Final Con II Flashcards
Current USSC justices
Conservative Justices: Thomas; Gorsuch; Kavanaugh; Roberts; Coney-Barrett; Alito
Liberal Justices: Jackson; Sotomayor; Kagan
Barron v Baltimore - drop in value of property due to state action
Pre-incorporation - Bill of Rights does not apply to states
Slaughterhouse cases
Privileges and Immunities Clause only includes citizenship of the United States and doesn’t include citizenship of individual States; therefore, the Privileges and Immunities does not apply individual liberties to the States.
Saenz case - interstate travel abridged by states
Actually apply P&I clause of 14th amendment to IST - only time
Reasoning of incorporation
No State shall deprive any person of life, liberty, or property without due process of law
Used to apply the Bill of Rights to the States
Use of the word “liberty” (fundamental rights) and property is how the Bill of Rights is incorporated into the 14th Amendment - not P&I clause = citizens while DP clause = any person
Which provisions in Bill of Rights nor recognized by court
3 provisions of the 28 in the Bill of Rights have still not be incorporated into the Bill of Rights
3rd amendment – “right to not have soldiers quartered in a person’s home” – hasn’t come up
5th amendment – “right to a grand jury indictment in criminal cases”
7th amendment – “right to a jury trial in civil cases”
Incorporation analysis
Would “neither liberty nor justice exist if the right was sacrificed”
Does right “involve principles of justice so rooted in the tradition and conscience of our people as to be fundamental”
Is “right” implicit in the concept of ordered libery
Does the violation of this right “offen canons of decency and fairness which express the notions of justice of English-speaking peoples?”
Is right “deeply roote in this nations history and tradiation?”
If YES – then the right is incorporated
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State Action analysis
Does it fall under exceptions?
If not apply lugar test (1) right of privilege created by state or rule of conduct imposed by state or someone for whom state is responsible (2) fairly said state actor
Exceptions to state action
The 13th Amendment directly regulates private conduct (slavery)
Government (fed/state) can pass “public accommodation laws”
Government can enact laws that require that private conduct meet the same standards that the Constitution requires of the government (i.e. the government can regulate things that affect interstate commerce through the Commerce Clause (Heart of Atlanta Motel case))
States have the police power (to regulate health, safety, and welfare)
- Entanglement/Public Functinos exceptions
When public functions exception has been used:
(1) The management of private property – analysis balances whether private property used for public purpose - company towns (yes), parks (yes), not shopping centers or private clubs (Augusta nations)
Marsh case - company town
Running a city is a public function and therefore it must be done in compliance with the Constitution, whether by the government or a private entity
Evans v Newton - whites only condition of a park
public part held out to public but had “whites only” clause; court says golf culbs or other social centers may be private, a park is not
Jackson v. Metropolitan Edison - no N&H when utilites shut off - heavily regulated utility case
does not fall under public functions just because regulated by the government
Terry v Adams - Jaybird Democratic Association controlled a private primary that limited voting
falls under the public functions because it is a traditional state fxn
What is a case that signalled the end of the Lochner Era
West Coast Hotel Co. v. Parrish – End of Lochner
State law imposing a minimum wage for women employees
ISSUE: does a WA minimum wage law for women violate the Due Process Clause of the 14th amendment?
Held: minimum wage laws for women are constitutional (overrules Adkins)
How does the Court determine this?
* Evaluate the situation of women in employment
* Historical distinctions that need to be looked at
WA’s police powers allow it to protect its citizens health, safety, and welfare
The court states a strong “rational basis review”
* Gives Deference to the states
We see that the Court will give more deference to the States and have a lot less involvement in the legislatures actions
Contracts of adhesion
Define rational basis review
High level of deference – presumption of constitutionality
* The law being reviewed is presumed to be Constitutional
* Challenger has the burden of proof
* RULE: The law will be upheld so long as the legislature has a 1. rational (reasonable) basis for thinking that 2. the law will accomplish its permissible goal/interest
Define intermediate scrutiny
Means SUBSTANTIALLY ADVANCES an IMPORTANT government interest
The presumption shifts to a presumption against the government
Presumption shifts in favor of the offender – forces the government to defend itself
Presumption of invalidity (presumed UNconstitutional)
Examples: involve gender
Define strict scrutiny
Means are NARROWLY TAILORED (or NECESSARY) to a COMPELLING government interest
A very high standard that forces the government to defend itself
A very high test that only few laws can survive
Very narrowly tailored
Presumption of invalidity (presumed UNconstitutional)
Examples: Classifications based on race
Examples of fundamental rights subject to heightened scrutiny:
Racial issues, religion, Bill of Rights (people who argue there should be total incorporation)
Right to Privacy – not in the Constitution but considered a fundamental right – court finds it in the “penumbra (area surrounding) of Bill of Rights”
Give the continuum
Rational basisi
US v Plyler - rational basis plus education of children of illegal aliens
Intermediate scrutiny
US v Virgina - “exceedingly persuative jusitifcation”
Strict Scrutiny
United States v Carolene products
Resurrected non-economic due process:
Government regulations with respect to economic issues will be given a greater amount of deference compared to individual rights
When we are discussing fundamental rights (non-economic issues), there should be a heightened scrutiny – intermediate or strict
Williamson v. Lee Optical of Oklahoma, Inc. - optician regulations case
Example of how far away from Lochner we have gone
-Whether the optician can fill prescriptions? Law says no
-The court upholds this law even though they seem to be creating a monopoly – deference to the State’s legislature
State Farm v. Campbell - excessive punitive awards
State law allowing very high punitive awards struck down - first Lochner-like ruling seen in awhile
Contracts clause analysis
FMay a STATE impair a contract?
First, does it substantially impair the contract,
Then feviewed under rational basis 2 part test - rationally related to the governments legitimate interest
Exception, where U.S. is a party to the contract - then will he subject to heightened review - see US Trust Co v New Jersey
US Trust Co v New Jersey - gov’t changed their mind on using bonds for gov’t use
- Gov’t told people that they would not use their money for gov’t purposes. Later, the gov’t changed its mind and began to use bonds for gov’t use
Parts of the First Amendment
Express protections
* Religion
* Establishment
* Free exercise
* Free speech
* Free press
* Peaceable assembly
* Petition government regarding grievances
Implicit protections
* Free association
First amendment analysis for the test:
Ways of evaluating – the process for the test
Is it speech?/Is is conduct incident to speech?
Content-based vs. content-neutral (this is a key inquiry)
Vague/overbroad
Overbreadth: it regulates substantially more speech than the Constitution allows
“Prior restraints” (the most disfavored; restraints aimed at restricting speech before it occurs)
The exceptions:
* Less protected examples: commercial speech, low value sexual speech, profanity/indecent speech
* Unprotected examples: incitement of illegal activity, defamation, obscenity/child pornography, defamation/other torts
Forum analysis
Freedom of association
First part of 1A analysis
Is it speech?
1. Is it “classic speech”
a. If yes, strict scrutiny
b. If no, go to 2
2. Is it communicative conduct?
1b) Is it communicative conduct?
Test via Spence v Washington (flag burning case)
a) person intends to convey a particular method ~AND~
b) Likelihood is great that the message was understood by those who viewed it
i) If NOT communicative conduct, apply rational basis
ii) If YES communicative conduct apply intermediate scrutiny AND O’Brien test
(1) Intermediate scrutiny =
(2) O’Brien test = government may regulate conduct when…
(a) Its within the governments power
(b) Furthers an important, sunstantial government interest
(c) Government interest is unrelated to speech (if it’s not, strict scrutiny would apply)
(d) Restriction is no greater than essential he calls this “hybrid intermediate scrutiny”
NOTE - analyze (3) first - if it fails 3 it is STRICT SCRUTINY under lawrence v texas flag burning case
2) Is it content-based vs. Content-neutral?
a) Content based is either:
i) Subject-based restrictions
ii) Viewpoint-based restrictions
b) “Knotty” issues
i) “Secondary effects doctrine” – only applied to “adult content”
(1) City of Renton v Playtime Theaters – 2o effects here are the effect of this business on the surrounding area
(2) But see Boos v Berry – protesting signs in front of embassy – would not apply secondary effects doctrine
ii) When government must choose based on subsidy
(1) National Endowment for the Arts v Finley - Congress passed “decency” standard when allocated arts endowments – clearly under taxing and spending for welfare clause – deemed taking decency into consideration was content-neutral
iii) When the government itself is speaking
(1) Walker v Texas Division Sons of Confederate Veterans – Confederate license plate determined to be speech government speech, not personal speech because it was a government ID
(2) But see Shurtleff v Boston – 2022 flag at city hall case – allowed many groups to fly flags at city hall, refused only religious group.
SEcondary effects doctrine
(1) City of Renton v Playtime Theaters – 2o effects here are the effect of this business on the surrounding area
(2) But see Boos v Berry – protesting signs in front of embassy – would not apply secondary effects doctrine
National Endowment for the Arts v Finley -
(1) National Endowment for the Arts v Finley - Congress passed “decency” standard when allocated arts endowments – clearly under taxing and spending for welfare clause – deemed taking decency into consideration was content-neutral
1A when the government itself is speaking cases
(1) Walker v Texas Division Sons of Confederate Veterans – Confederate license plate determined to be speech government speech, not personal speech because it was a government ID
(2) But see Shurtleff v Boston – 2022 flag at city hall case – allowed many groups to fly flags at city hall, refused only religious group.
i) City of Austin v Reagan National Airport – grandfathered zoning requirements for off-business versus on-business signs.
Example of content-neutral analysis - Is this content based? Court says No – content neutral
Reed v Town of Gilbert - forbidding certain catergories of signs
Example of content-neutral analysis - Is this content based? Court says Yes
Matal v Tam – TM disparagement clause unconstitutional – claims the anti-disparagement clause was a “happy talk” clause
Content-based restriction - “happy talk” language
3) Is the restriction vague or overbroad?
a) Vagueness is when a “reasonable person” won’t understand what is being restricted – worry is malicious prosecution
i) Coates v City of Cincinnatti – Three or more persons on sidewalk “annoying” to passersby was vague
b) Overbreadth is when the law regulates substantially more speech than the Constitution allows
i) New York v Ferber – child pornography law applied to many more instances of child pronagraphy that artistic or scientific purposes
ii) But see – narrowing construction – Osborne v Ohio – adopted state court’s construction
Is the restriction a prior retraint?
a) Worse kind of retraint on speech – will never see the speech to know it is restrained – also the reason the First Amendment was set forth in the first place (see seditious libel)
b) The test:
i) Government has an important reason for licensing
ii) Clear standards leaving almost no discretion to government
iii) procedural safeguards in place
Lovell v City of Griffin - literature refusal case
Required “city manager approval” = too much discretion for prior retraint - unconstitutional
Lox v New Hampshire - cant have 2 parades on the same day
example of nearly zero discretion - not a prior restraint
City of Lakewood v Plain Dealers Publishing - no mail racks on public sidewalks
Allowed a “mayor’s exception” but did not have any criteria, too much discretion to gov’t for prior restraint
Freedman v Maryland - procedural safeguards test
(1) place the burden of proving the film is unprotected expression on the censors,
(2) require judicial determination to impose a valid determination
(3) require prompt determination “within a specified time period.”
Walker v City of Birmingham – Court-ordered prevention of demonstrations against MLK
problematic case – protestors should have gone to court and not ignored a unconstitutional injunction on demonstrations
New York Times v U.S - pentagon papers release
unconstitutional prior restraint
Are gag orders a prior restraint? (plus test)
i) Nebraska Press v Suart – three factor test laid out that did not clear the court, so the press was allowed to publish:
(1) Is the risk real?
(2) Least restrictive means?
(3) Was there a lot of coverage?
Less common prior restraints (list of 5)
i) Allowing liability for expression
ii) Preventing compensation for speech
iii) Compelling expression
(1) Making Jehovah’s witness salute the flag
iv) Condition benefit on foregoing speech
v) Pressure individuals not to speak