Constitutional Law II

• the same phrase that prohibits them from making ex post facto laws
• no state shall pass a law “impairing the obligation of contracts.”
• found in Article 1 section 10 --> limit on states' powers

Overturned NY bankruptcy law that retroactively applied to contracts

A bankruptcy law that applied to only future contracts was upheld

Contracts Clause applies to contracts for which the state is a party

when private monies were invested in a public charter, changes in the charter were governed by the Contracts Clause

Ambiguity in contracts were resolved in favor of the public interest

• A state’s impairment of its own contract must be shown to be reasonable and necessary to serve an important public purpose
• Applicable to contracts in which the state is a party and those that are purely private
• State is deferred less to on its own contracts

The state could not bargain away its ability to decide what criminal laws it did or did not have

Temporary restriction of creditors remedies during the great Depression was ruled constitutional

when the state is acting as a regulator instead of a market participant

• Emergency
• Legislation addressed to legitimate end – basic interest of society
• The relief granted was reasonable given the situation
• The conditions were not unreasonable
• Legislation was temporary

A MN law required private companies to fund pensions that had not yet vested (according to the employment/retirement fund contract), in effect, the law forced the pension to vest earlier than the private contract specified

• The court used the test set forth in Home Building:
• - the field was not already heavily regulated
• - the regulation was not temporary
• - it severely impaired the contractual relationship (nullified express terms of the company's contractual obligations)
• - the narrow focus of the law demonstrated no broad public policy concern

• - Energy Reserves Group v. Kansas Power and Light Co.
• - Exxon Corp. v. Eagerton
• - General Motors Corp. v. Romein- coordination of benefits for injured or disabled workers

Contracts; Due Process

nor shall private property be taken for public use without just compensation; Amendment V

• - regulatory takings (deprivation of all economic value)
• - physical takings

• - It must be for a legitimate purpose
• - The taking must not be an irrational means for accomplishing that purpose

• - States - police power
• - fed - necessary and proper clause (and other enumerated powers - building of post roads, etc.)

• - public ownership (hospitals, roads, military bases)
• - available for public use via common carrier (railroads, public utility, stadium)
• - "public purpose" (hazy category)

economic development

• eliminating blight
• eliminating oligopoly

• Private lands taken for public ownership
• Private lands taken for public use (i.e. common carrier)
• Private lands taken for a public purpose, but given to another private party

taking the "stick" of subsidence rights took the police power too far

• NYC's prevention of building a skyscraper over a historical landmark was held to be OK based on:
• Economic impact of the regulation on the claimant (The extent to which the regulation interfered with the owner’s investment related expectations)
• Character of the governmental action
• § Physical
• § Non-physical
• Versus:
• Why the taking is being done - Is it promoting the general health, safety, morals, welfare? - balance w/economic impact on the owner

that the non-taking was for the "public good" rather than to prevent harm

Yes - the bundle of property rights never includes a use that is a nuisance

If it works too great a burden on property owners, the regulaton cannot go forward without compensation.

• physical
• deprivation of all economic benefitc

• · The degree of harm to public lands and resources or adjacent private property
• · The social value of the claimant’s activities
• · The activities’ suitability to the locality in question

the diminution in value test:

• § The economic impact of the regulation on the claimant
• § The extent to which the regulation has interfered with distinct investment-backed expectations
• § Character of the governmental action (physical taking or regulatory taking)
• -The benefit to the public

• - If a private suit for nuisance could be brought
• - If the state could have brought suit for public nuisance
• - If the rule against the use (as a nuisance) was traditional

because it is rare that all economic value will be taken from any property

That a temporary restriction on property use is subject to a Penn Central balancing test.

Tahoe-Sierra

• there must be a sufficient nexus between the government purpose and the purported regulatory taking
• there must be rough proportionality between the harm sought to be avoided and the exaction

Takings claims are not ripe until state fails in a final decision to provide adequate compensation for the taking.

State (as demonstrated in the Civil Rights Cases)

A prosecutor may not use preemptories for racial purposes

• The extent to which the actor relies on governmental assistance and benefits
• Whether the actor is performing a traditional governmental function
• Whether the injury caused is aggravated in a unique way by the incidents of governmental authority

judicial enforcement of a racially restrictive covenant would have constituted state action (or would have constituted the state's affirmation of private discriminatory action); peculiar to this circumstance

• Burden on plaintiff to make Prima Facie case that there was discrimination (simple statistics)
• Burden on government to give a race-neutral reason for the discrimination
• Is the (reason offered above) purely pretext

There is a cause of action under the 14th amendment when a private entity is acting “in loco government”

Political parties may not have racially discriminatory primary elections

NCAA was a private actor; no cause of action for discrimination

• Prisioners incarcerated
• Patients involuntarily committed

The state is not obligated to protect you from the actions of others (under the due process clause) in most situations, rather, is only obligated to protect you against itself

• Applicable only to Federal Government
• no person may be deprived of life, liberty, or property without due process of law

• only applicable to the states
• no state shall deprive a person of life, liberty or property without due process of law

The right to the job hadn't vested in the professor; he was at-will, not tenured

No

• more than an abstract need or desire for it
• legitimate claim of entitlement
• reliance

The First Amendment Right to free speech

deprivations of property cannot result from the legislative process (the legislative process is the process that is due)

• Notice
• Opportunity to respond
• Unbiased trier of fact
• An attorney?

Because welfare was so necessary to its recipients

• The degree of reprehensibility of the defendant’s conduct
• The disparity between the harm or potential harm and the award of the punitive (1:10 rule)
• The difference between the punitive damages and any potential criminal liabilities (had the case been prosecuted in criminal court

It was not proper in this situation for a prior restraint, however, six justices held that there might be some situations in which a prior restraint might be Constitutional

When imminent harm will result.

no - the freedom is vested in individuals, not an institution

even if an injunction is unconstitutional, one who violates the injunction can still be prosecuted for the violation of that injunction

• Traditional Public Forum - strict scrutiny
• Limited/Designated Forum - intermediate scrutiny
• Non-public forum - rational basis (sort of)

resonable time, place, or manner

because the newspaper was a limited public forum, and the restriction was a viewpoint restriction

A traditional public forum - per Carey v. Brown

• Private individual: mere negligence is sufficient to prove a libel claim
• Public official: acual malice must be proven - the libeler must know the information is false or recklessly disregard the truth or falsity of the statement

an opinion

• Advertisement
• Refers to a specific product
• Is economically motivated

• Non-protected speech
• Conduct/expressive action
• Commercial speech
• Fully-protected speech

• - When it is more likely to decieve the public than to inform it
• - When it is related to illegal activity

• 1) the speech must be commercial per Bolger
• 2) there must be a substantial governmenal interest
• 3) the regulation must directly advance that interest
• 4) it may not be more extensive than necessary

No - per Pap's AM v. City of Erie, they may borrow from other cities to prove their case

• o 1) Public indecency statute is within the constitutional power of the State
• o 2) The statute furthers substantial governmental interests of protecting order and morality - the statute is justified (even if appearing nude in public is “expressive” conduct) - also Souter's "pernicious secondary effects"
• o 3) The statute is not aimed at erotic dancing, rather, all types of public nudity (not like Texas v. Johnson – in which the expressive conduct itself [flag burning] was the targeted conduct)
• 4) incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest

draft card burning

• Valid governmental purpose
• Regulates communicative acts in the interests of some other non-speech related goal
• Narrowly tailored
• Minimally restricts the speech protected by the First Amendment

Texas v. Johnson

• 1) it was symbolic speech (expressive conduct)
• 2) there no actual or threatened disturbance of the peace or fighting words
• 3) because the restriction is content-based, it is subject to strict scrutiny

No - Roth v. United States

Yes, as a reasonable, time, place, or manner restriction - City of Renton v. Playtime Theater

The government has a compelling interest in preventing the use of children in pornography

Probably not - a CA law in Brown v. Entertainment Merchants Association didn't pass strict scrutiny

• average person would find appeals to the prurient interest taken as a whole (community based)
• describes or depicts in a patently offensive way, sexual conduct specifically defined by state law (community based)
• as a whole, lacks serious literary, artistic, political, or scientific value (national standard)

No

No state shall...pass any ... law impairing the obligation of contracts...

Article I, Section X, Clause 1

because it retroactively applied to already-existing contracts

That they would ordinarily be revocable.

lottery

The First Amendment; Congress shall make no law ... abridging the freedom of speech, or of the press ...

Yes, through the Fourteenth Amendment.

when the issuing agency's restriction is based on a time, place, and/or manner (but not content)

Because a prior restraint has a greater chilling effect on speech

If the prior restraint is imposed in order to prevent imminent harm.

Hill v. Colorado; abortion

• obscenity
• fighting words
• incitement to illegal activity

a place where long tradition assembly and debate have been permitted, such as streets, sidewalks, and parks (Perry Education Assoc. v. Perry Local Educators' Assoc.)

• - noise control ordinances in school zones (Grayned v. Rockford)
• - abortion protests near clinics (Hill v. Colorado) -- this case was questionably a viewpoint restriction
• - distribution of campaign literature within 100 feet of a polling place (Burson v. Freeman)

Because neighborhood streets are considered to be traditional public forums.

• - Because it wasn't viewpoint restrictive
• - it wasn't content restrictive
• - it passed intermediate scrutiny
• the state had a legitimate interest in protecting the health of its citizens
• the law was closely drawn
• the restriction left ample alternatives for expression

That the majority based its opinion on the "right to be left alone" which is no right at all because “If protecting people from unwelcome communications is a compelling state interest, the First Amendment is a dead letter.”

a public school newspaper (Rosenberger v. Rector)

No - Int'l Society for Krishna Consciousness v. Lee - the airport terminal's primary purpose is to facilitate air transport, and a public forum is only created when a place is intentionally opened up for public use

no

action; belief - Yates

Imminent, immediate action and is likely to produce that effect (Brandenburg, Hess)

No - because there was no proof that the speech would likely produce violence

Speech 1) directed at another that is 2) likely to provoke a violent response

The forum was a traditional public forum, and the picketers were advocating a matter of public concern, however, there was still the possibility for a reasonable time, place, or manner restriction in the future.

• Title X funding for abortions was disallowed due to the three conditions being placed on providers through regulations:
• 1) no counseling for abortion as a family planning method (preconception services only)
• 2) any Title X funded programs may not engage in behavior encouraging or advocating abortion
• 3) Title X activities must be physically and financially separated from abortion activities

That the government may choose what type of speech it engages in (as long as it doesn't completely rule out the free speech rights of citizens)

• forcing schoolchildren to say the pledge of allegiance - West Virginia v. Barnett
• forcing citizens to bear the state's motto on their license plates - Wooley

Yes, because the government is acting as a market participant and may choose what type of speech it wants to engage in - NEA v. Finley

No - United States Department of Agriculture v. United Foods, Inc.

No, it is government speech, so access to pornographic websites may be blocked - United States v. American Library Association

That a state may not condition public employment on a basis that infringes on the employee's constitutionally protected interest in freedom of expression

• 1) Was there an adverse effect on employment?
• 2) was the employee speaking as a citizen on a matter of public concern?
• 3) Is the employees interest outweighed by the injury to the employer's function?

• 1) there was adverse action
• 2) He was not exactly speaking as a citizen on a matter of public concern - more as an employee
• 3) His speech had the potential to affect the employer's operations

• Per Elrod v. Burns:
• For policymaking positions --> yes
• For non-policymaking posisions --> no

no - because it undermines the election process - Republican Party of Minnesota v. White

• Advocacy of illegal drug use is non-protected speech for students.
• For students, it is not required to prove incitement and imminency

vulgarity

• Article IV
• The citizens of each state shall be entitled to the Privileges and Immunities of the citizens of the several states.
• It applies to states only

• The Fourteenth Amendment
• No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

No

• That it intends to foster equality
• That it intends to protect fundamental rights

the right to engage in a profession for which one is qualified (Supreme Court of New Hampshire v. Piper; Slaughter-House Cases)

The legislative process

• Substantive: what is the interest protected/ what constitutes life, liberty or property?
• Procedural: what is due process of law?

• That the court will step in and not apply rational basis scrutiny when the legislature engages in legislative action when
• 1) it tramples enumerated rights
• 2) it impedes the political process
• 3) it discriminates against discreet and insular minorities

state

• IS: when government space is leased for private purposes (symbiotic relationship); when a prosecutor uses race as the basis for a preemptory
• is NOT: when a discriminatory lodge is granted a liquor license; when a privately-owned common carrier discriminates

Yes, if the private actor is acting "in loco government" or if there is sufficient entanglement with state actors

No

No - Town of Castle Rock v. Gonzalez

Termination of welfare benefits without an evidentiary hearing

• 1) opportunity to be heard
• 2) hearing at a meaningful time in a meaningful manner
• 3) timely and adequate notice
• 4) effective opportunity to defend through presentation of evidence and cross-examination
• 5) Unbiased decision-maker

No; Clevland Board of Education v. Loudermill

Yes, because disability benefits are not conditioned on financial need

Fourteenth Amendment; All persons born or naturalized in the United States, and subject to the jurisdiction thereof ... no state shall deny to any person within its jurisdiction the equal protection of its laws.

The Equal Protection clause applies to persons, but the Due Process Clause (and the Privileges and Immunities clause) apply only to citizens.

• 1) What is the classification?
• 2) What is the appropriate level of scrutiny?
• 3) Does the government's explanation of the classification satisfy the appropriate level of scrutiny?

It invalidated the Missouri Compromise

A person was prevented from sitting outside of his race's railroad car. (the segregation was upheld)

Yes

To remove the vestiges of de jure segregation.

a test administered to applicants for DC Metro PD

A Fifth Amendment challenge (because the equal protection clause had been read into the Fifth Amendment in order to keep the federal government accountable in equal protection situations)

Because although there was shown to be some discriminatory impact, there was no evidence of discriminatory intent.

No - City of Boerne v. Flores

Proving that, when discriminatory impact is proven, a race-neutral reason for a classification is only pretext.

• Plaintiff must prove a prima fascie case for discrimination
• Defendant must prove a race-neutral reason for the discrimination
• Plaintiff may show that the race-neutral reason is just a pretext masking the discriminatory purpose
• (from McDonnel-Douglas)

That discriminatory purpose in government action may still be permissible if it is one of many (but not the primary) purposes; in which case, the burden is on the plaintiff to prove the same action would have been taken if only the discriminatory purpose were present

One which the majority imposes on itself.

States must make good-faith efforts to make districts as equally-proportioned (as to population) as possible

Yes - Bush v. Gore

• Privileges and Immunities - Legislative
• Equal Protection - Executive
• Due Process - Judicial

No

it applied heightened scrutiny to cases of gender discrimination in that it required the state to have "exceedingly persuasive justification" for gender discrimination

because he felt that animus was the only underlying motivation for the statute

That it was simply the majority's efforts to deny preferential treatment to a minority

in the Ninth Amendment: the enumeration of rights in the Constitution shall not be used to deny or disparage others retained by the people

• Directing the upbringing of one's children (Myer v Nebraska; Pierce; Troxel)
• Marrying whom one wants (Loving)
• Procreation (Skinner)
• Family living arrangements
• Contraception (Griswold; Einstadt)
• Abortion (Roe; Planned Parenthood v. Casey)
• Homosexual conduct????

• Assisted suicide (Vacco v. Quill; Washington v. Glucksberg)
• Homosexual conduct (Bowers v. Hardwick)
• Abortion in the third trimester (Gonzalez v. Carhart)

• Becuase the grandparents had no standing
• The statute was overbroad
• The statute permitted the state to interfere with parental rights even if there was no showing of harm to the children
• The statute was not narrowly tailored to protect the children within its care

no - there are other limitations which have been found to be constitutional (i.e. bans on polygamy and incest as well as age limitations)

It did not measure up to Due Process because it applied differently to similar classes of criminals (it was not narrowly tailored per strict scrutiny review)

That it would repsect family bonds by blood, marriage, or adoption

Yes

Yes, in Michael H. v. Gerald D. - because CA's legislature had already decided that it would respect the sanctity of relationships within the unitary family

that there was a right to privacy regarding the use of contraceptives in the marital bedroom

It re-interpreted the right to privacy in the use of contraceptives as an individual one, not a marital one.

• Vagueness
• Violation of the right to privacy (implied in the pneumbras of the Fourteenth Amendment)

• 1st trimester - no regulation allowed
• 2nd trimester - regulations to protect the woman's health are allowed
• 3rd trimester - prohibitions are permitted when the life and health of the mother are not at stake

• The right to an abortion is not absolute and may be regulated
• An undue burden on a woman's access to abortion may be found if:
• 1) there is a substantial obstacle to obtaining the abortion
• 2) the fetus is nonviable

• a PA law that required:
• 1) 24 hour waiting period before a woman obtains an abortion (with medical emergency exception)
• 2) certain info regarding abortion procedure be given to the woman beforehand
• 3) Minor had to get at least one parent's consent or a judicial bypass prior to obtaining an abortion
• 4) married woman had to inform her husband prior to obtaining abortion

Yes, provided it does not impose an undue burden on the access to it

Yes

• The statute had a woman's life exception
• It was specific as to what constituted the procedure
• It required that the doctors knowingly perform the procedure
• Three government interests at stake
• 1)life of fetus
• 2)mother's health
• 3)medical profession/morals (the "gruesomeness" factor)

rational basis

• preserving human life
• protecting the ethics and integrity of the medical profession
• protecting vulnerable groups
• avoiding the slippery slope toward euthanasia

• Because homosexual sodomy is not a fundamental right --> rational basis review only
• Enforcing morality is a legitimate state interest
• That is what the law does

Because the court said there was no legitimate state interest in prohibiting the conduct

Because it impaired the obligations of contracts, namely, the prior conveyance of lands

public

reasonable, necessary; important public purpose

When it undermines the central undertaking for the seller or the primary consideration of the buyer (City of El Paso v. Simmons)

United States v. Winstar

Strict

Because there was a scarcity of broadcast frequencies

No - Miami Herald

Yes, because it fosters free speech - Turner Broadcasting

No - RAV v. City of St. Paul, Virginia v. Black

because it was aimed at conduct with a particular motive, not speech or idea

No - Rumsfeld v. FAIR

Yes - Connic v. Myers

No - Buckley v. Vallejo; Arizona v. Bennett (fund matching)

• That expenditure limitations were not constitutional
• That contribution limitations were contsitutional

A Fourteenth Amendment Privileges and Immunities challenge.

because it infringes on the right to travel

No - Loan Association v. Topeka

When an industry is affected with the public interest

Due Process - Allgeyer

subject to control for the public good

• is the regulation reasonably related to a proper legislative purpose?
• Is it arbitrary or discriminatory?

Adarand Contructors, Inc v. Pena

Because the school's policy was holistic, and race was not the only consideration in attaining diversity.

No - because redistricting on the basis of race is in violation of the fourteenth amendment

Yes