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2015-05-08 15:22:31
constitutional Law

Con law 2
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  1. 14th Amendment Equal Protection
    No State or Local Govt. shall Deny any Person the Equal Protections of the Law.

    The Supreme Court reads the 5th Amendment Due Process Clause as incorporating the 14th amendment protections against the Federal government too.
  2. Strict Scrutiny Test
    Racial, Ethnicity, Alienage or Most Fundamental Rights.

    Compelling Government Interest +

    No Less Discriminatory ALternative.

    • Korematsu --National Security is compelling interest, locking up japanese-american race was substantially related b/c we'd just been bombed by japanese.
    • Loving--racial purity is not compelling interest. Law prohibited whites & non-whites from marrying.
    • Palmore--Conforming to society's racism or prejudices is not a compelling interest. Father can't get custody just cause mother is dating a black man.
    • Graham--restricting state benefits to persons in the country for more than 15 years discriminates against aliens. Fiscal limitation is a compelling interest, but less discriminatory alternatives exist = cutting benefits for all.

    ☀ if Federal government or State Jobs (teaching k-12 or police), or Civic Duty responsibilities → apply Rational Review.

  3. Intermediate Review
    Gender, or Legitimacy. +

    Important Government Interest,

    Means are substantially related, and

    Means do not further a traditional or Negative stereotype about gender.

    • Boren--Insignificant difference doesn't justify unequal treatment. 18 year old boys b/c 2% drink and drive, but okay for girls b/c only .18% will. stereotype = docile girls.
    • MUW--increasing employment opportunities for women in traditional female roles is not an important govt. interest. (nurse school)
    • Frontiero--Saving money could be compelling only if evidence backs it up. Stereotype = only men are heads of house.(military requires women to turn in income tax showing they have dependents but not of men)
    • VMI--women lack courage to survive training with no evidence. Stereotype = boys are courageous and girls are not. (military school)
    • Califano--evidence of inadequacy in social security $ between housewives and men. The evidence justifies letting women collect longer.
  4. Traditional Rational Review
    Everything Else Class (not quasi, not suspect)+

    Legitimate government Interest (almost anything), +

    Means are Rationally Related. (defer to legis)

    • Railway Express--no van advertising unless one's own business.
    • ☑ Baezer--no methadone if public transport job.
  5. Rational Review with Bite
    • Vulnerable Minority, +
    • --numerical minority,
    • --political minority,
    • --stigmatized,

    • Prejudicial discrimination.
    • --comprehensive discrimination, (in every aspect)
    • --reasons given don't make sense/contradict,
    • --prejudicial speech by senator shows intent to hurt class.

    • Romer--no person can sue for sex orientation discrimination.
    • Cleburn--no building permits for retarted bc flood zone, but building permits okay for others.
    • Moreno--speech by legislator describing families eligible for welfare as not some goddam hippies.
  6. Affirmative Action
    Race based Affirmative Action + Quota or Quota like Advantage → subject to strict scrutiny.

    Only Compelling Interest is Evidence the government entity discriminated in the past against that minority.

    • Bachi--making up for society's racism is not compelling.
    • gratz--awarding 25 points out of 100 might as well be a hard quota. Too strong preference.
    • Crozen--state couldn't show it had discriminated against the minorities it preferred. (30% contracts )

    Race based affirmative action + Special Consideration = strict scrutiny.

    Only compelling interest school type of entity for purpose of creating a diverse learning environment.

    Grutter--evidence of benefiting all races at different times to create  a diverse class environment. No less discriminatory alternative since the only way to create a diverse environment is by considering race.

    QUICK--affirmative action on any other basis (children of alumni) are subject to rational review. (unless quasi-suspect class, then apply IR.)
  7. 14th Amendment--Fundamental Rights.
    No State or Local Government shall deprive Any Person of life, liberty, or Property without Due Process of Law. The Fifth amendment provides the same protections as against the Federal government.
  8. Fundamental Rights

    No state or local government shall deprive any person of life, liberty or property without due process of law. The fifth amendment due process clause is read to interpret the 14th amendment applicable against the federal government too.
    • Familial Autonomy (family u want + right to teach kids as you see fit, right to Marry) (no fund,right to adopt).
    • Reproductive Freedom (contraceptives, abortion; right to reproduce)
    • Bodily Autonomy (Refuse medical treatment; not suicide though)
    • Voting
    • Free from Government Violence (really a due process fundamental right)

  9. Reproductive Freedom

    Strict Scrutiny, Or Undue Burden (if abortion)
    • Skinner--right to biological conception, and deciding when to reproduce and when to use contraceptives. 
    • Row v. Wade--economic and emotional pains of motherhood/childbirth is too intimate for govts to understand.
    • Casey v. Planned Parenthood--cannot place undue burden or coercive tactics on women seeking abortion. [receiving (not reading) literature, waiting periods, and minor's judicial bypass or parental consent is okay)

    requiring spousal consent or forcing woman to listen/watch abortion horror stories = coercion.
  10. Familial Autonomy

    Strict Scrutiny
    • Griswold--Right to Marry is a right older than political parties, voting.
    • Loving--interracial marriage. (white supremacy is not a compelling interest.
    • Zablocki--Deadbeat dads can marry. (less discriminatory means available)

    Moore--non-nuclear families living together. (less discriminatory means of addressing traffic safety)

    • Mv.Nebraska--right to teach children ideas/language harmful to government. (less discriminatory means of creating good Americans).
    • Oregon--right to teach religion to kids. (less discriminatory means of assuring kids are getting basic education).
  11. Bodily Autonomy

    Strict Scrutiny
    Lawrance v. TX--right to homosexual intimacy between adults in their home. (like hetero--it's one step toward marriage, which is a fund.right)

    ☑ right to refuse medical treatment. no right to suicide though.
  12. Right to Vote

    Strict Scrutiny
    Harper v. VA--no charging $, or any tests for voting. There are less discriminatory alternatives to ensuring that citizens take voting seriously. (tv ads, articles, etc..)
  13. First Amendment
    Congress shall not abridge the right to Free Speech.

    Supreme Court extends the 1st amendment right to limit state an local action via Gitlow v. NY.
  14. Hierarchy of Speech
    • ♛ Political Speech
    • ♛ Commercial Speech
    • ♛ Arts/Entertainment
    • ♛ Non-Obscene Pornography (hbo depictions)
    • --Obscene Porn gets no protection other than view point and/or substantial over breadth.
  15. Unprotected Speech = can only challenge for Substantial Over breadth, or View Point Discrimination.
    • ☠- Fighting Words
    • ☠- Clear & Present Danger
    • ☠- Libel/Defamation
    • ☠- Communication in furtherance of criminal conspiracy
    • ☠- Child pornography
    • ☠- Obscene Pornography
  16. Fighting Words
    Words Likely to cause and Average man to fight, and Not Necessary for Exposition of Ideas.

    (1) If Personally Insulting and said Face to Face, without allowing time to cool off.

    • Chapliski--get your fucking hands off me you fascist, said while the two were wrestling. 
    • Cohen v. Cali--Fuck the draft, is not personally insulting to anyone. It's actually political speech.
    • Mitchell--Get that white boy. Could've been fighting words had the boy heard them.

    Check laws punishing fighting words for undue vagueness and substantial over breadth.
  17. Clear and Present Danger Speech
    There are two types of clear & present danger speech:

    Brandenburg--advocating imminent, and unlawful conduct, and which is likely to succeed in bringing about the unlawful conduct.

    Brandenburg--kkk couching a threat to the US government, from the backwoods, with conditional language. {"if we don't get respect, we might have to...} is NOT imminent.

    Dennis--Advocating great harm, similar to that of the soviet threat to the U.S., even if unlikely to succeed.

    Dennis--Great ham= from a source w/the intention, ability and threat capability similar to Soviets
  18. Obscene Pornography
    (1) Patently Offensive, +

    (2) Appealing to Prurient interests, (community standard/by the jury), +

    (3) lacking overall literary, artistic, political or scientific value. (by national standard).
  19. Proper Time/Place, or Manner Regulation
    Regulates the 2ndary effects of speech, and +

    Leaves open a reasonable alternative to say the same thing.

    Subject to Intermediate Review. 

    Playtime Theater--adult theaters must be 1000 feet from residential/church etc...for the purpose of protecting property value, and minimizing crimes associated w/adult theaters. (upheld).

    National Library Association--prerequisite for getting govt $, library's must install anti-porn software. Purpose: Protect minors from seeing porn. Reasonable alternative: 18YO can request the program be turned off.

    Note--had the speech been political the court may have been more critical of the 2ndary effects proffered by the state.
  20. Challenges to First Amendment Regulations
    • Undue Vagueness → strike down/no test. (unless finley)
    • Substantial Over breadth → strike down/no test. (unless finley)
    • View Point → Strict Scrutiny (unless finley)
    • Subject Matter Discrimination → Strict Scrutiny, (unless finley)
    • Improper Prior Restraint [Gag Order, or requiring permission/permit to speak] Strict Scrutiny.
  21. Undue Vagueness
    * Reasonable people cannot say what is prohibited by the law.

    Coates--illegal for 2 or more people to gather in public, and behave annoyingly. [Strike down]

    Strike down w/out test; unless finley applies (i/r).
  22. Substantial Overbreadth
    * Prohibits substantially more speech than permitted by the first amendment.

    Schad--No live entertainment allowed. [struck down]

    LAX v. Jews for Jesus--no 1st amendment activities in airport. [struck down]

    Strike down without test; unless Finley applies (i/r)
  23. View Point Discrimination
    * punishing the expression of one opinion but permitting the opposite of the same subject matter.

    * Subject to Strict Scrutiny.

    RAV--illegal to say anything likely to cause alarm, resentment or anger regarding the basis of race. [struck down] (burning a cross was speech)

    Finley Exception--if the govt is giving you money or property, then it's policy/law is only subject to Intermediate Review. (even if undue vague, substantial overbreadth, view point or subject matter discrimination).
  24. Subject Matter Discrimination
    *Dictates what subjects may and may not be discussed. (usually for offensiveness).

    *Apply Strict Scrutiny.

    Boos v. Barry--500 ft back if picketing that might bring disrepute to foreign embassy.

    TBS--forcing cable providers to set aside 1 channel for local tv is not subject matter b/c the local channel can show whatever it wants.

    • Unless-Finley Applies (i/r). If the govt. gives u money/property, it can engage in any of the prohibited 1st amendment regulations.
    • Library Association--govt can require library's install anti-porn software that may be turned off at 18yo request, b/c it's a prereq for getting govt $.

  25. Prior Restraints
    • * Gag Orders--An individual, or class specific centered prohibition to speak upon a specific subject matter.
    • If less discriminatory alternative, → strict scrutiny.

    Stuart v. Nebraska--Gag order on the press struck down, when a change of venue could easily have protected the defendant's right to a fair trial.

    • *Permits/Permission to Speak.
    • If no criteria preventing the official from engaging in viewpoint or subject matter discrimination → Apply Strict Scrutiny.

    Lovell v. Griffin--struck down law requiring persons get permit to pass out flyers, but contained no criteria for when the official could deny a permit.
  26. Hybrid Rights = Intermediate Review

    No State or local government shall deprive any person of life, liberty or property without due process.
    (1) Complete deprivation of important right that will ruin their lives.

    (2) Vulnerable class of persons.

    Plyer v. Doe--denying illegal immigrant children public education. Education is an important right because complete denial will essentially ruin their lives.

    • Illegal children are vulnerable class b/c they're
    • (1) numerical minority;
    • (2) political minority;
    • (3) stigmatized by society;
    • (4) no choice (it's not their fault they're here illegally).

    (3) Apply Intermediate Review but strike it down b/c  No important interest in ruining vulnerable peoples
  27. Disparate Impact Argument

    No state or local government shall deny any person the equal protections of the law.
    The court should not apply rational review when a law does not on its face discriminate against a suspect or quasi-suspect class but disproportionately impacts a quasi or suspect class, and the state or local government intends to discriminate against the class.

    • 3 Flavors of Discriminatory Intent:
    • Washington v. Davis--Tests that don't make sense. Reading/Math test makes sense for police officers.
    • Mass.v. Freeny--no discriminatory intent present when the government can't control who happens to be a veteran, and it wants to benefit veterans.
    • A crazy, biased speech by a senator.
    • Yickwo--statistics showing discrimination in application. (200 whites apply and all get it; 150 chinese and only 1 gets it.)
  28. 14th Due Process Right & 1983
    No State or Local Government shall deprive any person of life, liberty, or property without due process of law.

    Section 1983, pursuant to section 5 of the 14th amendment, permits citizens to sue States for $$$ when the state violates their due process rights.

    Liberty = right to be free from govt. violence.

    • Property = Reputation AND Education (2 important rights); A job if reasonable expectation that job would continue.
    • (education alone is not enough)

  29. Due Process liberty right to be Free from Government Violence.
    • ☐ it must be the govt. who deprived the person of this right. (custody is important)
    • Recklessly (unless emergency), or Intentionally Only.

    Deshaney v. Winnebago--No standing to sue DCF for failure to remove child from father's custody. It was the father who killed the child.

    Sacramento v. Lewis--car chase. Police too close to stop and kills suspect. Recklessness alone cannot support a 1983 action if the conduct occurs while responding to an emergency.
  30. Deprivation during Emergency
    If deprivation occurs during emergency, then Mere Recklessness is not enough. It must be Outrageous instead.
  31. Due Process right to important Property Rights
    • ☐ It must be the govt. who deprives,+
    • Recklessly (unless emergency) or Intentionally,
    • Reputation and Education (2 important rights).
    • __never reputation alone.

    Goss v. Lopez--school suspension, w/out parental notice or chance to defend oneself. Education is an important prop.right b/c child was already receiving it. Reputation b/c people assume only bad kids get suspended.

    Paul v. Davis--shoplifter arrested, & pic circulated w/innocence until proven guilty disclaimer. Reputation alone, when the state includes the disclaimer, is not enough to warrant a 1983 action.
  32. Due Process right to Work
    • ☐ it must be govt. entity who deprives, +
    • recklessly or intentionally,
    • ☐ when plaintiff had a reasonable expectation that job would remain.

    Regents v. Roth--tenured track professor's K said it was subject to renewal every year for 7 years. No reasonable expectation when the K says it's subject to renewal. (not common practice but reasonableness that matters)