Conlaw II Case outline Flashcards
Supreme Court cases
Which cases tossed “SS” in favor of a textual and historical analysis for laws discriminating on fundamental rights?
- Heller
- McDonald
- Bruen
According to _____, = laws discriminating on fundamental or incorporated right must be analogous to restrictions when amendment or BOR was enacted.
Bruen. The SC has embraced [thank God] a historical and textual analysis, tossing SS.
This court said that abortion is not (1) Fundamental to nation’s scheme of ordered liberty nor is it (2) deeply rooted in nation’s history or traditions.
Dobbs
Which case finally incorporated the 6A right of unanimous jury convictions?
Ramos v. Louisiana
This case said that states must issue marriage licenses and respect them [for non-residents] for gay people.
Obergell. Used classic DP F&H analysis + mentioned “auntonomy and dignity.”
What approach to Obergell use to protect right of gay people to marry?
DP F&H analysis. [Fundamentals & historical analysis] + “autonomy and dignity.”
This court said that choosing who to marry is a right of inherent “autonomy” and dignity.
Obergell
First big 2A case after Heller.
McDonald
Washington v. _________ : Rehnquist provided that a Substantive DP analysis requires that the right be(1) Fundamental to nations scheme of ordered liberty or (2) Deeply rooted in nations history or traditions to find protection.
Glucksberg
Which case and Supreme Court Chief Justice outlined your substantive DP analysis / argument?
CJ Alito, McDonald.
CJ Thomas, Bruen.
CJ Alito, Dobbs.
Here, the Court said there is no instance in history supporting idea that “alleged” father has rights to child of another’s marriage. [He was not married to the woman and claimed it was his child.]
Court used DP F&H analysis.
Michael v. Gerald
Forced sterilization of persons deemed “habitual criminals” violates EP clause of 14A.
Skinner. Note: This case used “SS” analysis which is no longer used following McDonald holding.
Under EP clause, a state may not outlaw distribution of contraceptions to unmarried persons.
Eisenstadt
Eisenstadt used what clause to find that a state may not outlaw distribution of contraceptions to unmarried persons.
EP clause
This case overturned Adamson v. CA and incorporated the 5A right against self-incrimination.
Griffin v. CA
This case incorporated 4A but did not incorporate the exclusionary rule.
Wolf v. Colorado = Mapp v. Ohio finished the job.
This case said “states may regulate min. wage paid to female employees if the purpose if for promoting general welfare/good.”
WC Hotel v. Parrish. “Setting min. wages for general good is in itself, a form of due process.”
This case allowed Prosecution to appeal unfavorable conviction for lesser charge whereas π argued 5A protection against double jeopardy, unsuccessfully.
Palko
Under this case, state legislation is ok if for (1) public good, (2) not arbitrary, and (3) not unreasonable.
Nebbia v. NY
States may not require children to be educated only in public schools.
Pierce v. SOS
Under DP clause, states may not prohibit teaching of non-English subjects in schools.(Clients have unwritten “liberty” rights.)
Myer v. Nebraska. Use this case for arguing unwritten rights for your client.
This case is NOT good law. “Absolute unwritten right to K under DP of 14A. States.”
Lochner
Overturning Barron. States must compensate owners of private property when property taken for public use. DP is not just a matter of form or process, but SUBSTANCE.
Quincy RR v. Chicago
13A & EP for slaves + 14A PI is narrow rights not applied here.
SH
BORs does not apply to states, thus the City may undertake construction, destroying person’s property without providing just compensation under Takings clause of 5A.
Barron
Article 4 affords non-residents some P&I rights, same as residents. May have limits. [Wild game, oysters, common property]
Coryell. Article 4 P&I also permits travel through and to a state for non-residents.
_________________- is a legal standard used by courts to determine if a law is constitutional, where a law is considered valid if it is “rationally related” to a “legitimate” government interest, essentially meaning the government has a reasonable justification for the law and it is not arbitrary or discriminatory.
Rational Basis review – Carolene Producsts which also laid out reviews under “heightened scrutiny” when law restricts (1) Constitutional right, (2) Political right, or affects (3) minority classes.
In this case, the SC upheld an economic federal law because it had a “rational” basis.
New test: Economic regulations presumed constitutional as long as they have “rational basis.”
Carolene Products
Nebbia 1934
1. Legitimate purpose [good]
2. Not arbitray
3. Not unreasonable
or
Carolene products 1938
1. Presumed constitutional if rationally related. [Rational basis test]
Carolene 1938. Carolene footnote 4 also warns of higher scrutiny for certain cases.
[Arguments]
1. π alleges violation of constitutional right that has not yet been incorporated.
- Alternate argument if diff. classes of persons affected?
- Also hit Prenumbra theory
- Also hit RBT
- As a US citizen, either born or naturalized in the US, the citizen clause tethers my client to protections under DP clause and EP clause.
- The state violated my clients unwritten right to “__________” which is substantively protected by the DP clause of 14A. Under the DP clause, the state shall make no law depriving my client of life, “liberty,” or property without DP of law.
- “Liberty” is an important term, and with it a catalog of unwritten rights. [Myer v. Nebraska]
- Per the GOATj, The question before the Court is, (1) Is it fundamental to nations scheme of ordered liberty and/or (2) is it deeply rooted in nations history or traditions? [CJ Rehnquist in WA v. Glucksberg]
Backup: EP clause. You can’t treat one class of citizens different than the other. [Skinner v. Oklahoma]
In Williamson v. Lee Optical, which test is used on the Oklahoma law?
RBT
T/F) In Lee Optical, the Court said that a law is ok when rationally related even if it is wasteful or or unfair.
True
Unwritten rights fall under what argument?
“Liberty” under DP of 14A
What must you be able to argue for an EP argument?
- Favored class
vs - Disfavored class
If the discriminatory law doesn’t fall under EP argument. Whats another argument to use alongside DP violation?
Zone of privacy violation
“A state may not enact a statute that prevents marriages between persons solely on the basis of racial classification without violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”
Case?
Love v. Virginia 1965
An implied right of privacy exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception. Case?
Griswold v. Connecticut
Which case should that there is an implied right of privacy within the BORs?
Griswold v. Connecticut
What’s a good argument for discriminatory law attacking something private, IE: something going on in the home?
Griswold v. Conneticut. The implied zone or right of privacy embedded in the BORs. [Prenumbra theory]
Which Chief Justice said a right of privacy protecting the intimate relations of married couples is implied in the Bill of Rights.
Chief Justice Douglas - Griswold, using the Prenumbra theory.
Which amendments did CJ Douglas say have many unwritten rights?
1, 3, 5, 9, and 10. [Prenumbra theory]
What in the3A suggests that there is a zone of privacy in the house.
It is in the text. Soilder’s not permitted INSIDE the home. [Prenumbra theory]
What in the 4A suggests zone of privacy?
FEDS are not permitted to enter into a home without warrant or PC of crime. House has a zone of privacy. [Prenumbra theory]
For the 5A, CJ Douglas says gov. may not force you to self-incriminate, or put another way, extract the contents of your mind. What is this implying?
Right of privacy embedded into the BORs. [Prenumbra theory]
In 1965, Justice William O. Douglas used the ______ theory to strike down a Connecticut law banning contraception.
Prenumbra. Griswold v. Connecticut, 1965.
The __________ theory has been used to justify other rights, such as the right to abortion.
Prenumbra theory
Dissenting, when did CJ Black & Steward in Griswold say that Judges may strike down state law only?
Only when it runs afoul of express constitutional prohibition, and here it doesn’t because text of constitution is silent on contraception.
Argument guide?
- F&H [Dobbs, McDonald, Bruen]/U.W. rights [Myer v. Nebraska]
- EP (1) Favored class vs (2) Disfavored class
- Prenumbra theory: Privacy, CJ Douglas in Griswold.
- Rational basis test (1) Leg. purpose & (2) rationally related.
- Source for F&H argument?
- Source for unwritten rights?
- WA v. Glucksberg: CJ Rehnquist
- Unwritten rights: Myer v. Nebraska & SOS
- Source for Prenumbra argument?
- Source for RBT argument?
- CJ Douglas in Griswold v. Connecticut
- Carolene products
“The Connecticut law is not wise and is based on bad policy. But there is no ‘right of privacy’ in the Constitution as the majority says. The Fourth Amendment doesn’t create a general right of privacy. The Ninth Amendment and Due Process Clause shouldn’t be used by the Court to strike down state laws that the Court thinks go against ‘fundamental principles of liberty and justice’.” Dissenting in Griswold.
CJ Black lol. Alongside CJ Stewart.
“In 1923, Congress passed the Filled Milk Act (FMA), which criminalized the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream.”
Carolene products
Chief Justice in Carolene, using the RBT?
CJ Stone
“Judicial review is improper unless it is clear there is no rational basis for Congress’s judgment. “
CJ Stone in Carolene products employing the RBT.
Which Justice?
1. Glucksberg
2. Carolene products
3. Griswold
4. McDonald
5. Bruen
6. West Coast
7. Dobbs [Hint: He also did another case on this list]
- Rhenquist
- Stone
- Douglas
- Alito
- Thomas
- CJ Hughes
- Alito
“The Second Amendment right to keep and bear arms is applicable to the states, and it is both fundamental to the nation’s scheme of ordered liberty and deeply rooted in the nation’s history and tradition. However, the Second Amendment is enforceable against the states, not through the Due Process Clause, but rather through the Fourteenth Amendment’s Privileges or Immunities Clause, because the right to keep and bear arms is guaranteed as a privilege of being an American citizen.”
Who said it?
CJ Thomas, concurring in McDonald.
T/F) CJ Black dissented in Griswold v. Connecticut because he agreed with the law.
False. He thought the law was stupid but believed Chief Justices should strictly adhere to the text of the Constitution.
Dissenters in Griswold?
- CJ black [goat]
- CJ Stewart
According to Carolene, rational-basis test is the appropriate judicial review for congressional legislation of what products?
Common commercial products, economic and social. [Not fundamental rights]
CJ in Carolene?
CJ Stone
In SH, the court said The 14As Privileges and Immunities Clause protects only _____ rights.
National.
T/F) The Louisina statute in SH was struck down.
False
CJ in Barron?
Marshall
Did CJ marshall find that BORs applied to states?
Nope. In Barron, he held that Constitution applied only against FEDS.
For Cj _____, the courts decision in Lochner was illegitmate.
CJ Holmes
Why did CJ Holmes dissent in Lochner?
He believed States are the best parties to regulate the citizens, not the FED.
“The “liberty” protected by the Fourteenth Amendment should not function to prevent the exercise of a dominant opinion among states, that opinion being, in this case, that states can constitutionally regulate the work hours of employees within their borders. “
T/F) In the period between Lochner in 1905, and West Coast Hotel in 1937, the Su-preme Court invalidated nearly 200 state and federal laws regulating labor and employment on the grounds that the laws interfered with liberty of contract.
True
In 1937, the Court continued to protect the right of liberty to contract. [T/F]
False. The SC repudiated this practice in 1937. CJ Hughes said freedoms are restrained by health, safety, and general welfare concerns.
During the era of Lochner, where the Court protected the right to K free from state regulation, in another outlier case, it struck down a law to protect women working in factories in 1908.
Muller v. Oregon
Outlier case during the Lochner era. “Under the Fourteenth Amendment, a state may constitutionally limit the working hours of women and not men because of the state’s strong interest in promoting the health of women as the “weaker sex.”
Muller v. Oregon
In Muller v. Oregon, FED paternalistically protected women’s rights as the “weaker sex.”
What case, 3 years after 19A did the Court strike down act providing min. wages for women in DC? Why?
- Adkins v. Children’s Hosptial.
- Favoring freedom of K over enforcement of the statute. +
- Women no longer needed protection since 19A enacted.
In 1937, in _____ v. _________ the Court announced that liberty of contract would no longer be judicially enforced, and so far, that decision con-tinues to hold, although it is under attack from libertarians, and perhaps even un-der threat.
West Coast Hotel v. Parrish
CJ in West Coast?
CJ Hughes
” Thus, all asserted liberty interests are ultimately restrained by the health, safety, and general-welfare interests that constitute due process. Applying this principle, the decision in Adkins is an improper application of the constitutional-due-process provisions”
WCH laying groundwork for Carolene and RBR that comes next.
According to CJ Hughes, liberty under the DP cl. of 14A is subject to regulation under what powers?
Using freedom of k as an example, the liberty interest is subject to restraint by health, safety, and general welfare interests. West Coast Hotel.
The Carolene footnote was the dominant paradigm of constitutional interpretation on the SC until when?
Until we found common sense. Return of Originalism in 1980s-1990s.
When was the last time we see Carolene foot note and logic of Legal process theory from the 1920s and 1930s finally employed?
CJ Stevens final opinion, dissenting in McDonald.
What stupid ass case said the right to reproduce is not a fundamental right, steralizing a woman against her will?
Buck v. Bell
What does original J of the SC reach?
- Interstate disputes
- Issues concerning foreign diplomates
Argument for overturning precedent according to CJ Alito in Dobbs?
- 2.
3.
4.
5.
- Nature of previous decision error. Must be “egregiously wrong.”
- Reasoning was extremely poor.
- Unworkable rule
- Disruptive effects on other areas of law
- Absence of social reliance on the opinion.
According to CJ Alito in Dobbs, what are the five factors to overturn SC precedent?
- Eggregiously wrong rule
- Poor reasoning
- Unworkable rule
- Disruptive effects on other laws
- lack of social reliance
Regarding the 1st factor for overturning SC precedent, the 1st factor must be_______ wrong.
“egregiously” wrong.
What liberty can you challenge just about every state in the Union on?
Right to public education. Every state constitution recognizes this as a fundamental right.
T/F) CJ Thomas is a big fan of substantive DP.
False. He hates it. He would like to see the P&I clause do more work. [The only case we see PI of 14A used is in 1999 case of Saenz v. Roe]
Are other substantive Dp rights affected by the Dobbs decision?
No.
Which Justice?
“The Constitution contains no broader substantive-due-process guarantee that prevents the government from infringing on fundamental liberty interests. Substantive due process is a dangerous legal fiction that has improperly allowed judges to make policy and negatively impacted the Court’s constitutional-law jurisprudence.”
Thomas, advocating against DP and for P&I of 14A application.
Which other CJ in Dobbs vowed to protect other previously recognzied DP unwritten rights?
Kavanaugh
T/F) Kavanaugh said that states may not punish person for seeking abortion out of state.
True
T/F) Dobbs allows states to retroactively punish someone who previously obtained an abortion.
False
T/F) BORs applied only to FED before states ratified 14A.
True
How does the SC incorporate a right?
DP clause of 14A: Incorporation Doctrine
Justice in McDonald?
Alito
Analysis when asking if a right applies to a state?
- Is the right fundamental to nation’s scheme of ordered liberty?
- Is the right deeply rooted in nation’s history and traditions?
CJ thomas opinion in McDonald?
2A is applicable to the states, but through the P&I clause, not the DP clause.
Why do we have Bruen?
McDonald protected carrying in the home. NY tried to regulate carrying outside the home.
According to lower courts after McDonald, could they still regulate guns?
Yes. They applied SS and IS. Bruen rejects this.
According to Bruen, what analysis is now used instead of Intermediate scrutiny for 2A regulation?
The regulation must be consistent with the “American historical tradition of firearm regulations” when 2A and 14A ratified.
After Bruen, where can a person not carry guns ?
Sensitive places. Hospitals, gov. buildings, schools.
Does Bruen stop states from licensing all together?
No, it restricts their unfettered discretion over licensing. [Kav]
Lochner, which said “absolute” right to K is overturned by what case? Why?
WCH v. Parrish. CJ Hughes said that “liberties” are subject to regulation when the act is to protect health, safety, or general welfare.
WCH reinforced by what case?
Carolene, which provides that heightened scrutiny no longer used [unless footnote 4] and instead RBR is used.
Under RBR, legislation is constitutional if it is ___ ____ to the goal of a legitimate gov. interest.
Rationally related.
Footnote 4 provides that legislation may nonetheless be subject to HS when?
- Constitutional prohibition
- Restricts political processes
- Discrim. against minorities
Dobbs overturned what cases?
Casey and Roe. [Good]
According to CJ Alito, why isn’t abortion protected?
The Constitution does not reference abortion in the text.
According to Alito in Dobbs, for a right to protected as fundamental, it must pass what standard?
F&H standard, which abortion does not.
Court addressed Stare Decisis in what case, outlining five factors to overturn precedent jurisprudence?
Dobbs. CJ Alito in 2022.
T/F) After Dobbs, regulations on abortions are presumed valid.
True if they can pass the RBR. IE: The act must be rationally related to the gov. interest to protect the life.
Roberts in Dobbs concurred but would have taken diff. appproach.
Overruled viability rule but upheld woman’s right to choose.
Thomas agreed in Dobbs that DP cl. does not protect abortion but went even further.
DP clause doesnt protect any unwritten rights. Urged the court to reconsider ALL SC precedent for substantive dp rights, IE: right for gay to marry, right to contraception, etc.
Future challenges to abortion laws will be subject to what review?
RBR. Presumptively valid if rationally basis for the legislature to believe that the regulation serves a legitimate purpose.
- Right of unmarried persons to access contraception.
- Right of public school teachers to teach modern languages other than English.
- Right to choose private school .
- Right to have an operational handgun in the home for purposes of lawful self-defense.
- Einstendt
- Myers v. Nebraska
- Pierce v. SOS
- McDonald
- Governmental prohibition of access to contraception is impermissible.
- Governmental may regulate abortion if RBR to legitimate interest. Presumed Constitutional.
- Governmental regulation of contract formation is permissible.
- Eienstedt
- Dobbs
- WCH v. Parrish then Carolene
Which case expressed most skepticism towards substantive DP?
a. West Coast Hotel.
b. Obergefell.
c. Roe v. Wade.
d. McDonald v. City of Chicago.
e. Lochner v. New York.
A. They overturned Lochner.
Can businesses utilize P&I of article 4?
No for citizens only.
T/F) The SC refuses to recognize an unwritten right to participate in free markets not distorted by governmental grants of monopolies to private entities.
True under Slaughterhouse holding.
What clause used to save Skinner in the Skinner v. Oklahoma case?
EP clause
Which CJ relied on the original public understanding that the Bill of Rights? IE: BORs bound the federal government and not the states.
CJ Marshall in Barron v. Baltimore.
Saenz v. Roe:
“There is a right to be treated like other citizens of a state upon choosing to become a permanent resident of that state. That right is protected by the Privileges or Immunities Clause of the…..”
14A but only when becoming a permanent new resident. This does not apply to temp. travel through or to a state which is protected by A4.
3 rights in Saenz v. Roe outlines 3 constitutional rights to travel. What are they and how protected? Hint: They all use some form of PI Clauses.
- Travel between states [Article 4 PI]
- Treated fairly as temp. visitor [Article 4 PI]
- Treated same as new perm. res. [14A PI]
A state violates the Fourteenth Amendment’s Privileges or Immunities Clause by limiting welfare benefits based on a person’s status as a new resident.
Saenz v. Roe
The United States Constitution’s ban on ex post facto laws does not apply to civil cases.
Case?
True. Ex Post Facto laws only apply to criminal cases. Calder v. Bull
Which amendment + clause protects you from your own state?
PI of 14A
This case established the precedent that the “ex post facto” clause in the Constitution only applies to criminal laws, not civil laws
Calder v. Bull
Why was Griswold prosecuted?
Providing counseling on how to prevent contraception.
Which amendment did Griswold claim the Conneticut law violated?
14A
What broad general right does Griswold assert?
Right to privacy
Did CJ Douglas agree with Griswold?
Yes. Prenumbra theory = implied right of privacy in the BORs.
Concurring in Grisowold, CJ Goldberg said what amendment further protected implied right of privacy?
9A
Dissenting, did Stewart and Black dissent because they believed the law was ok? Why didn’t they join court opinion?
No. “It is not the duty of the Court to strike down legislation with which it simply disagrees. If the people of Connecticut disagree with a state law, their best recourse is to use their actual Ninth and Tenth Amendment rights and convince their elected officials to change the law.”
When do you employ RBR argument?
For non-fundamental rights arguments. IE: Economic, social, or common commerical products.
CJ Stone Carolene
WCH v. Parrish
Williamson v. Lee Optical
Case example for RBR argument:
Williamson v. Lee Optical
The text of the P&I cl. of 14A disables whom from depriving persons of a right?
The states.
Which cl. incorporates the BORs?
DP
When was the only time the P&I clause is used?
Saenz v. Roe, protecting constitutional right to travel.
PI cl. of 14A may be asserted by whom against the states?
National citizens
Who possess rights under PI cl of 14A?
National citizens
T/F) EP cl. only protects persons.
False. Persons and businesses.
P&I Cl. of article 4 binds who? When?
The states, when out of staters come travel or visit as temporary guests.
T/F) The GJ clause of the 5A has been incorporated so as to bind the states.
False
___ v. ____ is a landmark case in 1938, same year as Carolene, whereas the EP clause used to provide relief in face of overt racism.
Powell v. Alabama
What did CJ Alito say in McDonald about “SS?”
Absoluetly zilch.
Only one case where SS was applied and this no longer good law.
Roe v. Wade
Is handgun regulation ok?
Yes, subject to textual analysis.
Bruen provided that handgun regulation may be permitted but handgun ____ will not be.
prohibition
DP & EP clauses protect whom? What about P&I?
14 Amendment.
Citizens AND businesses.
P&I is for citizens only, not businesses.
Can you invoke the P&I cl. of article 4 against your own state?
No. Used against other states you may travel through or visit.
T/F) SH is still good law.
True
T/F) There is no federal right to be free of monopolies.
True. SH
In Skinner, what clause used?
EP
T/F) In Barron v. Baltimore, Chief Justice Marshall reasoned that the states were not constrained by any federal constitutional command.
False. He circle jerked the Supremacy clause so you know this is wrong.
T/F) States always are immune from suit.
False, when they sue a person first rights claims may be asserted against them.
Which case relied on the original public understanding that the Bill of Rights bound the federal government and not the states.
Barron v. Baltimore
Article 4 may be used only as against whom?
Other states you visit or travel through.
Can you use P&I clause of article 4 against your own state.
No, defer to 14A P&I clause.
What case should you use when your constitutional right to travel has been inhibited?
Saenz v. Roe
T/F) You may assert Saenz v. Roe liberty as against airlines.
False. Only as against the several states.
3 dimensions to Saenz v. Roe in 1999?
- right to travel [4]
- right as visitor [4]
- right as new resident [14]
What’s unique about Saenz v. Roe in 1999?
Only time the P&I cl. of 14A did any work at all.
At the very least, gov. action is subject to…
RBR
Default analysis when social and economic legislation challenged?
RBR
When are rights fundamental?
When a SC says they are.
What changed for abortion between 73 and 2022?
Abortion viewed as fundamental in 73 then not in 2022. No real right or wrong test.
What two cases recognized right to contraceptions?
- Griswold [generally]
- Eienstedt [married couples]
T/F) Gov. regulation of K formation is impermissible.
False.
Does the 9A offer relief in courts?
No
What is the only clause that utilized Prenumbra?
Griswold
Griswold CJ?
Douglas
What amendments, according to CJ Douglas, carry an implied right of privacy?
1, 3, 4, 5, and 9.
1 = freedom to associate
3 = right against quartering in home
4 = right against UR search & seizure
5 = right to not incriminate
9 = Constitution shall not be construed so as to disparage rights of citizens.
For CJ Goldberg, what texts of the Constitution implies a right of privacy in Griswold?
9A = Constitution shall not be construed so as to disparage rights of the citizens.
Marbury v. Madison = “Every clause in the Constitution is meant to be given full effect.”
“If the Court denies the existence of a marital right of privacy simply because it is not enumerated in the first eight amendments in the Bill of Rights, it is essentially denying all meaning in the Ninth Amendment.”
CJ Goldberg, concurring in Griswold. His concurrence referenced 9A and Marbury v. Madison.
