CONSTITUTIONAL LAW

I. CONSTITUTION AND THE SUPREME COURT

Branches of Govt.

Legislative Branch:
o 1st branch of govt. created in the constitution.
o Established under Article I of the constitution.

Executive Branch:
o Technically, electoral-college votes for president. Everyday citizens vote for
electoral-college.
o Established under Article II of the constitution.

Judicial Branch:
o Appointed by the president and confirmed by senate.
o Established under Article III of the constitution.

Age Requirements for Official Positions:

President: 35 years old

Senator: 30 years old

Representative: 25 years old

Supreme Court Justice: No age restriction and do not have to be attorney (life tenure)

Slaves counted as 3/5 vote to make slaves votes count less and to give slave states more power.

A. Constitution Summary
Article 1 - Congressional rights and Powers

Section 1 - there is a senate and House of Rep

Section 2 - House Rep Qualifications

o Voted in every 2 years
o Need to be 25 yrs old
o Be a citizen of the US for 7 years and live in the state in which they run

Section 3 - Senate qualifications

o Two senators for each state
o Voted in every 6 years with elections done ever two years so 1/3 is changing
o Need to be at least 30 yrs old and citizen of the US for 9 and be living in the state
in which he ran for
o Senate has sole power to try all impeachments, and no person shall be convicted
without the concurrence of 2/3 of the members present

o Impeachment judgments rendered can go no further than to remove from office

and disqualification to hold any office of honor, trust or profit under the US, but
could potentially be liable according to the law.

Section 4 Congress meeting times

o Congress will assemble at least once every year and be on the first Monday in
December.

Section 7 Bills
o All bills raising money should originate in the House of reps

Section 8 Congress duties

o Congress has the power to lay and collect taxes, duties, imposts and excises, to
pay the debts and provide for the common defense and general welfare of the
United States;
o Congress can borrow money on the credit of the US
o Regulate commerce with foreign nations and among the states, and with Indian
tribes
o To establish a uniform rule of naturalization and uniform laws on the subject of
bankruptcies throughout the US

Section 9 Taxing
o No taxing on interstate commerce

Section 10- Things states cannot due

o No state can enter into a treaty, alliance or confederation
o Dont coin anything else but gold and silver
o w/o consent dont lay any imposts or duted on imports or experst, except when
nece

Article 2. Executive branch

Section 1 o Presidency and VP and Electors

o Prez holds office for 4 yrs has to be a natural born citizen of the US, at least 35
and been 14 yrs old
o Each state must appoint a number of electors = to the amount of reps and senators
that state has. But it cannot be a senator or a Rep
o Have to be at least 35 and a natural born citizen to be US president
o

Section 2
o Prez is commander in chief of the Army and Navy of the US
o Prez can grant pardons

Section 3

o Prez must take care the law are executed

o Receive ambassadors and ministers
Article 3 judicial branch

Judicial power should be vested in Supreme Court,

1st amendment: Freedom of religion and exercise of it, freedom of speech and press and right to
assemnle and to petition the Gov for redress of grievances
2nd Amendment: Right to bear arms
5th amend sets up Due process, persons cannot be deprived of life, liberty or property without
due process of the law
6th amend

B. BASIC FRAMEWORK OF THE SUPREME

COURT
Marbury v Madison:
Set up judicial review of the constitution
o Judicial review SC has the constitutional authority to review executive actions
and legislative acts
congress couldnt expand the constitution, must be done by amendments
if two laws conflict with each other the courts must decide on the operation of each

Jurisdiction of the Supreme Courts

Jurisdiction in General For constitutional purposes, the jurisdiction of the Supreme

Court is set out in Article III. But congress has never granted litigants access to the Court
in all cases for which Article III provides authorization

Two principal routes to the Supreme Court:

o (1) First is through mandatory appeal (rare)
o (2) Through Certiorari

is generally said that the Courts appellate jurisdiction is mandatory: If a party who has
lost below seeks review, the Court must hear any case that falls within its appellate
jurisdiction

Today, the two largest classes of cases falling within the Courts mandatory jurisdiction
concern judicial regulation of the political process
o Challenging the apportionment of Congressional districts
o Voting Rights Act

Certiorari jurisdiction is discretionary The Court may deny cert for a range of reasons
other than its agreement with the decision below

Sources of Judicial Decisions

Text - Often but not always understood by reference to the original understanding

Structural Approaches Derive meaning from the overall structure and purpose of the
Constitution, including the reinforcement or improvement of the democratic processes

Natural law and Natural Rights Sometimes understood in the modern era as a moral or
philosophical argument about rights
o Supreme Court has considered other sources

Necessary and Proper Clause:

besides the enumerated powers Congress also has implied powers given by the
constitution and the necessary and proper clause:
to make all laws which shall be necessary and proper for carrying into execution the
foregoing powers and all the powers vested by this constitution, in the gov of the US or in
any depart thereof.
Case or Controversy Requirements
the judicial power shall extend to only cases and controversies
For an issue to go before the supreme court it must arise out of a case or controversy

This provision forbids the courts from invalidating legislative or executive action.
merely because it is unconstitutional.

This means that courts may not issue advisory opinions, decide political questions, and
must have someone before them with standing or with some kind of personal stake in
the controversy, and may not decide issues that are either premature or moot
Two reasons that the court only rule on cases or controversies
o Might serve the end of judicial restraint. Helps reduce the friction between the
branches
o Might ensure that constitutional issues will be resolved only in the context of
contete dusputes rather than in response to problems that may be hypothetical
abstract or speculativ

C. BARRIES TO THE SUPREME COURT

HEARING A CASE
2 barriers to the SC hearing a case
Standing
Political questions
Standing:

To have Standing; A plaintiff must allege personal injury fairly traceable to the
defendants allegedly unlawful conduct and likely to be redressed by the requested relief

An asserted right to have the government act in accordance with the law is not sufficient,
standing alone, to confer jurisdiction on a federal court.

A discriminatory injury accords a basis for standing only to those persons who are
personally denied equal treatment by the challenged discriminatory conduct

The federal judiciary may not redress an injury unless standing requirements are met

When the suit is one challenging the legality of government action or inaction, the nature
and extent of facts that must be averred or proved in order to establish standing depends
considerably upon whether the plaintiff is himself an object of the action at issue
o If he is, there is ordinarily little question that the action or inaction has caused him
injury, and that a judgment preventing or requiring action will redress it
o When a plaintiffs asserted injury arises from the govts allegedly unlawful
regulation of someone else, much more is needed

Standing contains 3 elements; Injury, Causation and Redress

1. Plaintiff must have suffered an injury in fact an invasion of a legally protected interest
which is a concrete and particularized that is actual or imminent not conjectural or
hypothetical
o The injury alleged must be for example distinct and palpable and not abstract or
conjectural or hypothetical
o the injury must be fairly traceable to the challenged action and relief from the
injury must be likely to follow from a favorable decision
o Types of injuries

Injury in fact The party seeking review must have himself suffered an
injury

Injuries to third parties The notion that a plaintiff may not litigate the
rights of third parties is closely related to the injury in fact requirement.
The plaintiff must litigate on the basis of an injury to him or her; it is up to
third parties to litigate their own rights.

Threatened Injury The injury in fact requirement is usually met by

those who can show a sufficient threat of future injury. This threat must,
however, be real and immediate rather than merely speculative or
hypothetical.

Widely diffused harms Rarely recognized standing

2. There must be a casual connection between the injury and conduct complained of the
injury has to be fairly traceable to the challenged action of the defendant and not the
result of the independent action of same third party not before the court
3. It must be likely as opposed to merely speculative that the injury will be redressed by a
favorable decision

The party invoking federal jurisdiction bear the burden of establishing these
elements

Causation and redressability ordinarily hinge on the response of the regulated third party
to the government action or inactionand perhaps on the response of others as well

The existence of one or more of the essential elements of standing depends on the
unfettered choices made by independent actors not before the courts and whose exercise
of broad and legitimate discretion the courts cannot presume either to control or to predict

Two Strands of Standing:

Article 3 standing which enforces the constitution case or controversy req.

Prudential Standing which embodies judicially self-imposed limits on the exercise of

federal jurisdiction

Political Questions

When a question is enmeshed with any other two branches of the government it presents
a political question and the Court will not anser it without further clarification from the
other branches.

Having political issues is not the same thing as a political question case

Mere fact that suit seeks protection of a political right does not mean it presents a
political question

In determining whether a question falls within the PQ category, two dominant

considerations
1. The appropriateness under our system of Gov. of attributing finality to the action of the
political Depts
2. The lack of satisfactory criteria for a judicial determination
Factors to determine if a political question
1. A textually demonstrable constitutional commitment of the issue to a coordinate political
dept
a. Some other branch has the power, so they should handle it
b. The most important one
2. Lack of judicially discoverable and manageable standards for resolving it
a. Its not clear on how the judiciary can craft a remedy
3. The impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion
4. The impossibility of a courts undertaking independent resolution without expressing lack
of the respect due coordinate branches of gov.
5. An unusual need to unquestioning adherence to a political decision already made
6. The potentiality of embarrassment from multifarious pronouncements by various depts.
on one question
When deciding if an issue is a political issue the court examines both the relevant constitutional
provision AND the plaintiffs legal claim. claim: Does the former set out criteria by which a court
can assess the latter? If it does not, the question is labeled political.
Types of Cases/Controversies that SC wont Hear:

Cases concerning war or foreign affairs

Matters concerning the structure and organization of the political institutions of the
States.

The cases involving negro disfranchisement are

Cases on political power of sovereignty of government

D. QUESTIONS OF TIMING:
Doctrine of Ripeness

the case is brought too soon

Bars courts from deciding cases that are premature, too speculative, or remote to warrant
judicial intervention

EX: a case brought to challenge a criminal statute before a prosecution is initiated, in

circumstances in which the mere existence of the statue is not alleged to produce actual
harm

Doctrine of Mootness: case is brought too late

Prevents courts from hearing cases when changed circumstances deprive the plaintiff of a
stake in the action

Prevents courts from rendering advisory opinions which are outside the jurisdiction c

EX: a case brought by a plaintiff challenging a statute prohibiting her from obtaining
employment where the plaintiff has been given the job before the appeal

3 exceptions
o Capabale of repetition
o Class action suits
o D voluntarily quits action and is free to act again in way P alleges is illegal

II. FREEDOM OF EXPRESSION

Content-neutral restrictions restrict communication without regard to the message conveyed.
EX. are Laws:

prohibiting noisy speeches near a hospital

banning the erection of billboards in residential communities

requiring the disclosure of the names for all leaf letters

The court has long adhered to the view that there a certain categories of expression that dont
appreciably further the values underlying the 1st amend. The SC has held that such categories of
expression are either unprotected or only marginally protected by the 1st amend.

Ex: Obscenity, commercial ads and false statements of fact

A. CONTENT BASED RESTRICTIONS:

DANGEROUS IDEAS AND INFO
Content- based restrictions - restrict communication because of the message conveyed. Ex the
following laws:

Prohibiting the publication of confidential info;

forbidding the hiring of teachers who advocate violent overthrow of the gov.;

Banning the display of the swastika in certain neighbors

Overview:

The First Amendment Provides that Congress shall make no law abridging the freedom
of speech

The Court held that the Due Process Clause of the Fourteenth Amendment protects
freedom of speech from state infringement

Government can regulate the time, place, manner, and substance of speech

Laws regulating the time, place, and manner of expression must serve significant state
interests and leave open alternative channels of communication.

The First Amendment permits restrictions upon the content of speech in a few limited
areas including, for example, obscenity, defamation, threats, and incitement.

one cannot counsel or advise others to violate the law as it stands

Speech that Causes Unlawful Conduct:

The Court states that character of every act depends upon the circumstances in which it
done

The most stringent protection of free speech wouldnt protect a man in falsely shouting
fire in a theater, and causing panic.

A state may punish utterances endangering the foundations of organized government and
threatening its overthrow by unlawful means

Freedom of speech and press does not deprive a State of the primary and essential right of
Self Preservation

Fear of serious injury cannot alone justify suppression free speech and assembly. To
justify the suppression, must be a reasonable ground to fear that serious evil will result if
free speech is practice. There must be reasonable ground to believe that the danger
apprehended is imminent,

The court Held that speech was protected by the 1st amendment because the mere
advocacy of the use of force or violence does not remove speech from the protection of
the 1st amend,

Court also stated that when such appeals do not incite immediate lawless action, they
must be regarded as protected speech

Clear and Present Danger Doctrine

whether the words used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that congress has a
right to prevent

Suppression of Free Speech

For government to suppress speech, there must be reasonable ground to believe the
danger apprehended is imminent. AND There must be the probability of serious danger to
the State.

Fear of serious injury alone will not justify suppression of free speech and assembly Nor
The fact that speech is likely to result in some violence of property

must have probability of serious injury

Incitement Test Speech which incites to the violent overthrow of government is not First
Amendment speech:

Intentional advocacy of lawlessness;

Advocacy must call for immediate or imminent lawlessness;

Lawlessness must be likely to occur;

That it in fact must occur. Caveat that cops can intervene if its just about to occur. But
looking back on an event cant punish if no illegal conduct ever came of it.

Speech that Provoke a Hostile Audience Reaction

Court held that the purpose of the freedom of speech granted by the 1st amendment is to
encourage dispute, and conditions of unrest or even stirs people to anger.

Constitutional Unless shown likely to produce clear and present danger of a serious
substantive evil that rises far above public inconvenience, annoyance, or unrest.

When clear and present danger of riot disorder interference with traffic upon the public
streets or other immediate threat to public safety, peace, or order, appears, the power of
the State to prevent or punish is obvious

The Court stated that they are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have never been though to raise any
constitutional problem. These include the lewd and obscene, the profane, the libelous and
the insulting or fighting word
o Low social value is outweighed by the interest to have it banned
o Lewd and Profane language are constitutionally protected now

The Court stated that they are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have never been though to raise any
constitutional problem. These include the lewd and obscene, the profane, the libelous and
the insulting or fighting word
o Low social value is outweighed by the interest to have it banned
o Lewd and Profane language are constitutionally protected now

Fighting Words - those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace

It also includes language, which by its very nature, judged by the probable reaction of a
person of common intelligence, is likely to produce a violent reaction

FIGHTING WORDS HAVE BEEN LIMITED TO FACE-TO-FACE INTERACTIONS .

DISTANCE IS KEY,

plaintiffs could potentially argue that signs with hateful messages could incite violence,
Even more so if they aimed at an individual,
o Doctrine does not look at the actual danger of the particular situation but focuses
on the abstract character of the words.

Fighting words, like obscenity, do not fall within the protected scope of the freedom of
speech.

SC is looking more and more to protect speech

Speech on Public Issues:

Speech deals with public concerns when it can be fairly considered as relating to any
matter of political, social or other concern to the community OR when it is a subject of
legitimate news interest; that is a subject of general interest and of value and concern to
the public
o Must examine the content form and context of that speech as revealed by the
whole record

Speech on public issues is reviewed on a strict scrutiny standard

The First Amendment reflects a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide open.

Speech can be limited to a reasonable time, place or manner restrictions

Gov. may not prohibit the expression of an idea simply because society finds the idea
itself offensive or disagreeable

Classified Information

The guarding of military and diplomatic secrets at the expense of informed representative
government provides no real security of our Republic.

Secrecy in Gov. is fundamentally anti-democratic , perpetuating bureaucratic errors.

Open debate and discussion of public issues are vital to our national health.

Cannot put things for prior restraitn ---SEE PRIOR RESTRAINT

B. OVERBREADTH AND VAGUENESS AND

PRIOR RESTRAINT
Overbreadth

The Constitution guarantees freedom of speech forbid the States to punish the use or
words of language not within narrowly limited classes of speech

Statutes must be carefully drawn to be authoritatively construed to punish only

unprotected speech and not be susceptible of application to protected expression.

Gov. may regulate in the area only with narrow specificity

Overbreadth doctrine tests the constitutionality of legislation in ters of it potential

applications . Under this approach, a state law prohibiting any person to advocate
unlawful conduct is unconstitutional on its face

Overbreadth is an exception to the traditional as applied mode o judicial review and to

the GR that an individual has no standing to litigate the rights of 3rs persons

Vagueness:

As a matter of due process a law is void on its face if its so vague that persons of
common intelligence must necessarily guess at its meaning and differ as to its application

Can cause a chilling effect on peoples constitutional rights

Prior restraint

A prior restraint may be invalid even if the particular expression at issue could
consituionally be restricted by some other means.

Any system of prior restraints of expression has a heaving presumption against its
constitutional validity

Prior Restraint is reviewed with strict scrutiny

The word security is broad vague generality and should not be raised to get around the 1st
amend

There are extremely narrow class of cases in which prior restraint may be lawful
o When Nation is at war
o Gov. wants to prevent actual obstruction ot its recruiting service or the publication
of the sailing dates of transports or the number and location of troops.
o Can prevent the publication of obscene material
o When the security of the community life may be protected against incitements to
acts of violence and the overthrow by force of orderly Gov.

C. CONTENT BASED RESTRICTIONS LOW

VALUE
False Statement of Fact

Gov may not restrict the expression of an idea or opinion because its determination that
the ide or opinion is false

Actual Malice Standard - A public official may not recover damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement was made
with actual malice; (knew that the statement was false or acted in reckless disregard of its
truth or falsity.)

PUBLIC FIGURES, who bring a defamation suit must also show that Defendant had
actual malice

PRIVATE Individuals, do not need the Sullivan

Public figures and public officials may not recover for the tort for intentional infliction of
emotional distress by reason of publications w/o showing in addition that t epublications
contains a false statement of fact which was made with actual malice

Parody of public figures and public officials are protected under the first amendment

Other False Statements of Facts:

Even though false statements enjoy little protection from the 1 st Amend, that doesnt
mean they receive no protection at all

Some false statements should be restricted such as defamatory statements, perjury, and
fraudulent statements intended to extract something from another.

In order to satisfy exacting scrutiny the restriction must be actually necessary to

achieve the governments interest.

If Gov. were allowed to just punish lies then it would case a chilling effect on the 1 st
amend.

Nonnewsworthy disclosures of Private Information:

The First and Fourteenth Amendments of the United States Constitution will not allow
exposing the press to liability for truthfully publishing information released to the public
in official court records.

Once true information is disclosed in public court documents, open to public inspection,
the press cannot be sanctioned for publishing it

Threats:

Whether a statement is considered a threat is based off an objective standard

Whether a reasonable person would foresee that the statement would be interpreted by
the victim as a serious expression of intent to harm or assault

It is not necessary that the defendant intend to or be able to carry out his threat

Only intent req for a true threat is that the defendant intentionally or knowingly
communicate the threat with the intent to intimidate,

Advocating for violence is protected,unless harm is BOTH likely and imminent

True threats were defined to include statements where the speaker means to communicate
a serious expression of intent to commit an act of unlawful violence to particular
individuals or groups.

A prohibition on true threats provides protection to individuals from the fear of violence,
the disruption such fear occasions and from the possibility that the threatened violence
will actually occur.
o Cross burning with intent to intimidate is a form of true threat.

Commercial Advertising:

It is the content of the communication, rather than the speakers commercial or profit
motivation that is determinative.
o If there is a kind of commercial speech that lacks all First Amendment protection
it must be distinguished by its content

the lines of communication, including paid communication about a commercial product,

should be generally open to First Amendment constitutional protection

A state may not completely suppress the dissemination of concededly truthful

information about entirely lawful activity, fearful of that informations effect upon its
disseminators and its recipients.

SC holds You cannot go solicit clients fact to face if youre a lawyer, but you can
advertise them.

Four part analysis for Commercial Speech Cases:

o (1) Must determine whether the expression is protected by the first amendment

For commercial speech to come within the provision it at least must

concern lawful activity and not be misleading

o (2) Whether the asserted governmental interest is substantial

o (3) If both inquiries yield positive answers, must determine whether the regulation
directly advances the governmental interest

o (4) If the governmental interest could be served as well by a more limited

restriction on commercial speech, the excessive restrictions cannot survive
Obscenity:
Obscenity is outside the protection intended for speech and presss
Mere private possession of obscene matter cannot constitutionally be made a crime.
o Fundamental right to be free, except in very limited circumstances, from
unwanted Governmental intrusions into ones privacy
Modern courts use the Miller Test to Determine whether material is obscene
MILLER TEST:
o Whether the average person, applying contemporary community standards, would
find that the work, taken as a whole, appeals to the prurient interest,

Prurient is material appealing to a shameful or morbid interest in sex. It

does not include normal interest in sex.

o Whether the work depicts or describes, in a patently offensive way, sexual

conduct specifically designed by the applicable, and
o Whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value

MILLER TEST DOES NOT APPLY TO CHILD PORNOGRAPHY

The Court overruled the rule that obscene, pornographic films acquire constitutional
immunity from state regulation simply because they are exhibited for consenting adults
only. Court stated there are other legitimate interests such as the community's quality of
life and public safety.

States have the power to make a morally neutral judgment that public exhibition of
obscene material or commerce such material, has a tendency to injure the community as
whole to endanger the public safety or to jeopardize the States right to maintain decent
society

Child Pornography,

Court treated child pornography as a category of material outside the protection of the
First Amendment.

Miller test does not apply to child pornography

There is a compelling Gov interest in preventing the sexual exploitation of minors BUT
make sure the statutes or legislation is not overbroad or vague, and starts to violate first
amendment freedoms

Mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning
it. Morphing computer images of real children to create child pornography is
unconstitutional

Offers to sell child pornography is a crime and is committed only when the speaker
believes or intends the listener to believe that the subject of the proposed transaction
depicts real childrensimulated child pornography will be as available as ever, so long
as it is offered and sought as such, and not as real child pornography

Animal Cruelty:

Animal cruelty in which a living animal is intentionally maimed, mutilated tortured,

wounded or killed

The Court reasoned that depictions of animal cruelty are not categorically unprotected by
the First Amendment. The Court further reasoned that because a "substantial number" of
the statutes applications are unconstitutional, the law is overbroad and, thus
unconstitutional
o Bull fights in Spain provide a historical value
o News reports on Animal Cruelty have a journalistic value
o Instructional hunting videos have a educational value

The Lewd, the Profane, and the Indecent:

The ability of government to shut off discourse solely to protect others from hearing it is
dependent upon a showing that substantial privacy interests are being invaded in an
essentially intolerable manner.

A state or municipality may protect individual privacy by enacting reasonable time, place,
and manner regulations applicable to all speech irrespective of content. But when the
government undertakes selectively to shield the public from some kinds of speech on the
ground that they are more offensive than others, the First Amendment strictly limits its
power

When a speaker intentionally provokes a hostile reaction and imminent disorder is

probably, his speech is not protected, and the police may move against him.

The concept of indecent is intimately connected with the exposure of children to

language that describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory activities and organs,
at times of the day when there is reasonable risk that children may be in the audience

Cannot suppress an adults constitutional right to receive and to address to one another.
Burden on adult speech is unacceptable if less restrictive alternatives would be at least as
effecting in achieving the legitimate purpose

Sexual expression which is indecent but not obscene is protect by the 1st amend

Legitimate Gov. interest to protect children from harmful materials, BUT that interest
doesnt justify an unnecessarily broad suppression of speech addressed to adult.
o Gov. may not reduce the adult population to only what Is fit for children

The Court held that strict scrutiny is the appropriate standard of review for content-based
regulation of the Internet and that the lesser broadcasting standards of review are not
appropriate.

In evaluating the standards of pruriency and patent offensiveness, the application of

national community standards was not necessary.

Zoning theaters with nude movies and strip clubs:

Regulation of place where such films may be exhibited does not offend the first
amendment. So zoning it in a particular areas is constitutional but outright banning is not
constitutional

Hate Speech and Pornography:

If an utterance directed at an individual may be the object of criminal sanctions, the court
cannot deny to a State power to punish the same utterance directed at a defined group,
unless the court can say that it is a willful and purposeless restriction unrelated to the
peace and well being of a state

Defense of Truth Must show not only that the utterance state the facts, but also that the
publication be made with good motives and for justifiable ends

Libel is of low first amendment value only insofar as it consists of false statements of fact

Hate speech amounting to group libel is generally protected unless it is defamatory it is

hard to libel an entire group Court will strike attempts to prohibit that speech most
likely

Private Institutions Right to express yourself can be restricted and these institutions can
have restrictions that are much broader

A content-based distinction within a category of expression that can constitutionally be

restricted violates the First Amendment.
o The First Amendment generally prevents government from proscribing speech
because of disapproval of the ideas expressed. Content-based regulations are
presumptively invalid

When the basis for the content discrimination consists entirely of the very reason the
entire class of speech at issue is proscribable, no significant danger of idea or viewpoint
discrimination exists

True threats were defined to include statements where the speaker means to communicate
a serious expression of intent to commit an act of unlawful violence to particular
individuals or groups. A prohibition on true threats provides protection to individuals
from the fear of violence, the disruption such fear occasions and from the possibility that
the threatened violence will actually occur.
o Cross burning with intent to intimidate is a form of true threat.

III. CONSTITUTION AND RELIGION

A. INTRODUCTION
Secular = no religion/nonreligion
Establishment Clause:

Neither a state nor the Federal Government can set up a church

Neither can pass laws which aid one religion, aid all religions or prefer one religion over
another

Neither can force nor influence a person to go to or to remain away from church against
his will or force him to profess a belief or disbelief in any religion

No person can be punished for entertaining or professing religious beliefs or disbeliefs

for church attendances or no attendance

No tax in any amount large or small can be levied to support any religious activities or
institutions whatever they may be called or whatever from they may adopt to teach or
practice religion

Neither a State nor the Fed Gov can openly or secretly participate in the affairs of any
religious organizations or groups and vice versa

A New Jersey law allowed reimbursements of money to parents who sent their children to school
on buses operated by the public transportation system. Children who attended Catholic schools
also qualified for this transportation subsidy

Did not violate the Establishment Clause

Services like bussing and police and fire protection for parochial schools are "separate
and so indisputably marked off from the religious function" that for the state to provide
them would not violate the First Amendment.

The law did not pay money to parochial schools, nor did it support them directly in
anyway. It was simply a law enacted as a "general program" to assist parents of all
religions with getting their children to school

B. ESTABLISHMENT CLAUSE
The Anti-coercion principle:

A public school cannot sponsor clerics to conduct even a non-denominational prayer as

part of a graduation ceremony as the Constitution guarantees that government may not
coerce anyone to support or participate in religion or its exercise or otherwise act in a
way, which establishes a state religion, or tends to do so

Courts say that by having school ran prayer it can create subtle and indirect coercion
forcing students to act in ways that establish a state religion

The cornerstone principle of the Establishment Clause is that government may not
compose official prayers to recite as part of a religious program carried on by government

Non-endorsement Principle and De facto Establishments:

Establishment clause prohibits Gov. from making adherence to a religion relevant in any
way to a persons standing in the political community
o Two ways for government to breach this prohibition

Excessive entanglement with religious institutions which may interfere

with the independence of the institutions give the institutions access to
Gov. or governmental powers not fully shared by no adherents of the
religion and foster the creation of political constituencies defined along
religious lines

Gov. endorsement or disapproval of religion

when the court is scrutinizing a challenged legislation or official conduct to determine

whether in reality it establishes a religion or religious faith or tends to do so by
conducting the Lemon Test

Lemon Test
o Whether the challenged law or conduct has a secular purpose

Not satisfied by the mere existence of some secular purposes

Proper inquiry is whether the Gov. intend to convey a message of

endorsement or disapproval of religion

Aims at preventing a governmental decision maker from abandoning

neutrality and acting with the intent of promoting a particular point of
view in religious matters

This does not mean that laws purposes must be unrelated to religion,
rather just aims at preventing congress from abandoning neutrality and
acting with the intent of promoting a particular point of view in religious
matters

o Whether its principal/primary effect is to advance or inhibit religion.

A law is not unconstitutional simply because it allows churches to

advance religion for law to be forbidden it must be fair to say that the Gov.
itself has advanced religion through its own activities and influence

o Whether it creates an excessive entanglement of gov with religion

Giving sectarian religious speech preferential access to a forum close to the seat of
government would violate the Establishment Clause

The goal of avoiding governmental endorsement does not require eradication of all
religious symbols in the public realm. The Constitution does not oblige government to
avoid any public acknowledgment of religions role in society.

Nativity scenes must be accompanied by secular counterpart and counterparts from other
religions.

There is a difference between freedom of worship and freedom of free exercise of religion. The
free exercise is broader
Impermissible Purposes: School Prayer Cases

Its No part of the business of Gov. to compose official prayers for any group of the
American people to recite as a part of a religious program carried on by Gov.

Statutes that authorized school to set aside 1min for meditation or voluntary prayer, the
Court stated that this was the States endorsement and promotion of religion and a
particular religious practice.

Law requiring posting of 10 Commandments in schools is unconstitutional.

Compelled education which conflicts with core principles of a religion is

unconstitutional.

Facially Neutral Statutes that incidentally aid religion

When a government aid program is neutral with respect to religion and provides
assistance directly to a broad class of citizens who, in turn, direct government aid to
religious school wholly as a result of their own genuine and independent private choice,
the program is not readily subject to challenge under the Establishment Clause.

Under the Establishment clause a state may enact an education program that provides
indirect financial assistance to religious schools if the program truly proves individuals

the opportunity to choose even if the selection is predominately followed with private
schools with religious affiliation
Court REJECTS the notion that any program which in some manner aids an institution
with a religious affiliations violates the Establishment Clause
o A state may reimburse parents for expense incurred in transporting their children
to school, an
o States may loan secular textbooks to all schoolchildren within the state

States decision to defray the cost of educational expenses incurred by parents regardless
of the types of schools their children attend, evidences a purpose that is both secular and
understandable

State programs that are wholly neutral in offering educational assistance to a class denied
without reference to religion do not violate the 2nd part of the lemon test

Just because more people who receive scholarships decided to use it on religious schools
does not mean anything

C. FREE EXERCISE CLAUSE: REQUIRED

ACCOMMODATIONS
Free Exercise Clause:

Gov. cannot interfere with religious beliefs, however it can interfere with religious
practices

Gov. cannot unduly burden the free exercise of religion

Free exercise clause has two concepts

o Freedom to believe this is absolute
o Freedom to act this is not absolute, conduct remains subjectto regulation for the
protection of society

If the State regulates conduct by enacting a general law within its power, the purpose and
effect of which is to advance the States secular goals, the statute is valid despite its
indirect burden on religious observance unless the State may accomplish its purposes by
means which do not impose such a burden

Only those interests of the highest order and those not otherwise served can overbalance
legitimate claims of free exercise of religion

The governments action must not constitute a substantial burden on an individuals

ability to exercise a sincere religious belief. IF SO .
o then Gov. must prove that it is acting in furtherance of a compelling state interest
and that the interest is pursued in a manner that it is the least restrictive or
burdensome on the religion

Right of free exercise does not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability on the ground that the law proscribes or
prescribes conduct that his religion prescribes or proscribes.

o EXCEPTION: 1st amend can bar the application of a neutral law to religiously
motivated action if it involves the Free exercise clause and other constitutional
protections such as freedom of speech and of the press.

A state cannot deny unemployement compensation merely because the applicant quit a
job rather than work on a holy day on which religious beliefs forbid work

Religious Freedom Restoration Act (RFRA)

RFRA prohibits the government from substantially burdening a persons exercise of

religion even if the burden results from rule of general applicability unless the Gov.
Demonstrates the application of the burden is in a furtherance of a compelling Gov.
Interest and least restrictive means of furthering that compelling governmental interest

Under an RFRA analysis must ask

o 1. Is it interfering with a religious exercise
o 2. Is the burden in furtherance of a compelling interest Governmental interest
o 3. Is it the least restrictive means

Example of RFRA: SC states same sex Marriage and court clerk states that under her religion
she cannot give marriage liscence does the clerk have a freedom of religion

Is it interfering with a religious exercise

o Yes

Does the Gov. have a compelling interest in in requiring the county clerk to issue the
license
o yes

Is ordering a particular clerk the least restrictive means available to the government
o This is where it gets tricky, because they could have another clerk issue the
license.

D. PERMISSIBLE ACCOMMODATIONS:

Court has long recognized that the government may and sometimes must accommodate
religious practices and that it may do so without violating the Establishment Clause
Limits of permissible state accommodation to religion are by no means coextensive with
the non interference mandated by the Free Exercise Clause .
Courts use the Lemon test to determine if the accommodations are constitutional.

IV. EQUALITY AND THE CONSTITUTION

A. SLAVERY, JIM CROW AND THE EQUAL
PROTECTION CLAUSE
History of slavery and Jim Crow Laws: NOT THE LAW NOW:
Dred Scott v Sangford:
o Slaves are not citizens under the United States Constitution; so no jurisdiction
o Missouri Compromise is Unconstitutional

Reconstruction Era:
o Several amendments were passed after the Civil war
o 13th amendment was passed Ended Slavery

neither slavery nor involuntary servitude, except as a punishment for

crime whereof the party shall have been duly convicted, shall exist within
the US or any place subject to their jurisdiction

Congress shall have the power to enforce this article by appropriate

legislation

o 14th amendment was passed Due Process and Equal protection

Grants citizenship at birth to the US;

Grants Due process and Equal protection to persons

Plessy v Ferguesono Court held that A law, which authorizes or requires the separation of the two races
on public conveyances, is consistent with the Fourteenth Amendment of the
United States Constitution unless the law is unreasonable
o The Fourteenth Amendment of the Constitution does, however, require that the
exercise of a States police powers be reasonable. Laws enacted in good faith, for
the promotion of the public good and not for the annoyance or oppression of
another race are reasonable

Sweat v Painter
o P, a black law student, was denied admission to the UT School of law on the
ground that a parallel black school had opened after the litigation commenced and
had a substantially equal facility
o Court held that the facility was not in fact equal and that P could no be denied
admission

Brown v Board of Education I : OVERRULES PLESSY

o Separate but educational facilities are inherently unequal
o Segregation of children in the public schools solely on the basis of race denies to
African American children the equal protection of the laws guaranteed by the
Fourteenth Amendment, even though the physical facilities and other may be
equal. Education in public schools is a right which must be made available to all
on equal terms

Brown II
o School authorities have the primary responsibility of desegregating their schools
o The courts will then determine whether the action of the school authorities
constitutes good faith implementation of the governing constitutional principles.
o The courts will require that the defendants make a prompt and reasonable start
towards full compliance with Brown I. Once such a start has been made, the
courts may find that additional time is necessary to carry out the ruling in an
effective manner.

o The burden rests on the school authorities to establish that such time is necessary
in the public interest and is consistent with good faith compliance at the earliest

The difference between Brown (1) and Brown (2) is that in the first decision the Court
told the school districts that they had to desegregate but allowed them to figure out how
to do it. In the second decision the Court gave instructions for how to desegregate
because the school districts were not doing it on their own

B. EQUAL PROTECTION ANALYSIS: LEVELS

OF SCRUTINY
Low Level Scrutiny ( Rational Basis Review)

State may classify as long as its classification has a reasonably basis in the areas of
economics, social welfare,

Classification scheme only needs to be rationally related a legitimate governmental

purpose. (Low level scrutiny) ( reasonable basis)

How can you show that classification is not reasonable or not irrational
o Argue that the means to reach the goals are unreasonable or irrational
o Argue that its under inclusive; affects a lesser group than necessary
o Argue that is over inclusive, affects a larger group than is necessary

Even if a classification is over inclusive or un inclusive courts may still uphold it

EXAMPLES:
o State has goal to reduce speeds to less than 70mph. State creates classification that
if you go above 70 then you will get a ticket.

Court will find this rational and reasonable

o same goal as above but to accomplish this goal you put a $5 tax on the purchase
of milk;

you can argue that yes its a good goal but its unreasonable and irrational

o Goal is to reduces speed to less than 70mph; but gives ticket to those less than 80.

So this is under inclusive, ( court may still uphold because does need
perfect rational)

o Goal to reduce speed less than 70mph: classification go over 20 get a ticket.

This is so over inclusive, its unreasonable, will not help accomplish goal

Intermediate Level of Scrutiny:

Regarding Gender classifications, a reviewing court must determine whether the

preferred justification is exceedingly persuasive, the burden rests on the state.

The state must show at least that the classification serves an important governmental
objectives, and that the means employed are substantially related to the achievement of
those objectives

Strict Scrutiny:

Classifications based on race, nationality, alienage, or that infringe upon fundamental

rights or liberties: the government must advance a compelling state interest by the least
restrictive means available.

If the restriction serves a political function no Strict scrutiny

Race base classification = strict struntiy; SO Gov. interests has to be compelling

Compelling interests are

o Remedy the effects of past discrimination not just in education, anywhere
o Maintain and create a diverse student body in higher education
o Another possible is national security

C. EQUAL PROTECTION METHODLOGY:

RATIONAL BASIS REVIEW

Equal protection claims involve a challenge to laws that allocate benefits or impose
burdens on a defined class of individuals
o The plaintiff in an equal protection case claims that the government has drawn the
line between the favored and disfavored groups in an impermissible place
o Real question involves whether, under particular circumstances, a challenged
classification is permissible
o The Courts approach is based on three questions: (factors to take into account)
How has the govt defined the group being benefited or burdened
(question of means)
What is the goal the government is pursing (question of ends)
Is there a sufficient connection between the means the government is using
and the ends it is pursuing (question of fit or nexus)

Rational Basis of Review: The Court asks whether the line the government has drawn is related
in a discernible way to the achievement of a permissible government purpose

Relevant Difference Requirement: the equality principle must be modified to provide the
differences in treatment can be justified only by relevant differences between individuals
o Difference is relevant if but only if, it bears an empirical relationship to the
purpose of the rule.

A bare congressional desire to harm a politically unpopular group cannot constitute a

legitimate governmental interest

To withstand equal protection review legislation that distinguishes between the mentally
retarded and others must be rationally related to a legitimate governmental purpose; mere
negative attitudes or fear unsubstantiated by factors are not permissible bases for treating
a home for the mentally retarded differently from apt homes, multiple dwellings and the
like

Laws enacted for broad and ambitious purposes often can be explained by reference to
legitimate public polices which justify the incidental disadvantages they impose on
certain persons

It is no requirement of equal protection that all evils of the same genus be eradicated or
none at all.

Analysis if a law is deemed discriminatory

The cases presented above demonstrate that the crucial initial inquiry in dormant
Commerce Clause cases is whether the law is discriminatory against out-of-staters.

In City of Philadelphia v. New Jersey, the Court said where simple economic
protectionism is effected by state legislation, a virtually per se rule of invalidity has been
erected.

In Carbone, the Court declared: Discrimination against interstate commerce in favor

local business or investment is per se invalid, save in a narrow class of cases in which
the municipality can demonstrate, under rigorous scrutiny, that it has not other means to
advance a legitimate local interest.

In Hunt v. Washington State Apple Advertising Commission, the Court stated: When
discrimination against commerce of the type we have found is demonstrated, the burden
falls on the State to justify it both in terms of the local benefits flowing from the statute
and the unavailability of non-discriminatory alternatives adequate to preserve the local
interests at stake.

Hypothetical reasons to support act: Thus, the Court is willing to hypothesize reasons which
would support the legislatures action, even though there is no evidence whatsoever that these
reasons in fact motivated the lawmakers

Consequence: A consequence of the Courts tendency to hypothesize reasons in support

of economic legislation is that one who attacks such legislation has the burden of
rebutting not only reasons given by the legislature, but also all reasons which the
legislature might have considered. Some of these hypothetical reasons may not even
surface until the Court writes its opinion, making the job of attacking such legislation
difficult indeed.

D. HEIGHTEND SCRUTINY AND THE

PROBLEM OF RACE
Intro:

Best established case for heightened review (strict scrutiny review) is for classifications
based on race. However the application of strict scrutiny was not applied till after Brown
v Board of Edu.

When court uses Race they mean National Origin

You do not have to prove someone is a certain race, you can argue they are discriminated
based off their national origin

Analysis is
o 1. Is this a race based discrimination
o 2. are the people in the protected class

Origins and Rationale for Heightened Scrutiny in Race Specific Classifications

 Court has held that all legal restrictions which curtail the civil rights of a single racial
group are immediately suspect, not deemed to be unconstitutional BUT courts must
subject them to the most rigid scrutiny.
A compelling Government interest can justify the existence of racial restrictions BUT
racial antagonism never can

Restricting the freedom to marry solely on the basis of race violates the central meaning
of the Equal Protection Clause

The mere fact that a statute is one of equal application does not mean that the statute is
exempt from strict scrutiny review

The Equal Protection Clause of the Constitution prohibits classifications drawn by any
statute that constitutes arbitrary and invidious discrimination

Racial discrimination classification analysis

First determine whether it constitutes a racial classification, either by explicitly dawing

racial lines Or motivated by a racial purpose, then court will use strict scrutiny.

If classification is non race specific the court will use a rational basis review despite the
classifications disproportionate impact on the minority group and probably uphold it.

Facial nonracial classifications that Disadvantage Racial Minorities

A rule that is neutral on its face and rationally rational to a legitimate state interest is
constitutional even thought it may impact a race disproportionately

Proof of a disproportionate impact is not enough, standing alone, to ground a finding that
a law amounts to unconstitutional discrimination

Disproportionate impact is not irrelevant, but it alone does not trigger the rule that racial
classifications are subject to the strict scrutiny standard of review.

Can determine if a law is discriminatory by looking to the relevant facts including the
fact, if its tre that the law bears more heavily on one race than another

A court should apply strict scrutiny to a facially nonracial Gov. action only if the P can
show that the action was taken for discriminatory purpose
o Discriminatory purpose implies that the decisionmaker selected or reaffirmed a
patiucluar course of action at least in part because of , not merely in spite of its
adverse effects upon an identifiable group

A defendant who alleges an equal protection violation has the burden of proving the
existence of purposeful discrimination

Race-Specific Classifications Designed to Benefit Racial Minorities:

All racial classifications including those supposedly benefiting racial minorties were
suspect and should be subject to strict scrutiny

when race-based action is necessary to further a compelling governmental interest, such

action does not violate the constitutional guarantee of equal protection so long as the
narrow-tailoring requirement is also satisfied

to be narrowly tailored a race conscious admissions program cannot use a quota system--it cannot insulate each category of applicants with certain desired qualifications from
competition with all other applicants,

A university may consider a race or ethnicity only as a PLUS in a particular applicants

file, without insulating the individual from comparison with all other candidates for the
available seats.

Narrowly tailored does not require exhaustion of every conceivable race-neutral

alternative

Narrow tailoring does, however require serious good faith consideration of workable race
neutral alternatives that will achieve the diversity the university seeks.

Two reason race based classification are upheld under strict scrutiny
o To remedy past discrimination
o Trying to create a diverse higher education

Admission criteria based on race must be narrowly tailored to achieve a compelling

interest. Race may be considered in an individual assessment, but not as a sole or
contributing factor for admission

Race specific voting districts

a redistricting plan Is unconstutional when though race neutral on its fact it rationally
cannot be understood as anything other than an aeffort to separate voters into different
districts on the basis of race and that the separation lacks sufficient justification

race must be a predominant factor motiviating the legislatures redistricting decision to

enforce strict scrutiny

Synthesis of Brown and Affirmative Action

A public school cannot classify students by race and then rely upon that classification in
making school assignments

School plans that use race alone as a qualifying criterion for school assignments is
unconstitutional

racial balancing is not a compelling Gov. interest

E. HEIGHTENED SCRUTINY AND THE

PROBLEM OF GENDER
Early cases:
the Court only applied low scrutiny in the early days to gender classifcations,
MODERN COURTS VIEW Regarding gender classification:

a reviewing court must determine whether the proper justification is exceedingly

persuasive, the burden rests on the state. The state must show at least that the
classification serves important governmental objectives and that the means employed are
substantially related to the achievement of those objectives (Intermediate scrutiny)

Possible reason segregating on basis of gender:

All male and all female locker rooms; Interests are

o Mortality issue dont want people practicing immoral acts

Separating boy and girls into different school; there are a lot of education purposes

Intercoliegete sports

To justify a gender-based classification, a state law must be substantially related to the

achievement of an important governmental objective
Archaic and Overbroad Generalizations versus Real differences

Gender-based classifications of the government can be defended only by exceedingly

persuasive justifications.

The State must show that its classification serves important governmental objectives and
that the means employed are substantially related to achievement of those objectives.

State has the burden of justification and it:

o must be genuine, not hypothesized. And it must not rely on overbroad
generalizations about the different generalizations about the different talents
capacities or preferences of males and females

F. THE PROBLEM OF SEXUAL ORIENTATION

Sexual discrimination is viewed on lowest level of scrutiny; rational basis review

G. OTHER CANDIDATES FOR STRICT

SCRUTINY

Classifications made on the basis of alienage call for close judicial scrutiny, strict scrutiny
o Not Always the Case; Sometimes Court subject rational basis review

Where the restriction against alienage serves a political function No strict scruntity
o Teachers, police, legislators are serving a political function, no strict scrunity,
want these position to be only US citizens
o Lawyers, not serving a political function, strict scrutinty is in place

A flat ban on the employment of aliens in positions that have little or no relationship to
the States legitimate interest cannot withstand close judicial scrutiny under the Equal
Protection Clause of the United States Constitution.

The Appellants justifications prove too much and too little. The States prohibition
applies to jobs, e.g., sanitation workers, typists, where loyalty to the State isnt essential.
On the other hand, the statute does not apply to jobs for which loyalty to the State is
indispensable.

Wealth Classifications:

Court rejected the idea that financial need is a suspect class

Wont be reviewed under strict scrutiny

Courts actually apply a low lvl of scrutiny

If wealth classification infringes on a fundamental right than court is more likely to hold
that the classification is unconstitutional

V. IMPLIED FUNDAMENTAL RIGHTS

Intro:

5th amend - no person shall be deprived of life liberty or propery without due process

Procedural Due Process:

o Right to notice of what you did wrong
o Right to be heard

Where certain fundamental rights are involved, the Court has held that regulation limiting these
rights may be justified only by a compelling state interest and that legislative enactments must be
narrowly drawn to express only the legitimate state interests at stake.
Due Process and Incorporation Doctrine:

Test if Bill of Rights Applies to States: (Selective incorporation approach)

o Whether the right is fundamental to our scheme of ordered liberty OR
o whether this right is deeply rooted in this nations history and tradition

Almost all of the Bill of rights have been incorporated and applied to the States

Education

Education is not a fundamental Right, so no strict scrutiny

Must First Determine if there is a suspect classification, OR

if there is a fundamental interest; IF yes will be held to be unconstitutional

o IF NOT then must examine it to determine whether it rationally furthers some
legitimate articulated state purpose and therefore does not constitute an invidious
discrimination in violation of the Equal Protection Clause of the 14th amend

An interference with a fundamental right guaranteed by the Equal Protection Clause of

the Fourteenth Amendment does not arise merely because some people can obtain
relatively more of a desired benefit than others.

The denial of the free public education to the children of undocumented aliens within a
states borders must be justified by a showing that such denial substantially furthers a
substantial state interest.

Although public education is not a right guaranteed by the United States Constitution,
it is neither some mere governmental benefit indistinguishable from other forms of
social welfare.

A. PRIVACY,PERSONHOOD AND FAMILY

Right to Privacy
The right to privacy is not explicitly mentioned in the United States Constitution
A law, which seeks to achieve its goals by means having a destructive impact on a
relationship lying within the zone of privacy may not be achieved by means that sweep
unnecessarily broadly and thereby invade that area of freedom

Must satisfy strict scrutiny.

o Strict scrutiny says that if a state or federal regulation is impairing a fundamental
right, the court strictly scrutinizes the regulation. The objective pursued by the
state must be compelling, and the means chosen must be necessary (nothing that
would be less restrictive is available).

These rights derive indirectly from several Bill of Rights guarantees, which collectively
create a penumbra or zone of privacy.
o The First Amendment (with the implied right of association);
o The Third Amendment (prohibition against quartering of troops in peacetime
without consent of the homeowner)
o The Fourth Amendment (with the implied rights associated with the express rights
to be free in our persons, houses and effects from unreasonable searches and
seizures)
o The Fifth Amendment (right against self-incrimination),
o The Ninth Amendment, which provides The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the
people

Among the rights to privacy is the right to intimacy in a marital relationship. The law at
issue here interferes with an intimate relation among a husband a wife and a physician in
her role as to one aspect of a marital relationship. The State does not provide sufficient
justification for doing so.

Abortion: Right to Privacy ?

3 reasons why states have criminalized abortion historically

o 1. Discourage illicit sexual conduct

TX didnt advance this purpose in roe v wade

o 2. Concerned with medical procedure, it was deemed hazardous and wanted to

protect the pregnant woman
o 3. Protecting prenatal life; at least potential life is involved

ROE v WADE:
o As such, any effort by the State to absolutely regulate a womans right to an
abortion must be able to withstand the strict scrutiny standard of review, which
this statute cannot.
o The right of a woman to determine whether or not to terminate her pregnancy is a
fundamental right of privacy founded in the Fourteenth Amendments concept of
personal liberty.

o Set forth the trimester standard for when a government may have a legitimate
interest in restricting abortion
o It is reasonable, however, for a State to conclude at some stage of a pregnancy
that the interest in a potential human life is compelling:
1.

For the first trimester, the abortion decision must be left to the judgment
of the womans physician;
2. During the second trimester the State may choose to regulate abortions in
ways that are reasonably related to maternal health;
3. During the third trimester, a State may regulate or proscribe abortions,
except where necessary to preserve the life or health of the mother.
o TRIMESTER RULES IS NOT GOOD LAW ANYMORE ---USES THE
UNBURDEN STANDARD
o Because the Texas statute would permit the State to prohibit a woman to have an
abortion during all three stages of a womans pregnancy, without advancing a
compelling government interest and providing narrow tailoring in so doing, the
statute sweeps too broadly and is therefore unconstitutional
o Cases look at Viability whether the life can live outside the womb.

Viability is now easier because of technological advances.

o Viability The Court held that, with respect to the interest in potential life, the
compelling point is at viability because the fetus then presumably has the
capability of meaningful life outside the mothers womb
o The point of viability varies from fetus to fetus, and it is extremely difficult to
determine the precise point of viability for any particular fetus

MAHER V ROE:
o Can a women who cannot afford abortion have Gov. pay for it?
o The Court upheld a state regulation granting Medicaid benefits for childbirth but
denying such benefits for nontherapeutic abortions
o The Constitution imposes no obligation on the states to pay the pregnancy related
medical expenses of indigent women, or indeed to pay any of the medical
expenses of indigents. But when a state decides to alleviate some of the hardships
of poverty by providing medical care, the manner in which it dispenses benefits is
subject to constitutional limitations.

o Financial need alone does not identify a suspect class. The law in this case
presents no obstacles in a pregnant womans path to an abortion. An indigent
woman who desires an abortion suffers no disadvantage as a consequence of the
states decision to fund childbirth; she continues as before to be dependent on
private sources for the services she desires.
PLANNED PARENTHOOD V CASEY: UNDUE BURDEN STANDARD
o RULE: A law is invalid, if its purpose or effect is to place a substantial obstacle
(i.e., an undue burden) in the path of a woman seeking an abortion at a stage of
her pregnancy before the fetus attains viability.
o Supreme Court reversed the trimester holding in Roe and announced the undue
burden standard

o Believes the trimester framework of Roe v wade suffers from the basic flaws such
as it misconceives the nature of the pregnant womans interest and in practice it
undervalues the States interest in potential life as recognized in Roe

GONZALES V CARHART:
o Issue =Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation
of personal liberty protected by the Fifth Amendment because the Act lacks an
exception for partial-birth abortions necessary to protect the health of the mother?
o Holding = not unconstituonally vague and didnt impose an undue burden on the
right to abortion
o Rule= undue burden standard
o Analysis= the majority found that the Act applies only to a specific method of
abortion, it held that the ban was not unconstitutionally vague, overbroad, or an
undue burden on the decision to obtain an abortion.

Family and other Interests:

court stated that when a city undertakes such intrusive regulation of the family the usual
judicial deference to the legislature is inappropriate

a due process right to presence of the family

The constitution protects the sanctity of the family precisely because the institution of the
family is deeply rooted in the this Nations history and tradition. It is through the family
that we inculcate and pass own many of ou most cherished values, moral and cultural

The due process clause has a substantive component encompassing the fundamental right
of parents to make decisions concerning the care, custody , and control of their children

Rights of the mother( parents) overrule the rights of the grandchild, have the right of who
visits.

A statute making it a crime for two persons of the same sex to engage in certain intimate
sexual conduct violates the Due Process Clause

The right to sexual liberty is fundamental, and government cannot intrude on that right,
via the criminal law, without showing a compelling interest

State cannot demean their(P) existence or control their destiny by making their private
secual conduct a crime

Their right to liberty under the Due Process clause gives them the full right to engage in
their conduct without intervention of the government

Liberty protects the person from unwarranted government intrusions. Freedom extends
beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct. The defendants are adults and
their conduct was in private and consensual.

The right to privacy is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child

RIGHT TO DIE:

Due Process Clause

A State may condition the exercise of a patients right to terminate life-sustaining

treatment on a showing of clear and convincing evidence of the desire of the patient to
exercise such a right

Prior decisions support the principle that a competent person has a constitutionally
protected liberty interest in refusing medical treatment under the Due Process Clause.

But incompetent persons do not enjoy the same rights, because they cannot make
voluntary and informed decisions. The right to terminate life-sustaining treatment of an
incompetent, if it is to be exercised, must be done for such incompetent by a surrogate.

The liberty protected by the Due Process Clause of the United States Constitution does
not include the right to assist suicide

Rational Basis Standard because no fundamental right

Therefore, assisting suicide is not a fundamental right. The Constitution requires the
state ban to be rationally related to legitimate government interests.