Constitutional Law II

1-16 are State Action; 17-24 are Incorporation; 25-38 are SDP; 39-41 are PDP; 42-67 are EP; 68-88 are religious freedom; 89-129 are free expression

What rights did US founders think needed to be protected?

unalienable (can’t be taken away), God-given rights

if they’re God-given, then the government’s role is to secure them

Why did the Constitution need the Bill of Rights?

to “clearly” lay out rights

to provide a framework to constrain the new federal government

Who is bound by the Constitution?

the “State” and private actors satisfying the state action doctrine

What is the State Action Doctrine?

most Constitutional restrictions apply only to the government on those acting on its behalf, not to private entities/individuals

to what extent are private entities affected?

when does a private actor serve a public function?

What are exceptions to the State Action Doctrine?

government function

state enforcement/encouragement

What is the government function exception to the State Action Doctrine?

is the private actor performing a government function?

Government Function Exception and Primary Elections?

holding primaries is a government function

the 15th amendment forbids excluding Black citizens from primary elections

pre-primary elections which forbid Black citizens violates the 15th Amendment; even if it is held by a “social/business” club

Government Function Exception and Privately Owned Towns Open to the Public?

a town built for public benefit is essentially public functions subject to state regulation

the more a private owner opens up their town for public use, the further the regulation by the state

Government Function Exception and Private Parks with Public Trustees?

the service rendered by a private park (of this type) is municipal in nature, so it is basically a public function

Government Function Exception and Shopping Centers?

refusing to allow hand billing on its premises is not state action when the picketing is unrelated to the store (unlike union protests)

refusal to allow picketing in a store directed at the warehouse which was located off premises is not state action, so it was allowed

What is the test used to determine if a private actor is a state actor?

whether the activity is traditionally and exclusively reserved to the government or state

is there a close nexus between the state and challenged actions of the entity?

Government Function Exception and Refusal to Find a Governmental Function?

a business dealing with public interest doesn’t convert their every action in that of the State (authorization is different from compelling)

the function must traditionally and exclusively be performed by the government, not just requested by/related to the government

has this activity been a traditional function in the past (ex. water vs electricity)

What is the State Enforcement and Encouragement Exception to the State Action Doctrine?

the conduct of private individuals/groups constitutes state action when a private entity is sufficiently involved with, entwined with, or encouraged by the state

Rule for State Enforcement?

the state court acting to enforce a racially restrictive covenant is state action, so it is unenforceable under 14th EP

Rule for State Encouragement (symbiotic)?

a private entity is a state actor if they benefit from a government agency AND the government agency benefits from them

Rule for Entanglement with State Enforcement and Encouragement?

the actions of a private entity overborne by the pervasive entwinement of public institutions and officials in its composition and workings are state action

What is incorporation?

taking the rights from the BoR and applying them to the States

How does a BoR right become incorporated?

through 14th DP

the BoR protection must be shown to be fundamental and necessary to ordered liberty

Which amendments are not incorporated?

3rd Amendment (quartering soldiers)

5th Amendment (grand jury)

7th Amendment (civil jury)

What are the four theories of incorporation?

majority selective incorporation

selection incorporation

total incorporation

total incorporation plus

What is the majority’s selective incorporation?

some rights are to be applied to the states if they are implicit to ordered liberty

What is the other selective incorporation?

selective incorporation but also some other rights outside the BoR

What is total incorporation?

the States should be bound only by the BoR

floor AND ceiling

What is total incorporation plus?

the States get all of the BoR and more

floor, NOT a ceiling

What is the right to privacy?

the right to have privacy in intimate and personal decisions

fundamental right

What is the test to determine whether something is a fundamental right under SDP?

is it deeply rooted in history and tradition?

if yes, the State needs to have a compelling state interest to restrict the right and must do so in the least restrictive way possible (narrowly tailored)

if no, the State law must have a rational relationship with a legitimate state interest (rational basis)

What are some of the fundamental rights?

privacy

marriage

procreation

family autonomy

freedom of family life

travel

NOT abortion

NOT homosexual sodomy

NOT assisted suicide

Reproductive Freedom?

there is a right of privacy with family planning for both married and unmarried people which comes from the Constitution’s penumbra of rights (Griswold)

strict scrutiny does not apply to the sale of contraceptives to minors (Carey)

Right to privacy and abortion?

the right to privacy includes the right to an abortion (from the penumbra of rights), but the state’s interest allows for involvement during the pregnancy’s progression (Roe)

there is a liberty interest to have the right to an abortion without undue burden from the states (Casey)

abortion is not a fundamental right because 14th DP protects only the rights which are deeply rooted in history and tradition, and implicit in ordered liberty (Dobbs)

What is the undue burden test?

is the lawmaker’s purpose in enacting the law to place a substantial obstacle in the path of the woman seeking an abortion before viability?

Right to privacy and the right to die?

assisted suicide is not a fundamental right (Glucksberg)

What level of scrutiny are fundamental rights?

strict scrutiny

Right to privacy and s3xual liberty?

there is no legitimate state interest in regulating something for the sole reason of protecting public morality

the liberty which DP protects includes the right to autonomy in intimate decisions

Right to privacy and family/living rights?

there is no fundamental right as to who your roommates are

freedom of family life is protected by DP as the tradition of extended family members sharing a home with parents/children is deeply rooted in this nation’s history and tradition

Right to privacy and marriage?

the right to marry is a fundamental right (includes same-sex marriage)

cannot restrict marriage based on financial obligations

does not include the right to live together

What are the four reasons supporting marriage?

the right to personal choice about marriage is inherent to individual liberty

a marriage union supports intimate association and commitment

marriage protects families and gives legal stability to children

marriage is a large part of our social order and legal system

Right to privacy and the right to parent?

parental rights include the right to make decisions about their child’s education and medical

there is a right to parent your child

fatherhood is defined by marriage, not biology (are you married to the child’s mother?)

What is substantive due process?

the government cannot interfere with certain matters (fundamental rights), regardless of the rules it follows

What is procedural due process?

the government must follow certain rules (procedures) when they want to interfere with individuals

deals with civil issues/proceedings

Test for determining if 14th DP is required?

1. Is there a liberty (restriction on freedom of movement) or property interest (i.e., govt. benefits, govt. jobs sometimes)?

2. Is there a proper type of hearing (doesn’t necessarily need to be a traditional hearing, can be administrative)

3. Then use Matthews v. Eldridge Test to determine the amount of process

What is the Matthews v. Eldridge test?

used by the court to determine the type of process you get if you have a liberty interest (civil)

1. What is the private interest affected?

   1. How much does it hurt the individual if you take it away? How strong is it?

2. Is there a risk of an erroneous deprivation by the government?

   1. What is the effect of an incorrect determination?

3. What is the government interest in taking away your rights/property?

   1. why does the government need to take it away?

   2. How strong is the government’s interest?

What are the questions to ask when making a determination for EP?

classification?

proper level of scrutiny?

does the government’s purpose meet the level of scrutiny?

What are the types of EP classifications?

traditional (economic/social)

race/ethnic ancestry

gender

other (sexual orientation, alienage, intellectual disabilities, illegitimacy, age, poverty)

What is a traditional classification for EP?

the government is discriminating but not on typical grounds

a case not involving race, gender, or another special class

What are the levels of scrutiny for EP?

rational basis

intermediate scrutiny

strict scrutiny

What is rational basis?

rationally related to a legitimate state interest

lowest level of scrutiny

with legitimate state interest, the court tends to give deference to local legislatures/businesses

requires an actual or plausible purpose

can fail when it appears as if a politically unpopular group is being targeted

What is intermediate scrutiny?

the classification must be substantially related to an important or exceedingly persuasive state interest

cannot be an archaic/overly broad interest based in stereotypes

What is strict scrutiny?

narrowly tailored to achieve a compelling state interest

the government must justify their actions

What is an under inclusive classification?

doesn’t include everyone

What is an over inclusive classification?

includes more than just who the law is “directed towards”

What is the proper level of scrutiny for traditional classifications?

rational basis

What is the class of one theory?

plaintiff is intentionally being treated differently than others in similar situations with no rational basis for the differences

does not apply to public employment contexts

What is the proper level of scrutiny for race classifications?

strict scrutiny

What is de jure discrimination?

the law is discriminatory on its face

What is de facto discrimination?

the law is facially neutral but the application of it is discrimination (i.e., Yick Wo)

still prohibited by the Constitution

What is the test for when the court is dealing with a law that doesn’t directly relates to race but there is a racially disparate impact?

What is the main purpose/intent of the statute?

If it was intended to be discriminatory → SS

If it wasn’t intended to be discriminatory → RB

knowledge of a benefit having a discriminatory intent doesn’t mean that the purpose was discriminatory

De Jure vs. De Facto analysis with racial classifications?

if it explicitly says it is racially based → SS

if it doesn’t explicitly say it is racially based but it has a racially disparate impact → look to the intent and, if it wasn’t intended to be discriminatory, RB

Affirmative Action and EP?

when race is being used in a higher education system, a quota is unconstitutional but holistic review may be permitted if the university can show that all other race-neutral avenues have been exhausted and did not have an effect

encouraging racial diversity is no longer a compelling state interest because there is no way to measure the impact of educational benefits (SFFA v. Harvard–remember that Harvard is not a state actor so it isn’t bound by the Constitution)

What is the proper level of scrutiny for gender classifications?

intermediate scrutiny

pregnancy is not a gender classification, it is a condition classification

What is the point of the other classification category?

to protect discrete and insular minorities (history of political unpopularity/hostility towards them so a degree of political protection may be needed) and those who cannot vote in the same way those in the majority can

What is the proper level of scrutiny for sexual orientation classifications?

rational basis

What is the proper level of scrutiny for alienage classifications?

strict scrutiny

UNLESS the government function exception applies, then it’d be rational basis

noncitizens who are legally in the country

What is the proper level of scrutiny for intellectual disabilities?

rational basis

What is the proper level of scrutiny for illegitimacy?

rational basis

What is the proper level of scrutiny for age?

rational basis

What is the proper level of scrutiny for poverty?

rational basis

Right to travel and EP?

strict scrutiny because the right to travel is a fundamental right

states cannot impose durational residence requirements on the recipients of welfare benefits as that burdens the fundamental right to travel

once a citizen moves to a new state, the states must treat them equal to other residents, and they cannot discriminate based on length of residence in the state (P&I)

What is the proper level of scrutiny for religious discrimination?

strict scrutiny

What is the establishment clause?

"Congress shall make no law respecting an establishment of religion…”

meant to separate church and state

the government cannot set up churches, pass laws which aid one or all religions, prefer one religion over another, or levy a tax for religious institutions or activities

a law which endorses/promotes religion violates the EC

providing general support to residents which inadvertently affects religious institutions doesn’t violate the EC

What is the rule for government actions which have some relation to religion?

EC isn’t necessarily violated as long as the relationship is 1) neutral, and 2) does not foster excessive entanglement between government and religion

Establishment clause and property tax exemptions?

can be tax exempt

tax exemptions prevent economic governmental assistance, so the government would be entangle if it taxed a religious organization’s property

Establishment clause and religious books/periodical exemptions?

cannot be tax exempt

a State tax exemption for books/periodicals published by a faith for teaching the faith advances religious activities and lacks a secular purpose

When can a religious organization be given a tax exemption by the State?

if the exemption has a secular purpose, and

it doesn’t advance/inhibit religion

What is the Lemon test?

focuses on endorsement of religion

1. statutes must have a secular legislative purpose

2. its principal/primary effect must be one that neither advances nor inhibits religion

3. the statute must not foster excessive government entanglement

abandoned (not overruled) in Kennedy v. Bremerton (Eric case)

Religion in schools?

public schools cannot permit their public property (funded by tax dollars) to promote or facilitate religious institution

students can be allowed to leave public schools to attend religious instruction as long as it isn’t on public school property or funded by the public school

religious clubs can be allowed in a public school as long as the school has other clubs (a school building can be used after hours for religious activities)

What test took over the Lemon test?

coercion test (Kennedy)

looks to the Nation’s historical practices

What is the endorsement test with religion?

if a reasonable observer would see something as an endorsement of religion by the government, then religious neutrality is violated

What is the coercion test with religion?

if the government policy coerces support or participation (attempt to establish a state religion), then religious neutrality is violated

Does something religious with secular stuff on it violate religious neutrality?

look to the predominant purpose

acts which are done with the predominant purpose of religion are not permitted

something with religious undertones but is used to convey historic and social meaning, not endorse religion, is permitted

How do you determine whether a religious display violates the Establishment Clause?

look to the history and tradition of the display

When is official acknowledgment of religion not allowed?

the purpose is to advance religion

it is coercive

it is out of line with historical practices and understandings of the symbol

What is the Free Exercise Clause?

"…or prohibit the free exercise thereof.”

usually involves a law which inhibits a person’s ability to exercise their religion, even though it is a nonreligious law

there is a difference between preventing belief and preventing action

What is the Sherbert test?

used in Hobbie

government actions which substantially burden a religious practice must be justified by a compelling state interest

law is not facially neutral

strict scrutiny

What is the Smith test?

arose after not applying the Sherbert test

if the law was generally applicable and has neutral/incidental burdens, then apply rational basis

What is the Lukumi test?

when the objective of a law is not neutral, but is rather to prohibit/restrict religious practices, then apply strict scrutiny

combined with Smith to create a two part Smith-Lukumi test

What is the ministerial exception?

deals with anti-discrimination laws

for both establishment and free exercise reasons, the Court/government does not interfere with the choosing of religious leaders

When is strict scrutiny used with free exercise?

for individual government burdens or explicit discrimination towards religion

for discriminatory religious intent/purpose

Hobbie/Sherbert test (compelling state interest to pressure religious people to change religious views to retain benefits)

When is rational basis used with free exercise?

for generally applicable neutral laws not targeted at religious activities or groups

Smith test (legitimate government interest)

What are the two possible approaches to free speech abridgment?

it’s low value speech, so it isn’t speech (e.g., obscenity, commercial speech, fighting words)

it’s speech, but it must give way to important governmental interests (Brandenburg “imminent” lawlessness test)

What are the generally applicable free speech rules?

laws cannot be overly vague or overly broad

all regulations of speech, even low value speech, must be content neutral

“expressive” conduct is protected

(almost) no prior restraints

What is the clear and present danger test?

the government can suppress speech when it presents a clear and present danger which will bring about substantial evils

What is the analysis for the clear and present danger test?

determined by courts, not juries

the interest which the state is trying to protect is substantial and warrants restriction of speech (overthrow of the government by force or violence is substantial)

words alone aren’t enough for government action, there must be a plan laid out with a signal awaited (will strike when time is right)

damage that revolution attempts can create both physically and politically (does the gravity of evil–not the probability–justify the invasion on free speech?)

When can a state regulate dangers to security?

as long as the law is not arbitrary or unreasonable in the way the state exercises its police power

What is the Brandenburg v. Ohio Imminent Lawlessness Test?

moves away from clear and present danger test

the statute cannot criminalize mere advocacy, there must be actual incitement of imminent lawless action (you can advocate for anything as long as the action being incited is not imminent)

needs an amount of specificity

can punish speech as long as it is closely tied to an illegal action

Is obscenity protected?

no because 1) it is not an essential part of any exposition of ideas, and 2) it does not have any social value

Is protecting public morality a legitimate state interest for obscenity?

yes (Paris Adult Theater)

rational basis

so if something is obscene, the state can ban it as long as they have a legitimate state interest

What is the Miller obscenity test?

1. whether an average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest

2. whether a work depicts/describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

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

How does vagueness/overbreadth apply to laws regulating free expression?

laws regulating free expression can always be challenged for being vague or overly broad

What is the test to determine what is a fighting word (low value speech)?

that which men of common intelligence would understand would be words likely to cause an average addressee to fight (incite fights)

objective test, so it is not vague

no imminence requirement

What is a function of our free speech?

to invite dispute