Constitutional Law II - Outline

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Constitutional Law II - Outline

				Overarching Question in Constitutional analysis: Does the government actor in question have Constitutional authority to take this action? (Related question: If it’s not provided for in the Constitution, always ask the flip-side: Is it prohibited?) Overarching Question in Constitutional Amendments analysis: Does a Constitutional Amendment limit or bar the government (state or federal) from acting? Preliminary Note: Levels of Scrutiny (& listed rights that trigger each level)

				Strict Scrutiny: The highest level of scrutiny, requiring a compelling governmental interest for the regulation and that any permissible regulation be narrowly tailored to accomplish the goal. Is the statute a narrowly tailored, least-restrictive means for meeting a compelling governmental interest?

				Free Speech, Free Association, Free Exercise of Religion (First Æ) Right to Marry, Procreate, Custody of Children, Purchase and Use Contraceptives (Due Process Clause Liberty Interest) Race (Equal Protection Clause) National Origin (Equal Protection Clause) Alienage (Equal Protection Clause) Travel (Equal Protection Clause) Voting (Equal Protection Clause)

				Intermediate Scrutiny: Not clearly articulated in the law, but less than strict and higher than rational-basis. Rarely, used. Does the statute bear a substantial relationship to an important governmental interest?

				Right to abortion (usually called the Undue Burden Test; unique to abortion and higher than intermediate scrutiny because it’s a phased interest based on gestation) (Due Process Clause) Gender (Equal Protection Clause) Illegitimacy (Equal Protection Clause) Undocumented Alien Children (Equal Protection Clause)

				Rational-Basis: The lowest level of scrutiny; if the government can articulate a rational-basis for the regulation at issue, then it is typically affirmed and/or given deference by the court. Could the legislature have a rational basis for passing this measure? These are NOT considered fundamental rights.

				Right to practice trade or profession (Due Process Clause) RIght to physician-assisted suicide (Due Process Clause) Right to homosexual activity (Due Process Clause) Right to education (Due Process Clause) Age (Equal Protection Clause) Handicap (Equal Protection Clause) Wealth (Equal Protection Clause) All other classifications (Equal Protection Clause)

				How level of scrutiny is determined:

				Judges themselves usually make determinations in decisions as to what level of scrutiny is applied and why. Generally, expansive rights like constitutional rights are given Strict Scrutiny, while powers of the government which are enumerated give challenges to such laws and powers a simple rational-basis level.

				Preliminary Note: Methods of Constitutional Interpretation Textual Interpretation: What does the text say? & What does it mean? Structural Interpretation: How is the structure of the government set up by the Constitution? Originalism: What was the original intent of the framers? History/Tradition: Melds largely into Originalism. The historical context of the times in which the constitution was written? Policy/Pragmatics/Natural Law: Natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature. Such a view posits that all common law and constitutional law must have a tie to natural law in some way to be reasonable. Preliminary Note: Constitutional Rights are Negative Rights Individual Rights are “negative” rights in our system. That is, they act as protection against government interference, not as guarantees of government assistance to further those rights. The government can, if it wishes, enact law to further such rights, but unless it can pass the scrutiny tests it cannot interfere with such rights.

			I.	Æ 1 •••••••••••••••••••••••••••••••••••••••• § First Amendment // Strict Scrutiny

			A.	Text: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

			1.	Why Protect Speech?

			a.	To permit the building of our politics and culture; (Mosley)

			b.	To assure the self-fulfillment of each individual; (Mosley)

			c.	To protect the principle that debate on public issues be uninhibited, robust, and wide-open;

			d.	Because free speech is essential to the common quest for truth; (Bose Corp. v. Consumers Union)

			2.	First Æ Essence: The Core Prohibition on Content & Viewpoint-Based Regulation

			a.	The basic doctrine of free speech is that the government (state or federal) has no power to restrict/regulate expression/speech because of its message, ideas, subject matter, or content (Mosley);

			b.	A statute is presumptively in violation of the First Amendment if it imposes a financial burden on speakers because of the content of their speech. (Simon & Schuster)

			3.	First Æ Procedural Doctrines:

			a.	Vagueness:

			(1)	regulation which touches on free speech issues and is inherently “vague” is prohibited;

			(2)	Overbreadth and vagueness usually go hand-in-hand with one another as the concepts overlap with one another (in overbreadth you think you know what the statute means, but sweeps too broadly; in vagueness, you don’t really know what the statute means and therefore could potentially sweep too broadly as well; both endanger large swathes of protected speech);

			b.	Overbreadth:

			(1)	sweeping speech restrictions/regulations is prohibited (even when speech in question might otherwise be regulated constitutionally);

			(a)	An individual whose speech/conduct is prohibited is permitted to challenge a statute on its face on grounds of over breadth because it also threatens others not before the court;

			(b)	A statute may be invalidated on its face, however, only if the overbreadth is “substantial” (in other words, sweeps in a great deal of protected speech unnecessarily); (Jews for Jesus);

			I.	Exception: As a doctrine, doesn’t apply to commercial speech;

			c.	Prior Restraint / Licensing:

			(1)	General rule against giving administrators too much discretion to restrain speech in advance through licensing, other agreements, or injunctions;

			(a)	Example: Prior restraint often takes the form of a legal injunction or government order prohibiting the publication of a specific document or subject. Sometimes, a government or other party becomes aware of a forthcoming publication on a particular subject and seeks to prevent it: to halt ongoing publication and prevent its resumption. These injunctions are considered prior restraint because potential future publications are stopped in advance.

			(2)	Collateral Bar Ω: Applies to injunctions, not regulatory or licensing schemes that constitute prior restraint. A rule which bars someone who violates a court order (contempt) from trying to defend this action by arguing that the court order was unconstitutional at a later time. You must appeal any court’s order at the time it is issued, not after you violate the order. The court order must be obeyed at the time of its issue, unless a successful appeal is mounted.

			d.	Standardless Discretion:

			(1)	Any regulation that vests administrators with standardless, unbridled discretion as to who to apply a law affecting protected speech is an unconstitutional abridgment of free speech;

			B.	Free Speech Clause

			1.	Speech

			a.	In general: Spoken words & messages, written communication; symbols are considered identical to verbal communications, symbolic conduct, & expressive conduct all are included. The definition, by nature, is broadly inclusive.

			(1)	Includes:

			(a)	The Freedom NOT to Speak (freedom from government compelled speech or expression);

			(b)	Expressive Association;

			I.	Freedom of groups to band together to advance their desired messages, control the content, and exclude messages or speakers they do not wish to include;

			2.	Not Speech

			a.	Content-Based Restrictions to Speech: Categorical exclusions the Supreme Court considers unprotected by the First Æ:

			(1)	Fighting Words:

			(a)	Words designed to incite violence or immediately commence a fight;

			(b)	Original (shrinking/fading) doctrine: Calling someone a name sufficient to provoke a fist fight;

			(2)	True Threats:

			(a)	A genuine threat of physical harm is not protected by the First Amendment;

			(3)	Defamation:

			(a)	False statements of fact injurious to a person’s reputation;

			I.	To accommodate criticism of public officials, the defamation must be made “knowingly” or in “reckless disregard” of whether they were true of not;

			(b)	This is a common law tort of libel (in print) or slander (if verbal);

			(c)	False statements of fact are “particularly valueless” because they “interfere with the truth-seeking function of the marketplace of ideas” and thus are not accorded protection when defamatory in nature. (Gertz)

			(4)	False Advertising;

			(a)	False statements about commercial products or services are not protected by Å1;

			(5)	Obscenity and Child Pornography:

			(a)	Sexually explicit material that violates fundamental notions of decency is not protected;

			(b)	The Supreme Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:

			I.	whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;

			II.	whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and

			III.	“whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

			(c)	Note: This is incredibly hard to reach and is rarely applied. In addition, Oregon in State v. Henry in 1987 became the first state in the U.S. to abolish the offense of obscenity.

			(d)	Note: Animal cruelty on film, interestingly, is NOT considered obscene.

			(6)	Commercial Speech?

			(a)	Used to be considered unprotected by the first amendment and easily regulated by the government, but is increasingly considered a protected speech form. The law on this is evolving substantially.

			(b)	Holdings of most Supreme Court jurisprudence: Commercial Speech can be subject to greater governmental regulation than noncommercial speech because of the government’s interest in preventing commercial harms;

			I.	B/C within the realm of commerce, the Commerce Clause is Supreme authority and allows the majority will of the people to be reflected in regulatory programs designed to further public policy preferences like product safety, etc.

			(c)	The First Æ imposes tight constraints upon the government to restrict “core” political speech, while imposing much looser constraints when the government seeks to restrict commercial speech;

			(d)	Note: The Sorrell case (2011), calls all of this into question and possibly is leading the court toward protecting commercial speech at the level of political speech; the dissent in Sorrell sounds an alarm that the court may have opened a pandora’s box of challenges to economic regulations in the vein of the Lochner-era court which practically prohibited any commerce clause regulation by Congress. An incredibly bad majority decision.

			3.	The Press

			a.	Press includes all means and media of communicating messages other than the spoken word (whether or not present at the time the First Amendment was adopted);

			b.	The Freedom of Speech is understood to overlap with the freedom of the press and that both are treated the same way in the case law.

			4.	Abridging Speech/Press Prohibition

			a.	The prohibition against abridging the freedom of speech applies to both federal and state government;

			b.	A law that regulates or penalizes speech based on its content “abridges” the freedom of speech;

			c.	Compelling State Interest: Expressive conduct may be regulated so long as there is a compelling interest which is unrelated to suppression of expression (O’Brien);

			d.	Compelling State Interest Exceptions: // MUST BE CONTENT-NEUTRAL REGULATION

			(1)	Time, Place, & Manner Regulations: (The O’Brien Standard)

			(a)	Government does not abridge freedom of speech in regulating the time, place, and manner of expression if such regulations:

			I.	Justified without reference to the content of the speech - CONTENT NEUTRAL; < Content neutrality is KEY; if it’s not content neutral, it is absolutely prohibited government action >

			A.	Regulation of the conduct part of “expressive conduct” is acceptable if this element is met; even though it may have an “incidental” impact on the expressive portion;

			1.	For example: Someone protesting the Lincoln Memorial cannot blow up the memorial to protest it; that “conduct” can be restricted; the content of that speech, if expressed differently, would be protected;

			II.	Narrowly tailored to service a significant/compelling government interest;

			III.	Leave ample alternative channels for communication of the information;

			(b)	Policy Issue: The regulations for this exception are often nowadays abused by localities who create “Free Speech Zones” to sequester protesters away from places like political conventions, abortion clinics, conferences like GATT, etc. The guise of time, place, and manner regulations effectively permits these protestors to voice their opinion, but no one can hear them and no dialog is fostered. This is a direct violation of of the spirit and letter of the First Amendment which is designed, in part, to allow citizens to engage in protest, social dialog, and to attempt to change one another’s mind.

			(2)	Public Forum Doctrine:

			(a)	Streets, parks, and other public forums are almost always off limits from regulation;

			(3)	Non-Public Forum Doctrine:

			(a)	Some government facilities and places are reserved for non-public purposes; (like an internal mail system);

			(b)	These areas are not subject to free-speech protection;

			5.	Abridging Speech - Specific Issues

			a.	Incitement, Subversive Advocacy, Speech urging Violation of the Law

			(1)	Historical Background:

			(a)	The U.S. has, at various times, upheld laws that have restricted free speech that it felt promoted illegal activity or activities that undermined specific war efforts;

			(b)	The basis for these opinions is dubious, at best;

			(2)	The Modern Test: Brandenburg

			(a)	Constitutional guarantees of free speech and free press do not permit a state to forbid advocacy of the use of force or of law violation;

			I.	EXCEPT where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

			II.	Imminence: Because the government can regulate ACTIONS like riots, but cannot regulate abstract teaching or moralizing about belief in a need for violence; bringing it about (incitement) and imminence are key;

			(b)	Threats:

			I.	Advocacy of violence is protected speech;

			II.	A “true threat” issued by an individual speaker (not poster or media) to do violence to someone is NOT protected speech;

			b.	Group Protests, Tortious Acts, Injunctions, and Damages

			(1)	General Rule: The use of speeches, marches (expressive conduct), and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is outside of constitutional protection.

			(a)	As such groups cannot be held liable for the tortious acts of individuals within its ranks; the individuals themselves must be held to account for tortious conduct. (Claiborne Hardware)

			(2)	Group Advocacy: As one of the first amendment protections, the right of collective advocacy (group protests) is also present;

			(a)	The only way to hold a group liable for tortious expressive conduct, you must how that the group itself possessed unlawful goals and that the individual(s) held a specific intent to further those illegal aims;

			c.	Compelled Speech

			(1)	Does the freedom of speech embrace the freedom NOT to speak?

			(a)	Yes. (Barnette)

			(b)	Compelling school children to pledge allegiance invades the sphere of intellect and spirit which the First Amendment is designed to keep from official control;

			(c)	American government is set up to be by “consent of the governed”, and the Bill of Rights is designed to deny those in power any legal opportunity to coerce such consent;

			(d)	American democracy is NOT weakened by prohibiting the Compulsion of Civic Speech, rather it is strengthened by it;

			(e)	Government may not compel individuals or groups to state or affirm messages, beliefs, ideas, expressions other than the ones they have chosen; (Barnette, Wooley, Hurley)

			I.	Government may promote a message, civics education, etc., but it cannot compel such beliefs, speech, or expression from its citizens;

			II.	Government may not force a private group, under the auspices of public accommodation, to include a group with a message it does not approve of; to do so, forces the message of the private group to effectively alter their message and thus their free speech right; (Hurley)

			(2)	Is compelled payment of money compelled speech?

			(a)	Yes. (Southworth, et al.)

			(b)	Example: Union members may be required to pay dues for collective-bargaining negotiations but not for a union’s political or ideological advocacy;

			I.	Exception: Student fees distributed to political organizations on campus CAN be constitutional, if:

			A.	The money is distributed in a content neutral fashion to all organizations, then this is not a constitutional violation; (Southworth)

			d.	Collective Expression, Campaign Finance

			(1)	The right of Expressive Association includes the right of Expressive Disassociation;

			(a)	The right to exclude from the group person who do not share in the group’s message, purposes, beliefs, values, or ideals.

			(b)	This right, of course, is conditioned upon the notion of a compelling state interest that can override the expressive freedoms of groups (just as with individuals); (This threshold test is incredibly high and hard to overcome);

			(2)	The Scope of Expressive Association is difficult to define:

			(a)	Does the Expression of the group need to be political in nature to be protected?

			(b)	What is or is not protected and why?

			(3)	Campaign Finance:

			(a)	Three First Amendment Questions are raised by campaign finance laws:

			I.	Is the spending of money to advance a political message part of the freedom of speech and thus beyond government’s ability to make laws regulating it?

			II.	Does the First Amendment right of collective expression include a right of individuals to pool their resources in order to advance a common message?

			III.	Is there a “compelling” government interest strong enough to justify restrictions on the spending of money by individuals or groups for candidates, campaigns, or common messages?

			IV.	Key cases: Buckley v. Valeo, Austin v. Michigan Chamber of Commerce (overruled by Citizens United), McConnell v. FEC (overruled in part by Citizens United), Citizens United v. FEC.

			(b)	Citizens United v. FEC:

			I.	Is most commonly known for making Corporate Speech equivalent to the speech of natural born citizens; speech is speech regardless of who the speaker is, says the majority;

			A.	This is not what it’s all about, there’s much more;

			II.	Money has the same stature as speech in this decision;

			III.	It is constitutionally OK to restrict direct political contributions, but cannot restrict expenditures because those are likely to implicate First Amendment issues;

			A.	Restricting contributions have a compelling state interest;

			B.	Restricting expenditures do not have a compelling state interest;

			1.	Thus, prohibitions on Corporations’ and Unions’ general treasury funds is unconstitutional;

			2.	The Anti-distortion principle in Austin is never a compelling state interest, says the majoriy;

			IV.	However, does uphold Disclosure and Disclaimer of the act at issue (Bipartisan Campaign Reform Act - BCRA);

			A.	Since the decision, this is where the most litigation has been;

			V.	The majority seems to be arguing theoretical speech rights;

			VI.	The dissent argues more along the lines of real-world affects and results;

			e.	Religious Speech & Limited Public Forums

			(1)	Regardless of the location or method, the Supreme Court has consistently found in favor of religious speech as any other kind of speech:

			(a)	government may not prohibit, penalize, or exclude such speech because of its message;

			(2)	Free Exercise clause: “free exercise of religion”

			(a)	Often implicated in free speech cases involving religious speech; an infringement of religious speech also likely infringes the free exercise of religion;

			(3)	The Establishment Clause: “Congress shall make no law respecting an establishment of religion”

			(a)	Places no limits on religious speech;

			(b)	Limits some government speech (which can’t be religious);

			(c)	Limits government coercion in matter of religious exercise;

			(d)	Trumps free speech rights if it is violated;

			(4)	Kinds of Speech with regard to Limited Public Forums:

			(a)	Content of Speech Discrimination = A general category of speech like: religion, union protests, corporations.

			I.	Government regulation of Content is “presumptively unconstitutional”;

			A.	Exception: Limited Forum Doctrine;

			(b)	Viewpoint of Speech Discrimination = A species of speech within a category like: Christianity, AFL-CIO, etc.

			I.	Government regulation of Viewpoint is “presumptively unconstitutional”;

			(c)	General Ω: Typically, in Traditional Public Forums like the street, a park, et al. (as opposed to Limited Public Forums), the concepts of Content and Viewpoint speech discrimination are merged and simply dealt with a speech; whereas the distinction generally only matters in a Limited Public Forum;

			(5)	Limited Public Forum Doctrine (Rosenberger): (happens a lot with public schools and colleges)

			(a)	The government may exclude speakers from public property that has been opened up for speech activities ONLY IF:

			I.	It has a reason that is viewpoint-neutral; (public safety, for example)

			A.	The government CAN discriminate based on content as opposed to viewpoint; (in other words, to exclude a whole category or permit a whole category’s inclusion like unions or religious groups entirely);

			II.	And reasonable in light of purposes served by the forum.

			f.	Student Speech

			(1)	The Government “Enclave”:

			(a)	The idea that in government schools or other agencies, the government “owns” the program or activity in question;

			(b)	Does the government have the right to restrict free speech within its sphere when it is the speaker?

			(2)	The General Ω on Student Speech (from Tinker, the landmark case on student speech):

			(a)	Students are entitled to free of expression of their views;

			I.	Unless:

			A.	There is a constitutionally valid reason to regulate their behavior;

			B.	Substantial Disruption: The speech, expression, or behavior in question “substantially disrupts” the normal operation of the school;

			C.	Interferes with the rights of others;

			(b)	Time, Place, & Manner: Students speech may be regulated for time, place, and manner reasons to ensure the appropriate discipline and operation of the school;

			I.	But, students when outside of the classroom are entitled to free expression; (in the cafeteria for lunch, on the playground, etc.)

			II.	“…state-operated schools may not be enclaves of totalitarianism.”

			(c)	School-Sponsored Restrictions: The content of activities that a school sponsors where the activities are educational CAN be restricted or censored by the school; (Kuhlmeier)

			I.	School newspapers, theatrical productions, and other expressive activities that the public might reasonably perceive bear the imprimatur of the school;

			C.	Freedom of Religion // Two ways the First Æ protects religion: the two clauses:

			1.	Free Exercise Clause

			a.	All governmental regulation of religious belief is prohibited;

			b.	The “Exercise of Religion” includes the performance or abstention from certain physical acts; (Employment Division v. Smith)

			(1)	Laws that are generally applicable and neutral which prohibit acts which outside of religion would otherwise be illegal, are not unconstitutional for free exercise reasons; “The freedom to act, unlike the freedom to believe, cannot be absolute.”;

			(a)	To permit this would be to permit every law to be challenged on religious belief grounds;

			(b)	Example: People could object to paying taxes on religious grounds and that would be impermissible;

			c.	The “compelling state interest” test for free speech can and is used to determine if Free Exercise disputes are valid or not;

			(1)	a law that “unduly burdens the practice of religion”,

			(2)	without a compelling interest,

			(a)	even though it might be “neutral on its face,”

			(3)	would be unconstitutional.

			d.	Compelling State Interest: A key factor in determining the outcome of the “compelling state interest test” is:

			(1)	Does the compelling state interest interfere with the π’s “belief” or ability to believe or promote beliefs? (like requiring Amish children to attend school beyond the 8th grade, fundamentally against their beliefs);

			(2)	or does it merely have an incidental effect on “non-primary belief related activities” (like wearing a yarmulke, or refusing to pay taxes)

			e.	The Lemon Test: (a Strict Separation approach)

			(1)	The government’s action must have a secular legislative purpose;

			(2)	The government’s action must not have the primary effect of either advancing or inhibiting religion;

			(3)	The government’s action must not result in an “excessive government entanglement” with religion.

			(a)	Not consistently used by the court; oftentimes so that the Supreme Court can reach their intended conclusion (it creates problems in certain fact patterns).

			f.	Religious Accommodation:

			(1)	Government sometimes tries to accommodate religion in ways not required by the Free Exercise Clause without violating the Establishment Clause;

			(a)	At some point, accommodation may devolve into an unlawful fostering of religion;

			2.	Establishment Clause

			a.	Prohibits government from setting up an “establishment of religion”;

			b.	This means: designating an official church, articles of faith, coercing church attendance, imposing punishments for non-attendance, or coercing direct tax support for an official church;

			c.	Equal Inclusion in Government Programs, Benefits, & Fora (a Neutrality Approach, see below):

			(1)	This is not a violation of the Establishment Clause as long as ALL religions are included (law is neutral to benefits offered to any religious group - like use of a limited public forum such as a school room for a religious club to meet after school);

			d.	3 Approaches: There are three approaches to the Religious Clauses by government and the courts:

			(1)	Strict Separation - Wall Between Church and State;

			(a)	Government stays away from religious period;

			(2)	Neutrality;

			(a)	Government should be neutral as between religious and secular activities;

			(b)	You cannot favor religions over one another or secular groups over religious ones;

			(c)	Government can support religion as long as it supports other secular institutions and is evenhanded in doing so;

			(3)	Accommodation short of Establishment;

			(a)	In this view, government is violative of the constitution only if it actually establishes a state church;

			(b)	Coerces citizens into belief or participation in a religious activity;

			D.	Right to Peaceably Assemble Clause

			1.	Freedom of assembly and freedom of association may be used to distinguish between the freedom to assemble in public places and the freedom of joining an association. Freedom of assembly is often used in the right to protest, while freedom of association is used in the context of labor rights and the Constitution of the United States, is interpreted to mean both the freedom to assemble and the freedom to join an association.

			II.	Æ 2 •••••••••••••••••••••••••••••••••••••••• § Right to Bear Arms

			A.	Text: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

			1.	The 2nd Amendment has generated huge amounts of interpretative debate as to its meaning, but few judicial decisions until:

			2.	2008’s District of Columbia v. Heller, the first major case to address the 2nd Amendment and its meaning;

			B.	Founders’ Perspectives:

			1.	The “militia” to the founders were the people and the people were the militia;

			2.	The history of Stuart England and of British armies attempting to stop the Revolution all pointed toward the founders’ historical recognition that in both cases that an armed citizenry the could protect itself from the government was the only sure way to protect democracy and freedom;

			3.	Federalist No. 28 (Alexander Hamilton): An armed citizenry is the only way to overcome a government that is usurped and becomes tyrannical.

			4.	Federalist No. 46 (James Madison): Deals with the idea of a national government using a standing army against the people, but the states having militias of armed citizens could repel and defeat such a tyrannical standing army as the Americans did to the British.

			5.	No Standing Army: It’s important to remember that the founding generation deeply distrusted standing armies and men like Jefferson strongly argued against the U.S. ever having a permanent standing army.

			C.	Key question: What constitute arms in this day and age?

			III.	Æ 3 •••••••••••••••••••••••••••••••••••••••• § No Quartering Soldiers in Homes

			A.	Text: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

			1.	This amendment has generated no controversy in the history of the republic, it’s purpose and text so clear to leave no doubt what it means.

			IV.	Æ 4 •••••••••••••••••••••••••••••••••••••••• § Unreasonable Search & Seizure (not on exam)

			A.	Text: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

			V.	Æ 5 •••••••••••••••••••••••••••••••••••••••• § Federal Due Process & Takings

			A.	Text: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

			B.	Due Process Clause

			1.	This Due Process Clause only restricts the Federal Government; the 14th Æ Due Process clause restricts the states;

			C.	Takings Clause

			1.	This clause doesn’t prevent the government from taking property, just makes sure that property owners are fairly paid for a taking by the government (this means “market value”);

			2.	Eminent Domain:

			a.	When the government uses this power - the power to forceably take property without consent but with compensation - serious constitutional issues can be raised especially around what is “just compensation”;

			b.	Typically the government issues a “condemnation” action against the property holder and then a fact-finder, typically a jury, decides the amount of compensation;

			3.	Inverse Condemnation Actions:

			a.	When the government takes action short of condemnation that has the effect of converting private property to a public use;

			b.	The question typically raised is: what is “property”?

			(1)	The government can even take “private property” that is not real estate as long as it pays you for it;

			(2)	Almost all cases, however, are about real estate takings;

			4.	Unconstitutional Conditions:

			a.	When the government insists that an owner transfer a property interest to the state as a condition for receiving regulatory permission to develop the property;

			5.	Police Powers like establishing minimum heights, zoning regulations, etcetera, normally do not constitute a “taking” for constitutional purposes;

			a.	This does not require compensation;

			b.	Any “Police Power” exercised over property does not require compensation; only eminent domain requires compensation;

			(1)	Often cases arise in court when a government agency imposes a “police power” (health, safety, welfare) which means it doesn’t have to pay that is actually a taking that requires the state to impose eminent domain and pay.

			6.	Regulatory Takings:

			a.	When the government imposes restrictions that destroy all or part of the value of the property to its owner (without giving any right to the public to use it) you have a taking requiring compensation; (Lucas)

			b.	Regulatory takings is the area where most cases end up in court;

			(1)	Note: “While property may be regulated to a certain extent, if regulation goes too far, it constitutes a taking.” (Pennsylvania Coal v. Mahon)

			(2)	If the regulation has minimal effect on the property owner, it’s more likely to be upheld as valid;

			7.	Taking from Private Party to Give to another Private Party:

			a.	Taking for Private Benefit Prohibited: Even if A is paid just compensation, the government may not take A’s property to give to B for B’s private benefit;

			(1)	Except for a Public Purpose;

			b.	Taking for Public Use/Purpose: The government may take property from A and give to B if B’s use is for a “public use”;

			(1)	e.g. condemnation of land for us by a rail carrier;

			(2)	“Public Use” has come to mean (according to the Supreme Court) “public purpose” rather than the narrower “use by the public”; (Kelo)

			(a)	This enables courts to uphold legislative enactments that will take private property and give it to other private property owners if the “public purpose” is served (as opposed to the old definition which was more about access); e.g. a city redevelopment plan; (Kelo v. New London)

			8.	The Spectrum of the Takings Clause:

			a.	Eminent Domain = must compensate<<< Regulatory Takings >>>>Police Powers (H/S/W) = no compensation

			VI.	Æ 6 •••••••••••••••••••••••••••••••••••••••• § Criminal Law: Right to a Speedy Trial (not on exam)

			A.	Text: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

			VII.	Æ 7 •••••••••••••••••••••••••••••••••••••••• § Right to Jury Trial in Certain Civil Cases (not on exam)

			A.	Text: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

			VIII.	Æ 8 •••••••••••••••••••••••••••••••••••••••• § Cruel & Unusual Punishment Prohibited (not on exam)

			A.	Text: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

			IX.	Æ 9 •••••••••••••••••••••••••••••••••••••••• § Ensuring the Bill of Rights Does Not Limit Rights

			A.	Text: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

			1.	Meaning:

			a.	The Ninth Amendment has generally been regarded by the courts as negating any expansion of governmental power on account of the enumeration of rights in the Constitution, but the Amendment has not been regarded as further limiting governmental power;

			b.	Ninth Amendment refers to “a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law.”

			X.	Æ 10 •••••••••••••••••••••••••••••••••••••••• § Federalism Tautology

			A.	Text: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the State respectively, or to the people.”

			B.	Meaning:

			1.	The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution; a government of limited, delegated powers only;

			2.	Specifically, it is a statement that the creation of the Bill of Rights should in no way be understood to increase the sphere of federal governmental powers;

			XI.	Æ 11 •••••••••••••••••••••••••••••••••••••••• § State Sovereign Immunity (not on exam)

			A.	Text: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

			B.	Meaning:

			1.	11th Æ makes this a one-way provision: State as π v. Citizen as ∆ only; Citizens may not sue in Federal court another state;

			2.	11th Æ immunizes states from suit for money damages or equitable relief without their consent;

			XII.	Æ 12 •••••••••••••••••••••••••••••••••••••••• § Electoral College (not on exam)

			A.	Notes:

			1.	The Twelfth Amendment changed the process whereby a President and a Vice President are elected. It did not change the composition of the Electoral College. It has applied to Presidential elections since 1804.

			2.	Under the Twelfth Amendment, each elector must cast distinct votes for President and Vice President, instead of two votes for President. Pursuant to the amendment’s Habitation Clause, an elector may not vote for both candidates of a presidential ticket if both candidates inhabit the elector’s state.

			XIII.	Æ 13 •••••••••••••••••••••••••••••••••••••••• § Slavery Abolished

			A.	Text:

			1.	Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

			2.	Section 2. Congress shall have power to enforce this article by appropriate legislation.

			B.	Note: This is the ONLY amendment which prohibits both government and private conduct; slavery is forbidden everywhere in the U.S.;

			XIV.	Æ 14 •••••••••••••••••••••••••••••••••••••••• § Citizenship, Privileges & Immunities, Due Process, & Equal Protection

			A.	Text:

			1.	Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. [ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ] [ nor shall any State deprive any person of life, liberty, or property, without due process of law; ] [ nor deny to any person within its jurisdiction the equal protection of the laws. ]

			2.	Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

			3.	Grant of Power to Congress

			a.	Tthe amendment in its entirety is a grant of power to Congress to enforce its provisions;

			b.	State Action Doctrine: As adopted, the 14th Æ is designed to address state actions which violated the privileges, immunities, equal protection, and due process of law;

			c.	Note: Unlike Æ 13, the 14th Æ does NOT apply to private actions or actors; ONLY to state government;

			B.	Citizenship Clause

			1.	Nothing to note on this clause (never any controversies on this);

			C.	Privileges & Immunities Clause

			1.	Operation of P&I

			a.	It prevents a state (not a private actor) from treating citizens of other states in a discriminatory manner;

			b.	Protects the Privileges and Immunities of all Federal rights to all U.S. citizens and then commits to the states the obligation to respect the privileges and immunities of the rights of citizens of other states;

			(1)	For example: A state can’t deny the resident of another state from using its roads; when a citizen of state A enters state B, he should have the same privileges & immunities granted to citizens of state B;

			(2)	But, a state can restrict political rights and define that within its borders you must be a resident in order to vote in its elections;

			(3)	Pursuing an occupational “calling” is not a privilege or immunity protected by the states; states can regulate the economy under their police powers as necessary; (The Slaughterhouse Cases)

			2.	Selective Incorporation

			a.	This clause is the method by which the amendments to the Constitution are incorporated to the states;

			b.	The reason the Bill of Rights Amendments were “selectively incorporated” on a case-by-case basis was because of the 14th Æ’s Due Process Clause; in other words, someone had to sue for the right being denied under the Constitution for it to be incorporated;

			c.	Bill of Rights incorporated against the states through DPC, except for:

			(1)	Æ3 right to keep soldiers from being quartered in your home;

			(2)	Æ5 right to grand jury in criminal cases;

			(3)	Æ7 right to jury trial in civil cases;

			(4)	Æ8 right against excessive fines;

			D.	Due Process Clause

			1.	Due Process in General

			a.	The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person’s basic rights to ‘life, liberty or property, without due process of law.’ Courts have issued numerous rulings about what this means in particular cases and the civil vs. criminal context.

			b.	Key Question in Due Process Analysis: What is the limit of the “property” and “liberty” interest in the Due Process Clause?

			2.	Procedural Due Process

			a.	Meaning: Procedures that the government must follow when it takes away a person’s life, liberty, or property.

			b.	Analysis:

			(1)	Has there been a deprivation of life, liberty, or property?

			(a)	Liberty = Loss of significant freedom provided by Constitution or statute.

			(b)	Property = Entitlement that is reasonably expected and has not been fulfilled.

			(2)	What procedures are required?

			(a)	Balancing Test (Matthews v. Eldridge)

			I.	Importance of the interest;

			II.	Ability of additional procedures to increase accuracy of the fact-finding;

			III.	Government interest (cost) in efficiency;

			(3)	Examples:

			(a)	Welfare benefits get notice and hearing;

			(b)	Social security benefits get post-termination hearing;

			(c)	Loss of custody of child gets notice and hearing;

			(d)	Punitive damage award gets instructions to jury and judiciary review;

			(e)	Pre-judgment attachment/seizure get notice and hearing;

			c.	Economic Rights & Regulations:

			(1)	Rational-Basis Scrutiny is all that is required for government regulation of economic activity after the Lochner era; (since Nebbia, Carolene Products, et al.)

			(2)	Other unenumerated rights (privacy, marriage, reproductive rights, et al. e.g.) are higher scrutiny than Rational Basis as “Liberty” interest for protection;

			3.	Substantive Due Process (Trumps Procedural Due Process)

			a.	Meaning: This is about the extent to which liberty is protected from governmental regulation regardless of the fullness of the procedural safeguards given. A doctrine holding that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest (thus safeguarding those fundamental rights).

			b.	As stated in Glucksberg, “The Due Process Clause guarantees more than fair process, and the ”liberty“ it protects includes more than the absence of physical restraint. The clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.”

			(1)	Fundamental rights and liberties / “Penumbras Rights”: Rights which are NOT enumerated rights like free speech, but are considered fundamental by the courts for protection and are typically tied to some constitutional theory; tied to the “liberty” notion of the text of the Due Process Clause.

			(a)	Such rights then can overrule laws (state or federal) through application of the Due Process clause;

			(b)	Arguably, this theory is another Substantive Due Process formulation;

			(2)	Fundamental Rights (as applied by the 5th, 9th, and 14th Æs):

			(a)	In determining which rights are fundamental, but not enumerated courts: (Griswold)

			I.	9th Æ is not a source of fundamental rights, but a recognition that there are rights which are fundamental;

			A.	look to the traditions and collective conscience of our people;

			B.	Penumbra rights which emanate from specific constitutional guarantees (like the freedom of thought or freedom to teach as found to be penumbra rights of the First Æ);

			II.	14th Æ incorporates this concept against the states;

			(3)	In the modern court, Substantive Due Process really exists ONLY in the “personal autonomy” areas of law;

			(a)	privacy, marriage, reproductive rights, et al. e.g.

			c.	Identifiable Protected Liberties under the Due Process Clause:

			(1)	See top of outline;

			d.	Abortion Rights:

			(1)	The Privacy Right: Griswold articulated the fundamental right of privacy;

			(a)	Eisenstadt v. Baird, took the right of privacy and barred the government from intrusion into reproductive decisions, thus articulating a related right to reproductive autonomy;

			(b)	Roe v. Wade, picks this thread up and expands reproductive autonomy to include the right to an abortion, up to a certain point in the pregnancy - Viability;

			I.	In the first trimester, the mother an unilaterally make the decision to terminate her pregnancy;

			II.	At the beginning of third trimester (24 weeks), the viability of the fetus makes a governmental interest in protecting the fetus as a child legitimate in restricting abortion;

			III.	Note: As a written decision Roe is considered the best articulation of a Substantive Due Process right;

			e.	Abortion - Substantive Due Process Revived:

			(1)	Planned Parenthood v. Casey, is arguably more important than Roe v. Wade for a number of reasons:

			(a)	It reaffirmed the “central holding” of Roe:

			I.	Roe: Constitutional right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy, but the woman’s right to terminate pregnancy is not absolute since state may properly assert important interests in safeguarding health, in maintaining medical standards and in protecting potential life, and at some point in pregnancy these respective interests become sufficiently compelling to sustain regulation of factors that govern the abortion decision.

			(b)	Reaffirmed the concept of “Substantive Due Process”;

			I.	Reaffirms the judicial practice of reviewing and invalidating state and federal laws based on the notion of substantive due process;

			II.	Pegging substantive due process to the “liberty” interest in the due process clause;

			(c)	Sets forth a Judicial Theory of Stare Decisis:

			I.	Under doctrine of stare decisis, when Supreme Court reexamines prior holding, it may ask whether rule has:

			A.	proved to be intolerable simply in defying practical workability;

			B.	whether rule is subject to a left the old rule no more than a remnant of abandoned doctrine;

			C.	whether facts have so changed or come to be seen differently as to have robbed old rule of significant application or justification.

			II.	Stare decisis is not constitutionally required, only that it is a vastly important doctrine of judicial “policy”;

			(d)	Applied an “undue burden” test to replace the Trimester standard in Roe:

			I.	Under this standard, a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability (which can move based on improvements in technology). But state may take measures to ensure that the woman’s choice is “informed.”

			II.	Pre-Viability Regulations are acceptable:

			A.	As long as, government restrictions do not impose an “undue burden” upon the mother to make her rightful choice;

			1.	Undue Burden = “substantial obstacle” to obtain a desired abortion; (applies only in abortion, NOT in any other Substantive Due Process liberty (if another liberty/right is at issue, it’s strict scrutiny);

			a.	Pre-Abortion Counseling: As long as the information given is not “misleading” or “untruthful,” it’s considered acceptable;