v line

There is plenty of law at the end of a nightstick. -- Grover A. Whalen

Search The Library


SOME MAIN ROOMS

LEGAL TOPIC AREAS

MISC BUSHWAH

PREMIUM ROOMS

Follow Us!



Our Most Popular Article:
Power of Attorney
Our Most Popular Page:
Free Legal Forms
Our Newest Article: Personal Finance Guide

line
line

INTRO. HISTORY; POST-CIVIL WAR AMENDMENTS:
THE BILL OF RTS & THE POST-CIVIL WAR AMENDMENTS: FUNDAMENTAL PROCEDURAL
RIGHTS & THE “INCORPORATION” DISPUTE:

We are free human beings. Rules are given by society to provide harmony
in society.

RIGHTS: freedom of speech, religion, assembly, press, privacy. Things
that you have that the govt
can’t infringe upon.
-Where do rts come from?
-The Constitution, Bill of Rights,

Nature of Govt is to threaten rts. Govt is rt. constrictive.

POLICE POWER: Duty to protect & preserve the health, safety, welfare, &
morals of society.

Theoretical Genius of Judicial Review: Supreme Ct can get rid of those
laws which are bad or
unconstitutional. Provides a check on the legislature to make sure they
don’t violate the rts set forth
in the Constitution.
-S.Ct. cannot write laws/make laws/change laws. They can uphold the
laws or else they can get rid of the laws. S.Ct. looks out for “We the
People.”

Fed Govt: govt of limited powers
State Govt: general govts.

Before the 14th Amendment, State laws restricting religion, press,
speech, etc would not violate the Bill of Rts.
-Bill of Rts: applied to Fed Govt

1865 13th : applied to individual citizens. Restricts powers of the
individuals. Abolished Slavery.
1868 14th: Due Process: Procedural & Substantive

TIME LINE:
1776 Revolutionary War
1789 Constitution
1791 Bill of Rts
1857 Dred Scott [overturned by 13th]
-Slave was owned by Dr, lived in Virginia & moved to Missouri. Then
to Illinois & Wisconsin. Later returning to slave states. Widow moved
to NY & dedicated slave to original owner. Slave sued for his freedom.
S.Ct. says no black man will ever be a citizen of the United States.
9/17/62 1st Union Victory in the Civil War [Antietam]
9/22/62 Lincoln writes the Emancipation Proclamation
-never recognized the existence of the Confederacy. Written to adjust
the property rts of Union, excluding slave states still partof the
Union.
1/1/63 Emancipation Proclamation became effective.
1865 13th Amendment
1866 Civil Rts Act
1868 14th Amendment
1870 15th Amendment
1898 Plessy v. Ferguson
1920 Gave women rt to vote
1965 Civil rts Amendment

INCORPORATION DOCTRINE: 14th Amendment’s Due Process clause has been
read to make applicable to the state criminal proceedings virtually all
of the procedural requirements that govern federal criminal law
enforcement as result of the Bill Of Rts.

THE PRE-CIVIL WAR SITUATION:

BARRON v. MAYOR & CITY COUNCIL OF BALTIMORE:
Barron sued the City for ruining the use of his wharf in Baltimore.
City diverted the flow of streams, which caused large masses of sand &
earth to be deposited near the wharf, thereby causing the water to
become too shallow for most vessels.

HELD: The amendments demanded security against the apprehended
encroachments of the general government-not against those of the local
govts.
-The just compensation provision in the 5th amendment is intended
solely as a limitation on the exercise of power by the govt of the US,
and is not applicable to the legislation of the states.
-We are therefore of opinion that there is no repugnancy b/t the
state’s action & the Constitution of the US.
-Dismissed

Definition of FUNDAMENTAL RIGHTS: privileges & immunities which are
fundamental, which belong of rt to the citizens of all free govts and
which have at all times been enjoyed by citizens of the several states
which compose this union, from the time of their becoming free,
independent, & sovereign.

MARTIN v. HUNTER’S LESSEE: defended the legitimacy of S.Ct. review of
state ct judgments resting on interpretations of federal law & rejected
the highest Virginia ct’s challenge to the constitutionality of sec. 25
of the Judiciary Act of 1789, which provided for S.Ct. review of final
decisions of the highest state cts rejecting claims based on federal
law: including federal constitutional law.

THE MARSHALL COURT’S POSITION:
THE PURPOSE & IMPACT OF THE POST-CIVIL WAR AMENDMENTS:

SLAUGHTER-HOUSE CASES:
Louisiana law of 1869 chartered a corp & grantd to it a 25yr monopoly
“to maintain slaughtrhouses, landings for cattle & stockyards” in an
area which included the city of New Orleans. All competing facilities
were required to close, but the corp was required to permit independent
butchers to slaughter cattle in its slaughterhouses at charges fixed by
statute. Butchers not included in the monopoly claimed that the law
deprived them of their rt “to exercise their trade” & challenged it
under the 13th & 14th Amendments.

Privileges & Immunities Clause:
1. Rt to come to the seat of govt to assert any claim he may have upon
that govt to transact any business he may have w/it, to seek its
protection, to share its offices, to engage in administering its
functions.
2. Rt to access to its seaports
3. Rt to protection of life, liberty, & property
4. Rt to peaceably assemble & petition for redress of grievances,
privilege of the writ of habeas corpus
5. Rt to use the navigable waters of the US.

HELD: Under no construction of that provision (14th) can the restraint
imposed by Louisiana upon the exercise of their trade by the butchers of
New Orleans be held to be a deprivation of property w/in the meaning of
that provision.
-Rts claimed by P’s are not privileges & immunities of citizens of US
w/in the meaning of the 14th.
-The regulation of the place & manner of conducting the slaughtering
of animals is among the most necessary & frequent exercises of the
states’ police power.
-The means adopted are appropriate, are stringent, & effectual, but
the legislature has exceeded its power.
-Those privileges & immunities which are fundamental, which belong of
rt to the citizens of all free governments, and which have at all times
been enjoyed by citizens of the several States which compose this
Union,, from the time of their becoming free, independent, &
sovereign…
-Its sole purpose was to give to the several States that whatever
those rts, as you grant or establish them to your own citizens, or as
you limit or qualify, or impose restriction on their exercise, the same,
neither more nor less, shall be the measure of the rts of citizens of
other States w/in your juris.
-With the exception of these & a few other restrictions, the entire
domain of the privileges & immunities of citizens of the States lay w/in
the Constitutional & legislative power of the States, & w/o that of the
Federal govt.

-THE RESTRAINT IMPOSED CANNOT BE HELD TO BE A DEPRIVATION OF PROPERTY
W/IN THE MEANING OF THE CONSTITUTION

J. FIELD; CHASE; SWAYNE; & BRADLEY, DISSENT: The 14th makes it essential
to the validity of the legislation of every State that this equality of
rt should be respected. A law which prohibits a lg class of citizens
from adopting a lawful employment, or from following a lawful employment
previously adopted, does deprive them of liberty as well as property,
w/o due process of law. 14th incorporates all of the rts granted in the
1st 8 amendments in the Bill of Rts.

J. BRADLEY, DISSENT: A law which prohibits a large class of citizens
from adopting a lawful employment, or from following a lawful employment
previously adopted, does deprive them of liberty as well as property,
w/o due process of law.

INTRO. DUE PROCESS & INCORPORATION:
THE AFTERMATH OF THE SLAUGHTER-HOUSE CASES: PRIVILEGES & IMMUNITIES; DUE
PROCESS:

FEDERAL PRIVILEGES & IMMUNITIES:
[According to TWINING v. NEW JERSEY]
1. Rt to travel fro state to state
2. Rt to petition Congress
3. Rt to vote for national offices
4. Rt to enter public lands
5. Rt to be “protected against violence while in the lawful custody of a
US marshal
6. Rt to inform the US authorities of violation of its laws
INCORPORATION DOCTRINE:
-Either Due Process specifically incorporates the Bill of Rts
-Or it doesn’t at all
-Or it incorporates some, but not all

THE MEANING OF DUE PROCESS: CRIMINAL PROCEDURE & THE INCORPORATION
CONTROVERSY:

2 Step Process for Due Process:
1) Examine the constitution to see whether the process in conflict w/any
of its provisions
2) If not found to be so, look to those settled usages & modes of
proceeding existing in the common & statute law of England.

I. INTERPRETIST VIEW: expand words to fit the day.
ie. Press then = TV/Internet now
-J. Black, Scalia, Rehnquist
a) STRICT INTERPRETISTS
b) LOOSE INTERPRETISTS

II. NON-INTERPRETIST VIEW: if personal rt/Fundamental, then it is
protected. Other things must be found in actual language of
Constitution.
-ie. Rt to privacy was found in Constitution, but came out of left
field. Not an expansion of the language of the Constitution
-J. Harlan, Powell, Frankfurter, Brennan

JUSTICE CURTIS: Concepts of notice & hearing have been at the core of
Due Process from the beginning; and adaptation of those concepts to
varied circumstances has contributed greatly to the flexibility of
procedural due process.

HURTADO v. CALIFORNIA:
Cal. stat permitted criminal proceedings to be instituted by information
rather than by grand jury indictment.

HELD: There is nothing in Magna Charta that ought to exclude the best
ideas of all systems & of every age. Any legal proceeding enforced by
public authority, whether sanctioned bay age & custom, or newly devised
in the discretion of the legislative power, in furtherance of the
general public good, which regards & preserves principles of liberty &
justice, must be held to be due process of law.

Total Incorporation v. Selective Incorporation:

THE PALKO-ADAMSON DISPUTE: DO THE BILL OF RIGHTS GUARANTEES APPLY TO
STATE CRIMINAL PROCEEDINGS?
THE BATTLE BETWEEN “SELECTIVE” & “TOTAL” INCORPORATION:

2 THEMES PREDOMINATE IN THE PALKO-ADAMSON DEBATE B/T THE CARDOZO-
FRANKFURTER POSITION & THAT OF BLACK:
1. Questions of Federalism
2. Problems of “objective” standards & judicial subjectivity.

PALKO v. CONNECTICUT:
As an acquittal of 1st degree murder precludes a 2nd trial on the same
murder charges.

HELD: Ct refused to apply some Bill of Rts guarantees to the states,
grand jury indictment & protection against self-incrimination. Rt to
trial by jury & the immunity from prosecution are not of the very
essence of a scheme of ordered liberty. To abolish them is not to
violate a ‘principle of justice so rooted in the traditions & conscience
of our people as to be ranked as fundamental’

-J. CARDOZO: “Selective” incorporation approach. Held for the State
of Conn. The state was asking no more than that the case against the D
shall go on until there shall be a trial free from the corrosion of
substantial legal error.
-It does not violate those fundamental principles of liberty & justice
which lie at the base of all our civil & political institutions.

ADAMSON v. CALIFORNIA:
Prosecution commented on D’s refusal to take the stand

HELD: Such a comment would violate the 5th self-incrimination privilege
in a federal proceeding. The 14th’s Due Process clause guaranteed a rt
to a fair trial. Not all Bill of Rts guarantees were protected by the
14th and he found no ground to make the self-incrimination privilege
applicable to the states.

J. BLACK’S DISSENT: decision reasserts a constitutional theory spelled
out in TWINING that this ct is endowed by the Constitution w/boundless
power under natural law periodically to expand & contract constitutional
standards to conform to the cts conception of what at a particular time
constitutes civilized decency & fundamental liberty & justice. I
wouldn’t reaffirm TWINING. I think that decision & the natural law
theory of the Constitution upon which it relies degrade the
constitutional safeguards of the Bill of Rts & simultaneously
appropriate for this Ct a broad power which are not authorized by the
Constitution to exercise.
-To pass upon the constitutionality of stats by looking to the
particular standards enumerated in the Bill of Rts & other parts of the
Constitution is one thing; to invalidate stats b/c of application of
‘natural law’ deemed to be above & undefined by the Constitution is
another.
-In the one instance, cts proceeding w/in clearly marked
constitutional boundaries seek to execute policies written into the
Constitution; in the other, they roam at will in the limitless area of
their own beliefs as to reasonableness & actually select policies, a
responsibility which the Constitution entrusts to the legislative
representatives of the people.

J. FRANKFURTER, CONCURRENCE: The 14th’s due process clause has
‘independent potency” and an “indep function”: it neither comprehends
the specific provisions by which the founders deemed it appropriate to
restrict the federal govt, nor is it confined to them.
-”A construction which gives to due process no independent function
but turns it into a summary of the specific provisions of the Bill of
Rights would deprive the States of opportunity for reforms in legal
process designed for extending the area of freedom”
-suggests a possible 10th Amendment argument for/by the states.
-The judicial judgment in applying the Clause must move w/in the
limits of accepted notions of justice & is not to be based upon the
idiosyncrasies of a merely personal J. An important safeguard against
such merely individual J is an alert deference to the J of the State Ct
under review.

VALUES: state autononmy; of Fed Govt to define & maintain indiv rts.
-Ct uses power of fed govt & diminution of state govt.
-Fighting for more power of states today.

1. Natural Law: The nat’l law due process formula has been interpreted
to limit substantially this ct’s power to prevent stat violations of the
indiv civil liberties guaranteed by the Bill of Rts.
2. Due Process
3. Liberty & Justice

Freedom of Speech; Double Jeopardy; Rt to Counsel; (Rt to K?)

THE MODERN APPROACH & ITS PROBLEMS:

DUNCAN v. LOUISIANA:
Are States limited in the same ways that the Federal govt is?
-”continuous incorporation”?
-14th says states cannot deprive a D of a rt to trial by jury
-6th Amendment: rt to jury in criminal proceeding
-Protects rt to compensation for prop taken by State
-rts of speech, press, & religion
-rts to be free from unreas searches & seizures
-rt to be free of compelled self-incrim
-rt to speedy & public trial (6th)
-rt to confrontation of opposing witness & to compulsory process for
obtaining witnesses

D was convicted of simple battery & sought trial by jury which was
denied by the trial judge.

HELD: the 14th guarantees a rt of jury trial in all criminal cases
which, if tried in fed ct, would come w/in the 6th’s guarantee.
Constitution was violated wen D’s demand for jury trial was refused. Rt
to jury trial in criminal cases to be fundamental to our system of
justice.
-The rt to jury trial in serious criminal cases is a fundamental rt &
hence must be recognized by the States as part of their fundamental rt &
hence must be recognized by the States as part of their obligation to
extend due process of law to all persons w/in their jurisdiction.

incorporation & the retroactivity problem:
-Traditionally, new doctrines have been given fully retroactive effect
to all cases pending in the judicial system.
-More recently the Ct rejected those older approaches & adopted
instead an analysis earlier advocated, under which “new” constitutional
rules would be applied to all cases on direct review that were not yet
final, but wouldn’t ordinarily not be applied to final J’s attacked on
collateral review, except in extraordinary cases in which ” fundamental
fairness” would be denied by not applying the “new” rule.
-Plurality View: The exceptions should be avail only in cases in
which the “new” rule went to factual innocence & asserting a very narrow
view of what constitutes a “new” rule that may be invoked in a
collateral challenge to a conviction.
The recent cases have proceeded upon the valid assumption that state
criminal processes aren’t imaginary & theoretical schemes but actual
systems bearing virtually every characteristic of the common law system
developing contemporaneously in England & in this country.
-States may not refuse a speedy trial, confrontation of witnesses, &
the assistance, at state expense if necessary, of counsel.
Every American State, uses the jury extensively, & imposes very
serious punishments only after a trial at which the D has a rt to a
jury’s verdict. In every State the structure & style of the criminal
process are of the sort that naturally complement jury trial, and have
developed in connection w/& in reliance upon jury trial.
In Benton v. Maryland, the majority held that the double jeopardy
prohibition of the 5th Amendment represents a fundamental ideal in our
constitutional heritage, and that it should apply to the States.
-Selective Incorporation of all of the criminal process guarantees of
the Bill of Rts are now applicable to the states, w/the exception of the
grand jury indictment provision of the 5th Amendment and, arguably, the
“excessive bail” provision of the 8th.

1. If Ct declares today that Constitution means a certain thing, then
every ruling to the contrary in past must be overruled.
2. New principal today & w/this case alone…applic to all cases from
this case after.
3. Adopt a rule of expedience. Will reach back & apply new
interpretation of Constitution to all cases still pending final J.

-6th’s Rt to Counsel: if facing day or 2 imprisonment, then if
indigent, rt to counsel
-Rt to jury trial if facing a serious time of imprisonment (month or
so)

J. BLACK (concurrence): The Bill of Rts shall apply to the States. The
words “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the US” seem to me an eminently
reasonable way of expressing the idea that henceforth the Bill of Rts
shall apply to the States.”

J. HARLAN & STEWART dissenting: To start w/the words “liberty” and “due
process of law” & attempt to define them in a way that accords
w/American traditions & our system of govt. This approach, involving a
much more discriminating process of adjudication than does incorporation
is, albeit difficult, the one that was followed throughout the 19th and
most of the present century. It entails a gradual process of judicial
inclusion & exclusion,” seeking, w/due recognition of constitutional
tolerance for state experimentation & disparity, to ascertain those
“immutable principles of free govt which non member of the Union may
disregard.”

PROBLEMS OF THE MODERN APPROACH: THE CONTOURS OF “INCORPORATED” RIGHTS:

TWINING Natural Law-OP:
-Liberty is not just confined to the definitions supplied in the Bill
of Rts.

WOLF v. COLORADO:
HELD: The “core” of the 4th’s guarantee was an ingredient of due
process, buth the exclusionary rule applied in Fed cts (barring the use
of evidence obtained in violation of the 4th was NOT constitutionally
req’d of the states.

MAPP v. OHIO:
HELD: The exclusionary rule is “an essential part of the rt to privacy”
recognized. The states could no longer admit evidence obtained in
violation of the 4th’s standards.
-INCORPORATION: meant not merely incorporating the “core” of the Bill
of Rts guarantee, but applying to the states every detail of the
contours of the guarantee as delineated in judicial interpretations of
the relevant provision..

WILLIAMS v. FLORIDA:
-12 man panel is not a necessary ingredient of trial by jury.
-6th does not require 12-person or unanimous juries after all in
federal or state cts.

APODACA v. OREGON:
-Ct ruled that what had formerly been thought to be an ingredient of
the 6th guarantee was not constitutionally required after all &
accordingly sustained the constitutionality of a state nonunanimous jury
verdict.

J. POWELL: 6th required the traditional jury unanimity in federal
trials, but didn’t think that all of the elements of the federal
guarantee should be imposed on the states as a reqt of due process.
-Unanimity wasn’t constitutionally req’d b/c it doesn’t materially
contribute to the central function served by the jury in contemporary
society-to interpose the common sense judgment of a group of laymen b/t
accused & accuser.

***No unanimity reqd for 12-person juries, IS required for 6-person
juries.

***IF state chooses to provide a greater protection for indiv or impose
a higher restraint on the state’s power, then this IS allowed b/c it is
not a violation of the Supremacy Clause.
-S.Ct. sets the “floor”, but it does not establish/set the “ceiling”.

SUBSTANTIVE DUE PROCESS & LOCHNER:
SUBSTANTIVE DUE PROCESS: RISE, DECLINE, REVIVAL:
SUBSTANTIVE DUE PROCESS & ECONOMIC REGULATION: THE RISE & DECLINE OF
JUDICIAL INTERVENTION:

LIBERTY:
Literalist Literal
Interpretivist Non-Interpretivist
Economic Personal Liberty

CALDER v. BULL:
Ct rejected an attack on a Conn legislative act setting aside a probate
ct decree that had refused to approve a will. Ct rejected their claim
that the ex post facto clause barred the Conn act: the clause was
construed as being limited to criminal legislation. Inclincation to
invalidate legislation quite apart from explicit constitutuional
limitations.

HELD: A State Legislature’s authority should not be expressly restrained
by the Constitution, or a fundamental law, of the State. The people of
the US erected their Constitutions, or forms of govts, to establish
justice, to promote the general welfare, to secure the blessings of
liberty; and to protect their persons & property from violence. The
nature, and ends of legislative power will limit the exercise of it.
-The Legislature cannot change innocence into guilt; or violate the rt
of an antecedent lawful private K, or the rt of private property.
-The nature, and ends of legislative power will limit the exercise
of it.

DICTA: If the Legislature of the Union, or of any member of the Union,
shall pass a law, w/in the general scope of their constitutional power,
the Ct cannot pronounce it to be void, merely b/c it is, in their J,
contrary to the principles of natural justice.

FLETCHER v. PECK:
Sought for an alternative ground for invalidating a Georgia effort to
revoke a land grant.

HELD: Repudiated any reliance on the K clause of the Constitution; &
instead, relied on the “general principle on the reason & nature of
things”.
-Linked all of its protections of economic rts to specific
constitutional provisions, most often, the K clause.
-Result was justified either by general principles common to our
free institutus, or by the particular provisions of the US.

DRED SCOTT DECISION:
HELD: An act of Congress which deprives a citizen of the US of his
liberty or property, merely b/c he came himself or brought his property
into a particular Territory of the US, an who had committed no offense
against the laws, could hardly be dignified w/the name of due process of
law.

SLAUGHTER HOUSE CASES:
HELD: Temporarily blocked the utilization of the 14th Amendment as a
substantive restraint on state Legislation.

BUDD v. NY:
Dissent: The utmost possible liberty to the individual possible
protection to him & his property, is both the limitation & duty of govt.
Soon the seeds of Sub. Due Process begin.

MUNN v. ILLINOIS:
HELD: Ct rejected an attack on a state law regulating the rates of grain
elevators. Police power included regulation of individual use of
property “when such regulation becomes necessary for the public good”.
-Private property may be regulated when it is “affected w/a public
interest” & that property becomes “clothed w/a public interest when used
in a manner to make it of public consequence, & affect the community at
large.”
-Undoubtedly, in mere private K, relating to matters in which the
public has no interest, what is reasonable must be ascertained
judicially.

RAILROAD COMMISSION CASES:
HELD: Sustaining state regulation of the railroad rates. It is not to
be inferred that this power of regulation is w/o limit. It is not a
power to destroy.
-State cannot require a RR Corp to carry persons or property w/o
reward; neither can it do that which in law amts to a taking of private
property for public use w/o just compensation, or w/o due process of
law.

SANTA CLARA COUNTY v. SOUTHERN PAC. RR:
HELD: Corporations were “persons” w/in the meaning of the 14th.

MUGLER v. KANSAS:
HELD: Sustained a law prohibiting intoxicating beverages, but the Ct.
announced that it was prepared to examine the substantive reasonableness
of state legislation.
-Not every statute enacted ostensibly for the promotion of the public
morals, the public health, or the public safety, would be accepted as a
legitimate exertion of the police powers of the State. Obligation to
look at the substance of things.
-If a purported exercise of the police powers has no real or
substantial relation to those objects, or is a palpable invasion of rts
secured by the fundamental law, then it is the duty of the cts to so
adjudge.

SUBSTANTIVE DUE PROCESS REQUIREMENT:
1. Means
2. Purp. Ends
Rational

GEYER v. LOUISIANA:
HELD: Ct invalidated a state law on substantive due process grounds.
Stat violated 14th Amendment in that it deprives the D’s of their
liberty w/o due process of law. Focus was on the state power over
foreign corporations.
-The liberty of K that gave the case its special significance in the
development of substantive due process. “The liberty mentioned in that
amendment means not only the rt of the citizen to be free form the mere
physical restraint of his person, as by incarceration, but the term is
deemed to embrace the rt of the citizen to be free in the enjoyment of
all his faculties; to be free to use them in all lawful ways; to live &
work where he will; to earn his livelihood by any lawful calling; to
pursue any livelihood or avocation, and for that purpose to enter into
all K’s which may be proper, necc, & essential to his carrying out to a
successful conclusion the purposes above mentioned.”
***S.Ct. is getting stronger & the power of State’s is getting smaller.
Very important Case.

THE LOCHNER ERA: JUDICIAL INTERVENTION & ECONOMIC REGULATION:

LOCHNER v. NY:
NY law prohibited employment of bakery employees for more than 10hrs day
or 60hrs week. Lochner was convicted & fined for permitting an employee
to work in his Utica, NY bakery for more than 60hrs week.

HELD: Ct. held that this is a violation of the 14th Amendment. The
limit of the police power has been reached & passed in this case.
-Law here has no such direct relation to and no such substantial
effect upon the health of the employee as to justify us in regarding the
section as really a health law.
-Is this a fair, reasonable, and appropriate exercise of the police
power, or is it an unreasonable, unnecc, & arbitrary interference w/the
rt of the individual to his personal liberty or to enter into those K’s
in relation to labor which may seem to him appropriate or necc for the
support of himself & his family.
-There is not reasonable ground for interfering w/the liberty of
person or the rt of free K, by determining the hrs of labor, in the
occupation of a baker.
-The limit of the police power has been reach & passed in this case.
-There must be more than the mere fact of the possible existence of
some small amt of unhealthiness to warrant legislative interference
w/liberty. It is unfortunately true that labor, even in any dept, may
possibly carry w/it the seeds of unhealthiness. But are we all, on that
acct, at the mercy of legislative majorities?

Ct: Is this a fair, reasonable, and appropriate exercise of the police
power, or is it an unreasonable, unnecessary & arbitrary interference
w/the rt of the indiv to his personal liberty or to enter into those K’s
in relation to labor which may seem to him appropriate or necessary for
the support of himself & his family?
-could have used a less restrictive means.

Strict Scrutiny:
Means? Purposeful end?, Police Power?
-need a direct relation b/t the means & the ends.

p. 111: The mere assertion that the subject relates though but in a
remote degree to the public health does not necessarily render the
enactment valid. The act must have a more direct relation, as a means
to an end, and the end itself must be appropriate & legitimate, b/f an
act can be held to be valid which interferes w/the general rt of an
individual to be free in his person & in his power to K in relation to
his own labor.
-There must be more than the mere fact of the possible existence of
some small amount of unhealthiness to warrant legislative interference
with liberty. Labor, even in any dept, may possibly carry w/it seats of
unhealthiness.
The purpose of a statute must be determined from the natural &
legal effect of the language employed; and whether it is or isn’t
repugnant to the Constitution must be determined from the natural effect
of such statutes when put into operation, & is not from their proclaimed
purpose.
-The law here has no such direct relation to and no such substantial
effect upon the health of the employee as to justify us in regarding the
section as really a health law.

LOCHNER v. NEW YORK, CON’T:
J. HARLAN DISSENT: Whether or not this be wise legislation, it is not
the province of this ct to inquire. Cts are not concerned w/the
wisdom/policy of legislation.
-Ct may inquire whether the means devised by the State are germane to
an end which may be lawfully accomplished & have a real or substantial
relation to the protection of health.
-It is enough for the determination of this case, & enough for this
ct to know, that the question is one about which there is room for
debate & for an honest difference of opinion.
-There are many reasons of a weighty, substantial character, based
upon the experience of mankind, in support of the theory that, all
things considered, that those hrs worked are a bad idea.

JUSTICE HOLMES, DISSENT: This case is decided upon an economic theory
which a lg part of the country doesn’t entertain. If it were a question
whether I agreed w/that theory. I should desire to study it further &
long b/f making up my mind. But I don’t conceive that to be my duty,
b/c I strongly believe that my agreement or disagreement has nothing to
do w/the rt of a majority to embody their opinions in law.

THE DISCREDITED PERIOD OF JUDICIAL INTERVENTION: WHAT WAS WRONG WITH
LOCHNER?

ECONOMIC LEGISLATION:
STRUCK DOWN UPHELD
Allgeyer, Sherman Act
Lochner, Holden

VALUES OF S.Ct.
Property
Economic Liberty
Social Work Causes/Welfare

Values of S.Ct. v. State Legislature:
Rt of employees/bread v. Rt of employers:

KEENAN: The study of Constitutional law should be to find neutral
principles.

Majority rejected the legitimacy of the legislative end out of hand.
Conceded to the validity of health objectives.
-TEST: There must be some fair ground, reasonable in & of itself, to
say that there is material danger to health.
Arguably, the majority in effect imposed a greater burden of
justification on the defenders of the law than “minimum rationality”;
apparently, it demanded more than a showing that reasonable persons
might think that the means would promote the end.
-If so, the majority in fact applied a stricter, heightened scrutiny
than its own articulated, seemingly deferential standard suggested.
The Lochner majority’s approach rested on an implicit assumption that
liberty of K WAS a fundamental value warranting special judicial
protection.
-The “Mere Reasonableness” in means-ends relationships will not
justify restraints.
-Stricter Scrutiny rests on a value J: only a J selecting some values
for special judicial protection, but also implementing that protection
by “balancing” the competing public & private interests.
The S.Ct. exercises greater than minimal scrutiny & “balances” when it
examines state regulation of interstate commerce. Higher standards of
justification & stricter degrees of scrutiny surface w/re: to the
“fundamental rts”.
JUDICIAL SCRUTINY OF ECONOMIC REGULATIONS DURING THE LOCHNER ERA-SOME
EXAMPLES:

***The modern Ct has w/drawn from careful scrutiny in most economic
areas, but has increased intervention regarding range of noneconomic
personal interests not explicitly protected by the Constitution..
- Mere Rationality Standard: if legislative restraints on liberty are
permissible so long as reasonable persons might think that the
restraints plausibly promote broadly conceived legislative objectives.
- The modern Ct has taken a Minimum Rationality Standard in testing
whether alleged infringements of economic liberties are justifiable.
- Liberty: denotes “not merely freedom from bodily restraint but also
the rt of the indiv to K, to have any of the common occupations of life,
to acquire useful knowledge, to marry, to establish a home & bring up
kids, to worship God acc to own conscience, & generally to enjoy those
privileges long recognized at common law as essential to the orderly
pursuit of happiness by free man

MULLER v. OREGON:
HELD: Ct sustained an Oregon law that provided that “no female” shall be
employed in any factory or laundry “more than 10hrs during any one day”.
[3 yrs after Lochner]
-Reason it was upheld was b/c that longer hrs may disadvantage the
women’s ability to produce good offspring. ie. kids may not be as
healthy otherwise.
-Freedom/Liberty of K is not absolute.
-Conviction was affirmed.
-The inherent difference b/t the 2 sexes justified a difference in
legislation & upholds that which is designed to compensate for some of
the burdens which rest upon her.

COPPAGE v. KANSAS:
D had been convicted for violating a state law against “Yellow Dog”
contracts (employees agree as a condition of employment “not to join or
become or remain a member of any labor organization.”).

HELD: Struck down a law designed to protect labor organizing efforts.
Police power may not be invoked to remove “those inequalities that are
but the normal & inevitable result” or the exercise of rts of K &
property.
-Law violated due process: “Included in the rt of personal liberty &
the rt of private property is the rt to make K’s. An interference
w/this liberty so serious as that now under consideration, and so
disturbing of equality of rt, must be deemed to be arbitrary, unless it
be supportable as a reasonable exercise of the police power of the
State.

ADAIR v. US:
HELD: Ct held unconstitutional, under the due process clause of the
5th, a Federal law against “yellow dog” K’s on interstate RR’s.
-The rt of a person to sell his labor upon such terms as he deems
proper is the same as the rt of the purchaser of labor to prescribe the
conditions.
-Employers & Employees have equality of rt & any legislation that
disturbs that equality is an arbitrary interferes w/the liberty of K.

ADKINS v. CHILDREN’S HOSPITAL:
HELD: The law compelled payment of wages w/o regard to the employment
K, business involved, or work done; therefore it was a “naked, arbitrary
exercise” of legislative power.”
-The liberty of K couldn’t be subjected to greater restriction in the
case of women than men, w/o the regard to the employment K.

J. HOLMES DISSENT: Don’t understand the principle on which the power to
fix a minimum for the wages of women can be denied by those who admit
the power to fix a maximum for their hrs of work. Bargain is equally
affected whichever half you regulate.

MUNN v. ILLINOIS
HELD: Rate regulation was permissible only for businesses affected w/a
public interest.

RULE: In the private sector areas not so affected, price regulation was
barred altogether.

GEN RULE: A state legislature is w/o constitutional power to fix prices
at which commodities may be sold, services rendered, or property used,
unless the business or property involved is affected w/a public
interest.

NEW STATE ICE CO. v. LIEBMANN:
Oklahoma law treated the manufacture of as like a public utility,
requiring a certificate of convenience & necessity as a prerequisite to
entry into the business.

HELD: Ct invalidated the law.

ADAMS v TANNER:
HELD: Ct struck down a law that prohibited employment agencies from
collecting fees from workers.

LIGGETT CO. v. BALDRIDGE:
HELD: Ct struck down & invalidated a law barring corporate ownership of
pharmacies unless all stockholders were pharmacists.

WEAVER v. PALMER BROS:
HELD: Ct invalidated a total prohibition of the use, in the manufacture
of bedding materials such as mattresses & quilts, of shoddy, cut up, or
torn fabrics.
-Ct found the absolute prohibition of shoddy purely arbitrary:
protection of health & against consumer deception didn’t justify so
drastic a remedy. The ptys had agreed that shoddy may be rendered
harmless by disinfection or sterilization, even where the shoddy had
been made from filthy rags.

RULE: Other secondhand materials could be used, so long as they were
sterilized and the finished product carried a label showing the
materials used.

THE MODERN ERA: THE DECLINE & DISAPPEARANCE?-OF JUDICIAL SCRUTINY OF
ECONOMIC REGULATION:

NEBBIA v. NY:
Law/Stat: A Milk control Board was established w/power to “fix minimum
& maximum [retail] prices to be charged [by] stores to consumers for
consumption off the premises where sold.”
-9 cents was to be charged for a quart of milk. D was convicted for
selling 2 qts & bread for 18 cents.

ISSUE: Whether the Constitution prohibits a state from so fixing the
selling price of milk?
-YES.

HELD: Price control, like any other form of regulation, is
unconstitutional only if arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt, & hence an
unnecessary & unwarranted interference w/individual liberty. There is
no basis for condemning the provisions of the law here drawn into
question.
-Due Process: A state is free to adopt whatever eco policy may
reasonably be deemed to promote the public welfare & to enforce that
policy by legislation adapted to its purpose.
-
GEN RULE: Although both shall be free of governmental interference,
neither right is absolute. But neither property rts nor K rts are
absolute. The use of proper & the making of K’s are normally matters of
private (not public) concern.
-Equally fundamental w/the private rt is that of the public to
regulate it in the common interest. The guaranty of due process demands
only that the law shall not be unreasonable, arbitrary or capricious,
and that the means selected shall have a real & substantial relation to
the object sought to be attained.
-Due process: a state is free to adopt whatever economic policy by
legislation adapted to its purpose. Cts are w/o authority to declare
such policy, or to override it. If the laws passed have a reasonable
relation to a proper legislative purpose ,& are neither arbitrary nor
discriminatory, then the requirements of due process are satisfied.
-”Affected w/a public interest” is equal to “subject to the exercise
of the police power”
-Price control, like any other form of regulation, is unconstitutional
only if arbitrary, discriminatory, or demonstrably irrelevant to the
policy the legislature is free to adopt, hence unnecessary & unwarranted
interference w/indiv liberty.
-No basis here for condemning the provisions of the law here drawn
into question.

NEBBIA STANDARD: The means selected shall have a real & substantial
relation to the object sought to be attained.

J. MCREYNOLDS, DISSENT: The plan won’t work, trickle down theory won’t
work, so therefore there is no rational relationship & the law doesn’t
meet the due process requirements.
-This is management (not regulation) & amts to the deprivation of the
fundamental rt one has to conduct his own affairs honestly & along
customary lines.

DISSENT’S SCRUTINY STANDARD: Must look to its purpose & decide whether
the means proposed have reasonable relation to something w/in
legislative power, whether the end is legitimate, and the means
appropriate.

WEST COAST HOTEL CO. v. PARRISH: [Overruled Adkins]
HELD: Ct sustained a state minimum wage law for women.
-The Const. doesn’t speak of freedom of K. It speaks of liberty &
prohibits the deprivation of liberty w/o due process. No absolute &
uncontrollable liberty.
-Liberty under the Consept is necessarily subject to the restraints
of due process, and regulation which is reasonable in relation to its
subject & is adopted in the interests of the community is due process.
-THERE IS A DEEP SEATED CONVICTION BOTH AS TO THE PRESENCE OF THE EVIL
AND AS TO THE MEANS ADAPTED TO CHECK IT. legislative RESPONSE TO THAT
CONVICTION CAN’T BE REGARDED AS ARBITRARY OR CAPRICIOUS, AND THAT IS ALL
WE HAVE TO DECIDE.
-The community may direct its law-making power to correct the abuse
which springs from their selfish disregard of the pubic interest.
ADKINS is overruled.

THE IMPACT OF NEBBIA AND WEST COAST HOTEL:

MOREHEAD v. NY EX REL TIPALDO:
HELD: Ct invalidated a NY minimum m wage law for women.

US v. CAROLINE PRODUCTS CO.:
Ct rejected a due process challenge to a federal prohibition of the
interstate shipment of “filled milk” (skimmed milk mixed w/non-milk
fats.)

ISSUE: Whether any state of facts, known or which could reasonably be
assumed, affords support for the legislative judgment?
-Whether commerce in filled milk should be left unregulated, or in
some measure restricted, or whole prohibited?

J. STONE: [most important footnote, #4]: There may be narrower scope
for operation of the presumption of constitutionality when legislation
appears on its face to be w/in a specific prohibition of the
Constitution, such as those of the first 10 Amendments, which are deemed
equally specific when held to be embraced w/in the 14th.
-There may be a stronger case for judicial intervention in regulation
of matters other than commercial transactions.
-A statute would deny due process if it precluded the disproof in
judicial proceedings of all facts which would show that a stat depriving
the suitor of life, liberty, or property had a rational basis.

RULE: The existence of facts supporting the legislative judgment is to
be presumed, for regulatory legislation affecting ordinary commercial
transactions isn’t to be pronounced unconstitutional unless in the light
of the facts made known or generally assumed it is of such a character
as to preclude the assumption that it rests upon some rational basis
w/in the knowledge & experience of the legislators.
-Where the existence of a rational basis for legislation whose
constitutionality is attacked, depends upon facts beyond the sphere of
judicial notice. Such facts may properly be made the subject of
judicial inquiry, and the constitutionality of a stat predicated upon
the existence of a particular state of facts may be challenged by
showing to the CT that those facts have ceased to exist.

Minimal Scrutiny-Economic Rights
1. Minimum/Minimum – 1 minute, bifocals
The classification must be reasonable, not arbitrary, and must
rest upon some ground of difference having a Fair and Substantial
Relation (MEANS) relating to the Purpose)to the object of the
legislation, so that all persons similarly circumstances shall be
treated alike
2. Minimum w/Bite – 0 seconds, no glasses
Have to show some Minimal Rational Relationship (MEANS) relating to
the Purpose)

LINDSEY v. NATURAL CARBONIC GAS CO:
4 RULES:
1.) The EP Clause of the 14th doesn’t take from the State the power to
classify in the adoption of police laws, but admits of the exercise of a
wide scope of discretion in that regard, and avoids what is done only
when it is w/o any reasonable basis and therefore is purely arbitrary.
2.) A classification having some reasonable basis doesn’t offend against
the clause merely b/c it is not made w/mathematical nicety or b/c I
practice it results in some inequality.
3.) When the classification in such a law is called in question, if any
state of facts reasonably can be conceived that would sustain it, the
existence of that state of facts at the time the law was enacted must be
assumed.
4.) One who assails the classification in such a law must carry the
burden of showing that it doesn’t rest upon any reasonable basis, but is
essentially arbitrary.

OLSEN v. NEBRASKA:
Law fixing maximum employment agency fees.

HELD: Ct reversed. There is no necessity for the State to demonstrate
b/f us that evils persist despite the competition which attends the
bargaining in this field.
-Since they don’t find expression in the Const, we cannot give them
continuing validity as standards, by which the Constitutionality of the
economic & social programs of the States is to be determined.

LINCOLN FEDERAL LABOR UNION v. NORTHWESTERN IRON & METAL CO:
HELD: Ct sustained State, right to work, laws requiring that employment
decisions not be based on union membership.

RULE: States have power to legislate against what are found to be
injurious practices in their internal commercial & business affairs, so
long as their laws don’t run afoul of some specific federal
Constitutional prohibition, or of some valid Federal law.
-Due Process presents no obstacle to block legislative protection of
Union members.
-Legislative protection can be afforded to non-union workers.

FERGUSON v. SKRUPA: [BROAD DEFERENCE TO LEGISLATIVE JUDGMENTS]
HELD: Ct sustained Kansas law prohibiting anyone from engaging, in the
business of debt-adjusting “except as an incident to the lawful practice
of law.”
-Kansas was free to decide for itself that legislation was needed to
deal with the business of debt-adjusting.

RULE: This state measure bears a rational relation to a
Constitutionally permissible objective.
-Judicial intervention should not be allowed in, commercial &
business regulation so long as state laws don’t run afoul of some
specific federal Constitutional prohibition.

MOREY v. DOWD:
A law only allows trucks to advertise the owner’s wares, not general
advertising. The law was struck down.

NEW ORLEANS v. DUKES, p? [Overturned MOREY v. DOWD.]
Push carts selling various items. Too many push carts.

RULE: A law says that if you have owned your cart for a certain # years,
you can keep your cart, otherwise all other cart owners lose their cart.

HELD: Ct upheld the law. Overturned MOREY v. DOWD.

WILLAIMSON v. LEE OPTICAL CO,
Oklahoma law says that only w/a prescription can you get glasses.

HELD: Ct upholds the law. Ct sees no Const. reason why a state may not
treat all who deal w/the human eye, as members of a profession who
should use no merchandising methods for obtaining customers.

RULE/TEST {Minimum Scrutiny}: Law need not be in every aspect logically
consistent w/its aims to be Constitutional. It is enough that there is
an evil at hand for correction, and that it might be thought that the
particular legislative measure was a rational way to correct it.
-Most modern challenges to economic regulations involve EP as well as
DP claims. W/EP, the w/drawal from scrutiny of economic regulations has
generally paralleled that under due process.
-Ct begins to include commercial speech w/in the protection of the
First Amendment.

THE “TAKING-REGULATION” DISTINCTION & THE MODERN CT; TAKING, REGULATION
& POLICE POWER; AND THE K’S CLAUSE:
THE “HANDS OFF” APPROACH TO ECONOMIC LEGISLATION: EXCESSIVE W/DRAWAL?
JUSTIFIABLE DOUBLE STANDARD?EMINENT DOMAIN AND THE TAKINGS CLAUSE:
PUBLIC USE
JUST COMPENSATION
VIOLATION OF THE 5TH AMENDMENT:

If zoning- the ct won’t mess w/it.
If regulation goes too far = taking

GENERAL RULE: While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking. Govt need
not compensate the property owner for losses that are incidental
consequences of valid regulation; it must compensate when the regulation
is tantamount to a taking.

PENNSYLVANIA COAL CO. v. MAHON:
Plaintiffs(Mahon) want to keep Coal Co. from mining under their house in
such a way to remove the supports and cause a subsidence of the
surface and of their house.. P’s only have surface rights.
P says Coal Co. can’t do it b/c it is against the Kohler Act.
The Deed says the Coal Co can mine as much as they want.

HELD: Ct. says Too Bad. Should not have been so stupid as to just by
surface rights.
Ct. overrules the Kohler Act.
-The law cannot be sustained as an exercise of the police power w/the
right mine such coal has been reserved.
-Some values are enjoyed under an implied limitation and must yield to
the police power. But obviously the implied limitation must have its
limits, or the contract and due process clauses are gone. One fact for
consideration in determining such limits is the extent of the
DIMINUTION. When it reaches a certain magnitude, in most if not in all
cases there must be an exercise of eminent domain and compensation to
sustain the act.
-The Law was struck down b/c – The Nuisance was a Private Nuisance
not a Public Nuisance

***The protection of private property in the 5th Amendment presupposes
that it is one for public use, but provides that it shall not be taken
for such use w/o compensation.

Reciprocity of Advantages = you can do want you want next to me and
vice-versa, so long as we do not mess with each others value. I will
give up some of the use of my property and so will you so that we may
maintain the advantages of our/my property

MILLER V. SCHOENE:
Red cedar trees may be the source of infectious disease. The trees are
growing next to an apple orchard. The State says the trees have to go.
Miller says NO
HELD: Ct concluded that the cedars could be destroyed w/o compensation
to their owners.
-The state was under the necessity of making a choice b/t the
preservation of one class of property & that of the other, wherever both
existed in dangerous proximity.
-When forced to such a choice, the state does not exceed its
constitutional powers by deciding upon the destruction of one class of
property in order to save another which, in the judgment of the
legislature, is of greater value to the public.

RULE: Where the public interest is involved preferment of that interest
over the property interest of the individual, to the extent even of its
destruction , is one of the distinguishing characteristics of every
exercise of the police power which affects property.

KEYSTONE BITUMINOUS COAL V. DEBENEDICTIS:
Implementing administrative regulations require that 50% of the coal
beneath such structures be kept in place as a means of providing surface
support.

HELD: Upholds modern day counterpart to the Kohler Act that was struck
down in Penn Coal. That issue was a Penn. Law prohibiting coal mining
that causes subsidence damage to pre-existing public buildings,
dwellings, and cemeteries.
-Maj Opinion: The restrictions in the law did not constitute a
taking.
1) This law did not merely involve a balancing of private interests,
but rather protecting of the public interest in health, the environment,
and the fiscal integrity of the area.
2) There had been no showing here of a deprivation equivalent to
that of Penn Coal, where certain mining was made “commercially
impracticable” by the Kohler Act.

GOLDBLATT V. HEMPSTEAD :
State ct. had blocked and effort to deal with a local problem via
zoning, the town resorted to a “safety regulation” and prevailed in the
ct. Goldblatt owned a sand and gravel pit in a suburban area; the town
had expanded rapidly. Goldblatt claimed that the latest ordinance was
not regulatory but rather amounted to confiscation of property without
compensation

HELD: Noncompesable exercise of the police power.
-Ct conceded that the regulation “completely prohibits a beneficial
use to which the property has previously been devoted,” but nevertheless
has found it justified as a “reasonable,” noncompensable exercise of the
police power.

FIRST LUTHERAN CHURCH V. LOS ANGELES CO. :
Church uses land for a camp. LA Co. says can’t build on it b/c the land
floods every 500yrs. But you can walk, hike, etc..just can’t build on
it.

HELD: Ct. held that the mere invalidation of the regulation restricting
the use of the property was a constitutionally insufficient remedy
-You reduce the use of their property to practically no use of all.
If the Co. wants it they will have to pay for it. Since Co. kept them
in court for so long w/o the benefit of use – Co. has to pay them rent
for the time that they did not get to use it.

LUCAS v. SOUTH CAROLINA COASTAL COUNCIL Supp:
Lucas had land on a beach in Charlston on the ocean side. Lucas buys
land facing the ocean & wants to development. He subdivided the prop
into parcels & he developed them, building fancy houses on each of the
parcels & sold all but 2 of them. He’d bought the land in 1986 & in
19727 S.Carolina enacted a law which said (p.119, I): “that landowner
w/land in a critical area, needed a permit to develop that land”.
-Development Lucas put together, including the 2 parcels next to the
ocean front, were not in a critical area at the time of purchase.
-1988, Legislature enacted the Beachfront Management Act which said: a
baseline would be established, & the baseline marked where the erosion
had gone in the past 40yrs & then added on an add’l 20 feet for good
measure.
-In effect, it prevented Lucas from building on the last 2 lots.

HELD: If S.Ct values rt to contract, private contractual relations, then
it will deem this a taking.
-Try to find economic interests & expectations in Common Law of
S.Carolina to determine what his eco expectations should/may have been
according to history.

RULE {100% Rule}: ***When attacking an economic opportunity/regulation,
then the burden is upon the attacker.
-Where a regulation prohibits all-100% economically beneficial use of
land, and the proscribed use could not have been prohibited under State
nuisance law, the regulation is a taking requiring just compensation to
be paid to the landowner.

PENN CENTRAL TRANSPORTATION CO. v. NEW YORK CITY:
Under NYC Landmark Preservation Law, Grand Central Terminal was
designated a landmark. Law requires owners of designated landmark to
keep the building’s exterior in good repair & to obtain approval from a
commission b/f making exterior alterations.
-Request for approval to build a multi-story office building on top of
the terminal was denied by the commission b/c it would impair the
aesthetic quality of the terminal.

HELD: The constitutional bounds of permissible regulation had not been
exceeded.
-Extinguishment of value OR merely a reduction.
-Wanted reciprocity of advance.
-A city may, as part of a comprehensive historic landmarks
preservation program, “place restrictions on the development of
individual historic landmarks w/o effecting a ‘taking’.
-Zoning laws were “classic” examples of ordinarily permissible
impairments of real property interests for the sake of the health,
safety, morals or general welfare.
-A law that substantially furthers important public policies may so
frustrate distinct investment-backed expectations as to amt to a taking.
-Unlike zoning laws & historic district legislation, “landmark laws
apply only to selected parcels.”
-Landmark laws are not like discriminatory, or ‘reverse spot’,
zoning: that is, a land use decision which arbitrarily singles out a
particular parcel for different, less favorable treatment than the
neighboring ones.
***The restrictions imposed are substantially related to the promotion
of the general welfare & not only permit reasonable beneficial use of
the landmark cite, but afford the owner opportunities to further enhance
not only the terminal cite, but also other properties.

J. REHNQUIST: 2 Exceptions to the normal rule that “DESTRUCTION OF
PROPERTY” constitutes a compensable taking:
1. Permissible prohibition of “Noxious Uses”: forbidden use of the
prop is “dangerous to the safety, health, or welfare of others.”
2. Compensation rule: Govt prohibits a noninjurious use, a taking
doesn’t take place if the prohibition applies over a broad cross sectio
of land & thereby secures an average reciprocity of advantage.

AGINS v. TIBURON: [K's CLAUSE AS WELL]
Involved a zoning change which placed appellants’ land in a zone in
which they could only build b/t one & five single family residences on
their tract.

HELD: Emphasized the benefits of the change “in assuring careful &
orderly development of residential property & emphasized that these
benefits must be considered along q/any diminution in mkt value that
appellants might suffer.
-Although the regulation limited development, it didn’t prevent the
best use of appellants’ land nor extinguish a fundamental attribute of
ownership.

LORETTO v. TELEPROMPTER MANHATTAN CATV CORP:
The per se rule of the court lead it to invalidate a NY law which
provided that a landlord must permit a cable TV co. to install its cable
facilities upon a landlord’s rental property.

HELD: A per se rule (rather than balancing) for “permanent physical
occupations”
-When the govt authorizes a “permanent physical occupation” (albeit a
minor one) of an owners prop, there is a taking w/o regard to the public
interest that he govt action may serve.

RULE: Precedence confirmed a distinction “b/t a permanent physical
occupation, a physical invasion short of an occupation, and a regulation
that merely restricts the use of property.”
-A permanent physical occupation: a governmental action of such a
unique character that it is a taking w/o regard to other factors that a
ct might ordinarily examine. Accordingly, when the character of the
governmental action [Penn Central] is a permanent phys occupation of
property, S.Ct. cases uniformly have found a taking to the extent of the
occupation, w/o regard to whether the action achieves an imp public
benefit or has only minimal eco impact on the owner.

NOLLAN v. CALIFORNIA COASTAL COMM’N:
Nollans were owners of beachfront prop in Cal who sought permission to
replace their small bungalow w/a larger house.
-A conditional grant of permission on Nollan’s agreement to allow the
public to pass across their beach, which was located b/t 2 public
beaches.

HELD: It clearly would have been a taking if the state regulation had,
directly imposed such an easement, instead of conditioning the Nollans’
permit to rebuild their house on their agreeing to an easement.
-A permanent physical occupation’ has occurred where indivs are given
a permanent & continuous rt to pass to & fro, so that the real prop may
continuously be traversed, even though no particular indiv is permitted
to station himself permanently on the premises.
-Cal could have denied the permit entirely, or imposed any number of
restrictions w/o those restrictions being a taking-AS LONG AS THE
RESTRICTIONS SUBSTANTIALLY ADVANCED THE END ADVANCED AS THE
JUSTIFICATION FOR THE PROHIBITION [THE BUILDING RESTRICTION REGARDING
HOUSES NEARBY THE BEACH].

MAJOR HOLDING: No adequate nexus b/t the condition & the original
purpose of the building restriction. “in short, unless the permit
condition serves the same governmental purpose as the development, ban,
the building restriction is not a valid regulation of land use but ‘an
out -and-out plan of extortion.”

RUCKELSHAUS v. MONSANTO CO., [Application of TAKINGS CLAUSE to
intangible prop.]:
Monsanto could rec’v permission to market certain pesticides, only if it
disclosed its formula & methods to the EPA, which would then make its
info generally avail. Monsanto claimed this procedure amounted to a
taking b/c the trade secrets involved were treated as its property under
the relevant state law.

HELD: Trade secrets are sufficiently similar to more tangible forms of
prop to qualify as prop for purposes of the Takings Clause: “To the
extent that Monsanto has an interest in its health, safety, and
environmental data cognizable as a trade-secret prop rt under [state]
law, that prop rt is protected by the Takings Clause.”
-In General: the disclosure of the information (such like that here)
would be considered a taking ONLY if the owner of the info had a
“reasonable, investment-backed expectation” that the information would
be kept confidential.
-A taking had taken place, it was for a legitimate public use, and
that it was therefore permissible provided that compensation was made.

HAWAII HOUSING AUTHORITY v. MIDKIFF: [main case; big rule]
Decision upheld Hawaii’s use of eminent domain to solve the problem of
concentrated land ownership, a problem traceable to Hawaii’s early
feudal land tenure system.
-The Hawaii Land Reform Act, designed to compel large landowners to
break up their estates, created a mechanism to implement this purpose.
After the state agency acquired the prop by eminent domain, it could
sell the land to tenants who’d applied for fee simple ownership.

RULE: Where the exercise of the eminent domain power is rationally
related to a conceivable public purpose, the Ct has never held a
compensated taking to be proscribed by the public use clause. On this
basis, the Ct has no trouble concluding that the Hawaii Act is
Constitutional.
-When the Legislature’s purpose is legitimate & the means are not
irrational, such legislation is Constitutional.
-The mere fact that property taken outright by eminent domain is
transferred in the first instance to private beneficiaries doesn’t
condemn that taking as having only a private purpose.

UNITED STATES V. NEW JERSEY:
The suit was directed against the 1974 repeal of a statutory covenant
made by New Jersey and New York in 1962 — a covenant that had limited
the ability of the Port Authority of New York and New Jersey to
subsidize rail passenger transportation from revenues and reserves. The
covenant was designed in part to assure bondholders that bond revenues
would not be used to any great extent to finance the predictably
unprofitable rail operations. The New Jersey Court rejected the
contracts clause challenge, finding the 1974 repeal justified as “a
reasonable exercise of police power.

HELD: A law impairing a state’s own obligations was entitled to less
deference than legislation interfering with private contracts.
Implementing that approach, he formulated a heightened standard of
review: he insisted that a law impairing a state obligation must be
“reasonable and necessary to serve an important public purpose: in order
to pass muster under the contracts clause.
-The Supreme Court — REVERSED.
-Viability of Penn Coal.
-1. Ad Hoc: Takings v. Regulations Cases:
*******a. Expectations, Property is defined by State law (historical
description is most imp & trumps all other definitions of property.
2. 2 EXCEPTIONS:
a. EXTINGUISHMENT OF VALUE (complete extinguishment to $0)
b. MERELY REDUCTION OF VALUE

***Harm Preventing/Benefit Conferring can describe the same phenomena,
depending on the pt of view.
-Look at Private v. Public perspective.
-State’s police power will be defined & they will have to pay lg
amts if it stupidly put together the legislative statutes.
-Language is very imp & they way Leg characterizes what it is doing
is also very imp.

Argument for it being a valid regulation:
1. Is there an extinguishment of value?
-[NO, b/c he could still enjoy the value of the prop, didn't make
value $0.]
2. Is there reciprocity of advantage?
[YES, he made money off other parcels]

Argument for it being a taking:
1. Contractual expectations at time of purchase?
[He intended, reasonably, to develop all of the lots, had an attny,
checked the title (no encumbrances), etc.]
2. He had no way of knowing that the Legislature would enact such a law
which would deprive him of his expectation.

DOLAN v. CITY OF TIGARD Supp: [NOLLAN v. CALIFORNIA COASTAL COMMISSION]
City developed code which said that to prevent flooding, w/flood planes,
& also establish a bike & pedestrian path inside the flood plane. Need
15% of land left vacant. City claims establishing a Reciprocity of
Advantage.
-Municipalities often attempt to condition building or development
permits on a landowners:
1) conveying title to part, or all, of the property to the
government OR,
2) granting the public access to the property (e.g., an easement
across the property). Such conditions constitute an uncompensated
taking, unless :
a) the govt can show that the condition relates to a legitimate govt
interest AND,
b) the adverse impact of the proposed dev/building on the area is
roughly proportional to the loss caused to the property owner of the
forced transfer of occupation rights.

THE CONTRACTS CLAUSE:

***The major purpose of the K’s Clause was to restrain state laws
effecting private K’s.***

HOME BUILDING & LOAN ASS’N v. BLAISDELL:
Minn law authorized relief against mortgage foreclosures & execution
sales of real prop. Local cts were permitted to extend the period of
redemption from foreclosure sales as being just & equitable, but not
beyond May 1st. Extentions were conditioned upon an order requiring the
mortgagor to pay all or reas part of the fair income or rental value of
the prop toward the payment of taxes, ins, interest & principle. No
action for deficiency judgment could be brought during such a ct ordered
period of redemption. P’s obtained a ct order under the Act, extending
the period of redemption. State ct sustained the law as an emergency
measure.

ISSUE: Whether the provision for temp & conditional relief exceeds the
power of the state by reason of the K’s Clause?

RULE: The protective power of the State, its police power, may be
exercised in directly preventing the immediate & literal enforcement of
K’ual obligations by temporary & conditional restraint, where vital
public interests would otherwise suffer.
-If State power exists to give temporary relief from the enforcement
of K’s in the presence of disasters due to physical causes such as fire,
flood, or earthquake, then that power cannot be said to be nonexistent
when the urgent public need demanding such relief is produced by
economic causes. Rational compromise b/t indiv rts & public welfare is
balanced by the Court.
-The use of reasonable means to safeguard the economic structure
upon which the good of all depends is the question at issue.

HELD: The conditions upon which the period of redemption is extended
don’t appear to be unreasonable.
-The Minn statute doesn’t violate the K’s Clause.
SUBSTANTIVE DUE PROCESS: RISE, DECLINE, REVIVAL:

EL PASO v. SIMMONS:
HELD: Upheld a Texas effort to wipe out the rts of purchasers of certain
public lands to reinstate their interests in the lands by payment of
delinquent interest.
-Public interest justified Texas’ curtailment of reinstatement rts
which modified the State’s contractual obligation, not merely the
remedy. Importance of State’s purposes was emphasized & Ct insisted
that “not every modification of a contractual promise” violates the
contracts clause.

US TRUST CO. v. NJ:
Stat Covenant by NY & NJ limited the ability of the Port Authority of NY
& NJ to subsidize rail passenger transportation from revenues &
reserves.
-Covenant was designed to assure bondholders that bond revenues
wouldn’t be used to any great extent to finance that predictably
unprofitable rail operations.

HELD: A law impairing a state’s own obligations was entitled to less
deference than legislation interfering w/private K’s.
-A finding that there has been a technical impairment is merely a
prelim step in resolving the more difficult question whether that
impairment is unconst.
***-Greater judicial scrutiny was warranted when a state was charged
w/impairing its own obligations: “as w/laws impairing the obligations of
private Ks, an impairment of state obligations may be constitutional if
it is reasonable & necc to serve an imp public purpose. In applying
this standard, complete deference to a legislative assessment of
reasonableness & necessity isn’t appropriate b/c of State’s self-
interest at state.

RULE: ***Where a state interference w/private K’s is challenged, “cts
properly defer to legislative J as to the necessity & reasonableness of
a particular measure,” as is “customary interviewing economic & social
regulation.
-A law impairing a state obligation must be “reasonable & necc to
serve an imp public purpose” to pass muster under the K’s Clause.

ALLIED STRUCTURAL STEEL CO. v. SPANAUS:
HELD: The Act’s imposition of a new obligation on the employer violated
the clause. The impact of the law both “substantial” & severe.
-The law retroactively modified the payment obligations assumed by the
company under its voluntarily established pension plan, and that the
element of reliance was vital, since the state had intervened in a
previously unregulated area. The law had an extremely narrow focus.

ENERGY RESERVES GROUP v. KANSAS POWER & LIGHT CO:
*THERE IS NOT EX POST FACTO(RETROACTIVITY) LAW IN CIVIL LAW– ONLY IN
CRIMINAL LAW*

3 Step Inquiry:
1) Whether the State Law has, in fact, operated as a substantial
impairment of contractual relationship. If there was such a substantial
impairment, then,
2) The State, in justification, must have a significant & legitimate
public purpose behind the regulation. [US Trust], such as the remedying
of a broad & general, social or economic problem. [Allied Steel] Then,
3) Once a legitimate public purpose has been identified, is to determine
whether the adjustment of the rights & responsibilities of contracting
parties is based upon reasonable conditions and is of a character
appropriate to the public purpose, justifying the legislation’s
adoption.
***Unless the State itself is a contracting party ct’s defer to
legislative judgment as to the necessity & reasonableness of a
particular measure.

GENERAL MOTORS CORP v. ROMEIN:

RETROACTIVITY & REGULATORY LAWS:
THE REVIVAL OF SUBSTANTIVE DUE PROCESS, FOR NONECONOMIC RTS: PRIVACY;
AUTONOMY; FAMILY RELATIONS; THE RT TO DIE:
[Fundamental Rts]

***EX POST FACTO clauses apply only to criminal, NOT civil litigation.

LYNCH v. US:
HELD: Congress couldn’t cancel govt war risk life ins policies, as it
had attempted.
-Rts against the fed govt “arising out of the K w/it are protected by
the 5th & that the govt couldn’t annul them unless “the action taken
falls w/in the federal police power or some other paramount power.”

Fundamental Rts = Strict Scrutiny
-Most are unarticulated in the Constitution:

Strict Scrutiny:
1. Compelling Govt interest
2. Narrowly Tailored to serve those interests
3. Legitimate End
4. Burden is on govt to prove Constitutionality

REVIVAL OF SUBSTANTIVE DUE PROCESS IN NONECONOMIC RIGHTS-PERSONAL
AUTONOMY: ABORTION RIGHTS:

MEYR v. NEBRASKA:
HELD: Reversed the conviction of a teacher for teaching German in
violation of a state law prohibiting the teaching of foreign languages.
-W/out doubt, it denotes not merely freedom from bodily restraint but
also the rt of the indiv to K, to engage in any of the occupations of
life, to acquire useful knowledge, to marry, establish a home & bring up
children to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized at common law as
essential to orderly pursuit of happiness by free men.
-The Nebraska law materially interfered w/the calling of modern
language teachers, w/the opportunities of pupils to acquire knowledge,
and w/the power of parents to control the education of their own.
-No adequate justification for the restraints on liberty.

PIERCE v. SOCIETY OF SISTERS:
HELD: Ct sustained a challenge by parochial & private schools to an
Oregon law requiring children to attend public schools.
-Ct found no peculiar circumstances or present emergencies which
demand extraordinary measures relative to primary education.
-Law interfered w/the liberty of parents & guardians to direct the
upbringing & education of children under their control. No general
power of the State to standardize its children by forcing them to accept
instruction from public teachers only.

NON-ECONOMIC RIGHTS: PRIVACY; AUTONOMY; FAMILY RELATIONS; ABORTION
=FUNDAMENTAL RIGHTS
TEST: 1.COMPELLING GOVERNMENTAL INTEREST
-laws come to the Supreme Court with a presumption of Constitutionality
2. MEANS which are NARROWLY TAILORED to the accomplishment of the
Interest
3.Burden On the Gov’t

PIERCE V. SOCIETY OF SISTERS :
Invalidated an Oregon law that required children to attend public
schools.

SKINNER V. OKLAHOMA :
Invalidated Oklahoma’s Habitual Criminal Sterilization Act, which
provided compulsory sterilization after a 3rd conviction for a felony
involving moral turpitude.

GRISWOLD V. CONNECTICUT: [PROTECTED ZONE OF MARITAL PRIVACY, INVOLVES
CONTRACEPTIVES]:
Griswold, executive director of Planned Parenthood of Conn, was
convicted under Conn law which made counseling of married persons, to
take contraceptives, a criminal offense.

HELD: The right to privacy in the marital relationship is protected by
the Constitution, despite the absence of specific language recognizing
it. The various guarantees that create pneumbras, or zones, of privacy
include the First Amendment’s Right Of Association, the 3rd Amendments
peacetime quartering of soldiers, the Fourth Amendment’s guarantee
against unreas searches & seizures, the 5th Amendments rt against self-
incrim, and the 9th’s guarantee to the people of non-enumerated rights.
-The Conn law, by forbidding the use of contraceptives rather than
regulating their manner of sale, seeks to achieve its goals by means
having a maximum destructive impact on that relationship.

EISENSTADT v. BAIRD: [Involves Contraceptives]
Mass law made illegal the distribution of any contraceptives, except by
a registered physician, and then only to married persons. Baird
exhibited contraceptives while delivering a lecture on contraception &
then gave a woman a package of contraceptive foam. Convicted for giving
away the foam.

HELD: Restriction of distribution to unmarried persons was
unconstitutional.
-The statute could be upheld only if there is a difference b/t married
& unmarried persons that explains the disparate treatment.
-The law cannot be explained as a punishment for fornication, b/c
pregnancy & birth of an unwanted child couldn’t reasonably be considered
as punishment, and the effect of the ban to unmarried persons would have
a marginal relation to such an objective.
-The STANDARD used by the court was to decide the case on a Minimum
Rationality-Equal Protection Ground.
-The rt to privacy recognized in Griswold applied to the individual
& not to marriage. Marriage consists of 2 indivs, each of whom is free
from unwarranted governmental intrusion into matters of sex. Since the
State can’t prohibit distribution of contraceptives to married persons,
it cannot, under Equal Protection Clause, outlaw distribution to
unmarried persons either.

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY:
Requirements of Statute:
1. Woman give informed consent prior to procedure
2. Info must provided at least 24hrs b/f procedure
3. Minors need informed consent of at least 1 parent or judicial bypass
4. Married woman must sign a statement indicating husband has been
notified of intended abortion Struck invalid.
5. Exemption of any/all above w/”medical emergency”
6. Reporting requirements on facilities that provide abortion services
-All of the above requirements were challenged as facially
unconstitutional.

RULE: A law is unconstitutional as an undue burden on a woman’s right to
an abortion, b/f fetal vaibility if the law places a substantial
obstacle in the path of a woman seeking to exercise her right

HELD: Trimester framework of Roe is rejected. An undue burden analysis
is put in its place. The information requirement is not an undue
burden. The 24hr waiting period doesn’t create a health risk &
reasonably furthers the State interest in protecting the unborn.
-The statute’s definition of medical emergency is too narrow on its
face.
-Husband notification req’t imposes an undue burden on abortion rts
of abused women who fear for their safety & the safety of their child,
and are likely to be deterred from getting an abortion as surely as if
the state outlawed abortion.
-The reporting requirement is reasonably directed to the preservation
of maternal health, providing a vital element of medical research, and
the statute protects patient confidentiality.
-Although a husband has a strong interest in his wife’s pregnancy,
before birth it is a biological fact that regulation of the fetus has a
far greater impact on the woman. The husband notification requirement
is unconstitutional & the rest of the statute is valid.
-The Penn Law is otherwise upheld.
-The liberty rights of women & the personal & intimate nature of
child-bearing sharply limits state power to insist a woman carry a child
to term or accept the States vision of her role in society.
-The Ct reaffirmed Roe, in that, after viability the State may
regulate, or even proscribe, abortion, except where necessary to
preserve the life/health of the mother.

DISSENT; STEVENS: A burden is “undue” if it is too severe or lacks
legitimate justification. The information, waiting period, and parental
consent requirements, as well as the husband notification requirement,
are invalid. The Ct’s opinon implicitly reaffirms Roe’s holding that a
fetus is not a person w/in the meaning of the 14th Amendment. The State
interest in protecting potential life is legitimate, but not grounded in
the Constitution. Penn’s law goes too far by requiring a Dr to provide
info designed to pursuade a woman to opt against abortion, just as she
is weighing her personal choice. In contrast, the requirement of
informing a woman of the nature & risks of abortion & childbirth,
enhances decision-making. The 24hr waiting period illegitimately rests
on assumptions that a decision to terminate pregnancy is wrong, and that
a woman is unable to make decisions. There is no legitimate reason to
require a woman who has agonized over her decision to leave the hospital
& return another day.

DISSENT; BLACKMUN: The right to an abortion should remain fundamental,
and any State-imposed burden upon it should be subjected to the
strictest judicial scrutiny. Categorizing a women’s right to an
abortion as merely a liberty interest is not sufficient. (The basis is
in privacy) The reporting requirement doesn’t further maternal health.
Faring harassment, many Drs will stop performing abortions if their
names appear on public reports. However, none of these requirements
would survive under the strict scrutiny standard. The trimester
framework should be maintained. No other approach better protects a
women’s fundamental right while accomodating legitimate state interests.
The Ct’s cases don’t create a list of personal liberties: they are a
principled account of how these rts are grounded in a general right to
privacy.

DISSENT; REHNQUIST: Roe was wrongly decided, has lead to a confusing
body of law, and should be overturned. The undue burden test, cannot be
justified by stare decisis. The 14th Amendment concept of liberty
doesn’t incorporate any all-encompassing right of privacy. Unlike
marriage, procreation, and contraception, abortion terminates potential
life & must be analyzed differently. A women’s interest in having an
abortion is liberty protected by due process, but States may regulate
abortion in ways rationally related to a legitimate State interest. All
provisions of the Penn law are Constitutional. The husband notification
requirement is reasonably related to promoting State interest in
protecting the husband’s interest, potential life, and the integrity of
marriage.

DISSENT; SCALIA: The limits on abortion should be decided
democratically. Applying the rational basis test, the Penn Law should
be upheld in its entirety. Roe was wrongly decided. The Roe decision
made compromise on the issues of abortion impossible. Here, the Ct
claims to rely on Stare Decisis, but throws out Roe’s trimester
framework. The new undue burden standard is meaningless in application,
giving a District Judge freedom to strike down almost any abortion
restriction he doesn’t like. The Ct’s suggestion that public opposition
to an erroneous decision mitigates overturning it, is appalling.

AKRON V. AKRON CENTER FOR REPRODUCTIVE HEALTH : [A major reaffirmation
of ROE.]
HELD: Ct applied strict scrutiny as applied in ROE. Struck down a range
of abortion regulations enacted by Akron. Struck down Informed Consent
requirement.
-The state’s interest in safeguarding women, doesn’t become compelling
until approx the end of the 1st trimester.

THORNBURGH V. AM. COLL. OF OBSTETRICIANS AND GYNECOLOGISTS: [Overruled
by CASEY.]
Penn law regulating the performance of abortions, including requirements
of informed consent, provisions of printed information…etc…& the
presence of a 2nd physician.
-Reaffirmed the majority in Roe, and invalidated many of the above
requirements.

PLANNED PARENTHOOD OF MISSOURI v. DANFORTH:
Missouri provision barred a married woman from obtaining an abortion, in
most circumstances, during the first 12wks of pregnancy, w/o her
husband’s consent.

HELD: Ct invalidated the requirement, stating that the State cannot
delegate authority to any particular person, even the spouse, to prevent
abortion during the 1st trimester.

BELLOTTI v. BAIRD (BELLOTTI II):
Mass law required an unmarried minor to obtain consent of both parents
b/f having an abortion. If parental consent was refused, then State
judge could authorize abortion for good cause.

HELD: Ct struck down the provision. Ct stated that a State could
involve the parents in a minor’s abortion decision, only if it also
provided an alternative procedure, in order that the parental
involvement would not in fact amount to an absolute & possibly arbitrary
veto.

H.L. v. MATHESON:
Utah law required physicians to notify, if possible, the
parents/guardian of any minor upon whom an abortion was to be performed.

HELD: Ct upheld the law as applied to a minor living with & dependent
upon her parents, and, where there was no showing as to her maturity or
her relations w/her parents.
-Statute plainly serves an important state interest, is narrowly drawn
to protect only those interests, and doesn’t violate any of the
guarantees of the Constitution.
-Law did not involve a veto power over the minor’s decision.

PLANNED PARENTHOOD OF KANSAS V. ASHCROFT:
Upheld a requirement of parental consent or a judicial alternative,
because there w/the judicial procedure a minor may demonstrate that she
is sufficiently mature to make the abortion decision herself or that,
despite her immaturity, an abortion would be in her best interest.

COLAUTTI v. FRANKLIN:***Important Case***
State law subjected physicians performing abortions to criminal
liability if they failed to follow a statutorily proscribed standard of
care when the fetus was viable, or when there was sufficient reason to
believe that the fetus was viable.

HELD: Ct found both the viability determination & the standard of care
provision unconstitutionally vague, stating that it created too many
uncertainties about the exercise of medical judgment.

HARRIS V. MCRAE
Congress attached the Hyde Amendment to its annual appropriations act
for Medicaid, and denied public funding for certain medically necessary
abortions.

RULE: Nothing in the Constitution prevents Congress from denying public
funding for certain medically necessary abortions while permitting the
funding of childbirth costs.

HELD: Upheld the Hyde Amendment blanket prohibition of funding through
Medicaid for abortion.

WEBSTER v. REPRODUCTIVE HEALTH SERVICES:
Missouri adopted a statute that prohibits the use of public employees &
facilites to perform or assist abortions not necessary to save the
mother’s life, prohibits use of public resources to encourage or counsel
a woman to have such an abortion, and requires a Dr who has reason to
believe a woman seeking an abortion is 20/more wks pregnant to perform
tests to determine whether the fetus is viable. Reproductive health
services challenged the statute.

ISSUE: May a state disregard the Roe trimester approach in regulating
abortion- [YES]

HELD: While a State may not justify an otherwise invalid abortion
regulation by adopting a specific view about when life begins, the
language of the preamble in the statute has not been used to restrict
P’s activities & need not be reviewed for Constitutionality.
-The restriction on the use of public resources to perform an abortion
is permissible.
-In McRae, the Ct noted that Congress’ refusal to refund abortions
left an indigent woman w/at least the same range of choices for abortion
as she would have had had congress not subsidized any medical care.
Therefore, if a state is free to refuse abortions, it is also free to
deny the use of public facilities & employees to perform abortions.
-The viability testing provision promotes the State’s interest in
potential human life. The only problem w/this requirement is that it
doesn’t fit w/in the trimester approach adopted in Roe. This trimester
approach has proven unworkable in practice. Accordingly, the trimester
approach in Roe is no longer binding.
-The testing requirement is reasonably designed to insure that
abortions are not performed when the fetus is viable. Therefore, this
requirement is constitutional.
- The fetus is a person

RUST v. SULLIVAN:
Rust challenged govt regulations under the Public Health Service Act,
which prohibited grantees from offering or advocating abortion as a
method of family planning.

RULE: The govt may prohibit grantees of funds given under the Public
Health Service Act, from offering or advocating abortion as a method of
family planning.
-Congress has broad discretion under the spending clause to use
federal funds to promote policy in areas where it cannot directly
regulate.

ROE v. WADE:
Roe, a single woman, wants to have her pregnancy terminated by an
abortion.

HELD: Upheld abortion. Regulation is permitted, prohibition is not.
-Rt to Privacy was extended to abortion, by the 14th amend, including
a women’s decision of whether to terminate pregnancy. A qualified right
considered w/important state interest w/protecting the health of the
pregnant woman & the potentiality of human life.
-A state may not constitutionally make it a crime to procure an
abortion, except to save a mother’s life.
-The state’s interest in the health of the mother becomes compelling
approximately at the end of the 1st trimester. (trimester
approach/viability of fetus). Only from this point forward may the
state regulate the abortion procedure as needed to preserve & protect
maternal health.
-A statute regulating a fundamental right, such as the right to
privacy, may be justifiedonly by a compelling state interest & such
statutes must be narrowly drawn.
-The unborn have never been recognized in the law as persons in the
whole sense.
-The right of privacy found in the 14th’s concept of personal
liberty & restrictions upon state action is broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.

1973 LAW: J. BLACKMUN: Code/Statute:
1st trimester: women’s interest in choice/liberty.
-Safety, unassailable rt. State can place no barriers in 1st
trimester. Medical safety.
-Fundamental rt, unarticulated.
***Ok if Dr approves, No State Interest. After 1st, mom’s health.
Regulate only to protect her health.
2nd trimester: women’s health becomes a compelling governmental
interest.
-Govt can regulate. Can have state regulation which is narrow.
-If state chooses to impose regulations, then it may do so.
***Before viability, Dr. can decide to end pregnancy, w/o state
interest.
3rd trimester: women’s health & life of potential life of child/fetus
are both compelling governmental interests which weigh against the
women’s choice/liberty to choose an abortion.
-State can proscribe abortions, except to save the life of the
pregnant woman.
***After viability, State can regulate & even prohibit, unless it is
to save mom’s life.

J. O’CONNOR JOINS THE CT AFTER ROE:
-Uncertainty of conception & viability makes Blackmun’s requirements
set forth in Roe, inappropriate.

THE AFTERMATH OF ROE v WADE:

DOE v. BOLTON:
Georgia state, new style, all abortions are criminal, except those
performed by a licensed physician when, “based upon his best clinical
judgment”, an abortion was necessary b/c continued pregnancy would
endanger the life or seriously injure the health of a pregnant woman, or
the fetus would likely be born w/serious defects; or if the pregnancy
had resulted from rape. The patient also needed to be a resident of the
state, & that it occur in an accredited hospital.

HELD: Ct upheld the “best clinical judgment” provision, but struck down
the procedural conditions as well as the residence requirement.
-The physician is now restricted to the 3 situations originally
specified: judgment may be exercised in light of all factors, physical,
emotional, phychological, familial, and the woman’s age-relevant to the
well-being of the patient.

PRIVACY, AUTONOMY, AND FAMILY RELATIONS:
FAMILY RELATIONS AND THE CONSTITUTION
CONSTITUTIONALIZATION OF THE FAMILY/FAMILY LAW:
SUBSTANTIVE DUE PROCESS AND FAMILY RELATIONS:

MOORE v. EAST CLEVELAND:
Grandmother was convicted b/c her 2 grandsons (first cousins) lived
w/ther & the relationship wasn’t sufficiently close to constitute a
family under the ordinance. An economic regulation. East Cleveland
zoning ordinance prohibited the co-habitation of non-family members,
which included cousins & other members of the traditional family.

HELD: invalidated a zoning ordinance limiting occupancy of a dwelling to
members of a single “family”, narrowly defined as including only a few
categories of related individuals.
-Invalidated the ordinance on substantive due process grounds.
-Held that a scrutiny stricter than a deferential review was
appropriate when “a city undertakes such intrusive regulation of the
living arrangements”.
-Ct must consider the importance of the govt interests and the
extent to which they are served by the challenged regulation.
-The consitution protects the sanctity of the family precisly b/c the
institution of the family is deeply rooted in this Nation’s history &
tradition. The family inculcates & passes down many of our most
cherished values, moral, & cultural.
-Appropriate limits on substantive due process come not from drawoin
arbitrary lines but rather from careful respect for the teachings of
history & solid recognitin of the basic values that underlie our
society.
***The choice of relatives in ths degree of kinshi to live together may
not lightly be denied by the State. The Constitution prevents E.
Cleveland from standardizing its kids & adults by forcing all to live in
certain narrowly defined family patterns.

ZABLOCKI v. REDHAIL:
Redhails’s application for marriage license was denied b/c he had not
obtained ct permission & hadnt’ petititioned for permission b/c he
couldn’t satisfy the 2 requirements:
**Any resident having minor issue not in custody & under obligation to
support by ct order must prove:
1. Applicant’s support obligation had been met AND
2. That the children covered by the support order are not then &
aren’t likely to become public charges.
Redhail brought a class action challenging the law under the equal
protection & due process clause.

HELD: Ct analyzed the case in terms of the fundamental rts strand of the
new equal protection, but was strongly influenced by substantive due
process cases which asserted that the rt to marry was fundamental for
purposes of triggering strict equal protection scrutiny on whether
substantive due process precedents support such a fundamental rt.
-The rt to marry is of fundamental importance. The classification
here significantly interferes w/the exercise of that rt requires
critical examination of the state interests advanced is required.
-The rt to marry is part of the fundamental rt of privacy implicit
in the Due process clause.
***Not every state regulation which relates in any way to the incidents
of prerequisites for marriage must be subjected to rigorous scrutiny.
Reasonable regulations that don’t significantly interfere w/decisions to
enter into the marital relationship may legitimately be imposed.
-HERE the law interfered directly & substantially w/the rt to marry.
Law cannot be upheld unless it is supported by sufficiently important
state interests and is closely tailored to effectuate only those
interests. [STANDARD SET FORTH BY CT]
-The asserted state interests here were legitimate & substantial,
but the means selected for achieving these interests unneccessarily
impinge on the rt to marry.
***The State had other, less intrusive means for exacting compliance
w/support obligations. Net result of denying the rt to marry would be
more illegitimate children.

PARHAM v. J.R.:
HELD: The rt to raise your children is an important fundamental &
unimpeachable rt.
-The formal adversary hearings aren’t required when parents seek to
commit their children to state mental institutions.
-Children’s rts are circumscribed by the rts & duties of their parents
b/c the parent’s traditional interests in and responsibility for the
ubringing of their child.

MICHAEL H. v. GERALD D.:
California law established a presumption that a child born to the wife
is legitimately a child of the marriage, a presumption rebuttable only
under limited circumstances.

HELD: Upheld the Cal. Judgment. The irrebutable presumption was not
about the rt to a hearing, but about the necc closeness of fit b/t a
governmental classification & the policies sought to be served.
Substantve due process case.
-Due process protection required not merely that interest denominated
as a liberty be fundamental, but also an interest traditionally
protected by our society. Our traditions protect the marital family
against the claim (type of claim) Michael asserts.

RULE: A state may create an irrebuttable presumption that a child born
into a family unit is the product of the husband.

AUTONOMY AND PRIVACY IN CONSENSUAL SEXUAL BEHAVIOR:

BOWERS v. HARDWICK:
Georgia law prohibited a sexual act w/another adult male in his own
bedroom. The law defines sodomy as committing or submitting to any
sexual act involving the sex organs of one person & the mouth or anus of
another.

ISSUE: Whether the Federal Constitution confers a fundamental rt upon
homosexuals to engage in sodomy?

HELD: Ct held that the law does not violate the respondent’s fundamental
rts & that the homosexual activity is not a private or intimate
association and is NOT beyond the reach of state regulation.
-No fundamental right to engage in consensual homosexual sodemy.

THE RIGHT TO DIE:
No Constitutional Right To Die:

CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH:
Missouri law required, prior to removal of life support for an
incompetant, clear & convincing evidence that such a course was/would
have been chosen by that person when competant.

RULE: A state may require, prior to removal of life support for an
incompetant, clear & convincing evidence that such a course was/would
have been chosen by that person when competant.

HELD: The Ct assumes w/o deciding that an individual has a liberty
interest in refusing to accept artificial nutrition. However, an
individual’s liberty interest must always be balanced against the
interest of the state.
-There is a liberty interest involved here, however the State interest
outweighs it. There must be a compelling state interest.
-The state interest is the preservation of life which is a very
compelling interest.

COULD BE ON THE FINAL EXAM*
MCL 750.405 – Due Process Concerns? (charging Kevorkian with a common
law crime)

PROCEDURAL DUE PROCESS: RIGHT TO HEARING:

GOLDBERG V. KELLY
The withdrawl of her AFDC benefits. Her arguement, but once you gave it
to me you created an entitlement. Once you decide to take it away from
me — you have to afford me a certain amount of Due Process (here it is
procedural due process – Notice & a Hearing)

Due Process Rights: Important
written notice
an atty
right to jury

Once the gov’t decides to extend the benefit, they have created an
entitlement

MATTHEWS V. ELDRIDGE – important case)
PERRY V. SINDERMAN) Cases involving Non-renewal of contracts to college
professors — Liberty vs. Property

BD. OF REGENTS V. ROTH
RULE: To have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it –By Statute. [Property interests]
– must be by statute

**Property-look to state law as to what property is
If it is Property = Due Process
If it is not Property = No Due Process

**If PROPERTY IS NOT IDENTIFIED BY STATE STATUTE = it is not property &
no due process rights (PROCEDURAL)

PERRY V. SINDERMAN
Companion case to Roth. Involved non-tenured college teacher who
asserted a procedural due process right to a hearing where he might be
informed of the grounds for his non-retention & challenged their
sufficiency.
-Sinderman, unlike Roth, won this case.

BISHOP v. WOOD:
Bishop was terminated as a police officer w/o a hearing.

RULE: The Federal Ct is not the appropriate forum in which to review the
multitude of personnel decisons that are made daily by public agencies;
and it stretches the concept of due process much too far to suggest that
a person is deprived of liberty when he is simply not retained in one
position, but remains as free as b/f to seek another.
-Property interests are state law questions, outlined by statute.

The Concept of “Liberty”: Determining the Outer Reaches”:

CLEVELAND BOARD OF EDUCATION v. LOUDERMILL:
RULE: Although state law remains the primary focus for the determinatio
of whether a property rt exists, state procedures contained in the law
creating that property right are not the source of the constitutionally
required procedures upon termination of that property right.

HELD: Once it is determined that the Due Process Clause applied, the
question remains what process is due.

PAUL V. DAVIS:
ISSUE: Whether the label or characterization given a person by
“posting” thru a mark of serious illness to dome, is to others sucha
stigma or badge of disgrace that procedural due process requires notice
& an opportunity to be heard.

HELD: Reputation alone, apart from some more tangible itnerests such as
employment, is not “liberty” or “property” by itself sufficient to
invoke the procedural protection of the Due Process Clause.
-Rt to be heard b/f condemnation to suffer grievous loss of any king,
though it may not involve the stigma & gardships of a criminal
conviction, is a principle basic to our society.
Interest in reputation asserted in this case is neither “liberty” nor
“property” guaranteed against state deprivation w/o due process.
-Defamation, alone, does not deprive a person of any “liberty”
protected by the procedural guarantees of the 14th.

GENERAL RULE: Injury to reputation in itself is not a deprivaation of
liberty or property. however, if governmental acts (such as a statement
of reasons given for termination of public employment) so injure a
person’s reputation that he will have loss significant employment or
associational opportunities, there is a loss of liberty

BITTER W/THE SWEET ANALYSIS: An arbitrary system is irrelevant. So
long as the proper procedures were followed, your interest validly ends
(Bitter).

VITEK v. JONES:
HELD: The involuntary transfer of a Nebraska state prisoner to a mental
hospital implicates a liberty interest that is protected by the Due
Process Clause.
-A convicted felon is entitled to the benefit of procedures
appropriate in the circumstances b/f he is transferred to a mental
hospital.

MATTHEWS V. ELDRIDGE – important case:
Matthews Factors:
1. the nature of the interest that will be affected by the official
action
2. the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute safeguards.
3. the govt’s interest and the fiscal/administrative burdens that the
additional or substitute procedural requirement would entail

INTRODUCTION TO EQUAL PROTECTION
EQUAL PROTECTION AND ECONOMIC REGULATIONS

RAILWAY EXPRESS AGENCY V. NEW YORK (283) [An Equal Protection Analysis;
The regulation in this case reduces advertising. ]

NY regulation prohibited advertising on vehicles, but allows advertising
on business behicles, so long as the vehicles ar engaged in their
owner’s usual work & aren’t used mainly for advertising.

HELD: A regulation which prohibits general advertisements on vehicles
while allowing advertisement of products sold by vehicle owners doesn’t
violate Equal Protection. The fact that NYC doesn’t eliminate all
distractions form its streets in immaterial.

Regulation furthers a legitimate state interest
OR
it is a question of whether the classification furthers a legitmate
state interest

***WITH AN EQUAL PROTECTION PROBLEM, THE QUESTION WHETHER THE
CLASSIFICATION FURTHERS A LEGITIMATE STATE INTEREST

WILLIAMSON v. LEE OPTICAL CO.:
Dr’s prescription for eyeglasses.

HELD: The Due Process Clause will no longer be used to strike down state
laws regulationg business or industrial conditions b/c they may be
unwise, improvident, or out of harmony w/a particular school of thought.

MCGOWAN v. MARYLAND:
HELD: Ct has held that the 14th permits the States a wide scope of
discretion in enacting laws which affect some groups of citizens
differently than others.
-The constitutional safeguard is offended only if the classification
rests on grounds wholly irrelevant to the achievement of the State’s
objective.
-A statutory discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it.

MCDONALD v. BOARD OF ELECTION:
A claim by qualified voters imprisoned in a County jail while awaiting
trial that the state couldn’t deny tehm absentee ballots when they were
provided to other classes to persons.

HELD: Only a right to an absentee ballot, no an impact on the
fundamental right to vote, was in issue; conceivably, there were other
opportunities for the challengers to vote. Accordingly, the lower level
of the 2-Tier approach was invoked.

RULE: The distinctions drawn by a challenged statute must bear some
rational relationship to a legitimate state end & will be set aside as
violative of EP only if based on reasons totally unrelated to the
pursuit of that goal.

MASSACHUSETTES BD OF RETIREMENT v. MURGIA:
HELD: Sustained Mass law that provided that a uniformed State police
officer must retire when age 50.
-Age is not a suspect classification. The law clearly meets the
requirements of EP, the State’s classification rationally furthers the
purpose identified by the State. Seeks to protect the public by
assuring physical preparedness of its uniformed police.
US RAILROAD RETIREMENT BD. v. FRITZ:
Fritz asserted that a 1974 federal statute restructuring the RR
retirement system irrationally distinguished b/t classes of annuitants
in preserving windfall benefits for some classes of employees & not for
others.

RULE: In the area of social & economic legislation, a classification
made by a law doesn’t offend the EP Clause as long as it has some
reasonable basis.
-Rational basis standard, & Cts should not invalidate on EP grounds
legislaton which they simply deem unwise.
-The Ct has never insisted that a legislative body articulate its
reasons for enacting a statute. This is particularly true where the
legislature must necessarily engage in a process of line drawing.
-The fact that the line might have been drawn differently at some
points is a matter for the legislative, rather than judicial,
consideration.

SCHWEIKER v. WILSON:
HELD: Upheld Congress’ denial of federal “comfort allowances” to needy
aged, blind, and disabled persons confined in public institutions unless
the institutions receive federal Medicaid funds.
-Although the rational basis test is not a toothless one, it doesn’t
allow us to substitute our personal notions of good policy for those of
Congress.

ISSUE: Whether the classification advances legitimate legislative goals
in a rational fashion?

RULE: As long as the classificatory scheme chosen by Congress rationally
advances a reasonable & identifiable governmental objective, we must
disregard the existence of other methods of allocation that we, as
individuals, perhaps would have preferred.

SUSPECT CLASSIFICATIONS AND DISCRIMINATION:
RACE:

Discrete & Insular Minority
1. Have been excluded from the political process
2. History of discrimination
3. Immutable
e.g.:Blacks, race, nationality

Strict Scrutiny: Fundamental Right or Invidious discrimination (Discrete
& Insular Minority)
See: Barbri sheet

STRAUDER v. WEST:
Strauder, a black defendant, was convicted of murder by a jury from
which blacks had been excluded b/c of an explicit command of a state law
which provided that all white male persons who are 21 & are citizens of
this state shall be liable to serve a jurors

HELD: That removal should have been granted & found the law
unconstitutional.

KOREMATSU v. UNITES STATES:
HELD: All legal restrictions which curtail the civil rts of a single
racial group are immediately suspect. That is not to say that all such
restrictions are unconstitutional, only that they must be subjected to
the strictest scrutiny.
***One of the very rare cases in which a classification based on race
survived strict scrutiny***

LOVING v. VIRGINIA:
ISSUE: Whether a statutory scheme adopted by Virginia to prevent
marriages b/t persons solely on the basis of racial classifications
violates the 14th Amendment.

FACTS: Blk woman & white man were convicted of violating Virginia’s ban
on interracial marriages. Judge suspended their 1yr jail sentences for
25yrs on the condition that they leave the state & not return to
Virginia for 25yrs.

HELD: The clear & central purpose of the 14th Amendment was to eliminate
all official state sources of invidious racial discrimination in the
States.
-At the very least Equal Protection demands that a racial
classifications, especially suspect in criminal statutes, be subjected
to the “most rigid scrutiny”, and, if they are ever to be upheld, they
must be shown to be necessary to the accomplishment of some permissible
state objective, independent of the racial discrimination which it waas
the object of the 14th Amendment to eliminate.

PALMORE v. SIDOTI:
2 Whites divorced & she was awarded cusody. She remarried a blk man &
custody of her daughter was given to her ex-husband b/c of the social
stigmatization that is sure to coome to the daughter.

HELD: The custody ruling had rested wholly on race, since it was “clear
that the outcome would have been different had she married a white man.”
-A core purpose of the 14th was to do away with all governmentally
imposed discriminatioin based on race. Classifying people according to
their race is more likely to reflect racial prejudice than legitimate
public concerns; the race, not the person, dictates the category.

STAND: Classifications are subject to the most exacting scrutiny; to
pass consitutional muster, they must be justified by a compelling
governmeental interest & must be ‘necessary to the accomplishment’ of
its legitimate purpose.

ANDERSON v. MARTIN:
HELD: Ct. unanimously struck down a state law requiring that every
candidate’s race appear on the ballots.
-Rejected defense that it was non-discriminatory b/c it applied to
candidates of all races.

ELECTIONS v. HAMM:
HELD: Ct summarily affirmed decisions invalidating laws requiring
separate lists of whites & blacks in voting, tax & property records, but
sustaining a requirement that every divorce decree indicate the race of
the husband & wife.

HUNTER v. ERICKSON
HELD: Ct held that a charter amendment that required that any ordinance
regulating real estate transactions “on the basis of race, color,
religion, national origin or ancestry” must first be approved by a
majority UNCONSTITUTIONAL.
-Charter makes an explicitly racial classification which obviously
made it substantially more difficult to secure enactment of ordinances
covered by the amendment.
-Although no distinctions were drawn among racial & religious
groups, it did disadvantage those who would benefit from laws barring
racial & other discriminatins as against those who would otherwise
regulate the real estate market.
-The law on its face treats Negro & white, Jew & gentile in an
identical manner, the reality is that the law’s impact falls on the
minority.
-THE AMENDMENT PLCES SPECIAL BURDENS ON RACIAL MINORITIES W/IN THE
GOVERNMENTAL PRECESS.

THE UNCONSITUTIONALITY OF RACIAL SEGREGATION:

PLESSY v. FERGUSON: [Separate but Equal]
HELD: Ct. sustained a Louisiana law of 1890 that required “equal but
separate accomodations” for “white” & “colored” railroad passengers.
-The object of the 14th Amendment was undoubtedly to enforce the
absolute equality of the 2 races before the law, but in the nature of
things it could not have been intended to abolish distinctions based
upon colore, or to enforce social, as distingished from political
equality, or a commingling of the 2 races upon terms unsatisfactory to
either.
-If you have laws that separate races, does that necc asporate an
influence on another race.

BROWN v. BOARD OF EDUCATION [BROWN I-THE CONSTITUTIONAL RULING]:
Minor negros seek aid of cts in obtaining admission to the public
schools of their community on a non-segregated basis.

HELD: Significance & importance of education is the cornerstone of
society. Ct gets away from suspect classification & focuses on
education. Separating blks from whites, then it is inevitable that they
can’t learn to the extent that whites can learn.
BROWN v. BOARD OF EDUCATION II [THE IMPLEMENTATION DECISION]:

BOLLING v. SHARPE:
HELD: Racial segregation in DC public schools violated the due process
clause of the 5th Amendment.
-5th Amendment doesn’t contain an equal protection clause, but the
concepts of equal protection & due process, both stemming from our
American ideal & fairness, are not mutually exclusive.
-The Equal Protection of the laws is a more explicit safeguard of
prohibited unfiarness than Due Process of Law, and therefore we don’t
imply that the 2 are always interchangable phrases.
-Classifications based solely on race must be scrutinized w/particular
care, since they are contrary to our traditions and hence
consitutionally suspect.
-Liberty under the law extends to the full range of conduct which
the individual is free to pursue, and it cannot be restricted except for
a proper governmental objective.

CLASSIFICATION BASED ON GENDER:

Gender/Race: Immutable traits (unchangeable); born w/them; History of
Discrimination (blks/wmn); Lack of Political Representation; Trait is
Central to the Person; Tends to be Highly Irrational (Grossly Over/Under
Inclusive); Communicates a Lack of Authority/Weakness.
-Gender; Alienage; Illegitimacy.

FRONTIERO v. RICHARDSON:
A stat provides that servicemen’s wives are automatically eligible for
benefits as dependents, while servicewomen must prove that their
husband’s are dependent upon them to be elibigle for benefits.

RULE: Classifications based upon sex, like classifications based upon
race, alienage, or national origin are inherently suspect & must be
subjected to strict scrutiny & supported by a compelling state interest.

CRAIG v. BOREN:
Oklahoma stat permitted 18yr old females to buy beer, but required males
to be 21yrs.

HELD: Law violated the EP Clause.

RULE: Classification must have a close & substantial relation to an
important governmental interest.
-A gender based classification which is not calculated to achieve a
governmental purpose is not valid.
***To w/stand an EP Clause challenge ther emust be a showing that a
valid governmental purpose exists & the gender-based classification is
the best method avail for controlling the problem.

MICHAEL M v. SUPERIOR COURT:
Michael M, engaged in sex w/female under age of 18 and sought to set
aside a criminal complaint brought under Cal stat which imposes criminal
liability w/underaged females, but not w/underaged males.

RULE: A state may enact a criminal statute prohibiting sex w/females
under age 18 w/o violating the EP Clause by not similarly prohibiting
such acts w/males under age 18.
-Intermediate Scrutiny applied.

HELD: The purpose of the statute was to prevent teenage pregnancies.
The legislation is entitled to great deference. Young men & young women
aren’t similarly situated w/respect to problems inherent in sexual
intercourse.

MISSISSIPPI UNIVERSITY FOR WOMEN v HOGAN:
HELD: Upheld intermediate scrutiny for sex classifications as first
established in Craig.
-The ruling sustained a males challenge to the state’s policy of
excluding men from the Miss Univ. for Women, school of nursing.

CABAN v. MOHAMMED:
HELD: Invalidated a NY law granting the mother, but not the father, of
an illegitimate child, the right to block the child’s adoption by
w/holding consent. Provision was challenged by the father.
-No showing was made that the differentiation in gender bears a
substantial relationship to the proclaimed interest of the state in
promoting the adoption of illegitimate children.

OTHER SUSPICIOUS CLASSIFICATIONS
ALIENAGE
ILLIGITIMACY
MENTAL RETARDATION

CLEBURNE V. CLEBURNE (365) IMPORTANT CASE!
ISSUE: Does the denial of Ms. Hannah’s group home permit application
serve a legitmate state interest?
Minimum Scrutiny should have been used, BUT, High Scrutiny was used
instead.

RULE: Social or economic legislation relating to the mentally retarded
must be rationally related to a legitimate state interest to be
constitutional.

HELD: This legislation doesn’t relate to a legitimate state interest &
thus violates the EP principles.
-Mental retardation cannot be held to be a suspect classification,
therefore a lower/lesser level of scrutiny is required.

GRAHAM v. RICHARDSON:
P’s, resident aliens, were denied welfare benefits under state stat,
which restricted such benefits to US citizens or long-time alien
residents.

RULE: The EP Clause of the 14th applies to resident aliens as well as US
citizens; and, any state law which discriminates against resident aliens
violates the EP clause, unless it is justified by a “compelling” state
interest.

TYPES OF DISCRIMINATION:
1. Purposeful
2. Discriminatory Impact – not part of the design

a. purposeful-have to prove it to make a Constitutional case
For a Statutory case = Sec. 5 + impact
b. impact

3 Kinds of Ways a Gov’t action can be discriminatory:
because it has a articulated discriminatory purpose
a law that is neutral on its face, but when you read it against the
place or time – designed for unequal application
Some gov’t functionary denies certain people eventhough the law itself
is written in a neutral way YICK WO CASE (375)

PURPOSEFUL DISCRIMINATION: “PURPOSE” v. “IMPACT”

Purpose & Impact almost become equal.

Burden of Proof: High buden on gov’t as soon as there is an alleged
purposeful discrimination. Must be narrowly tailored.

YICK WO v. HOPKINS
A San Francisco ordinance prohibited operating a laundry without the
consent of the Bd. of Supervisors except in a brick or stone building.
The Bd. granted permits to operate laundries in wooden building to all
but one of the nonchinese applicants, but to none of about 200
applicants. A chinese alien who had operated a laundry for many years
was refused a permit

HELD: Ct. found discrimination in the administration of the law.
Whatever may have been the intent of the ordinances as adopted, they are
applied by the public authorities charged with their administration with
a mind so unequal and oppressive as to amount to a practical denial by
the State of Equal Protection

Though the law appeared fair and impartial on its face, it was applied
and administered unequally.

PALMER v. THOMPSON:
HELD: The city of Jackson, Miss had not acted unconstitutionally in
closing its public swimming pools after they had ben ordered
desegregated.
-There was no “affirmative duty” to operate swimming pools, rejected
the argument that the closing was unconstitutional b/c it “was
motivaated by a desire to avoid integration.”

GRIGGS v. DUKE POWER CO.:
Civil Rts Act of 1964, Title VII.: Congress had validly decided that
discriminatory effect is adequate to establish a prima facie statutory
claim.
-Burden shifts to Employer to show decision is unrelated to racial
discrimination.
-Must show that any given requirement must have a manifest
relationship to the employment in question.
-Requires simply an “effect” showing for a prima facie case, & some
applied a similar standard to constitutuional claims.

HELD: Ct read the Act as prohibiting an employer form subjecting job
applicants to a general intelligence test & from requiring high school
diplomas, where the effect was to disadvantage black applicants & where
the criteria had not been shown by the employer to predict job
performance.
-The Act required the removal of artifical, arbirtrary, & unneccessary
barriers to employment where the barriers operate indiviously to
discriminate on the basis of racial or other impermissible
classification.
-The Act proscribes not onlyovert discrimination but also practices
that are fair in form, but discriminatory in operation.

RULE: Good intent or absence of discriminatory intent doesn’t rdeem
employment procedures or testing mechanisms that operate as “built-in
headwinds” for minority groups & are unrelated to measuring job
capability.

Title VII is amended: Burden of proof is on employer once a prima facie
case is shown.
1. Show legitimate business justification.
2. Show that it is not pretextuous.
-show how it was developed, etc.
A Constitutional Discriminatory claim cannot be applied to private
employers. 14th prevents from State interference. State Action, need
State Law.

SINCE 1994, TITLE VII:
-A. Prima Facia Case
-B. Def. must prove/rebut by showing a legitimate business
justification:
1. Legit bus justification
2. Proffered is legitimate & not pretextual.
-C. Denial of FRCP 56 Motion/Failure to state a claim & Summary
Disposition:
1. Fed Cts: Summ J denied, Ct believes that D has failed thru
pleading & affidavits & motion to persuade Ct that is has made out a
non-factual conclusion & reason & didn’t just have a pretextuous reason.
Then it goes to the trier of fact.
-a. Must have sufficient clarity to be granted motion (D)
-i. Ct takes additional proofs & rebuttal case, then let jury
decide.
-b. Jury Instruction: Once 1st Summ J motion is rejected, then
Burden is on D to prove legitimate justification & non-pretextuous
reason.

***MI: Fed Quests removable by Fed Clerk in which all D’s concurr (Fed
Claims) in Wayne Cty, removed to Fed CT.

***Impact alone doesn’t give rise to Constitutional Tort of Racial
Discrimination. Must claim a racially discriminatory purpose.

-Burden of Proof:
-A. Impact/Effect being used to demonstrate racially discrim purp.
-B. Fails to get suit dismissed, must show no racially discrim purp
& that the impact is only that way, result of neutral policies, laws
applied in good faith. Must show non-pretextual.
-1. Compelling Gov’t interest
-2. Narrowly tailored to serve that purpose.
-C. Both burdens are on D
***Scales are now tipped more in favor of the P, not at the Govt.

JEFFERSON v. HACKNEY:
TEXAS scheme for computing afdc benefits in allocating the state’s fixed
amt of welfare money. A lower percentage of need was granted to AFDC
recipients than to beneficiaries of other categorical assistance
programs.
-Cause of Action: That there was a larger percentage of Negroes &
Mexican-Americans in AFDC than in other programs.

HELD: Ct rejected a de facto discrimination claim in the welfare
benefits contexts.
-The number of minority members in all categories is substantial.
Given the heterogenity of the Nation’s population, it would be only an
infrequent coincidence that the racial composition of
of each grant class was identical to that of others.
-The acceptance of P’s contitutional theory would render suspect
each difference in treatment among the grant classes, however lacking in
racial motivation & however otherwise rational the treatment might be.
-Few legislative efforts to deal w/the difficult problems posed by
current welfare programs could survive such scrutiny, & we don’t find it
required by the 14th Amendment.

PROVING PURPOSEFUL DISCRIMINATION: THE MODERN CTS POSITION:
WASHINGTON v. DAVIS:
DC Police Dept Civil Service Exam is in question. Black applicants for
the police force who were rejected for failing to perform satisfactorily
on a written test measuring verbal ability, vocabulary, reading, &
comprehension bring suit.

HELD: Ct says you must show an actual intent to discriminate or that
Congress did/empowered the Civil Service Commission to make a test that
appears fair, but was intended to fail blacks. Or that it was neutral,
but purpose was to administer a neutral-looking exam to expectorate an
exam that will fail blacks.
-D made out the prima facie defense that exam wasn’t designed for
racially discriminatory purposes.
-A prima facie case of discriminatory purpose may be proved as well
by the absence of Negroes on a particular jury combined w/the failure of
the jury commissioners to be informed of elgible Negro jurors in a
communiey or w/racially nonneutrral selection
procedures.
-With a prima facie case made out, the burden of proof shifts to the
state to rebut the presumption of unconstitutional action by showing
that permissible racially neutral selection riteria and procedures have
produced the monochromatice result.

RULE: Disproportionate impact is not irrelevant, but it is not the sole
touchstone of an invidious racial discrimination forbidden by the
Constitution. Standing alone, it doesn’t trigger the rule that racial
classifications are to be subjected to the strictest scrutiny & are
justifiable oly by the weightiest of considerations.

J. STEVENS: Only one Equal Protection Clause & only one Equal Protection
Test.

ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP:
Wanted integrated & subsidized public housing in the community. No
tract left in town zoned for public houses. Asked for rezoning for
multiple family housing. City refused to do so.

HELD: Official action will not be held unconstitutuional solely b/c it
results ina racially disproportionate impact. Elaborated on the
subjects of proper inquiry in determining whether aan unconstitutional
discriminatory purpose exists.

DE JURE AND DE FACTO DISCRIMINATION
De Jure Discrimination = As a Matter of Law
De Facto Discrimination = Being such in effect though not formally
recognized

ROGERS v. LODGE:
Georgia’s at-large election system was challenged on the ground it
denied equal protection by diluting the voting power of black citizens.

RULE: At-large voting syystems which dilute the voting power of members
of a racial group must be shown to be maintained for a discriminatory
purpose & not merely to be discriminatory in impact in order to
establish that they violate the Equal Protection Clause.

GREEN v. COUNTY SCHOOL BOARD:
ISSUE: Whether the 14th merely required desegregation (elimination of
formal racial barriers) or compelled integration of racially mixed
schools.
-Whether the board has achieved the racially nondiscriminatory school
system Brown II held must be effectuated.

HELD: Ct focused on the effects, rather than the purpose & good faith of
the desegregation efforts.
-The Boards “freedom of choice” in attendance at schools is an
inadequate plan & is not in compliance w/desegregation requirements.

SWANN v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION:
The Charlotte-Meck Board of Ed regused to adopt a reasonable plan for
desegregation of its school system, & a federal district court ordered
imposition of its own desegregation plan.

RULE: When school authorities deliberately maintain a racially
segregated school system, the federal district courts have broad
equitable powers to use any remedies which are reasonably necessary to
desegregate that school system.

DESEGREGATION IN THE NORTH

BENIGN USE OF SUSPECT CLASSIFICATIONS & AFFIRMATIVE ACTION QUOTOS

KAHN v. SHEVIN:
Kahn, a widower, challenged a Flroida stat that gives a property tax
ememption to widows, but not to widowers.

RULE: A state tax law is not arbitrary if its discrimination in favor of
a certain class is founded upon a reasonable distinction or difference
in state policy not in conflict w/the Fderal Constitution.

REGENTS OF UNIV OF CALIF v. BAKKE:
Bakke was denied admission to UC Davis Med School b/c it employed a
racial quota to aid minorities.

RULE: Racial quotas to aid minorities in non-medical cases are
unconstitutional.
-Strict judicial scrutiny is required even where the class being
subjected to the discrimination is white males.
-To justify the use of a suspect classification such as race, a
state must establish that it has constitutionally permissible purpose or
interest which is substantial & the classification is necessary to
accomplish it.

BENIGN USE OF SUSPECT CLASSIFICATIONS IN EMPLOYMENT

RICHMOND v. JA CROSON CO
Richmond Va enacted a minority set-aside program w/o identifying past
discriminatory practices.

RULE: States or their political subdivisions may not enact benign racial
classifications w/o first identifying past discriminatory purposes.

METRO BROADCASTING, INC v. FCC:
FCC adopted, pursuant to congressional authorization, certain minority
set-asides in the granting of tv licenses.

RULE: The FCC may, pursuant to congressional authorization, adopt
minority set-asides in the granting of tv licenses.

p.25, handout

***States can’t set up racial guidelines for scholarships
Can you take race into acct when allocating a govt benefit? (law
schoo/med school)
-Yes, but it has to be done on a basis of an inspection of
individual applicant & each applicant must have equal inspection for
such scholarships
-Intermediate scrutiny if women

Indivs who are gay, continue to advance their arguments. Appears to
have same rts to marry, etc.

Special scholarships for handicapped persons. Fed Stat recognizes
discrim against them, private remedies avail for discrim against
handicapps.

3 Amendments to help affirm actions.

SHAW v. RENO:
N. Carolina District.

ISSUE: Can you design a district and depart from traditional districting
principles to establish some safe black seats?
-Suppose you have a district

HELD: This is subject to strict scrutiny. Based upon race…racial
gerrymandering. Will not w/stand strict scrutiny standard.
-Would be block voting. Summ J motion granted.
-S.Ct. applied strict scrutiny.

MILLER v. JOHNSON:
ISSUE: Can white voters object to the existence of a bizarrely shaped
district, as in Shaw, as a necessary condition for finding of
unconstitutionality.
-Yes, violation of 14th amend racial discrim Equal Protection Clause

FUNDAMENTAL RIGHTS AND EQUAL PROTECTION

SAN ANTONIO SCHOOL DIST. v. RODREGUEZ:
HELD: Although contribution from a statewide minimum foundation school
program served to reduce interdistrict disparities, district spending
continued to vary considerably on the basis of local property wealth.
-Ct exercised strict scrutiny & held that the Texas scheme violated
equal protection.
-Equal quality education is not a fundamental right. State decision
to set up a system which allows for gross disparity in funding doesn’t
violate the Constitution.

S.Ct. has said that you look to your state constitution for the due
process and equal protection clause and section which enables the
provision of public schools.
-Bag the US Const and look to State Const. Need to search for a State
Const claim.

MARSHALL DISSENT:
2 Tiers
High: Strict Scrutiny, Strict in name & fatal in fact
Low: Mere rationality, anything goes
-Spectrum of standards, sliding scale.

PLYER v. DOE:
ISSUE: Whether, consistent w/Equal Protection, Texas may deny to
undocumented school-age children the free public education that it
provides to children who are citizens of the United States or legally
admitted aliens?

HELD: Court applies minimum scrutiny. If the State is to deny a
discrete group of innocent children the free public education that it
offers to other choldren residing w/in its borders, that denial must be
justified by a showing that it furthers some substantial state interest.
No such showing was made here. Illegal aliens are not a suspect class.
-Undocumented aliens are not a suspect class and education is not a
fundamental right.

FUNDAMENTAL? RIGHT TO VOTE:
VOTING AND ACCESS TO THE BALLOT:

If an election is going on, you have the right to be given a ballot,
cannot be discriminated against b/c of color or gender.
-If an election is going on, everyone has an equal right to vote.

HARPER v. VIRGINIA BOARD OF ELECTIONS:
Virginia imposed an annual $1.50 poll tax on all residents over 21. Tax
proceeds supported local governmental activities, including schools.
Suit was to have the poll tax declared unconstitutional was dismissed by
a 3 judge district court.
-Equal Protection Claim, appears to discriminate on basis of wealth.

24th Amendment did away w/poll taxes.
***Rt to vote is not a fundamental right. If election is going on, then
you have an Equal Protection Right to have access to the ballots.

HELD: We have long been mindful that where fundamental rts and
liberties are asserted under equal protection, classifications which
might invade or restrain them must be closely scrutinized and carefully
confined. Those principles apply here. For to repeat, wealth or fee
paying has no relation to voting qualifications; the right to vote is
too precious, too fundamental to be so burdened or conditioned.

KRAMER v. UNION FREE SCHOOL DISTRICT NO 15:
Only prop owners pay prop taxes. Limit franchise to people voting on
tax imposition and spending to property renters.

ISSUE: Whether the exclusion is necessary to promote a compelling state
interest.

HELD: Whether classifications allegedly limiting the franchise to those
resident citizens primarily interested deny those excluded equal
protection depends, inter alia, on whether all those excluded are in
fact substantially less interested or affected than those that the
statute includes.
-The classifications must be tailored so that the exclusion of
appellant and members of his class is necessary to achieve the
articulated state goal.
-Section 2012 doesn’t meet the exacting standards of precision we
require of statutes which selectively distribute the franchise. Its
classifications permit inclusion of many persons who have, at best, a
remote and indirect interest in school affairs and, on the other hand,
exclude others who have a distinct & direct interest in the school
meeting decisions.

SALYER LAND CO. v. TULARE LAKE BASIN WATER STORAGE DISTRICT:
An election scheme for a water storage district under which only
landowners were perrmitted to vote and in which votes were proportioned
according to the assessed valuation of the land.

HELD: The district’s main purpose was to assure water for farming and
that project costs were assessed against the land in proportion to
benefits rec’d.
-The demanding requirements in Kramer & Reynolds were inapplicable to
the district by reason of its special limited purpose and of the
disproportionate effect of its activities on landowners as a group.
-The details of the election scheme were only subject to minimal
scrutiny, and those details (the exclusion of mere residents and
lessees, and weighting the votes according to the value of the land)
easily survived the minimal scrutiny.

DUNN v. BLUMSTEIN:

MARSTON v. LEWIS:

KUSPER v. PONTIKES:
Illinois scheme prohibited a person from voting in the primary election
of a political party if he has voted in the primary of any other party
w/in the preceding 23 months.

HELD: Ct invalidated the scheme, emphasizing that the provision
substantially restricted an Illinois voter’s freedom to change his
political party affiliation, thus significantly encroaching upon the
First Amendment association freedoms.
-The Illinois law locks voters into a pre-existing party affiliation
from one primary to the next, and the only way to break the lock is to
forego voting in any primary for a period of almost 2 years.
-The legitimate interest of Illinois in preventing raiding can’t
justify the device it has chosen to effect its goal.

ACCESS TO THE BALLOT: RESTRICTIONS ON CANDIDATES AND PARTIES:

Setup so only Dems & Repubs will be on the ballot. Then you get an
indep party or other pty affiliation. Designed so that only 2 ptys will
be on the ballot.

WILLIAMS v. RHODES:
Ohio law, major ptys retained their positions on the ballot simply by
obtaining 10% of the votes in the last gubernatorial election. Parties
newly seeking access to the presidential election ballot were required
to file petitions signed by 15% of the number of ballots cast in the
last gubernatorial election.

HELD: Ohio’s election laws created unduly burdensome obstacles to 3rd
pty candidates seeking a place on presidential ballots.

BURDICK v. TAKUSHI Supp:
HELD: Ct upheld Hawaii’s prohibition on write-in voting. Rejected the
idea that all restrictions on the rt to vote were to be subject to
strict scrutiny. Election laws will invariably impose some burden on
individual voters. STRICT SCRUTINY DOESN’T APPLY, INSTEAD…ANDERSON V.
CELEBREZZE STANDARD APPLIES.
-The rigorousness of the inquiry into the propriety of a state
election law depends upon the extent which a challenged regulatio
burdens First and Fourteenth Amendment rights.
-When those rts are subject to severe restrictions, the regulatoin
must be narrowly drawn to advance a state interest of comelling
importance.

RULE: When a state election law provision imposes only reasonaale,
nondiscriminatory restrictions’ upon the First & Fourteenth Amendment
rts of voters, the State’s important regulatory interests are generally
sufficient to justify the restrictions. (ANDERSON).

FUNDAMENTAL RIGHT OF ACCESS TO THE COURTS; RESIDENCE REQUIREMENT AND
ECONOMIC RIGHTS:
ACCESS TO COURTS:

GRIFFIN v. ILLINOIS:
HELD: A state must provide a trial transcript or its equiv to an
indigent criminal defendant appealiing a conviction on nonfederal
grounds.
-Due Process and Equql Protection both call for procedures in criminal
trials which allow no invidious discriminations.
-In criminal trials a State can’t discriminate on account of
poverty, religion, race, or color.
-There is no meaningful distinction b/t a rule which would deny the
poor the rt to defend themselves in a trial ct and one which effectively
denieds the poor an adequate appellate review accorded to all who have
money enough to pay the costs in advance.
-There can be no equal justice where the kind of trial a man gets
depends on the amt of money he has. Destitute defendants must be
afforded as adequate appellate review as defendants who have money
enough to buy transcripts.

RULE: The ability to pay costs in advance bears no rational relationship
to a defendant’s guilt or innocence & can’t be used as an excuse to
deprive a defendant of a fair trial.
-If appeals are allowed & attnys are allowed to write them, then if
you are poor, you are entitled to a rt to your first appeal (provided).

DOUGLAS v. CALIFORNIA:

ECONOMIC DIFFERENTIATIONS & THE CRIMINAL PROCESS: THE REACH OF THE
GRIFFIN-DOUGLAS PRINCIPLES:

ROSS v. MOFFITT:

ECONOMIC BARRIERS AND CIVIL LITIGATION: THE BASES (AND LIMITS) OF
BODDIE:

BODDIE v. CONNECTICUT:

UNITED STATES v. KRAS:

DURATIONAL RESIDENCE REQUIREMENTS PENALIZING THE RIGHT OF INTERSTATE
MIGRATION:

SHAPIRO v. THOMPSON:

DURATIONAL RESIDENCE REQUIREMENTS:

MEMORIAL HOSPITAL v. MARICOPA COUNTY:

SOSNA v. IOWA:

ZOBEL v. WILLIAMS:

REFUSALS TO EXPAND FUNDAMENTAL INTERESTS ANALYSIS TO REDRESS ECONOMIC
INEQUALITIES:

DANDRIDGE V. WILLIAMS:

LINDSAY V. NORMET:

CHAPTER 5:
SURVEY, CIVIL RIGHTS LEGISLATON; STATE ACTION:
THE POST-CIVIL WAR AMENDMENTS AND CIVIL RTS LEGISLATION: CONSTITUTIONAL
RESTRAINTS ON PRIVATE CONDUCT; CONGRESSIONAL POWER TO IMPLEMENT THE
AMENDMENTS:

How much nexus b/t private entity providing public function and private
entity perfoming private action?

***13th doesn’t contain a state action limitation. The absence of that
limit has especiall important implications for the scope of
congressional power to prohibit private racial discrim.

THE PROBLEM OF STATE ACTION:
STATE ACTION IN THE 19TH CENTURY: THE COLLAPSE OF EARLY CONGRESSIONAL
EFFORTS TO REACH PRIVATE CONDUCT:

CIVIL RTS CASES:

PLESSY v. FERGUSON & SLAUGHTER HOUSE CASES:see above in outline

THE PUBLIC FUNCTION STRAND OF STATE ACTION ANALYSIS:

MARSH v. ALABAMA:
HELD: A state can’t impose criminal punishment on a person who
undertakes to distribute religious literature on the permises of a
company-owned town contrary to the wishes of the town’s management.
-An ordinary town coldn’t have prohibited her activities.
-A corporation owned title to the town couldn’t justify impairing
the public’s interest in the functioning of the community in such a
manner that the channels of communication remain free.

STATE ACTION THROUGH STATE INVOLVEMENT; THE NEXUS STRAND OF STATE ACTION
ANALYSIS:

SHELLEY v. KRAEMER:

STATE ACTION, CONTINUED. CONGRESSIONAL POWER TO IMPLEMENT THE 14TH
AMENDMENT:

BURTON v. WILMINGTON PARKING AUTHORITY:

DESHANEY v. WINNEBAGO CTY SOC SERVS DEPT:

PROTECTION OF VOTING RIGHTS; THE BACKGROUND AND THE SOUTH CAROLINA CASE:

SOUTH CAROLINA v. KATZENBACH:

KATZENBACH v. MORGAN:

—–
Brought to you by – THE ‘LECTRIC LAW LIBRARY(tm)
The Net’s Finest Legal Resource For Legal Pros & Laypeople Alike.
WWW: https://www.lectlaw.com — e-mail: staff@lectlaw.com

Google+