Con Law Final
Summary of D.C. v. Heller
Question of right to “keep and bear arms” is an individual right or collective right for state-regulated militias
Constitutional right to protect individual right to possess firearms for lawful use, in the home
Viewed D.C. law as unconstitutional
Impossible for citizens to use arms for self-defense
Lawful bans:
Prohibit carrying concealed weapons
Prohibit gun possession by felons or mentally ill
Prohibit carrying firearms in sensitive places
Impose conditions and qualification on the commercial sale of arms
Prohibit dangerous and unusual weapons
Regulate firearm storage to prevent accident
Ban extended to the home and was therefore unlawful
Majority reasoning
Through historical record, amendment drafting history, interpretations of the amendment by scholars, courts, and legislators
Operative Clause: right of the people to keep and bear arms, is controlling
Right of the citizenship
Prefatory Clause: “well regulated militia, being necessary to the security of a free state”
Refers to a well-trained citizen militia as necessary
Important for self-defense and hunting
Interpretation of the Second Amendment: went back on Miller
Did not hold that and cannot possibly be read to have held that (that guns were only for military)
Limitations on the Right to Keep and Bear Arms
Needs to be presumptively lawful
Prevent carrying of dangerous and unusual weapons
Standard of Determination
Rejected rational basis standard
Rejected interest-balancing approach
Cannot have absolute ban on handguns in the home for self-defense
Class Discussion
Restrictions on to own and hold a gun in your home
Individual argues that restrictions are too extreme, deny people the complete right of self defense
Prohibits registration of handguns
Focuses on the “keep” aspect of 2nd amendment
Deciding Heller
Does the prefatory clause concentration the operative clause
Doesn’t constrain the operative clause, applies to all individuals (right to bear arms)
Scalia - militia used to mean all able bodied men i.e. the people
Militia is but one purpose for the need of individuals to keep and bear arms
Is the right unlimited?
No, like most rights
Has several aspects that can still be regulated
Ban violates the right to keep and bear arms
Connection to miller
Source of weapons protected were those of common use at the time
Prohibit carrying of strange and unusual weapons
Decline to apply a level of scrutiny
Incorporation to the states
McDonald v Chicago (2010) incorporated 2nd amendment right to the states
New York State Rifle & Pistol Assn. v. Bruen (2022)
Facts of the Case
NY requires person to show special need for self-protection to receive an unrestricted license to carry concealed gun outside home
Challenged law (Nash and Koch) after their applications were rejected
Question
Does NY’s law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the 2nd Amendment?
Conclusion
proper-cause requirement violated the fourteenth amendment
Right to carry firearm for self-defense is historical right
Sensitive places is appropriate, but Manhattan is not a sensitive place
Gun restrictions are constitutional only if there is a tradition of regulation in U.S. history
In Class Discussion
Concealed carry laws in the U.S. p.1 of maj. Opinion
Lower court precedent for deciding 2nd Amendment cases “two-step” part II pp. 8-10
Person has to demonstrate proper need to have a concealed carry license
Shall issue – state doesn’t have discretion to deny license
Constitutionally valid
Contested schemes are may issues
Six states (and new york) have may-issue
Authorities have discretion to deny concealed carry license even after having objective criteria
Risk of not passing constitutional muster, Bruen deems these unconstitutional
Bruen’s holding on 2nd amendment
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
Implying strict scrutiny
Look back on what the founders would have understood
Aim to find a legal conclusion
Ruling is about “bear” part of keep and bear arms
DC v. Heller gives right for self defense which NY is violating
New york has care about public safety
Sensitive place can’t be an entire geographic area – needs to be more tangible
Right to keep and bear arms come from Republican
Between 2008-2022, lower courts are filling in gaps that supreme court isn’t
Means and scrutiny mixed with historical
Intermediate scrutiny
Substantially important interest – intermediate scrutiny
If the government can justify important interest for regulation, law can be upheld
Thomas says it cuts to the core of the right
3/19/25
D.C. v. Heller (practically invincible precedent)
2nd Amendment
“A well regulated militia, being necessary to security of a free state, the right of the people to keep and bear arms, shall not be infringed”
Prefatory clause
Well regulated militia part
Scalia interprets in the case
Does this clause present constraint on operative clause
Anyone that is capable of being called into military service
Governments would take away people’s guns to crush rebellions
If doesn’t constrain
All individual citizen enjoys the rights
What happens in DC v. Heller
Operative clause
Keep and bear arms
Part of the natural pre-existing rights (unenumerated = still protected)
Madison’s original draft didn’t have prefatory clause
Dropped religious exemption part as well
Departed from interpretation in Miller
Elements of the common use doctrine
U.S. v. Miller
Man has sawed off shotgun without registration
Not unconstitutional as an invasion of the reserved powers of the states
Not violative of the 2nd amendment of the constitution
Court can’t take native that a shotgun having a barre less than 18 inches long has any reasonable relation the preservation or efficiency of a well regulated militar
Court declines right of individual right to keep and bear arms
Follows the prefatory clause constraining the right
Right to have a gun would need to be connected to a well regulated militia
Originalism(s)
Original intent
What did the founders mean the words to convey
What was their intent when they wrote down the words
What is used in the dissent of heller
Original intent is allusive
Can be more hidden than the public meaning
Original public meaning
What did the provision mean to the people that were living at the time
The well known meaning of the provision
Once decoded the meaning is fixed at the point of ratification
What Scalia uses in Heller
Related branch is textualism
Only have the words on the page and should therefore follow this
Underlying meaning and principles don’t change
Ex. freedom of speech
Living Constitutionalism is opposite
Justices expand the meaning
Katz v United States (1967)
Facts of the Case
Katz gave gambling info over the phone to clients
Feds used eavesdropping device on public phone booth to record him
Katz arrested under illegal transmission of wagering information
Appeared and COurt rejected as there was no physical intrusion into the phone booth
Question
Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?
Conclusion
Yes
Katz had protection as 4th amendment protects “people not places”
Harlan introduces idea of reasonable expectation of 4th amendment protection
Kyllo v. US
Facts of the Case
Dept. of Interior agent used thermal imaging device to scan Kyllo’s triplex
Looking to see if he was growing weed
Based on seeing hot spots warrant was issued
Found weed
Kyllo was indicted
Court of appeals said Kyllo had no reasonable expectation of privacy
Question
Does the use of thermal-imaging device to detect relative amounts of heat emanating from a private home constitute an unconstitutional search in violation of the 4th Amendment?
Conclusion
Yes
Where, as here, the government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreliable without a warrant”
Carpenter v. US (2018)
Facts of the Case
2011 police arrested men in connected with armed robberies
One man gave information on others to FBI
FBI uses this to obtain transactional records of other 3
Under Stored Communications Act
Based on this information charged Carpenter with aiding and abetting robbery
Question
Does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?
Conclusion
Yes
4th amendment protects expectations of privacy
Declined to extend 3rd party doctrine to cell-site location information which implicates privacy concerns
Applies to voluntary exposure
Government needs warrant to access cell-site location information
Fourth Amendment – Searches and Seizures
Overview of Fourth Amendment
Full enjoyment of the rights of personal security, personal liberty, and private property by prohibiting unreasonable searches and seizures
Warrants must be supported by probable cause
Places of search must be specified in the warrant
There are some exceptions
Incident to arrest
By administrative searches justified by special needs beyond normal need for law enforcement
Historical Background
Long-standing in English political thought
Every man’s house is his castle
Landmark English cases: Entick v Carrington and Wilkes v Wood
Scope of Protected Rights
Overview of Unreasonable Searches and Seizures
Must be probable cause and particularized description of what’s being searched
Harris v US
Reasonable warrantless search of a 4 room apartment pursuant to the arrest of a man
Chimel v California
4th amendment was reaction to the general warrant and warrantless searches that alienated colonists
Police must, whenever practicable, obtain advance judicial approval of search and seizures through a warrant procedure
1970s
Court divided on which standard to use
1992: reasonableness approach over warrants-with-narrow exceptions
Early Doctrine on the Fourth Amendment
Must be a search and seizure with subsequent attempt to use the seized judicially for 4th amendment to apply
Olmstead v US
Didn’t cover wiretapping because defendant's premises had not been physically invaded
There was an invasion, a technical trespass, the 4th amendment applied to electronic surveillance
Only applied to tangible items
Federal Communications Act
Limited government wiretapping
Nardone v. US
Wiretapping violated FCA section 605
Katz and Reasonable Expectation of Privacy Test
Premise that property interest control the right of the government to search and seize has been discredited
4th amendment for privacy not property
Depends on if area was one in which there was reasonable expected of freedom from government intrusion
Kyllo v US
Invalidated warrantless use of thermal imaging devices at a private home
4th amendment to secure the privacy of life against arbitrary power
Place obstacles in the way of a too permeating police surveillance
Individual has no legitimate expectation of privacy in information he voluntarily provides to third parties
Balancing act
Assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement
Two tiered scale
Whether 4th amendment protected an interest
If yes, a warrant is required
Subject to narrowly defined exceptions
Berger v New York
Conversations could not be seized in the 4th amendment sense
Wiretapping is a search and seizure within the meaning of the 4th amendment
Must be showing of probable cause and the warrant must particularly describe the place to be searched and the persons or things to be seized
Disallowing general warrants
Current Doctrine on Searches and Seizures
US v Jones
Whether the attachment of GPS to a car used by suspected narcotics dealer was a search
Court says violated rights
Common law
Attaching device was a physical intrusion into Jones's Private property
Carpenter v US
4th amendment when gov. action violates individuals’ reasonable expectation of privacy in the whole of their physical movements
Open Fields Doctrine
Hester v US
4th did not protect open fields
Police could search pastures, wooded areas, open water, and vacant lots without warrants and probable cause
Oliver v US
Open field exception for fields that are fenced or posted
Seizure of Property
Inspections
First began as only under criminal law
Camara v. Municipal Court + See v City of Seattle
Administrative inspections require warrants if occupant objects
Marshall v Barlow’s Inc.
OSHA provision that authorized fed inspectors to search work areas without a warrant was unconstitutional
Chipped away at by Donovan v. Dewey
Warrantless searches served regulatory purposes
Industries with a history of government oversight that no reasonable expectation of privacy exists
Liquor sales, firearms dealing, mining, and automobile junkyard
Three pronged test (warrantless search rationale)
Substantial government interest informing the regulatory scheme
Warrantless inspection is necessary to further the government's purpose
Inspection program provides a constitutionally adequate substitute for a warrant
Cady v Dumbrowski
Police engage in community caretaking functions that are divorced from the detection, investigation, or acquisition of evidence relating to the violation of criminal statutes
Property Subject to Seizure
Gouled v US
Limited property subject to seizure to contraband and the instruments/fruits of a crime
Warden v Hayden
Evidentiality items can be obtained without a warrant where special needs of the government are shown
Items seized not testimonial in nature
Property Seizures and Self-Incrimination Protections
Boyd v US
Facts: Illegally imported goods and subject to forfeiture
Seizures of items to be used only as evidence was impermissible
Unreasonable Seizures of Persons
Protect against arbitrary arrests
If police are to do warrantless search must have probable cause
Consider the totality of the circumstances examining events leading up to the arrest
Probable Cause
Overview of Probable Cause
Draper v US
Begun line of cases
Informant gives police information about individual with narcotics
FBI had probable cause to arrest him
Jones v US
Affidavit set forth reliability of the informer and sufficient detail to indicate tip was based on personal observation
Totality test
Aguilar v Texas
Insufficient an affidavit that merely asserted that the police had reliable information from a credible person
Must present two types of basis
Circumstances from which the informant concluded evidence was present
Present information that would permit the magistrate to decide whether or not informant was trustworthy
Used this in Spinelli v US
Returned to totality test in Illinois v Gates
Defunct of two-part test: treated informants reliability and basis for knowledge as independent requirements
Probable Cause Doctrine
US v Ventresca
Belief based on personal observations and substantial amount of personal observations that supported stated belief
Sufficient for probable cause
Non-traditional Contexts and Probable Cause
When material may be protected under first amendment, gov has to observe more exacting standards
Ex. Marcus v Search Warrant
Later: with adequate safeguards, no pre-seizure adversary hearing on the issue of obscenity is required if a film is seized as to preserve evidence
Seizure cannot be justified as incidental to arrest
Stanford v Texas
Warrants must particularly describe the things to be seized
Warrant Requirement
Overview
Emphasis on the necessity of warrants places the judgment of an independent magistrate between law enforcement and privacy of citizens
Limits invasion to the person, the place, and evidence sought
Neutral and Detached Magistrate
To keep protections of citizens
Must also be capable of determining whether probable cause exists
Probable Cause Requirement
Definition is judicial construct
Applicant for a warrant much present to magistrate facts sufficient to enable officer to make determination
Whether affiant has reasonable grounds, law was violated, and facts are reasonable so that another would deem search justified
Particularity Requirement
Nothing left up to discretion of officer executing the warrant
Limits scope of search
Knock and Announce Rule
Must give notice that you are there (rule of common law)
Ker v California
Rule of announcement is constitutional requirement
Wilson v Arkansas
Party of the reasonableness inquiry
Other Considerations When Executing a Warrant
Amendment violated when media and 3rd parties get involved
Exceptions to Warrant Requirement
Overview
Vast majority of searches and seizures happen without warrants
Consent Searches
Right can be waved if one consents to a search of person or premise
Burden is on prosecution to prove the voluntariness of the consent
Not consensual if officer asserts official status or gets it through deception
Questioning consent if its given by a third party
Permissible if officer has reasonable belief that 3rd party had common authority and could consent
If co-occupant of space denies search, searching would be unreasonable
Exigent Circumstances and Warrants
Exigencies of a the situation: make the needs of law enforcement so compelling that the warrantless search is objectively reasonable
Look at whether there was an emergency
Hot pursuit of a fleeing suspect
Prevention of imminent destruction
Court looks at case by case basis
Warrantless Searches Dependent on Probable Cause
Search Incident to Arrest Doctrine
Question of the scope of the search
Must be additionally justification
Disavowed case by case approach of searches made post-arrest
Embraced categorical evaluations to post-arrest searches
Riley v. California
Didn’t apply Robinson to search of digital data in a cell phone of arrestee
Before police can search a cell phone incident to an arrest the police must get a warrant
Birchfield v North Dakota
Looked at breathalyzers and blood tests
Unreasonable under the search incident to arrest exception to the warrant requirement
Weighing privacy interests with state interest
Blood test more serious privacy concern
Chimel v California
Narrower view
When arrest is made, reasonable for arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest itself frustrated
Reasonable for for arresting officer to search and seize evidence on arrestees person
Officers can search areas within the arrestees immediate control to alleviate any threat posed by the arrestee
Protective sweep may be undertaken
Belton allows vehicle search incident to the arrest of occupant
Only if arrestee is within reaching distance of the passenger compartment at time of search (Arizona v Gant)
Vehicle Searches
Early days – court created exception
Holding in Carroll v US
Vehicles may be searched without warrants
initially court limits Carroll – impermissible the warrantless seizure of parked automobile merely because it is movable
Next
Reduced privacy rationale
Excluding Evidence
Exclusionary Rule and Evidence
Alternatives to the exclusionary rule: illegal search may be criminally actionaly – police subject to discipline for these actions
Civil remedies are available
Have tort action available if person is illegally arrested
Officer can have defense of good faith
Not based on subjective intent of the officer
Officers are entitled to qualified immunity
Adoption of Exclusionary Rule
Boyd v US
Compulsory production of business papers – Court likened to search and seizure
Analogized the fifth amendment self-incrimination provision to the 4th amendment
Weeks v US
Convicted under two warrantless searches
Court held evidence should have been excluded
Exclusionary rule under Self-Incrimination Clause of 5th
Wolf v Colorado
Freedom from unreasonable searches and seizures was a fundamental right as to be protected under the Due Process Clause
Rochin standard (illegally breaking in to remove bodily content is unconstitutional) limited in Irvine v California
Rochin still remained standard in later cases
Mapp v Ohio
Exclusionary rule applied to the states
Logically and constitutionally necessary
Standards of legality of search between state and fed now the same
Tied rule to fourth
Purpose of rule is to deter
Court emphasized high costs of enforcing rule to exclude reliable and trustworthy evidence even when there were violations
Exclusionary rule is inapplicable in parole revocation hearings
Violation of knock-and-announce rule does not require suppression of the evidence gathered pursuant to a search
Curtailment of rule in US v Leon
Exception as a result of officer’s good-faith reliance on a warrant – later found defective – issued by a detached and neutral magistrate
Applied this standard in Mass. v. Sheppard
To trigger rule police conduct must be sufficiently deliberate that exclusion can meaningfully deter it and sufficiently culpable
Standing to Suppress Illegal Evidence
Standing principle: required of one who seeks to challenge legality of a search as the basis for suppressing relevant evidence that they allege that they were the victim of invasion of privacy
Jones v US
Held that a person could establish standing to challenge search/seizure where that person was legitimately on the premises as a guest or invitee of the owner of the premise
Rakas v IL
To challenge a search, person must assert a personal interest protected by 4th
Good Faith Exception to Exclusionary Rule
Permits use of evidence if there is a causal link between the misconduct and the discovery of the evidence
Invoked this exception in upholding the admission of challenged evidence
Wong Sun v US
Segura v US
Brown v IL (5th amendment)
Determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated from the initial misconduct
The temporal proximity between the two acts
The presences of intervening circumstances
The purpose and flagrancy of the official misconduct
3/26/25
Fourth Amendment
“Right of the people”
Introduces pre-existing right
Secure in their persons, houses, papers, and effects
Persons – privacy
Can’t have things taken without your consent
Secure
Covers property and privacy
Against unreasonable searches and seizures
Probable cause standard: greater than 50%
More likely than not
Question on intrusiveness of the search
Breathlizer = fine
Blood test = not fine
Individual right – don’t have cart blanche to search everything
Place to be searched must be written
Can’t have general warrant
Probable cause is connected with place and person to be searched
Exclusionary rule: any evidence found while violating the fourth amendment cannot be used in court
To enforce the fourth amendment we make the government (police) jump through hoops
Process protects the underlying right
Civil liberties end: individuals expectation of privacy protects police search or seizure
Conservative end: government has social welfare interest to search individuals
General Legal Standards
Warrant requirement with exceptions versus reasonableness standards
Place of search vs expectation of privacy
Does fourth amendment protect gov intrusion of property of privacy
Or both?
Exceptions to the warrant requirement
Incident to arrest
Loss of evidence
Consent searches
Safety searches
Plain view
Exigent circumstances
What’s search or seizure
Property interest only?
Olmstead (1928) – electronic surveillance not a physical invasion
Eavesdropping is fine
Going through the door would be unconstitutional
Katz v US (1967)
Why it would be constitutional: making yourself available to the public
Watching movements aren’t private behavior, anyone could observe the movements
Overturn the physical trespass doctrine
Even if space is temporarily occupied it’s still considered to be that person’s property
Reasonable expectation of privacy
Fourth amendment protections people, not places
As expectation of privacy increases, the level of scrutiny increases
Home is most obvious example of privacy
Capacity to claim the protection of the 4th depends not upon a property right in the invaded place but upon whether the area was on in which there was reasonable expectation of freedom from government intrusion
Low expectation of privacy
Times square
Very public place with many people
Open fields
Jails, prisons
Garbage
Public schools
Kyllo v US (2001)
Agent believes kyllo is growing weed
Uses thermal imaging to find warm spots
Use this evidence for a warrant
Unique status of thermal imaging device: used from outside
Not available for public use
Government's argument: creating heat is not a search of your home, its emanating from your house, getting information about heat that’s escaping the house
Also getting information about what’s happening outside of the house
Special use device and a physical intrusion
Carpenter
Put gps device on a car to monitor its movement
Court says this is an unconstitutional search as there was no warrant
Terry v Ohio
Facts of the Case
Terry and two men observed by police as what they believed to be casing a job, a stick-up
Stopped and frisked the men
Found two weapons
Terry convicted for carrying concealed weapon
Question
Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?
Conclusion
8-1 decision
Search was reasonable under 4th amendment
Weapons seized could be introduced as evidence
Focus narrowly on the facts of the case
Court found that the officer acted on more than a hunch
Reasonable man would have warranted in believing terry was armed
Search was limited in scope and designed to protect the officer’s safety incident to the investigation
Birchfield v. North Dakota
Facts of the Case
Drove into ditch in ND
Police believed him to be intoxicated
Failed field sobriety test and arrested, didn’t consent to chemical test
Charged with misdemeanor for refusing
Moved to dismiss the charge and claimed it violated fourth amendment
Free from unreasonable searches and seizures when there was no probable cause that would support a warrant for the test
Happened with two other men as well, though the third consented to a blood test
Question
In the absence of a warrant, may a state statute criminalize an individual’s refusal to submit to a blood alcohol test?
Conclusion
First Decision
The fourth amendment does not permit warrantless blood tests incident to arrest for drunk driving
Warrantless breath tests are fine as they do not have significant privacy concerns, something that is routinely exposed to the public, reveal a limited amount of information, and do not enhance any embarrassment beyond what the arrest itself causes
Blood tests have privacy concerns because they require piercing of the skin
Refusing to submit a breath test is designed to serve the government’s interest in preventing drunk driving
Second decisions
The fourth amendment permits warrantless breath tests incident to arrest for drunk driving
United States v. Leon
Facts of the Case
Exclusionary rule requires that evidence illegally seized must be excluded from criminal trials
Leon – target of police surveillance based on an anonymous tip
Police applied to a judge for a search warrant of leon’s home based on the evidence from their surveillance
Judge issued warrant and police found drugs
Judge concluded that the affidavit for the search warrant was insufficient and did not establish probable cause
Question
Is there a “good faith” exception to the exclusionary rule?
Conclusion
Yes
Evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial
The exclusionary rule is not a right, but a remedy justified by its ability to deter illegal police conduct
Cost of exclusionary rule outweighed the benefits
Exclusionary rule is costly to society
Guilty defendants go unpunished and people lose respect for the law
Rule cannot deter police in a case like Leon where they act in good faith on a warrant issued by a judge
Mapp v. Ohio
Facts of the Case
Mapp convicted of possessing obscene materials after an illegal police search of her home for a fugitive
Appealed on freedom of expression
Question
Were the confiscated materials protected from seizure by the Fourth Amendment?
Conclusion
Ignored first amendment issue
Declared all evidence obtained by searches and seizures in violation of the fourth amendment is inadmissible in a state court
Court struggled to determine when to apply exclusionary rule
3/28/25
Prior to kyllo
Protects property over privacy
Olmstead: protects property not privacy because it doesn’t constitute a search
Device used wasn’t available to the public
Was a special use device (not common use)
Katz: fourth amendment protects people not places
Where you have reasonable expectation of privacy, protects against warrantless searches
US v Jones
Movements in your car have a reasonable expectation of privacy
Police have gone to far with monitoring
Search is unconstitutional as they don’t have warrant
Carpenter
Protects places and privacy interests
Arrested four people in robbery, one member gives phone numbers
Police uses numbers to look at phone history, without a warrant
Police is able to track movements
Supreme court has already rulled that there’s an expectation of privacy
Key difference is that the property belongs to a third party
Third-party doctrine
Not searching the individual’s property but a company’s property
Individual has voluntarily shared information with the company
Lower expectation of privacy
Government says not a search under the fourth amendment
Smith and miller are 3rd party doctrine cases
Carpenter voluntarily gave his cellsite location to company and government can use the information to investigate
Supreme court rules that government actions are in violation of the first amendment
Cellsite information has reasonable expectation of privacy
Third-party doctrine is not extended to this case
Would be concession that individual is voluntarily giving their information over
Still tracking people’s movements which has been ruled unconstitutional in jones
Basic issue of what’s a search that falls under the fourth amendment
Incident to arrest has discretion for a search (persona and immediate surroundings)
Terry V. Ohio
Stop and frisk
Police have temporary ability to stop you (in a stop) – need reasonable suspicion
Reasonable suspicion: 25%
Controversial as can lead to racial profiling
Reasonable suspicion inferred on race
Standards and processes are intended to protect civil liberties
Standard; stops and pat gowns
Can apply to police stopping a vehicle
When do stops become seizures
Reasonable perception standard (1970s and 80s)
Only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he would believed that he was not free to leave
Later cases viewed such seizures like arrests – fourth amendment protections operative
Individual interest: don’t want to be harassed
Right to not be harassed by police
Police officer in ohio, in civilian clothes, walking on street and sees two men outside of the store – looking somewhat suspicious
Police officer believed they were doing a stickup, did a pat down, found guns on the men and the men were charged because of the men
Fourth amendment applies to stop and frisk (is a search that falls under the fourth amendment)
Immediate circumstance is to help the police (more for safety)
Case of a justifiable warrantless search
Patdown isn’t as intrusive as a full search
Fifth Amendment: Self-Incrimination
Historical Background on Self-Incrimination
Comes from maxim “nemo tenetur seipsum accusare” - no man is bound to accuse himself
Six states had it in their constitutions
Recommended for federal bill of rights
Congress add “in a criminal case”
Early Doctrine on Self-Incrimination
Coerced confessions were potentially excludable from trial because they were unreliable
Bram v US
Fifth amendment imposed separate restrictions on a confession admissibility
Extended to states in the 60s
General Protections Against Self-Incrimination Doctrine and Practice
Court has two interests
Preservation of an accusatorial system
Preservation of personal privacy
Also to words that would link evidence needed to prosecute
Applies to police interrogations
Cannot be used by or on behalf of an organization or corporation
Can suppress documents if they are not known to the government
Defendant who takes the stand on their own behalf does so voluntarily
Griffin v. California
Court refused to permit prosecutorial comment to jury upon a defendant’s refusal to take the stand on his own behalf
“Needless encouragement test”
Assess nature of the choice required to be made by defendants
Second test is created after
Required Records Doctrine
Does not extend to corporate figures
Narrows the protection of papers
Public records are property of the government
Must be sufficient relation between the activity sought to be regulated and the public concern so that the government can constitutionally regulate or forbid the basic activity concerned
Immunity
Cannot compel a person to be a witness against themself
Congress has passed immunity statutes
Seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify
Counselman v. Hitchcock
Rendered immunity statute unenforceable
Two faults
Statute did not proscribe derivative evidence
Prohibited only future use of compelled testimony
New statute – required transactional immunity in exchange for compelled testimony in Brown v. Walker
New statute – replaced all prior immunity states and adopted a use-immunity restriction only
Upheld by Kastigar v. US
Withdrawal of Government Benefits
United States v Sullivan
5th did not privilege a bootlegger in not filing an income tax return because return would show illegal happenings
Albertson v SACB
Struck down order pursuant to statute requiring registration by members of communist party
Targets a group
Custodial Interrogation
Early Doctrine and Custodial Interrogation
Bram v US
Extended doctrinal basis for analyzing admissibility of a confession beyond the common-law test of voluntariness
Pre-Miranda Self-Incrimination Doctrine (40s-60s)
McNabb v US
Confessions obtained after an unnecessary delay in presenting suspect for arraignment could not be used in trial
Concern over coerced confessions
Chambers v Florida
Prolonged questioning made confession involuntary
Ashcraft v Tennessee
Confession inadmissible when it was obtained after almost 36 hours of continuous questioning
Stein v New York
Must balance the circumstances of pressure against the power of resistance of the person confessing
Miranda and its Aftermath
Prosecutors may not use statements obtained during a custodial interrogation unless the interrogation was conducted pursuant to certain procedural safeguards
Withrow v Williams
Miranda protects fundamental trial right
Custodial Interrogation Standard
Miranda warnings necessary when person is taken into custody and subject to interrogation
Miranda safeguards designed to vest a suspect in custody with an added measure of protections
Miranda Requirements
Must be given full warnings prior to interrogation
As long as words are “fully conveyed” how they are said doesn’t matter
Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning related to the crime for which the suspect is arrested
Miranda Exceptions
Properly informed suspect may wave rights
Prosecution has heavy burden to establish that it was voluntary
Suspect must be able to understand their rights
Court has created a public safety exception to the miranda warnings for serious offenses
Miranda v. Arizona
Syllabus
Defendant questioned in police custody
Not given warning of rights
Police got oral admissions
Prosecution may not use statements stemming from questioning initiated by police after person has been taken into custody or otherwise deprived of freedom
Fifth amendment covers this under the privilege against self-incrimination
Defendant must be told they have right to remain silent
Question
Does the fifth amendment protection extend to the police interrogation of a subject
Opinion of the Court – Justice Warren 5-4
Requires that law enforcement advise subjects of their rights during interrogations while in police custody
Told right to remain silent, anything said can and be used against you in a court of law, right to an attorney – if can’t afford one the state will provide one
Dickerson v. US
Facts of the Cause
During questioning about a robbery, Dickerson made statements admitting that he was a getaway driver
Police says he was told his miranda rights and waved them
Dickerson said he was not read rights until after he gave statement
Appeals ruled against Dickerson as he gave statement voluntarily
Question
May Congress legislatively overrule Miranda and its warnings that govern the admissibility of statements made during custodial interrogation?
Conclusion
No 7-2
Miranda governs the admissibility of statements made during custodial interrogation in both state and fed
“Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture”
Look at Exceptions to Miranda Handout
4/2/25
Birchfield
Connected to search incident to an arrest
Court won’t guarantee to uphold the search
Court side steps implied consent
Law says its illegal to deny a BAC/blood test
Arrested for suspected drunk driving
Question of the degree of intrusion
Breathalizer less intrusive than blood test
Can’t force someone to go to a blood draw because its over intrusive
Invasiveness of the test determines if warrantless search is valid
While there’s probable cause or reasonable suspicion that someone is drunk, there can be a warrantless search
Implied consent laws, Court punts on them, can’t be punished for refusing a blood draw (would need a warrant)
Can be punished for refusing a breathalizer
Michigan v Sitz
Supreme court has upheld sobriety checkpoints
Could avoid one (?)
Getting to intrusiveness roadblocks do not violate the fourth amendment
No one can seriously dispute the magnitude of the drunken driving problem or the state interest in eradicating it
Acevedo
Police see him enter apartment known to have weed
Steps out with paper bag that looks like drug bag
He puts it in his car and drives away
Police has reasonable suspicion to believe he had drugs
Likely have probable cause but conduct search without a warrant
Court affirms automobile exception
Deferring a lot of judgement to the police
Possible that there could be mistakes and profiling
Police need to give snap judgements
Stafford v Redding
Does fourth amendment prevent stip searches for drug holdings
School does intrusive search and court says that is unconstitutional
Includes adults interacting with minors in an nonconsensual way
Leon
Exclusionary rule (fruits of the poisonous tree)
Evidence from an illegal search cannot be used in court
Mapp v. ohio incorporates it to states
What were the intentions or belief at the time of the search
If police were acting in good faith at the time of the search it could be admitted
Leon target of police surveillance after police got warrant
Got illegal drugs
The affidavit for the search warrant did not establish probable cause (decided after the search)
Police thought they had a legal warning
Interest from criminal defendant is to protect right of the criminally convicted
Police didn’t abuse their authority
4/4/25
Fifth Amendment
Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law
Balancing act
Left: protect individual rights against confessing to crime
Right: give police/govt more discretion to induce confession
Government wants discretion to get the best evidence and get a confession
Pre-Miranda I
Voluntariness standard: rooted in due process clause
Considering totality of circumstances, was confession voluntary and admissible or coerced and inadmissible
Pre-Miranda II
Voluntariness standard: rooted in self-incrimination clause
Malloy v hogan (1964) – incorporates self-incrimination clause to the states
Its accusatorial not inquisitorial
A system in which the state must establish guilt by evidence independently and freely secured and may not be coerced proved its charges against an accused out of his own mouth
Miranda v Arizona
Standards rooted in voluntariness did not establish that police had to inform criminal suspects of their rights
The prescriptive series of warnings and guarantees which the court imposed as security for the observance of the privilege
Prosecution may not use statements whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effect to secure the privilege against self-incrimination
Prior to any question person must be told they have right to remain silent, any statement can and will be used as evidence, right to an attorney, defendant may waive rights provided a waiver is made voluntarily knowingly and intelligently
Key lines of cases have covered
Must be given before questioning or interrogation upon taken into custody
Must be fully conveyed to suspect
After warnings, questioning must cease upon suspect asserting right to silence/request of counsel
Suspect may waive rights after being mirandized
Exclusionary rule: confession obtained in violation of miranda cannot be used directly against suspect in court of law (some exceptions)
Gradual chipping away at miranda
Lawyers find case facts that there are justifiable exceptions to the rule
Dickerson v. US
Court is asked to overturn miranda
Can congress overrule miranda
Congress trying to go back to voluntariness standard
Lower level of scrutiny than miranda
Court declines to overrule miranda
Strikes down congression provision
Doesn’t overcome standard set by miranda
Reliance interest: precedent is so important to society that reversing it would upend society
Furman v. GA (1972)
Facts of the Case
Furman caught burglarizing a home
Tried to flee, accidently shot and killed someone
Convicted of murder and sentenced to death
Question
Does the imposition and carrying out of the death penalty constitute cruel and unusual punishment in violation of the 8th and 14th amendments
Conclusion
Yes
Forced states and national legislature to rethink capital punishment statutes
Assure that death penalty would not be administered in a capricious or discriminatory manner
Gregg v. GA (1976)
Facts of the Case
Gregg was guilty of armed robbery and murder
Sentenced to death
Question
Is imposition of the death sentence prohibited under the 8th and 14th amendments?
Conclusion
No
Not in all circumstances
Extreme criminal cases, death penalty could be appropriate
Georgia had bifurcated trial and sentencing
Capital punishment serves as a useful deterrent to future capital crimes
Appropriate means of social retribution against its most serious offenders
Atkins v. VA (2002)
Facts of the Case
Atkins convicted of abduction, armed robbery, and capital murder
Determined to be mentally disabled
Sentenced to death but VA SC ordered second hearing
Question
Is the execution of a mentally disabled person “cruel and unusual punishment”
Conclusion
Yes
A significant number of states concluded death was not a suitable punishment for mentally disabled individuals
Serious concern whether either justification underpinning the death penalty – retribution and deterrence of capital crimes – applied to mentally disabled offenders due to lessened culpability
Glossip v. Gross (2015)
Facts of the Case
Executed Clayton Lockett with lethal injection
Procedure didn’t work until 40 minutes later
After this, OK suspended all subsequent executions until the incident was investigated
Midazolam as new initial drug
Question
Does Oklahoma’s use of midazolam as the initial drug in the execution protocol violate 8th amendment
Conclusion
No
There was insufficient evidence that the drug entailed substantial risk of increased pain
8th amendment doesn’t guarantee a complete lack of pain
Method-of-execution must identify a reasonable alternative that presents a significantly lower risk of pain
Eighth Amendment – Cruel and Unusual Punishment
Punishment
Historical Background on Cruel and Unusual Punishment
Worry if harsh, necessary, punishments would be considered cruel and unusual punishment
These punishments were used for deterrence
Evolving or Fixed Standard
End of 19th century – Court considered standard
1878 Wilkerson v. Utah
Weighed whether punishment was cruel and unusual by examining whether framers would have considered it so
Then decided to go with current norms instead
20th century – standard because more flexible
Focus on societal standards
1910 Weems v US
Framers had not merely intended to bar reinstituting procedures deemed unacceptable in 1789 but had intended to prevent a coercive cruelty from being exercised
Avoid “unnecessary and wanton infliction of pain”
Proportionality in Sentencing
8th applies to punishments disproportionate to the offense
O’Neil v Vermont
In addition to prohibiting punishments deemed barbarous, also condemned all punishments which by their excessive length are disproportionate to the offense
Distinguished death penalty form length of sentence cases
Rummel v Estelle
Upheld mandatory life sentence
Solem v. Helm
Cruel and unusual punishment clause prohibits barbaric punishments but also sentence that are disproportionate to the crime committed
Proportionality and Juvenile Offenders
Graham v Florida
Prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide
Miller v Alabama
8th forbids any sentencing scheme that mandates life without parole for juveniles convicted of homicide
Limitation to Criminal Punishments
Only with criminal punishments
No application to civil processes
Limits the kinds of punishment that gov. can impose on those convicted of crimes
Proscribes punishment grossly disproportionate to the severity of the crime
Imposes substantive limits on what can be made criminal and punished as such
Drug and Alcohol Dependency
Robinson v. California
Set aside a conviction under a law making it a crime to be addicted to the use of narcotics
Punished the mere status of being an addict
Conditions of Confinement
Rhodes v Chapman
Unquestioned that confinement in prison is a form of punishment subject to scrutiny under the 8th
Conditions of a prison may make it unconstitutional
Congress authorized litigation over prison conditions in 1980 in the Civil Rights of Institutionalized Persons Act
1996: added restrictions through the Prison Litigation Reform Act
Divestiture of Citizenship
Unfavorable by the Court
Trop v. Dulles
Divestiture of natural born citizen to be cruel and unusual
Entailed statelessness as more primitive than torture
Punishment must be examined in the light of the basic prohibition against inhumane treatment
Death Penalty
Overview of Death Penalty
Furman v GA
Constitutionalized capital sentencing law and involved federal courts in extensive review of these sentences
Death penalty violated 8th
Early Doctrine on Death Penalty
Trop v Dulles
Majority refused to consider the death penalty as an index of the constitutional limit on punishment
1960s there’s a campaign against the death penalty
Series of test cases
Fourth guideline in 2002
The sixth amendment right to trial by jury comprehends the right to have a jury make factual determination on which a sentencing increase is based
Capital sentencing schemes are unconstitutional if judges are allowed to make factual findings
Gregg v. Georgia and Limits on Death Penalty
Draft statues that would correct the faults identified in the other three majority opinions
Only criminal acts that result in death (deliberately)
Standards and procedures must be established for the imposition of death that would remove arbitrariness
Death penalty as punishment for murder is not cruel and unusual
Statutes mandating the imposition of death for crimes did violate 8th
Procedure for death sentenced must be structured to reduce arbitrariness
Applying the Death Penalty Fairly
Used as tool of racial discrimination
Proof of this is difficult
Role of Jury and Consideration of Evidence
In response to Furman, states narrowed sentencing authority discretion in that there would need to be aggravating circumstances for death penalty
Trial should not be without guidance or direction
Cognitively Disabled and Death Penalty
Ford v. Wainwright
Developed mental disorder after event
8th prohibits state from carrying out the death penalty on individual with severe mental illness
Panetti v Quarterman
Court needs operative test to see if prisoner cna reach a rational understanding for the reason for execution
Madison v Alabama
Cannot be executed for capital offense if concept of reality is o impaired that can’t grasp meaning or purpose of the crime and punishment
Memory loss doesn’t count
Dementia does count
Atkins v VA
National consensus against death penalty for mentally disabled
Deterrence and retribution don’t fit for those w/ mental disabilities
Hall v FL
Limited states ability to define intellectual disability
IQ tests cannot be used to determine
Minors and Death Penalty
Originally okay if 16 or older
Stanford v KY
8th amendment does not prohibit imposition of the death penalty for individuals who commit crimes at 16 or 17
Consensus that 15 was bad
Roper v Simmons
Against executions of 16 and 17
20 states against death penalty for minors
Juveniles less morally culpable for their actions
Lack maturity and understanding
More susceptible to negative influences
Character of juveniles is not well formed
Non-Homicide Offenses and Death Penalty
Coker v GA
State may not impose death sentence upon a rapist who did not take human life
Doesn’t reach proportionality
Kennedy v. LA
Even if victim is a child
Execution Methods
Early history – hanging
After – electrocution
Later – lethal injections
More humane
Changes made not due to SC but public belief
Trop v Dulles
8th amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society
Must have substantial and objectively intolerable risk of harm to be unconstitutional
Glossip v Gross
Rejection of challenge to OK three-drug injection
4/9/25
Eighth Amendment
Nor cruel and unusual punishments inflicted
In states where its banned (death penalty) usually from governor that imposes moratorium
Some justices invoke the due process clause (5th and 14th ams) as well
Nor shall any state deprive any person LIFE… WITHOUT DUE PROCESS OF LAW
Justice scalia in glossip v gross (death penalty is approved by the constitution
Need to be beyond reasonable doubt that someone is guilty
Question of proportionality of crime
History
Eighth amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”
Draws on living constitutionalism
Methods of execution must reflect morality of society at the time
Death penalty of capital punishment
Tied to “is this a gruesome act?”
Not allowed
Torture
“Drawing and quartering, disemboweling alive, beheading, public dissection, and burning alive, are “forbidden by… the Constitution”
Allowed (early on)
Firing squard
Electrocution
Hanging
Burden is on death row inmate that would reduce harm/pain of the execution method
Only 23 states are currently executing
Democracy speaking in favor of getting rid of the death penalty
Court has to wait for things to come to them to change things (passive workers)
Today
Lethal injection
1930s - 1940s
Peak of executions
Huge drop after the 1940s
Things that could have affected it
Civil rights movement
Pre-furman (before 1972)
death penalty is presumed constitutional
NAACP legal defense fund
1960s strategy represent every defendant on death row
Effectively attempt to place a moratorium on the death penalty
What happened to the death penalty after this
Issue of racial bias in death penalty cases
LDF put moratorium on the death penalty
Impact of social movements and democratic changes
Supreme court are not
Furman v GA
Issue general order that there’s a moratorium on the death penalty (4 year moratorium)
Brennan and marshall
Concurrence: the death penalty is unconstitutional per se, 8th amendment prohibits it in all circumstances
3 votes for the way the death penalty is carried out is unconstitutional
Morally inaccessible
Arbitrary, wanton, and freakist
Gives states ability to find ways that are constitutional
Mandatory death sentences take away the question of proportionality
Don’t take in to account mitigating circumstances
Method vs. per se unconstitutional
The administration of the DP was unconstitutional but not on a per
Response to state law changes
Georgia in particular
Key points:
Bifurcated trial – one for conviction and another for sentencing
Sentencing phase: aggravating or mitigating factors for DP
Spike in the 1990s
After 2000s there’s a decline in number of death penalty
Glossip v Gross
Needed new drug because drug makers stopped sending anesthetic drugs for death penalty
Glossip wanted Madazolen ot be considered a violation of cruel and unusual punishment
Risk of pain
Doesn’t need to be completely free of pain to be constitutional
Baze v reeves
Does this 3 step method constitute cruel and unusual punishment
Must be substantial risk of harm
To survive challenge to method, must demonstrate an alternative method that would substantially reduce risk of harm
Glossip v Gross
Again uses three-drug protocol not in violation of 8th amendment
Viable alternatives doctrine
Constitution does not compel that every state has to use the death penalty
There are conditions that make death penalty unconstitutional
Comes from proportionality
Individual characteristics
Mental disability
IQ
Planned Parenthood v. Casey
Facts of the Case
Penn. amended abortion control law
Required informed consent and a 24 hr waiting period prior to procedure
Minor seeking an abortion required parental consent
married women needed to indicate she notified her husband
Challenged by abortion clinics
Question
Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married notify their husband, and if minors obtain parental consent without violating their right to an abortion in Roe v. Wade?
Conclusion
Reaffirmed Roe but uphold most of the Penn. provisions
Imposed new standard to determine validity of laws restricting abortions
Ask whether a state imposing a regulation has the purpose/effect of undue burden and substantial obstacle
Roe v. Wade
Facts of the Case
Jane roe (false name) filed lawsuit against Wade challenging a Texas law making it illegal to get an abortion without doctor’s order to save woman’s life
Argued state laws were unconstitutionally vague and abridged her right to personal privacy under the 1st, 4th, 5th, 9th, and 14th amendments
Question
Does the constitution recognize a woman’s right to terminate her pregnancy by abortion?
Conclusion
Yes as inherent to the due process of 14th amendment
Right is balanced against the government’s interest in protecting women’s health and protecting “the potentiality of human life”
Pregnancy is a classic justification for a conclusion of non mootness
State law that broadly prohibits abortion without respect to stage of pregnancy violates rights
1st trimester: may not regulation decision
2nd trimester: state may impose regulations on abortion that are reasonably related to maternal health
3rd trimester: once fetus reaches point of “viability” a state may regulate abortions or prohibit them entirely, exceptions for cases necessary to save the life or health of the mother
Substantive Due Process
Overview of Substantive Due Process
Part of the 5th and 14th amendments
Protects certain fundamental constitutional rights from government interference, regardless of the procedure that the government follows when enforcing the law
Rights that aren’t listed in the constitution
“Liberty of contract” interest protected by the Due Process Clause
Court continues to develop the doctrine of noneconomic due process during the 20th century
Going back on this currently
Noneconomic (2165-2184)
Overview of Noneconomic Substantive Due Process
Not found in the constitution
Must have stricter scrutiny
Difficult to decide where it starts and ends
Glucksberg
Should be grounded in historical processes and traditions
Overruled in Obergefell
Question of which standard of review will be used
Historical Background on Noneconomic Substantive Due Process
First was the right to privacy
Right to be left alone
Informational Privacy, Confidentiality, and Substantive Due Process
Suggest that it encompasses right to informational privacy and confidentiality
Family Autonomy and SDP
Fundamental right to marry
Power of parents to control child’s education
Can regulate child labor
Right to care, custody, and management of their children
Right of family may extend beyond biological
Marriage and SDP
Only reasonable regulations that do not significantly interfere with the decisions to enter the marital relationship may be imposed
Obergefell: marriage is an institution of continuity and change
Grounded in four principles and traditions
Marriage is inherent to individual autonomy
Fundamental to supporting a union of committed individuals
Safeguards children and families
Essential to the nation’s social order because of the legal benefits
Sexual Activity, Privacy, and SDP
Griswold v Connecticut: right of marital privacy with contraceptives
Stanley v. Georgia: struck down statute that banned possession of obscene matter
Personal privacy relates to matters of marriage, procreation, contraception, family relations, and child reading and education
Lawrence v. Texas: got rid of sodomy laws
Abortion
Abortion, Roe v Wade, and Pre-Dobbs Doctrine
Roe: protects women's right to an abortion
Right of privacy is a fundamental right
Only overruled by compelling state interest
Cannot make abortions exceedingly difficult to get
1992 Court rejects the trimester framework, instead upheld “undue burden” standard
Restrictions on Abortion Funding
Ruled on whether Title XIX of the Social Security Act (Medicaid) requires gov. to pay for elective abortions
No
Abortion, Dobbs v Jackson, and Post-Dobbs Doctrine
Constitution did not confer the right to an abortion
Regulation turned back to the states
Right to an abortion not rooted in nation’s history
Abortion restrictions not subject to the viability and undue burden standards
Now under rational basis
Dobbs v. Jackson
Given by Alito
Historically, states were given freedom to regulate abortion
At time of Roe, 30 states still prohibited abortion
Calling for roe and casey to be overruled
Constitution makes no reference to abortion
In history, at time of 14th amendment, most states had criminalized abortion
Want to return control to the states
Question that Casey did not answer
Liberty to protect a particular right
Right of the issue in nation’s history
Whether right to an abortion is part of broader entrenched right
Roe was loose in treatment of constitution
Could have used 14th amendment (equal protection clause) but since they didn’t, this precedent hasn’t been created
Due process clause protects two rights
Rights in the first 8th amendment
Select list of fundamental rights not mentioned in Constitution
Common law history sees abortion as illegal
Court did not see right to privacy and right to autonomy as absolute
Abortion destroys potential life
Overruling decision of stare decisis
Court made a mistake in its ruling of Roe
Disruptive to other areas of law, didn’t have concrete reliance, wasn’t workable, error in quality of reasoning, and didn’t stem from historical background
Used “raw judicial power”
Acted more like policy makers
Prescriptions were too vague
Sexual Orientation-Based Classifications
Romer v. Evans
Struck down state constitutional amendment that overturned ordinances prohibiting discrimination
Declined to apply heightened standard for suspect classes
US v. Windsor
Struck down section 3 of DOMA which restricted federal recognition of same-sex marriage
Obergefell v. Hodges
Invalidated state laws limiting licensing and recognition of marriage to opposite sex couples
Right of same sex marriage is derived from 14th amendment’s equal protection clause
Did no identify whether the base classification made by challenged state marriage laws was suspect
Court uses sliding scale for their review standards
No Court formal opinion to decide what fundamental rights are
Rodriguez did not prevent Court’s adoption of 3-tier standard of review
Expansion of fundamental rights not limited
Obergefell v Hodges
Facts of the Case
Groups in ohio, michigan, kentucky, and tennessee challenged state bans on same sex marriage
Says it violated the equal protection clause and due process clause
One group sued under the civil rights act
Questions
Does the 14th Amendment require a state to license a marriage between two people of the same sex?
Does the 14th Amendment require a state to recognize marriage between people of the same sex that was legally licensed and performed in another state?
Conclusion
Yes, yes
Due process clause of 14th guarantees right to marry as its a fundamental liberty
Judicial precedent set marriage as fundamental liberty as its inherent to concept of individual autonomy, protects most intimate association between two people, safeguards children and families, and historically recognized as keystone of social order
No difference between same-sex union and opposite-sex union
Equal protection clause guarantees right of marriage
First amendment protects rights of religious organizations to adhere to their principles but not for states to oppose
Brown v Board
Facts of the Case
Relating to segregation of public schools on the basis of race
Black students had been denied admittance to certain public schools based on laws allowing public education to be segregated by race
Argue it violated Equal protection clause
Plaintiffs denied relief in lower courts based on Plessy v. Fergus
Question
Does the segregation of public education based solely on race violate the Equal Protection Clause?
Conclusion
Separate but equal educational facilities for racial minorities is inherently unequal and violates the Equal Protection Clause
Segregation of public education based on race instilled a sense of inferiority that had detrimental effect on education and personal growth of black children
Based on social science studies rather than court precedent
Wanted all americans to understand the ruling
Swann v Charlotte-Mecklenburg Board of Education
Facts of the Case
School system still had schools that were totally black or more than 99% black
Lower courts had experimented with a number of possible solutions when the case reached the supreme court
Question
Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation?
Conclusion
Once violations of previous mandates directed at desegregating schools had occurred scope of district court's equitable power to remedy past wrongs were broad and flexible
Remedial plans were to be judged by their effectiveness, quotas were legitimate starting points for solutions
Exclusively black schools required close scrutiny by courts
Non-contiguous attendance zones were within the courts’ remedial powers
No rigid guidelines could be established concerning busing of students to particular schools
Students for Fair Admissions v. President and Fellows of Harvard College
Facts of the Case
SFFA sued Harvard over admissions process
Violates Title VI of the Civil Rights Act of 1964
Discriminating against Asian American applicants and white applicants in favor of underrepresented minority applicants
Harvard uses race as factor in its admissions process but uses requirements in Grutter v. Bollinger
Question
May institutions of higher education use race as a factor in admissions?
If so, does Harvard College’s race-conscious admissions process violate Title VI of the Civil Rights Act of 1964
Conclusion
Harvard violated the Equal Protection Clause
SFFA had organizational standing because it is a voluntary membership organization with identifiable members who support its mission and whom SFFA represents in good faith
Original purpose of Equal Protection was to ensure laws apply to everyone equally regardless of race
Any exceptions to equal protection must satisfy strict scrutiny
Regents of the University of California v. Bakke because touchstone for evaluating constitutionality of race-based admissions
Diversity of the student body could be a compelling state interest but that race could only be used as a “plus” in admissions and not as a quota
Harvard’s race-based admissions system fail to meet the strict scrutiny, non-stereotyping, and termination criteria
Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university
Craig v. Boren
Facts of the Case
OK law prohibited sale of nonintoxicating 3.2% beer to males under the age of 21 and to females under the age of 18
Question
Did an OK statute violate the Fourteenth Amendment’s Equal Protection Clause by establishing different drinking ages for men and women?
Conclusion
Yes
Made unconstitutional gender classifications
Statistics OK relied on were insufficient to show a substantial relationship between the law and maintenance of traffic safety
Generalities about the drinking habits of aggregate groups did not suffice
21st amendment did not alter the application of the Equal Protection Clause
Created a new standard of review in gender discrimination cases
More demanding than rational basis but less demanding than strict scrutiny
Followed intermediate scrutiny
US v. Virginia
Facts of the Case
Virginia Military Institute boasted a long tradition as VA’s only exclusively male public undergraduate higher learning institution
US brought suit against them
Violated the Equal Protection Clause
Question
Does VA’s creation of women’s-only academy as a comparable program to a male-only academy, satisfy the Fourteenth Amendment’s Equal Protection Clause
Conclusion
No
The male-only admissions was unconstitutional
Failed to show exceedingly persuasive justification for VMI’s gender-biased admissions policy
VA failed to support its claim contributed to educational diversity
Did not show that VMI’s male-only admissions policy was created or maintained in order to further educational diversity
Fourth Circuit’s substantive comparability between VMI and VWIL was misplaced
Looked at issue with heightened scrutiny, VA’s plan to create VWIL would not provide women with the same opportunities as VMI provides men and so it failed to meet requirements of the equal protection clause
Is there a right to privacy in the Bill of Rights
Not enumerated right in the constitution
Griswold v. Connecticut
Married couple wanted to use birth control, supreme court developed level of privacy with several different amendment, look at implied right of privacy
Right to marital privacy
1st right to speech
3rd no forced quartering of soldiers
4th no unreasonable searches and seizures
9th rights not enumerated in the Constitution belong to the people
Justices disagree about where the right is located
14th amendment – directive to the states
Due process clause
Nor shall any state deprive any person of life, liberty, or property without due process of law
Substantive Due Process
Back to the 14th amendment: due process clause
Nor shall any state deprive any person of life, LIBERTY, or property without the due process
Liberty leads to selective incorporation bill of rights to states
Enumerated rights and liberties from bill of rights
More controversial arm is substantive due process
Enumerated rights and liberties implied by the liberty guarantees
How to determine unenumerated rights and liberties
Some established by prior precedent
Privacy, child rearing, marriage
Glucksburg two-step test (washington v. glucksberg)
The right much be clearly defined
The right must be deeply rooted in american tradition and history
This test is used in dobbs
Roe v. wade
Jane roe was unmarried and pregnant texas resident in 1970. Texas law made it a felony to abort a fetus unless “on medical advice for the purpose of saving the life of the mother” roe file suit against wade
Challenging constitutionality of abortion status
Is there a constitutional right to an abortion – yes
Here does this constitutional right come from
14th amendment concept of personal liberty and restriction upon state action includes a right of personal privacy, the right of privacy is broad enough to encompass a women’s decision to terminate her pregnancy
Fundamental right
Strict scrutiny, compelling interest
Balancing state’s interest in potentiality of human life versus women’s right
Trimester framework and state’s interest in protecting the fetus
Two state interests
The state does have an important and legitimate interest in preserving and protection the
Health of the pregnant women and potentiality of human life
These interests are separate and distinct. Each grows in substantiality as the woman approaches term (further along = lower scrutiny)
First trimester – strict scrutiny
Second trimester – strict scrutiny (slightly lower)
Third trimester – rational basis
Restrictions are also marked as unconstitutional
Pre-viability you can’t restrict
Webster v. Reproductive Health
Chipping away at roe v. wade
Court upholds two missouri restrictions
State prohibited abortions in public facilities and by public employees where health of the mother may not be at stake
Physician must make viability determination of post-20 week fetus
Court declines to reverse roe v. wade
Planned Parenthood v. casey
Is there a constitutional right to an abortion: yes 5-4
Liberty finds no refuge in jurisprudence of doubt
Are the state’s interest the same as in Roe across trimesters: no 7-2
Trimester framework is abandoned in favor of viability standard (pre v. post)
Recognition of the right of a women to choose an abortion before viability and to obtain it without undue interference from the state
State’s power to restrict abortions after fetal viability
State has legitimate interest from the outset of pregnancy in protecting the health of the woman and the life of the fetus that may become a child
Interest comes into play at conception
Does the supreme court use the same legal standing as in Roe for pre-viability abortions
No: 2-3-4
2 for strict scrutiny, 3 for intermediate scrutiny (undue burden) and 4 for rational basis
Undue burden exists and is invalid if there is a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability
Which legal standard is binding
Should follow intermediate scrutiny
Spousal consent is undue burden
Parental consent for minors is constitutional (struck down unconstitutionality in roe)
Informed consent is constitutional
24-hour waiting period is constitutional
Reporting and record keeping for public health purposes - assurances of confidentiality is constitutional
Dobbs v Jackson
Weather all pre-viability prohibitions on elective abortions are unconstitutional
Overturns roe and casey no constitutional, right to abortion, states decide
Equal Protection: Race-Based Classifications Generally
Overview of Race-Based Classifications
When acting no suspect class def. Court sets aside standard of equal protection and exercises heightened scrutiny (strict scrutiny)
Reliance on racial classification must be narrowly tailored to further compelling interest
Korematsu v US
Adjudicated the wartime forced removal of Japanese-Americans
Because it targeted a singular ethnic group
Adarand Constructors v Pena
Strict scrutiny applies to evaluate all racial classifications
Actions that use a racial classification to remedy conditions resulting from intentional discrimination must also undergo strict scrutiny
Segregation in Education
Brown v. Board of Education
1938 court begins moving away from separate but equal
Formally abandoned in Brown v Board
Involved challenges to segregation per se in schools
Issue in context most important
Separate educational facilities are inherently unequal
Transition to nondiscriminatory school system with all deliberate speed
Aftermath of Brown v. Board
Addressed states’ refusals to comply with mandates
Ex. little rock nine in arkansas
Court was worried about the violence and disorder desegregation caused
Cooper v Aaron for higher education context
States find loopholes to avoid desegregating (ex. Pupil placement laws)
Jurisdictions implement freedom of choice plans
Provided that each child could choose which school to attend
Court wanted to eliminate dual systems as relating to student assignments and faculty
Implementing School Desegregation
Court pushes for elimination of dual systems and to establish unitary systems at once
Charlotte-Mecklenburg
First remedial responsibility of school authorities is to eliminate the invidious racial distinctions
Creation of set ratios
Race-consciousness redrawing of school districts
Considering desegregation in new school construction
Transporting students through busing
When school fails to dismantle state-sponsored racial segregation the court has broad power to fashion a remedy
Nature of violation will determine the scope of the remedy
Scope of Remedial Desegregation Orders and Ending Court Supervision
Court continued to affirm broad authority if federal courts to order remedial actions while also modifying or reversing court orders it found were unwarranted or excessive
School district must comply to free itself from continuous court supervision
Facially Non-Neutral Laws Benefiting Racial Minorities
Early Doctrine on Appropriate Scrutiny
Also important is the degree to which gov is permitted to take race into account when formulating a remedy
Bakke
16 seats at schools set aside for racial minority groups
Court told school not to consider race in admissions
Court continues with route of disfavoring affirmative action
Use intermediate scrutiny
Modern Doctrine on Appropriate Scrutiny
Distinction between federal and state power to apply racial classifications
More lenient in federal cases
Pena
Racial classifications imposed by federal law must be analyzed by the same strict scrutiny standard that is applied to evaluate state and local classifications of race
5th and 14th protect persons not groups
Gender-Based Classifications
Doctrine on Gender Classifications from 1870s to 1960s
After ratification of 14th, illinois refused to license a woman to practice law
Challenged by the supreme court
Court rejected the challenge
Civil law as always recognized a wide difference in the respective spheres of woman and man
Court wants to protect “values and morals” of women
Proposed equal rights amendment that ultimately failed
Leads to court re evaluating decisions
Doctrine on Gender Classifications During the 1970s
Reed v. Reed
Held invalid a state probate law that gave males preference over reamiles when both were equally entitled to administer an estate
Used equal protection clause as standing
General Approach to Gender Classifications
Sex classifications must serve governmental objectives and must be substantially related to achievement of those objectives
Court uses intermediate standard
Looks first if scheme is permissible and if it is then if it is important
Old notions no longer upheld
Exceedingly persuasive justification test
Facially Non-Neutral Laws Benefiting Women
Benign discrimination: statutory classifications that benefit women and disadvantage men in order to overcome effects of past societal discrimination against women
First under rational basis
Then under intermediate scrutiny
Where a statute is deliberately enacted to compensate for particular economic disabilities suffered by women it serves important governmental objective and will be sustained
4/18/25
Dobbs goes through stare decisis standards for overruling past precedent
14th amendment
Due process clause
Substantive due process doctrine for unenumerated rights is controversial and comes from this clause (liberty covers enumerated and unenumerated – fundamental – rights)
Equal protection clause
Nor deny to any person within its jurisdiction the equal protection of the laws
Same-sex couples, right to privacy
Substantive due process and fundamental rights
Bowers v hardwick (upheld sodomy laws)
Lawrence v texas (struck down sodomy laws)
Legal basis
The right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government
States use lower courts to unban gay marriage at the state level
Same sex marriage legal in majority of case before obergefell
Federal level (defense of marriage act)
US v. windsor
Windsor is a widow of late spouse (woman) married in canada and recognized by new york state law
Could not get federal social security from her late wife
Is DOMA unconstitutional?
Yes
Legal doctrine rooted in?
By seeking to injure the very class that NY seeks to protect, DOMA violates basic due process and equal protection principles applicable to the federal government
State has control over marriage law
Obergefell v hodges
Question: should there be a 50 state solution?
Does the 14th amendment guarantee the constitutional right to same sex marriage
Talk about the history of marriage and it being a fundamental right
Right of marriage is found in individual autonomy (liberty found in the 14th amendment that covers same-sex marriage)
Supports 2 person committed union (equal protection)
Safeguards children and family
Dobbs isn’t refusal of substantive due process, they do accept it
4/23/25
Nor deny to any person within its jurisdiction the equal protection of laws
LGBTQ+ no included, race is
Equal protections analysis/methodology
Bans government sponsored discrimination
This is the “state action” doctrine
Compare to civil rights act of 1964
Talking about dispute between government and individual
Government and individual who claims that government is discriminating against them based on race
Class or group of individuals subject to discrimination
Race, sex, age, sexual orientation
Almost every racial discrimination law (under represented minorities) is struck down
Intermediate scrutiny for sex discrimination
Age is in the rational basis category
Lots of reasons why the government would restrict things based on age
Plessy v. ferguson
Can separate as long as there is equality between groups
Laws that permit separation do not necessarily imply the inferiority of either race of the other
Brown v. Board
Five state lawsuits about the segregation of public schools
Part of the discrimination is de jure (by law) and some is de facto
Whether black and white schools can be separate but equal or whether integration is necessary
Warren wanted the case to be unanimous because he knew the south would ignore it
Lack of equality of opportunity
Core of the equal protection clause
Rely a lot on social science
Especially on the inferiority issue
In approaching this problem we cannot turn the clock back to 1896, must consider public education in its full development
Follows living constitutionalism
Education is the most important for state and local government
Does segregation of students in public schools deprive students of the minority group deny them equal opportunities?
Yes
Segregation creates a feeling of inferiority (quotes lower courts fact finding)
Digging down and dissection separate but equal
Overturning plessy
Separate educational facilities are inherently unequal
South response
Not good
Very slow to change
Brown 2
Desegregate with all deliberate speed”
Wasn’t going fast enough
South uses as delay tactic to not integrate
Should be a legitimacy crisis since south doesn’t want to comply with the ruling of brown v. board
Swann v. charlotte mecklenberg
Issues with implementing integration methods
Busing was the most controversial method because parents didn’t want their kids bused to far schools
The requiring technique was within the court’s power to provide proper integration technique
Where there are black schools and white schools courts must scrutinize for equal protection violation
It does work to get integration in the southern states
Gives district spurts broad powers to implement desegregation in the event of de jure segregation
Drawing school boundaries in noncontiguous fashion
Teacher placement
School construction
Funding equalization
Busing
De facto v de jure segregation
Miliken v. bradley (1974) – northern schools
Schools not intentionally segregated result of de factor patterns in housing
Local control of schools
“If these suburbs weren’t actively hurting Detroit’s
there is evidence of segregation in Detroit
How could you reverse segregation in detroit? Look at the suburbs
Suburban districts mad because they hadn’t done anything wrong
Supreme court strikes down Detroit’s plan
Suburban schools were not intentionally segregated nor any charges of de jure segregation – only had de facto
Suburbs shouldn’t be leveraged to fix detroit’s problem
Pre 2023 - set in Bakke case
Strict quotas are unconstitutional for college admissions
Holds all the way through 2023
Late 80s and 90s
Minority owned contractors
Invalidates affirmative action plan, and y plan using race as a consideration is accorded strict scrutiny
Whenever using race in admission, strict scrutiny applies (unconstitutional)
Universities can make claim for compelling interesting, educational benefit for racially diverse student body
Can be used, but it has to be used alongside many factors
Students for Fair Admission v. Harvard and UNC (2023)
Affirmative action programs (when race is used as a factor in admissions) are unconstitutional
Seeking to achieve racial targets percentages to achieve a racially diverse student body
There is a zero-sum nature to admissions using race: giving a plus factor to one race at the direct expense of another negatively affects certain groups on the basis of race
Using race as a plus factor that detracts from white and Asian prospect of admittance
Leads to discrimination against white and asian students
Policies that stereotype individuals within a race (all members of a race think the same way)
Programs that have an indefinite time horizon - no sunset provision. Rooted in Grutter’s famous 25 year provision
Racial diversity no longer a compelling government interest
Need for affirmative action will be lessened throughout the years (this would be a sunset provision)
As long as racial diversity is a compelling interest there would be no phasing out
Sex Discrimination
Original intention was to prohibit racial discrimination in 14th amendment but there was no reference to race or any other group in the amendment
Textualists would focus on the “any person” aspect
Any group based distinction with history of hierarchical control would fall under the protection clause
Prevailing idea is that women are included in this provision
19th century
Societal norms and law treated women as second class citizens to men
“The civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.” (1873)
Bradley case
Women don’t have right to vote, protections, etc.
Women should focus on child bearing and homemaking
Husband will make political decisions for the family so women don’t need to vote
Right of women is an unrealized right that isn’t realized until later
Unrealized potential of the 14th amendment
Social movements lead to realization
Early 20th century: SC sustained whole host of laws making clear distinctions b/w men and women; laws treated women as inferior
Gender used as a proxy for “need” – financially and otherwise
The women is financially dependent on the husband
Male advantage concerning estate administration
Reed v reed (1971)
Unconstitutional discrimination; laws can’t give preference to husband over wife in administering estate of son
Rational basis; distinctions based on sex must be reasonable and rationally related to a state’s objective
Violates equal protection clause
When sex is proxy for financial need, that is unconstitutional
Loss because women want strict scrutiny
Would spike levels of equality
Rational basis gives state too much discretion
Husbands of female officers not eligible for military benefits unless proof of dependence on wife
Frontiero v. richardson
Unconstitutional discrimination
Four votes for strict scrutiny but no majority; rational basis standard prevails
Double standard in law
Different drinking age for women (18) and men (21)
Craig v. boren
Unconstitutional discrimination
intermediate , or “heightened” scrutiny
Looking at case where men are discriminated against
Need to convince an all male court that sex discrimination is akin to racial discrimination
This is where intermediate scrutiny begins getting used for sex discrimination
Equal Rights Amendment would raise it to strict scrutiny
Intermediate Scrutiny
“Assumptions about the relative positions of the sexes, however, are not without some basis in fact, and sex may sometimes be a reliable proxy for the characteristic, such as need, with which it is the legislature’s actual intention to deal. But heightened scrutiny requires evidence of the existence of the distinguishing fact and its close correspondence with the condition for which sex stands as proxy.”
Suspect class gets alloted strict scrutiny
This would strike down more laws than rational basis
Legal strategy in the women’s movement
Analogize sex with race
Racial groups who are subject to strict scrutiny are always minority groups
Women are actually in the majority so would this still hold up
In practice, the level of scrutiny looks higher, but is still intermediate scrutiny
Supreme court striking down more laws than its upholding
State-run all-male military academy
US v Virginia
Unconstitutional discrimination; VMI’s all male policy violates the 14th amendments equal protection clause
So is the all female school
VMI must become a coed school