. Perry

Statue on govt property in TX that had 10 Commandments

Yes, of course they are religious but have great historical context. Did not violate 1st Amdt

-Historically, gave standards of social conduct, civic morality, those who founded TX used it.

-Dissent: Purely religious. Reasonable observer would know so

Everson v. Board of Edu

Publid Fin Aid to Religious Instit'ns

State paid for transportation of students to school, incl parochial schools. $$ was to go to parents, not directly to school

HOlding: Did not violated Est'ment Clause

If state gives program that is neutral to assisting private/public school, depends on parent's private choice where to send kids to school.

-Black: points out tension w/ Free Exercise Clause (denying buses b/c of religion)

-Key Decision Rule: broad # receiving same benefits

-Would be diff if $ went to schools.

-Dissent: school doesn't require it

Mueller v. Allen

MN allowed tax deduction for parents who pay for tuition, transportation, and textbooks for both public and private schools

Holding: Law upheld. Did not advance the secretarian aims of nonpublic schools

-Problem w/ lemon test: primary effect must be secular

-relieves public schools of education all students

-framer's intent...doesn't lead to their fears

-*Dependent on choice of private actors

-Dissent: directly leads to teaching of religion

Zelman v. Simmons-Harris

OH est'd a piolt program designed to provide edu'l choices to families w/ children who reside in the Cleveland School Dist.

Did it have the purpose of advancing/inhibiting religion?

-No... true private choice.

-Use Endorsement Test

Sante Fe Independent School Dist v. Doe

Student speaker to give msg or prayer chosen by election by student body, can be any msg to "solemnize" before the FB game. Student didn't have to choose a prayer

Coercion Test of Lee v. Weisman, where Rabbi couldn't give prayer before grad'n b/c you have to go to graduation.

-delivery of such a msg explicitly and implicitly encourages public prayer, not properly characterized as "private speech"

Newdow v. US (9th Cir)

Challenged "Under God" in pledge of allegiance. Newdow said school putting his daughter in coercive environment. 

Failed Lemon test: purpose of govt to propose monotheism

Failed Coercion test: places students in position of choosing religion or protesting. 

Fails Endorsement Test: sends msg that if you don't want to do it, you're an outsider

Dissent: dicta say pledge is const'l

Van Orden v. Perry 

Monument at TX state capitol w/ 10 commandments, one of many monuments

Not violation of Const' n

What case was on the same day?

McCreary Co --> 10 Cmdts on walls of cthouse w/ other monuments unconst'l

Problems w/ Est'ment Clause:

(3)

1. Many diff tests

2. Boundaries of what tests cover has been expanded

3. Too broad? Newdow?

Wisc v. Yoder

Yoders, amish, wanted to not be held to compulsory school attendance law that req'd them to make the children attend school until 16

-Amish: HS was poor education, against beliefs. Kids would be better served learning from cmty

-Holding: Unconst'l. State lacks compelling state interest. Argument that Amish were harming their children: children are free to leave Amish Cmty. 

-Used "compelling state" interest test. Not strict scrutiny, but similar

Employment Div of HR v. Smith

(Peyote)

Issue: Can state deny them unemployment benefits b/c of use of peyote in rel's cermonies?

Holding: Legit state interest to stop drugs, it was neutrally applied. Peyote just happened to be illegal. 

*Scalia: Doesn't like the "Compelling state interest" test from Sherbert. Courts would be judging legitimacy of religions. Didn't want people to be a "law unto themselves" 

-Replaces Sherbert Test with Smith Test: a) factially targets religion or in non-neutral in impairing rel. b) law is neutral but has disparate effect on individual c) Exceptions to (b): Hybrid Claim (consistent w/ Yoder) or Unemployment Comp. (Lee and Gillette)

Church of the Lukumi Babalu Aye v. City of Hialeah

P wanted to open church of rel that did animal sacrifice. City adopted ordinances in response that prohibited the animal sacrifice.

Law was not constitutional b/c it failed the Smith Test. Was underinclusive. Facially neutral, but not contextually so. 

-Kennedy: ct doesn't buy animal cruelty argument. Then what about slaughterhouses? Not in letter of law, but obvious that trying to infringe upon Santeria.

-O'Connor/Blackmun Dissent: should have used compelling interest test.

Locke v. Davey

WA had scholarship program, but didn't use it for theology majors

Violation?

Was not violation... b/c still neutral. 

Dissent: public benefits discriminates against religion

Alien and Sedition Acts of 1798

"if any person shall advise insurrection or riot... udder scandalous statement agains the pres"

-some of the Framers were the ones who wrote A&S Acts

Schenck v. US, 1919

P mailed 15k leaflets to drafees comparing military to slavery. "Assert your rights". Charged under Espionage Act - intended to obstruct efforts of armed forces

Holding: Was NOT a violation of FSC. --> Clear and present danger test. Holmes created Clear and Present danger test and said Schenck created one. ..."bring about substantive evils that Congress has a right to prevent. Issue of degree and proximity"

-Shouting fire in a theater analogy 

Narrowest definition of prior restraints. 

Can punish after the fact, but can't restrict from presenting view

If speech has tendency to cause bad results, can ban no matter how remote. 

Broad - could ban a lot

Holmes: Adds

a) proximity of causation

b) degree of danger

to bad tendency interpretation

Absolutist Interpretation of FSC of 1st Amdt

What does it mean and who advocated it?

Plain language of 1st Amdt. No balancing to be done. 

*Can still decide something is not "speech"

-Don't add limitations or new rights to Text

**J. Black

US v. Debs, 1919

Debs had spoken at Communist Party Convention - urged draft resistence. 

Conviction upheld. Same as Schenck - clear and present danger test. 

*Demonstrates that any kind of speech could be swept into C&PD

Abrams v. US

Russian immigrants sent pamphlets saying Amer draft was effort to crus Russian Rev. Told ammo plant workers to strike. 

Conviction was no violation of free speech

purpose was to excite, covered under clear and present danger

Holmes Dissent: who wrote C&PD Test, said opposite result. 

Said, "Marketplace of ideas"

Brandenburg v. Ohio

Reporter at KKK, hate speech taped. Threat of resurgence. KKK leader convicted under OH's Criminal Syndicalism statute.

Is statute unconst'l? Yes

Laws can be created to prevent speech that is intended to incite imminent lawless action and rsbl likely to achieve result. Facts here not so. Broadened it to lawless (not just dangerous). Convictions reversed.

Wooley v. Maynard

NH License plate case

Is desire not to speak protected by 1st amdt?

Yes- NH cannot req to display state motto. state's interest ca'nt outweigh the individual's 1st amdt right to avoid being courier of such msg.

-compelled speech: opposite of FS

-passive nature doesn't make it less intrusive

-applied SS. Serves a compelling interest, but not the LRM

-Rehnquist's Dissent: no different than "in God we trust" on coins. No one thinks that you live by that motto b/c its on your plate

Abood v. Detroit Board of Edu

Non-union employees had to pay "Svc fee" as condition of employment

Roberts v. US Jaycees, 1984

wanted to be all-male. 

Made 14th and 1st Amdt Claim

14th argument rejected (association). Considered 1st, but failed SS.

Note: O'Connor said it was commercial speech, thus subject to lower level of scrutiny

US v. Miller

Miller indicted for transporting sawed-off shot gun across state lines, but wasn't reg'd, no stamp. Can't move gun across for commerce

Was this a registration violation?

2nd Amdt does not guarantee a private right to keep and bear such an instrument. Look at time of weapon - needs to be type Nat'l Guard uses. 

-Consequences of holding: what is an arm? which are protected?

-Problems: 2nd not about keeping a militia. If it was, superfluous. Ignores placement of 2nd amdt  - around other indiv rights

DC v. Heller

handguns were effectively banned (impossible to reg. - had to be disassembled and locked)

P was security guard, wanted to take gun home

Ct said it was an indiv right, could do it in home

Dissent: was indiv right, but didn't protect any right to have one in your home.

Ban was unconst'l

*Federal Onclave: federal holding. DC not a state. Means to an end!

McDonnell v. City of Chicago

Incorporation issue of 2nd Amdt

When should you incorporate?

if it's

-essential to scheme of ordered liberty

-fundamental

-historically rooted

*2nd still not incorporated

US v. Emerson

TX act precluded someone in restraining order from carry a firearm, even if a cop

5th Cir said 2nd Amdt is individual right

Sup Ct denied cert!

Parker v. DC

Law: to carry gun, must be licenced, unloaded and dissassembled

Ct found it was an individual right b/c hunting, self-defense

Key word in 2nd: "people"

Barron v. Baltimore said takings only applied to federal actions, while most takings involved state action

VT and Mass had state takings clauses early on

1. Regulatory: some govt action limits use, only if it leaves no economic use. Sticks from the bundle

2. Acquisitive: physical land is taking and pd for (easement). Use, not necessarily change land

3. Destructive: ie. constr'n of dam, Barron v. Baltimore

4. Devaluative Taking: govt regulates or devalues land. Effect same as regulatory. 2 types: regulatory and consequential

Sebastian Case

buy owned brick yard

Penn Coal v. Mahon, 1922

bill passed to prevent coal co fro miming under Ps land.... would damage their home. 

Ct found for D/Penn Coal. can't separate police power from eminent domain power

Can pass the law, but have to pay for the taking.

Made Rule: If a regulation goes too far, will be a taking --> extremely ambiguous

Keystone Bituminous Coal Assn v. Debenedictis

Modern counter to Penn Coal. Mining caused subsidence damage to public bldgs. 50% had to be kept to give surface support

Is req'ment of leaving 50% a taking?

No.... not balancing of private interests, but protection of public interest in health, environment, fiscal integrity. Distinguishes from Penn CO b/c here only taking 2% of Co's profit. But 2% can still be a lot

Rehnquist's Dissent: same as Penn Co. Doesn't matter if its public

Penn Central Trans v. NYC

Law req'd owner to keep landmark in good repair. Request to build multi-story building on top was denied. Taking?

Test: Does it go too far?

No... general welfare, landmark. Court enhance other properties

Like zoning: Euclid: zoning is not a taking, but for police powers

1. economic impact of reg on claimant

2. extent to which it interferes w/ distinct investment - backed expectations

3. character of the govt action

Lucas v. SC Coastal Council

Beach Front Mgmt Act - illegal for P to build any perm't structures on 2 parcels he just bought. Had architect'l drawings

Was a Taking

was per se regulatory taking

Loretta Law: any physical invasion small or large

What are the 2 kinds of per se regulatory takings?

1. applies where government causes the proeprty owner to suffer a physical invasion of his property

2. applies where reg. denies all economically beneficial or productive use under the land

How to approach takings...

Use ______. If doesn't apply, use _________ factors.

Nollan v. Cali Coastal Comm'n

P sought permission to replace bunglow w/ larger house. commission said yes as long as public could cross over land

Yes, was a taking. The permit condition must serve same govt'l purpose as dvlp'ment ban. Here, doesn't. Out and out plan of extortion. 

State should've just bought an easement. 

Dolan v. City of Tigard

P wanted to up size of store, city conditioned permit to her dedication of portion of property to flood cntl and traffic improvements

Was an acquisitive taking. 

Rehnquist's "Essential Nexus Test": must be an essential nexus btn legit state interest and permit condition enacted + degree of exactions must bear a "rough proportionality" to impact of proposed dvlp'ment. Failed 2nd prong. 

In economic decline, city wanted to dvlp downtown and waterfront areas. Took properties who willingly gave and those who weren't willing. 

Does this count as "public use"?

Majority said yes

Ct declined Kelo's proposition that alll econ'c dvlpment is not public use.

Issue: Is Scott a citizen of MO entitled to sue in federal court based on diversity jurisdiction?

Did his residency on free soil for 5 years make him free? Is the MO Compromise const'l?

No citizenship of MO based on MO's definition of citizenship. Went to questions 2/3 b/c of letter from Pres. Buchanan

Said Congress lacks power to exclude  slavery from any area - so compromises excluding slavery unconst'l. 

Residency on free soil didn't make him free b/c it shouldn't have been free soil

Slaves not citizens, can't benefit from P&I of constn. Judicial rev for 1st time since Marbury. 

If property right, substantive due process violation not to allow owners to travel from state to state w/o losing their slave

Lincoln: Dred Scott decision is the straw that broke the camel's back

Abelman v. Booth

Memphis v. Green: city closed street that had neg impact on black neighborhood

Said it imposed a badge of servitude 

Says you can use 13th if you ahve a credible argument that something is "slavery"

Holding: said it wasn't racially based. just about traffic and safety

P&I

Equal Protection

Due Process

Right to K 

Law denied LA residents from King out of state insurance co's

Lochner v. NY

NY law limited baker's hours

Holding: in order to abridge such a liberty (like right to K), there must be a reasonable and appropriate exercise of police power

Limiting bakers hours was a violation of SDP of 14th

Reasoning: miners, etc would be reasonable. But not bakers - not inherently dangerous. 

Lochner Test

Rational/reasonable

progressive social welfare legislation is constantly struck down on SDP grounds

Except for 3 cases

1. coppage v. KS - strikes down "Yellow DOg" laws that allowed workers to K away their right to join unions

2. Muller v. OR: court allows wage and hour law that applies to women. "Protection for the dependent gender"

3. Bunting v. OR: overturned Lochner in just over 10 years. 10  hr workday limit for women

Nebbia v. NY

NY law fixed price of milk to protect producers. Nebbia sold it below set price. Used 14th SDP right to K argument.

Holding: Price controls are okay if not unreasonable, arbitrary or capricious and they're w/in a legit public interest. 

Test: proper leg'v purpose + reasonably furthers purpose (leads to Rational Basis test)

test is a much lower hurdle. Court reasons that its a public safety argument - need producers to profit so they make clean safe milk. 

Start of decline of right to K

West Coast hotel v. Parrish

challenged state minimum wage law for women

Holding: protection of women a legit interest. min wage is a legit means. -- Law const'l. 

Court articulates "presumption of const'lity"

Rational basis Test: presumption of const'lity + legit govt purpose + rational basis

aka Minimal Scrutiny

Williamson v. Lee Optical

OK law req'd Rx before grinding lenses. Lee Optical said there is right to practice trade. 

Holding: Law need not in every aspect be logically consistent w/ its aims to be const'l. Enough that there is an evil at hand for correction, and it might be thought that the leg'v measure was rational way to correct it.

Reasoning: don't know motivation behind statute, but could have been legit- public health interest. court will create and presume this legit state interest

US v. Carolene Products

Federal law prohibits interstate shipment of "filled milk". Health threat, Consumers may be being defrauded

1. Economic regulations (right to K, property rights) need to pass only minimal scrutiny. 

2. Greater scrutiny is appropriate for: a) leg'n that distorts the political process b)leg'n that violates B of R c)leg'n thats prejudices against particular rel or racial minority -"DISCRETE AND INSULAR" (not gender, not bakers, opticians, miners) 

3. Distinction is the people have rights, property does not

Use Strict Scrutiny if....

It means...

fundamental right is impaired by statue

Compelling state interest

least restrictive means

1,3,4,5

1: Right of association

3. freedom against quartering soldiers

4: to be secure in persons, houses, papers, and effects against unrsbl search and seizure

5: against self-incrimination

Griswold v. Connecticut

Ct law prevents use of contraception (criminal offense). Accomplice liability. Gris is exec dir of Planned Parenthood. Found guilty as accessories.

Holding: there is an acknowledged fundamental right to privacy that manifests itself in the institution of marriage. This right of marital privacy extends to the ability to use contraceptives.

Reasoning: Not the same as Lochner b/c is a person's interest in self, not state's interest in someone else.

Penumbra of 1st, 3rd, and 4th evince a right to privacy

Fundamental right --> use SS

Eisenstadt: right to privacy includes whether or not to bear children. 

Griswold talked about use, Eisenstadt talks about distribution

Black's point the whole time: if you want to expand the circle, make an amendment

Roe v. Wade

TX law made it crime to procure abortion. Ps say law improperly invades a right possessed by pregnant woman to choose to terminate her pregnancy

Holding: 14th does include a right to abortion. Not absolute... depends when the fetus is a person

Viability

1st Trimester: woman's interest trumps state interest.

2nd trimester: state can regulate abortion procedures in ways reasonably related to maternal health

3rd trimester: state has interest, can prohibit abortions

Rt to abortion affirmed; trimester framework discarded and replaced by undue burden standard and the rules of stare decisis set forth.  Abortion is not a fundamental right deserving strict scrutiny. 

1. Modifies Rowe by adding the Undue Burden requirement to the viability hierarchy established by Rowe. State may regulate, not prohibit, but may not impose an undue burden. Purpose or effect of placing substantial burden in place of woman carrying viable fetus.

-only fundamental right that is not under “strict scrutiny”

       2.       Two-part Test

a.       Before Viability, there can be NO RESTRICTION or prohibition, BUT that imposes an undue burden.

b.      After Viability, the state CAN PROHIBIT an abortion (Rehnquist disagrees with both tests)

            - As long as doesn’t create undue burden

            -retain exceptions for life and health of mother

3.      Six Factors are in dispute

a.      Informed Consent

      - OKAY

b.      24-hour Waiting Period – (One side – two trips, limited financial resources – Other side – only to limited # of women not all of them)

      - Not an undue burden. OKAY

c.      Parental Consent for Minors * (Greatest burdens)

      - not undue burden.

      - Need judicial bypass

d.      Medical Emergency, THE Exception

e.      Spousal Notification –only one declared an “undue burden” * (Greatest burdens)     

      - Is an Undue burden

      - Safety issue, scared of abuse and can’t be located

      - Husband being head of household is not in effect anymore

f.      Required Reporting to State Health Agencies

      - NOT Undue Burden OKAY

      - Relates to health

      - May increase costs but not substantially

      - Public records – details of abortion but not the woman. 

1. unworkable

2. reliance

3. evol'n of legal principles

4. facts surrounding the issue change

Stenberg v. Carhart

NE law prohibits late term "dilation and extraction" abortions w/o medical exceptions

Holding: overturned b/c of lack of medical necessity exception

Also, law was ambiguous and may have banned more common type - in utero dismemberment

Gonzalez v. Carhart

Moore v. E. Cleveland

ordinance defined family as "closely related" preventing grandmother from living w/ 2 grandsons

Holding: violated fundamental right 

Came up w/ "deeply rooted in nation's history and tradition" - standard for fundamental right, meaning you would apply SS

Zablocki v. Redhail

WI law - if you owed child support, you had to get approval to get married.

Right to marry is fundamental

law infringes on this

Use SS. Is a compelling state interest, but not the LRM

Bowers v. Hardwick

GA sodomy law - used selectively for arrest, but no prosecution

Does fed right confer right on homosexuals to engage in sodomy?

No - not traditional or not necessary continuation of ordered liberty

Blackman's dissent - based on private morality

Lawrence v. TX

overrules Bowers v. Hardwick

Holding: intimate conduct b/w adults in the confines of own home is fundamental right

Broader interpretation of the right, but in a narrower case - weird.

Michael H. Case

CA law - presumption that kid born to wife is child of the marriage

Holding: upheld, const'l.

State interest in tradition of legal family > Michael's SPD right

**Scalia said: DP protection requires right violated be traditional. 

Moore: "deeply rooted in nation's history and tradition"

Palko: "Implicit in the concept of ordered liberty"

1. what is this classification?

2. What is the level of scrutiny?

3. DOes the govt's law meet the level of scrutiny?

ONLY  state and local gov't

Never to federal gov't

Railway Express Agency v. NY

Reg prohibited ads on vehicles but allowed on biz vehicles so long as they were engaged in owner's usual work . P was selling ad space on truck. Said was underinclusive

Upheld. Legit gov't interest in preventing traffic distractions. 

Applied only minimal scrutiny (economic)

Not overinclusive (targets trait that is larger than mischief)

Not inderinclusive (targeting group that is small part of those creating the mischief)

1. Minimal Scrutiny:

a. used for econ'c claims

b. challenged law must be reasonable

c. USED  unless there's a fundamental  right (Race, Alienage, National origin)

2. SS

a. legit govt interest

b. means necessary to achieving end

c. used for suspect classifications and fundamental rights

compelling state interest 

+ narrowly tailored

important state interest

+

means substantially related to end

Minimal Scrutiny

Rational Basis

SS

RAN (Race, Alienage, National origin)

plus 1st Amdt (free speech and religion)

discriminatory intent

discriminatory impact

Separate but Equal

LA statue req's RR separate but = accommodations

Plessy 1/8 black. Looked white

Separate but equal did not violate EqP clause

no "badge of inferiority"

Korematsu v. US

Exec order to protect against espionage and sabotage. Prevented Jap'ese from US specifically west coast

WWII

Terrorists - SS

Not violation of EqP - terrorist - compelling state interest. Narrowly tailored? Court  said yes, but that's stupid. 

Said separate was not =

Segregation based on race deprive children of Eq P

Based on Psych study - black students would lack motivation, have feelings of inferiority

states have to comply w/ desegregation

"prompt and reasonable start.... all deliberate speed"

(they didn't)

Loving v. Virg

Interracial couple married in D.C. and when they returned to Virginia, they were indicted for violating the state’s ban on interracial marriage

Bolling v. Sharpe

Integration of DC's public schools

Segregation so unjustifiable...

violated DP of 5th Amdt

SS

Significance: did this mke the EqP clause surplusage?

Regents of Univ of CA v. Bakke

Bakke, white. Said admissions policy that 16/100 went to minorities.

Violation of EqP of 14th b/c completely diff admissions track for minorities.

SS (bc Powell said it was a const'l issue, not just statute. Said diversity was compelling state interest)

55 amicus briefs

Level of Scrutiny for Education cases

Who created it?

Block: Intermediate Scrutiny:

Important state interest 

+

Substantially related 

Grutter v. Bollinger

Mich law school (AK) factored economic status and race in admissions. 

Given SS

Compelling state interest : diversity

Stupid: said not good for undergrad, but law school needed diversity b/c "nation's leaders..."

Gratz v. Bollinger

admissions - minorities had 20 pt head start in point sys

Intermediate

Carolene Prducts FN 4:

gender: "discrete, insular minority". But is not really insular, so problems w/ SS

Frontiero v. Richardson

Diff standard for rec'ing military dependency for men and women. Had to prove husband was dependent

Gov't interest asserted: efficiency

Law struck down by court. Quasi-suspect class

Use minimal scrutiny... still fails.

sex is immutable charactertic that chan't be changed. So not related to ability to perf in society

Craig v. Boren

OK statute prohibited sale of nonintoxicating beer to males under 21 b/c they're more likely to get into accidents

Michael M. v. Sup'r Ct

CA law punished men but not women for statutory rape

Upheld by court

Legal if women and men differ biologically. Deterrent for women is pregnancy

Test: Intermediate Scrutiny

Miss. Univ. for Women v. Hogan

Man wanted to go to MUW..womens' school

Ct struck down program.

Invented Intermediate scrutiny PLUS:

·        Ct seemingly ratchets up intermediate scrutiny with intermediate scrutiny+ formulation that gender-discrimination requires “an exceedingy persuasive justification” an “important governmental objective and that the discriminatory means are substantially related to the achievement of those objects. 

legit state interest asserted: giving opportunities to women, compensation for prev lack of opportunities - rejected by Ct 

US v. Virg

Virginia Military Institute, a state-sponsored university, had a male-only admission policy.  The Attorney General sued VMI and Virginia saying that the policy violated the Equal Protection Clause

Cleburne v. Cleburne Living Center

living center denied municipal spec use permit. Contends that laws impacting retarded shoud be given heightened scrutiny.

Holding: Mental retardation is not suspect/quasi suspect classification. 

Ration basis applies

Romer v. Evans

Amdt in CO prohibited adoption of any law that provided protected status, discrimination claim, or privilege based upon sex'l orientation

Legitimate Government Interest

i.               Asserted:  to protect rights of landlords/employers NOT to associate with people with whom they choose not to associate.

ii.              Court says, OK, this is a legitimate government interest. Freedom of Association in 1^st Amdt.

Rationally Related – Court says that there’s no relationship between the way this law is configured and the interest identified.

i.           Court says that the law sweeps too broadly

ii.        Court finds that the real objective behind the law is hostility/bare animus toward a particular group, which the Court appears to consider to be per se irrationality

Failed Rational Basis Test

San Antonio School Dist v. Rodriguez

Funding of schools w/ property taxes violate EqP clause?

No. Not suspect classification. B/c edu not a fundamental right, so rational basis.

Passes test - const'l

Plyler v. Doe

Sup Ct decided 5-4 that TX could NOT deny illegal aliens the right to attend public schools for free.

            -suspect classification? à Court never says alienage is a suspect classification. “will not ignore fact that you                         entered classification by breaking the law”. But court does apply “minimal scrutiny +”

            -education a fundamental right? à No, not yet

Kramer v. Union Free School Dist 15

Law: to vote in school board election, had to be parent of kid enrolled or own property in the district.

            -Kramer: stockbroker who lives w/ parents. Says he has an interest and should be able to vote. 

-Is there a fundamental interest? Right to vote? à Yes Carrol Products FN4.

            -not suspect classification

            -Apply strict scrutiny

            -compelling public interest? à limiting franchise in school dist elections to those “primarily interesting in such             elections?   Court leaves it unanswered

            -Not LRM. Why is this not narrowly tailored?

                        -overinclusive à why would people with a property interest care more than those w/o?

                        -underinclusive à why wouldn’t people w/o kids care who was on the school board?

            *Not enough overlap between targeted group and mischievous group

Harper v. VA Board of Elections,

            -$1.50 poll tax on voting

-struck down by court

            -fundamental right to vote

Fundamental rights to date:

Access to ballot

            Access to judicial process

            Interstate migration

            Procreation

            Vote

Bush v. Gore, 2000

election problems in Fla.

            -recounts

            -recounts proceeding under different rules (dimple, hanging chads)

            -Declared winner, then Gore gets order for recount. Bush says recount should stop

            -What’s the fundamental right? à voting

            -unequal treatment of ballots in different counties

            -Fla Sup Ct: must be supported by strict scrutiny. Decides 7-2 say there is an equal protection violation. But 5 say             that the remedy is to stop the recount..

Marsh v. Alabama

Chickasaw, Alabama was owned completely by a company.   Marsh was distributing Jehovah’s Witness literature on the streets and arrested under premise that she was violating the wishes of the company’s policy.

- If the town is thought of a private property, the law can stand.  If it is thought of a public place, then it is deemed state action and subject to scrutiny.

- Court held “since their operation is essentially a public function…”  it looks like a town and acts like a town – it is subject to the 1st Amendment. 

Evans v. Newton 

- Case dealing with a private park. The court said this was state action b/c it looked and acted like it was owned by the state. 

Jackson v. Metropolitan Edison Co.

Electricity was off without notice – Jackson argues substantive due process. 

The privately owned utility is seen not as undertaking state action – “not something traditionally, exclusively reserved to the state.”

- You are not looking to see if the private entity if performing public functions, but whether it is a function traditionally, exclusively provided by the state.

- This Public Functions Strand has faded in the Court today.

State can act as a partner with the private entity. YES, clear case of state action.

State can authorize private entity. YES, state action

State can encourage private entity. YES, state action

State can directly assist a private entity. Kramer court says is state action.

State can indirectly assist.  ??????

State can knowingly tolerate what the private entity is doing.  ???????

State can unknowingly co-exist. NOT state action

Shelley v. Kramer

restrictive covenants in home deeds prohibited from selling to blacks

Even though covenants are not state action, there is the necessary state involvement because the contracts must be enforced in state courts, and the court would thus be (probably) assisting if not authorizing.

problem with Shelly is that virtually any contract becomes a state action because it has the potential to be enforced by a court.  Thus, passive assistance by the courts has to be limited.

Burton finds state action when restaurant owner refuses to serve black customers, but the land his restaurant leases is state owned.  The courts adds word “significant” to some significant extent the state has become involved in the activity (and did not explain what it takes to meet the standard).

refused to serve blacks. The Plaintiff argues that the liquor license creates a state involvement, and this is enough connection. The Court says No, this does not meet the standard of significance. J. Douglas dissents.