CONSTITUTIONAL LAW 1.

CONSTITUTIONAL LAW
by Erwin Chemerinsky

OVERVIEW OF ORGANIZATION

I. The federal judicial power – the authority of the fed. courts under the Q -- 15% of Q Law
II. The federal legislative power – the authority of congress under the Q 20% of Q Law
III. The federal executive power – the authority of the P. and the legislative branch
IV. Federalism – limits on state local gov’t power – 20% of Q Law
V. The structure of the Constitution’s protection of individual liberties
VI. Individual liberties – 25% of Q Law
VII. Equal Protection ※
VIII. First Amendment – 20% of Q Law

I. The Federal Judicial Power Art. III defines the powers of fed. courts using the 2 words – cases &
controversies.
A. The requirement for cases and controversies – 4 justice ability doctrines
1. Standing. ※ Standing is the issue of whether the plaintiff is the proper party to bring a matter
to the court for adjudication.
a. Injury. The plaintiff must allege and prove that he or she has been injured or imminently will
be injured
i. Plaintiffs only may assert injuries that they personally have suffered (only personal
suffered injuries)
E.g., Sierra Club v. Morton, club members sued Disney against construction in
mountain. Club members lacked standing b/c they failed to allege any of them had
used the mountain.
ii. Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future
harm
E.g., City of Los Angeles v. Lyons, Lyons, African American was stopped by police for
traffic violation. Police used a chokehold against Lyons. 16 black men in LA died b/c
of police choke hold. Lyons didn’t have standing b/c he could not show that it’s likely
that he personally be choked again in the future.
 Tip: Often in the MBE, the question asks, “which of the following πs have the best
standing.” Look initially through the answer choices w/ the π that had personally
suffered an injury. If there is more than one choice w/ a π that had personally suffered
an injury, choose the answer in which the π occurred an economic loss.
b. Causation and redressability. The plaintiff must allege and prove that the defendant
caused the injury so that a favorable court decision is likely to remedy the injury.
 The SCOTUS had said that the core of Art. III is a prohibition against fed. court issuing advisory
opinions. If the fed. court ruling for a π w/ no effect, that is an impermissible advisory opinion. Thus the
SCOTUS said, in order for a π to have standing, the π would have to show that a favorable fed. court
decision is likely to remedy the harm suffered.  To better prove that, is to know that the ∆ is the cause.
2. CONSTITUTIONAL LAW
E.g., a fed. statute says in order for a hospital to tax-exempt status, it has to provide free cure to
indigents. The I.R.S. had adopted a rule that a hospital could keep the tax-exempt status w/o providing
free cure to indigents. Indigents were rejected free care in hospitals, and sued I.R.S., claiming the I.R.S.
rule was inconsistent w/ the fed. statute. The π lacked standing, b/c π could not show that even the rules
were validated, the free care would be available. The rule was not the causation of the denied free care.
c. No third party standing. A plaintiff cannot assert claims of others, of third parties, who are not before the
court.
i. ※Exception: third party standing is allowed if there is a close relationship between the plaintiff and
the injured third party
E.g., the doctor - patient relationship. Many of the challenges to state laws were seeking access
to abortions. Laws restricting abortions influenced the doctors, it is a loss of business.
However, this is not a strong claim. So, the doctors asserts the right of their patients (stronger).
However, Elk Grove Unified School District v. Newdow, a few years ago, SCOTUS ruled that
a father lacked standing to sue on behalf of his daughter to challenge the words “under God” in
the pledge of allegiance in public schools. Newdow sued on behalf of the daughter, arguing
that the words “under God” violates 1st AMD Establishment Clause. SCOTUS said father did
not have legal custody of the girl, the mother who had the custody did not want the suit to go
forward, so no standing.
ii. Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his
or her own rights
iii. Exception – associational standing: an organization may sue for its members, if

— the members would have standing to sue;

— the interests are germane to the organization’s purpose;
— neither the claim nor relief requires participation of individual members
d. No generalized grievances. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in
having the government follow the law.
Exception: Flast v. Cohen, taxpayers have standing to challenge government expenditures pursuant to
federal (or state and local) statutes as violating the Establishment Clause. Congress passed statute giving
direct fed. funding to parochial schools (religious schools). Taxpayer brought a challenge and said this
violates Establishment Clause of 1st AMD. SCOTUS allowed tax payer standings. SCOTUS said the
Establishment Clause was meant to be a limit on Cong.’s spending and taxing power.
 U.S. v. Richardson. Richardson sued as a taxpayer alleging secrecy of CIA budget violates Statement
and Accounts Clause. SCOTUS says Richardson lacked standing b/c π’s only claim was a citizen
objecting his gov’t of violating the Q, and he’s a taxpayer objecting his tax dollars spent violated the Q.
And that’s a generalize grievance, no standing.
 Taxpayer do not have standings to gov’t granting property to religious institutions. (only gov’t
money).
 Taxpayer do not have standings to challenge expenditures from general executive revenue. They only
have standings to challenge expenditures pursuant to a statute. Upon taking office, P. G. W. Bush created
Office Faith Based Programs, which was designed to facilitate churches, synagogues, mosques directly
getting fed. social service money. He paid Office of Faith Based Programs directly from general
executive revenue. The SCOTUS ruled that the taxpayer lacked standing.
 SCOTUS ruled that taxpayer do not have standings to challenge tax credits that benefits religion, they
only have standing challenge expenditures. See AZ Christian School Tuition Organization v. Winn, AZ
adopted a law that gave a tax credit of $500 to those who gave money to a school tuition or organization.
Virtually all of the money from this went to religious schools. Challenge was brought saying that this
violated the Establishment Clause. SCOTUS said no standing to challenge tax credits that benefit
religion, only expenditure.
2. Ripeness. Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or
regulation.
 Tip: Whenever you have a Q Law question, and it asks for a declaratory judgment, consider the
possibility of a ripeness issue. Ripeness usually comes up in bar questions when it requests for
declaratory judgment.
a. The hardship that will be suffered without pre-enforcement review.
The greater the hardship the π will suffer w/p pre-enforcement review, the more likely it is that the fed.
court will hear the case.
 CONSTITUTIONAL LAW 3.
b. The fitness of the issues and the record for judicial review.
 This means does the SCOTUS have before it all that it needs to effectively
decide the issue? Is there any reason that the fed. court be better waiting for an
actual prosecution before it decided in the question?
E.g., Abbott Laboratories v. Gardner, FDA adopted a new rule that required that all
prescription drug ads and labels state the generic name of the drug. Drug company brought
a challenge against this, saying that the FDA lacked the statutory authority to adopt the
rule. FDA moved to dismiss on ripeness. FDA argued that no drug company had been
prosecuted for violating the rule. Court found drug company was not prohibited from
ripeness.
3. Mootness. If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed
as moot.
 A π must prove a live controversy, and ongoing injury at all stages of the fed. proceedings. If
anything happens, while the case pending to end π’s injury, the case is dismissed as moot.
a. ※ Exception: wrongs capable of repetition but evading review.
 Roe v. Wade, Roe challenged TX statute prohibiting abortion. At the time she filed her
lawsuit, she was pregnant in her first trimester and seeking abortion. By the time the
SCOTUS was deciding the case in 1973, she was no longer pregnant. The state of TX
moved to dismiss the case on mootness grounds. SCOTUS acknowledged that the injury
was over, but the Court nonetheless said that it would decide the Qnal question, b/c it was
wrong, capable of repetition but yet evading review. She could become pregnant and seek
abortion, and it would always evade review b/c the time for human gestation is apparently
shorter than the time for human litigation.
b. Exception: voluntary cessation. If the defendant voluntarily halts the offending conduct,
but is free to resume it at any time, the case will not be dismissed as moot.
c. Exception: class action suits.
 If the named π’s claim becomes moot, a class action will not be dismissed, so long as
one member of the class has an on going injury.
4. The political question doctrine. The political question doctrine refers to constitutional violations
that the federal courts will not adjudicate.
 The following types of cases are not justiciable political questions.
a. The “republican form of government clause”
 This is sometimes simultaneously referred to, synonymously called the “guarantee
clause .” It refers to a provision in Art. IV of the Q that says the U.S. shall guarantee to
each state a republican form of gov’t. Ever since 1840, SCOTUS had said cases that
involve the “republican form of gov’t clause” or the “guarantee clause” are none justiciable
political questions.
 E.g., voters in the state adopted a new law through the initiative process, a challenge was
brought arguing, that the initiative process violate the “republican form of gov’t clause.”
The argument was that it was direct democracy, it was not people electing representatives
making the laws. Correct answer: case dismissed, it’s political questions.
b. Challenges to the President’s conduct of foreign policy
 1960-1970, cases were brought arguing that the Vietnam War was unQnal, b/c the P.
was waging war w/o congressional declaration of war. SCOTUS said this is none
justiciable political questions, b/c it challenges P.’s conduct of foreign policies.
 Goldwater v. Carter (often comes up), in the 1970s, P. Carter rescinded U.S. treaties w/
Taiwan as part of recognizing P.R. China. Sen. Goldwater brought a suit against Carter, it
says just as the Senate approved the making of the treaty, so should the Senate have
approved the rescission of the treaty. SCOTUS ordered Goldwater’s suit dismissed as a
political question, b/c it challenges P.’s conduct of foreign policy.
c. Challenges to the impeachment and removal process.
 1993 SCOTUS case, Nixon v. U.S. Walter Nixon, a fed. district court judge in MS, who
had been impeached by the House of Rep. (This is the only SCOTUS case that deals w/
impeachment.) After Walter Nixon was impeached, he went to the Senate for a trial. The
Senate formed a committee to the E against Walter and make recommendations to the
whole body. Walter Nixon objected to that, he said the whole Senate should have sat in
trial. SCOTUS ordered Nixon’s suit dismissed as a political question.
d. Challenges to partisan gerrymandering.
 Vieth v. Jubelirer (2004); League of United Latin American Citizens v. Perry (2006)
4. CONSTITUTIONAL LAW
B. Supreme Court review
1. Virtually all cases come to the Supreme Court by writ of certiorari
W/ the statute defining SCOTUS writ of certiorari, the SCOTUS had discretion whether to hear the
case. If 4 Justices vote to grant the certiorari, the Court will hear the case. If no, the Court doesn’t.
a. All cases from state courts come to the Supreme Court by writ of certiorari
 E.g., if you as a lawyer losing the case at the NY State Court of Appeals, you want
SCOTUS review, it’s only by certiorari discretionary review.
b. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari.
 E.g., you lose case in the 9th Circuit and you want SCOTUS review, it’s only by
certiorari discretionary review.
c. Appeals exist for decisions of three-judge federal district courts
 Where the statutes defining SCOTUS jdx., provide for review by appeal as opposed by
review of certiorari, SCOTUS is obligated to take and decide the case. However, in 1988,
Cong. eliminated almost all the appeals to SCOTUS. That’s why virtually everything
comes to SCOTUS by writ of certiorari.
 3-judge fed. district court case is the only type that must be taken and heard. And
statutes requiring a 3-judge fed. district court case skips the U.S. Appellate Court and goes
directly to SCOTUS to be appealed.
d. The Supreme Court has original and exclusive jurisdiction for suits between state governments.
 Art. III delineates a few situations where the SCOTUS may exercise original jdx.
 E.g., Cases involving ambassadors or public ministers.
 However, under current statutes, there is only one situation where the SCOTUS will
ever exercise original jdx., and then it has exclusive jdx., that is the only court of the
country that could hear the case, that is suits b/t state gov’ts.
2. Generally, the Supreme Court may hear cases only after there has been a final judgment of the
highest state court, of a United States Court of Appeals, or of a three-judge federal district court. [the
Final Judgment Rule]
 The Final Judgment Rule means, there is generally interlocutory review in the SCOTUS. If a
matter is being litigated in a state court, all state appeals must be tried before the SCOTUS can hear
the case. If a matter is being litigated in a fed. court, all fed. appeals must be tried before the
SCOTUS can hear it.
3. For the Supreme Court to review a state court decision, there must not be an independent and
adequate state law ground of decision. If a state court decision rests on two grounds, one state law
and one federal law, if the Supreme Court’s reversal of the federal law ground will not change
the result in the case, the Supreme Court cannot hear it.
 E.g., imagine a person is beat up by some L.A. police officers and imagine that the V sued the
police officers in CA state court, the V brings 2 claims. One is a Qnal claim – a civil right claim, the
SCOTUS said the access of police force violates the 4 th AMD. The other is a state law batter claim.
The jury rules favorably of the π on both claims, saying that the π is entitled to recover the identical
amount of money $100,000 either the Qnal claim or the state claim. But the π is not entitled to
recover $200,000. The ∆ appealed to the state system and lose, they now want SCOTUS review.
SCOTUS will review only fed. law questions. Can SCOTUS review the fed. law issue presented?
No, b/c even if the SCOTUS reverses on the fed. law decisions, the π will still win on the state law
grounds.  The state law claim is an independent and adequate state law ground.
 E.g., members of a neighborhood were upset about how much pollution was coming from the
factory, the sued the factory in a state court for an injunction to stop pollution. The π presented 2
claims, one is a fed. law claim, the other is a state law claim. The judge rules in favor of the π on
both claims. The factory appealed to the SCOTUS and loses, SCOTUS can review only fed. law
questions. Even if the SCOTUS reverses on the fed. law ground, the π will get exactly the same in
junction based on the state law claim.
 CONSTITUTIONAL LAW 5.
C. Lower federal court review
1. Federal courts (and state courts) may not hear suits against state governments ※
a. The principle of sovereign immunity  At least one on MBE
i) The Eleventh Amendment bars suits against states in federal
court.
 It doesn’t matter whether the π is from that state or a different
state. It doesn’t matter whether the claim is for an injunctive relief or
money damages. State gov’t generally cannot be named as ∆ in fed.
court proceedings.
ii) Sovereign immunity bars suits against states in state courts or federal
agencies.
 Alden v. Maine, probation officers in the state of ME claimed that they were
owed overtime pay by the state under the Fed. Fair Labor Standard Act. They
sue the state in fed. court to get the money they were owed. The fed. court
threw the case out under the Eleventh AMD. The probation officer than sued
the state in a state court. The SCOTUS ruled that the state sovereign immunity
bars suits against a state even in state courts. So although the probation officer
has a fed. statutory right to the money, but he had no forum to sue the state.
b. Exceptions. States may be sued under the following circumstances
i) Waiver is permitted
 A state may waive its sovereign immunity and may consent to a state suit.
However, the waiver must be explicit. The state must expressly consent to be
sued in fed. court. The SCOTUS said NO IMPLIED waiver of sovereign
immunity.
ii) States may be sued pursuant to federal laws adopted under section 5 of
the Fourteenth Amendment. Congress cannot authorize suits against
states under other constitutional provisions.
 Sec. 5 of 14th AMD authorizes Cong. to adopt laws to enforce the 14 th AMD.
The SCOTUS had said since the 14th AMD came after the 11th AMD, so the 14th
AMD was meant to be a limit on state sovereignty. Cong. when it acts under
Sec. 5 of the 14th AMD can authorize suits against the state gov’t.
 E.g., Tit. VII of the 1964 Civil Rights Act would prevent employment
discrimination on the base of race, sex or religion, was applied to the states by
the Q pursuant to the Sec. 5 of the 14 th AMD. Thus, SCOTUS held that a state
gov’t can be sued for violating Tit. VII. But cannot use Sec. 5 to authorize
other suits against state gov’t, i.e., law adopted under the Commerce Clause or
the Spending Power, cannot be used to sue state gov’t.
 Kimel v. Fl. Board of Regents, SCOTUS said Fed. Age Discrimination in
Employment Act was adopted by the Cong. under its Commerce Power, not
under the Sec. 5 of the 14th AMD, so case was dismissed b/c the Age
Discrimination in Employment Act cannot be used to sue state gov’t. (ADEA is
not enacted under 11th AMD or Sec. 5 of 14th AMD to abrogate the state’s
immunity.)
iii) The federal government may sue state governments.
 Sovereign immunity is not a bar to the fed. gov’t being able to sue the state
gov’t.
iv) Bankruptcy proceedings.
 A state cannot assert sovereign immunity in a bankruptcy proceeding. Imagine
a person owes a state unpaid taxes, and owes student loans. If that person goes to
file bankruptcy, if the person wants to discharge loan and tax, and the state
cannot refuse to be sued by claiming the sovereign immunity.
c. Suits against state officers are allowed – you do not name the state as the ∆, name the state officer who is
responsible for carrying this out.
— state officers may be sued for injunctive relief;
— state officers may be sued for money damages to be paid out of their own
pockets, if they are personally liable
 Even if the state chooses to indemnify the officer, sovereign immunity
doesn’t bar the suit from going forward.
— state officers may not be sued if it is the state treasury that will be paying
retroactive damages (you cannot sue state officer if the treasury is legally
liable, if the state chooses to indemnify the officer that’s different)
6. CONSTITUTIONAL LAW
2. Abstention. Federal courts may not enjoin pending state court proceedings.
 Abstention refers to instances where fed. courts has jdx. but does not exercise it. The fed. court has jdx., all the
justiciability requirement met, but the fed. court abstains.  rarely tested
 E.g., NY is adopting a law preventing ownership or uses of Barbri books on the grounds of they are boring. Π was
prosecuted in NY state court for having and using a Barbri book, as soon as the prosecution in NY state court started, π
immediately filed a lawsuit in fed. district court. Fed. district law issued a judgment that the NY law violates the Q, π
asked the fed. court to issue an injunction to stop the prosecution against him on the grounds that it violates his 1st
AMD. District court asked for jdx., π presented FQ, all the justiciability requirement are met. The fed. court still cannot
enjoin pending state court proceedings. Π has to raise the 1st AMD defense in state court, and has to appeal to a state
system, b/c fed. court cannot generally enjoin pending state proceedings.
II. The Federal Legislative Power – Art. I of Q defines the power of Cong.
A. Congress’s authority to act
1. There must be express or implied Congressional power
 There is no general fed. police power. State and local gov’ts have what is called the “police power,” that is their
authority to do anything that is not prohibited by the Q. But Cong. generally lacks the police power, for Cong. to act it
has to point to an express or implied Congressional power.
 Tip: on every MBE, there are several questions that ask about Cong.’s authority to adopt a particular law, a frequent
answer choice is usually wrong is the police power. It is wrong b/c Cong. generally doesn’t have the police power.
There are some exceptions, where it is correct to say that Cong. has police power. “MILD” – Congress has police
power if it is legislating before the Military, for Indian Reservations, for Fed. Lands & Territories, or for D.C.
(rarely tested)
2. The necessary and proper clause
 Art. I Sec. 8 says congress could adopt all laws that are necessary and proper to carry its authority. McCulloch v.
Maryland, SCOTUS said that this provides that the Congress may choose any means not prohibited by the Q to carry
out its authority.
 E.g., Art. I Sec. 8 also says that Congress can raise an army and a navy. Imagine Congress would create a national
big sale, to fund the army and the navy, there is nothing about a national sale in the Q, but Congress Qnally could create
one as a means not prohibited by the Q to carry out its authority to raise an army and a navy.
3. The taxing/spending power and the commerce power ※※
a. Congress may tax and spend for the general welfare
 Cong. could create any tax to raise revenue and any spending program to spend it. The Cong. believes
it would serve the general welfare.
 National Federation of Independent Business v. Sebelius, SCOTUS upheld the individual mandate under the
Affordable Care Act as a Qnal exercise of the Cong. taxing power. SCOTUS said this was a Qnal exercise of
Cong. tax power, b/c the Cong. was acting out of reasonable belief that this will benefit the public.
b. The Commerce Power
 Commerce w/ foreign nations, Indian tribes, and among states.
 1937 – 1995, SCOTUS broadly defined the scope of Cong.’ commerce power, and during this period not one fed.
law was declared as exceeding the scope of this power.
 In 1995, U.S. v. Lopez, SCOTUS held unQnal the Fed. Gun Free School Zone Act (which criminalize the
possession of gun w/n 1000 feet of the school). The Act is unQnal by exceeding the scope of the Cong.’ Commerce
Clause. The court ruled that Cong. could act under the Commerce Clause, in any of the following 3 situations:
i) Congress may regulate the channels of interstate commerce (places where interstate commerce occurs)
 highways, waterways, the internet, or all examples of channels of interstate commerce;
ii) Congress may regulate the instrumentalities of interstate commerce and persons or things in
interstate commerce
 the things that facilitate commerce, e.g., trucks, planes, telephones, the internet; In Gibbons v. Ogden, C.J.
Marshall says commerce refers to all forms of intercourse, thus Cong. could regulate electricity, radio waves,
stock, insurance, cattle or even people if they go across the state lines.
iii) Congress may regulate economic activities that have a substantial effect on interstate commerce. (In
the area of non-economic activity, a substantial effect cannot be based on cumulative impact.) Also,
five justices have said that Congress cannot regulate inactivity.
 Wickard v. Filburn, Cong. adopted a law that regulate the amount of wheat that a farm could grow for his
own consumption. Filburn challenged and said his wheat was not sold on interstate market and the law does not
apply to him. SCOTUS upheld the fed. law and against the farmer. SCOTUS looked at all of the wheat that all
of the farmers in the country grew for home consumption, cumulatively the substantial effect on interstate wheat
commerce.
 Gonzales v. Raich, SCOTUS the Cong. Qnally could prohibit and punish cultivation and possession a small
amount of marijuana for personal admissible use. The court will look cumulatively across the country on
marijuana market.
 U.S. v. Morrison, in the area of non-economic activity, substantial effect cannot be based on cumulative
impact. Morrison involved in civil damages provision for VAWA, which allows V of gender motivated
violence to sue in fed. court. SCOTUS declared this unQnal, though Cong. argued that violence against women
costs U.S. millions of dollars. SCOTUS said Cong. was regulating non-economic activities, where substantial
effect cannot be found through cumulative impact.
 CONSTITUTIONAL LAW 7.
 National Federation of Independent Business v. Sebelius, 5 Justices have found that Cong. cannot
regulate inactivity, in that the ACA was regulating people who are not purchasing health insurance. [In
this case, as stated in pg. 6, Justices agreed that the individual mandate is a proper exercise of Cong.
Taxing power, but not a proper exercise of Commerce power.]
4. The Tenth Amendment as a limit on Congressional powers. The Tenth Amendment states that all
powers not granted to the United States, nor prohibited to the states, are reserved to the states or
the people.
a. ※※ Congress cannot compel state regulatory or legislative action. Note: Congress can induce
state government action by putting strings on grants, so long as the conditions are expressly
stated and relate to the purpose of the spending program. Also, the conditions cannot be unduly
coercive. (at least one will be tested under this, usu. questions will be based on previous SCOTUS decisions.)
 N.Y. v. U.S., the fed. Low-Level Radioactive Waste Disposal Act requires every state to clean up
its radioactive waste by 1996, any state that failed to comply w/ this will be deemed to take title to the
nuclear waste and will be liable for any harms they cost. The SCOTUS declared this unQnal.
 Printz v. U.S., Brady Handgun Control Act requires that any state do background checks before
issuing permits for firearms. SCOTUS declared this unQnal.
 South Dakota v. Dole, Cong. wanted there to be a 21-year old drinking age and to pass the law
that says that every state that received its highway money has to set a 21-year-old drinking age or
would have to lose 5% of its highway money. SCOTUS upheld this as Qnal. SCOTUS says Cong.
was not forcing the state to do anything, but trying to induce the state to act by putting strings on
grants, and the conditions were expressly stated and it’s not unduly coercive by taking 5% of the
highway money.
 National Federation of Independent Business v. Sebelius, SCOTUS declared unQnal Medicaid
provisions of ACA. Provisions said any state that was taking fed. Medicaid funds had to include w/n
its Medicaid programs those who are w/ income up to 133% of fed. poverty level, or will lose all of
its fed. Medicaid money. SCOTUS said this is unduly coercive.
b. Congress may prohibit harmful commercial activity by state governments.
 Reno v. Condon, (has been tested) Drivers Privacy Protection Act prohibits state DMV from
releasing personal information about individuals. SC brought a challenge and stated that it violates the
10th AMD. SCOTUS upheld the fed. law and rejected the challenge. SCOTUS noted that many states
where selling their DMV list. Cong. was not imposing an affirmative duty on the state, instead Cong.
was prohibiting this harmful commercial activity.  It does not violate 10th AMD for Cong. to
prohibit harmful commercial activity by state gov’t.
5. Congress’ power under section 5 of the Fourteenth Amendment. Congress may not create new
rights or expand the scope of rights. Congress may act only to prevent or remedy violations of
rights recognized by the courts and such laws must be “proportionate” and “congruent” to
remedying constitutional violations. [narrowly tailored]
 City of Boerne v. Flores. SCOTUS narrowly interpreted the Protection of the Free Exercise of the 1 st
AMD in 1990. In 1993, Congress passed the Religious Freedom Restoration Act. It sought to restore
religious freedom by statute to that had been previously banned under Q. Cong. adopted this and so did
state and local gov’t pursuant to Sec. 5 of 14 th AMD. SCOTUS declared this unQnal as exceeding the
scope of Cong.’ powers under Sec. 5. Court explained that Cong. was creating new rights and was
expanding the scope of rights. All that Cong. can do is that to prevent or remedy violations already
recognized by the Court. And such laws must be “proportionate” and “congruent” to remedy proven Qnal
violations.
B. Delegation of powers
1. No limit exists on Congress’ ability to delegate legislative power.
 Non-delegation Doctrine in history: Cong. could not delegate its legislative powers such through
executive agencies. But since 1936, not one fed. law has been unQnal as an exercise of delegation of
legislative powers. Every delegation has been upheld.
 Tip: on every MBE, there is a question or two, that is answer choice that a fed. law is unQnal as an
exercise of delegation of legislative powers. Those are always wrong answers.
2. Legislative vetos and line-item vetos are unconstitutional. For Congress to act, there always must
be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to
the President and sign or veto). The President must sign or veto the bill in its entirety.
 Legislative veto: is where Cong. attempts to overturn an executive action w/o bicameralism and/or
presentment. An legislative veto is always unQnal. If Cong. wants to overturn an legislative action, it has
to give both the House and the Senate and then give the P. for presentment.
Line-item veto: A P. attempts to veto part of the bill while signing the rest into law. Clinton v. the City
of New York, Cong. passed statute that authorized the P. to cancel, to veto parts of appropriation bills
while signing the rest into law (Line Item Veto Act of 1996). SCOTUS declared this unQnal. The Court
said the P. had to sign the whole bill, or veto the whole bill.
8. CONSTITUTIONAL LAW
3. Congress may not delegate executive power to itself or its officers
 E.g., Cong. cannot give itself or its officers the executive power to
implement the law.

III. The Federal Executive Power – Art. II of the Q defines the power of P. and the
executive power of the gov’t.

A. Foreign policy

1. Treaties. Treaties are agreements between the United States and a foreign country
that are negotiated by the President and are effective when ratified by the Senate.

a. Treaties prevail over conflicting state laws

 State laws that conflict w/ treaties are invalid.
 E.g., U.S. and Canada entered into a treaty preventing the hunting of the
bald eagles, imagine AK has a law that allows hunting of the bald eagles.
It’s clear that the AK law would be invalidated. It could be struck down
under the EP Clause.

b. If a treaty conflicts with a federal statute, the one adopted last in time controls.

c. If a treaty conflicts with the United States Constitution, it is invalid.

 Q is the supreme law in land.

2. Executive agreements
 CONSTITUTIONAL LAW 9.
a. Definition. An executive agreement is an agreement between the United States
and a foreign country that is effective when signed by the President and the head
of the foreign nation.
 Notice: no Senate approval requirement for the executive agreement.

b. Executive agreements can be used for any purpose.

 Anything that could be done by a treaty, can be done by an executive
agreement.
 Never, not once in the U.S. history has an executive agreement been called
unQnal for usurping the Senate’s treaty approving power. In fact, even major
foreign policy commitments had been done by executive agreement.

c. Executive agreements prevail over conflicting state laws, but never over
conflicting federal laws or the Constitution

 Tip: Every MBE has one or two questions about treaties or executive agreement.s

[See chart on the following page]

10. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 1

TREATIES AND EXECUTIVE AGREEMENTS

CONFLICT
IS SENATE CONFLICTS S WITH CONFLICTS
APPROVAL WITH FEDERAL WITH
REQUIRED? STATE LAW STATUTE CONST.

WHICHEVER
WAS
ADOPTED
TREATY LAST IN CONST.
TREATIES YES CONTROLS TIME CONTROLS
CONTROLS
EXECUTIVE FEDERAL
EXECUTIVE AGREEMENT STATUTE CONST.
AGREEMENTS NO CONTROLS CONTROL CONTROLS
S
 CONSTITUTIONAL LAW 11.
3. Limits on the recognition power. It is unconstitutional for Congress by statute to designate the
capital of a foreign country.
 Zivotofsky v. Kerry, from the time Israel became a nation in 1948, every P. refuse to take a
position as to the sovereign over Jerusalem. Cong. passed the statute that said that an American
citizen had a child born in Jerusalem, the American citizen can have the child’s passport list the
birth place as Jerusalem, Israel. SCOTUS declared this as unQnal. The Court said P. has the
exclusive power to recognized foreign gov. Part of recognizing a foreign gov’t is deciding what
its capital will be recognized as. The SCOTUS said for Cong. to designate the capital of a
foreign country, to require the Jerusalem be recognized as part of Israel, violated presidential
powers, and thus was declared unQnal.

4. The President has broad powers as Commander-in-Chief to use American troops in foreign
countries.
 Never, not once in the U.S. history, has the P. used some troops in foreign countries, and
been declared unQnal by the SCOTUS. (usually tested on MBE)
 MBE questions usually involve the P. using troops in a foreign country, and a man that seems
outrageous that three is no congressional declaration of war, a law suit is brought challenging
the war. The best answer if it’s available on the MBE is that the case is dismissed as a political
question. If that answer is not available, then choose the answer b/d the P. has broad powers as
Commander-in-Chief to use American troops in foreign countries.
B. Domestic affairs
1. The appointment and removal power.
a. The appointment power
i. The President appoints ambassadors, federal judges and officers of the United States
 The Senate must confirm the person in order for the individual to take an office. But the
appointment power is solely w/ the P.
ii. Congress may vest the appointment of inferior officers in the President, the heads of
departments or the lower federal courts
 The difference in i & ii is that P. alone gets to appoint those who are deemed officers of
the U.S., but Cong. has so discretion as to appoint some inferior officers.
 The SCOTUS has never defined w/ any precision the difference b/t officers and inferior
officers. (SCOTUS is taking a common sense approach.) Someone is an inferior officer if he
or she could be fired by an officer of the U.S.
 E.g., during the end of G.W. Bush’s presidency, the AG of U.S. can fire U.S. attorneys. –
the unprecedented midterm dismissal of 7 U.S. Attorneys by the DOJ in Dec. 2006. That
makes U.S. Attorneys inferior officers.
 An Under Secretary of State can be fired by the Secretary of State, then makes the Under
Secretary Of State an inferior officer.
 Cong. has the discretion as to who should appoint these inferior officers.
iii. Congress may not give itself or its officers the appointment power
 Frequently tested on the MBE. The fact pattern always seem to involve Cong. creating a
new fed. agency. Under the terms of the law, the P. gets power to appoint some of the
agency, the speaker of the House gets to appoint some of the agency, and the President of the
Sen. Gets to appoint some of the agency. Answer: that is unQnal, Cong. cannot give itself or
its officers the appointment power.
iv. The President may not make recess appointments during intrasession recesses that
are less than 10 days.
National Labor Relations Board/ NLRB v. Noel Canning (2014). Q says that the P. can
“fill up all vacancies that occur when Cong. is in recess.” SCOTUS says if it’s an
intrasession recess or a recess during a section of Cong., there cannot be a recess
appointment if it is less than 10 day intrasession recess.
b. The removal power. Unless removal is limited by statute, the President may fire any executive
branch office.
 The Saturday Night Massacre. Oct. 1973, during the Watergate Scandal, P. Nixon’s dismissal of
independent special investigator Cox, and as a result the resignation of AG Richardson and Deputy AG
Ruckelshaus. At that time there was no statute limiting the removal, so the P. had the authority order the
firing.
12. CONSTITUTIONAL LAW
i. For Congress to limit removal (by statute), it must be an office where independence
from the President is desirable and
 E.g., SCOTUS said that Cong. can limit the removal of the independent
counsel, the special prosecutor. The independent counsel was to investigate the
alleged wrongdoing by the P. or top executive officials. SCOTUS said
obviously the person who is investigating the P. or top executive officials,
ideally should be independent from the P.
 By contrast, the Cong. cannot limit removal of the P.’s cabinet. The
cabinet is there to carry out the P.’s policy’s and should not be independent of
the P.
ii. Congress cannot prohibit removal, it can limit removal to where there is good
cause
 Even for an office, that ideally should be independent from the P., Cong. cannot
prohibit all removal. The most Cong. could do is say “removal is allowed only if
good cause is shown.”
2. Impeachment and removal. The President, the Vice President, federal judges and officers of
the United States can be impeached and removed from the office for treason, bribery, or for
high crimes and misdemeanors. (there is no legal definition of that phrase – high crimes and
misdemeanors)
a. Impeachment does not remove a person from office
 Q says the House has to sole power to impeach. If the House impeaches then there is a
trial in the Sen. Only if the individual is convicted in the Sen. is the individual removed
from the office.
 P. Andrew Johnson & P. Bill Clinton were both impeached by the House, but not
convicted in the Sen. So both were able to finish the terms as president.
b. Impeachment by the House of Representatives requires a majority vote; conviction in the
Senate requires a 2/3 vote.
3. The President has absolute immunity to civil suits for money damages for any actions
while in office. However, the President does not have immunity for actions that occurred
prior to taking office (and unrelated to the office).
 Absolute immunity for anything done in carrying out the presidency.
 Clinton v. Jones, Paula Jones sued Clinton for sexual harassment that allegedly occurred
when he was Governor of AR. Clinton moved to dismiss the case based on presidential
immunity, and at least the suit should stay until he is no longer the president. SCOTUS
unanimously ruled against Clinton. The Court said absolute immunity exist to protect the
exercise of discretion while in office. There is no immunity for the acts that occurred prior to
taking the office.
4. The President has executive privilege for presidential papers and conversations, but such
privilege must yield to other important government interests (when there is an overriding need
for the information)
 Executive privilege is the authority of the P. to keep secret conversations w/ or
memorandums from advisors.
 U.S. v. Nixon (1974), the Watergate special prosecutor subpoenaed tapes of White House
conversations to use in the prosecution of those involved in the Watergate. P. Nixon invoked
presidential privilege, in order to keep the tapes secret. SCOTUS ruled against P. Nixon. The
Court acknowledged that the P. have executive privilege, but the Court said executive privilege
is not absolute. The court said the executive privilege must yield, when there is overriding need
for the information. The Court said the need for the evidence in the criminal trial outweighs the
executive privilege. Nixon was ordered to produce the tape.
5. The President has the power to pardon those accused or convicted of federal crimes.
 The Q mentions only one exception to the pardon power. That’s if a person has been
impeached by the House. A person who had been impeached by the House, can never be
pardoned for the offenses that’s alleged in the impeachment. Bill Clinton can never be
pardoned for that for which he was impeached.
 Tip: 1) the P. can pardon only as to fed. criminal liability, never as to state criminal liability.
2) the P. can pardon only for criminal liability, never for civil liability  civil contempt,
the pardon power does not apply.
 CONSTITUTIONAL LAW 13.
IV. Federalism
A. Preemption. The Supremacy Clause of Article VI provides that the Constitution, and laws and
treaties made pursuant to it, are the supreme law of the land. ※※※ 4-7 questions on MBE
1. Express preemption: if a fed. statute explicitly says that fed. law is exclusive in a field, then state
and local laws are deemed preempted.
 Anytime that Cong. had the authority to act, Cong. in the statute can declare that fed. law is
exclusive in that area, then state & local laws are preempted.
 E.g., Federal Meat Labeling Act says that only the U.S. department of Agriculture can
prescribe grades and labels for meat, thus states cannot do so.
2. Implied preemption
 Even if the statute is silent about preemption, implied preemption will be found in any of the
following ways:
a. If federal and state laws are mutually exclusive, federal law preempts state law
 McDermott v. Wisconsin, a fed. agency adopted a rule that said all maple syrup bottles
sold in the U.S. have a label stating their ingredients. WI had a legislation says no maple
syrup bottle sold in that state could a have label stating their ingredients. SCOTUS found the
state law to be preempted.
 Tip: states may set environmental and safety standards stricter than fed. law unless
Cong. clearly prohibits this.
b. If state law impedes the achievement of a federal objective, federal law preempts state law:
 Nash v. Florida. FL adopted a law that said anyone who files an unfair labor grievance w/
the National Labor Relations Board cannot collect unemployment benefits from the state of
FL. The SCOTUS said when Cong. created the National Labor Relations Board, it wanted to
encourage people to file grievances. For FL to punish people who file such grievances, is for
the state to impermissibly to impede the achievement of a federal objective.
c. If Congress evidences a clear intent to preempt state law, federal law preempts state law
 Immigration Law. SCOTUS has made it clear that Cong. has intended that fed.
immigration law wholly occupy the field. Any attempt by the state would be deemed
preempted.
 Arizona v. U.S., where the SCOTUS found provisions of AZ’ restrictive immigration
law, SB 1070 were preempted by fed. law. AZ adopted a law saying that undocumented
immigrants were imposing a significant financial burden on the state. As a result, AZ
imposed a number of requirements w/ regard to non-citizens who were present in the state.
3. States may not tax or regulate federal government activity
(Inter-governmental immunity)
 McCullough v. Maryland. C.J. Marshall said if a state could tax the Bank of U.S., they
could tax it out of its existence.
 Often tested principle: it is unQnal to pay a state tax from the fed. treasury. E.g., past MBE
question, Mom and Pap store privately owned that operates on fed. land, can the state tax that
store?  Yes, since it’s privately owned, since any tax liability will be privately owned by the
private owners not the fed. gov’t. E.g., past MBE question, there is a store on an Army Base,
wholly owned by the fed. gov’t, can the state tax that store?  No, b/c tax liability will be
owned by the fed. gov’t.
 SCOTUS also said states cannot regulate fed. gov’t by putting on some substantial burden
on fed. activity.  Fed. gov’t never has to comply w/ state pollution control laws. Though
state can enact stricter environmental law, that applies only when the states are regulating
private industry.
B. The dormant commerce clause and the privileges and immunities clause of Article IV (2-3 on
MBE)
1. Definitions
14. CONSTITUTIONAL LAW
a. The dormant commerce clause (Negative implications of the commerce clause)
 Definition: The Dormant Commerce Clause is the principle that state and local laws are
unQnal if they place an undue burden on interstate commerce.
 There is no provision in the Q that expressly says this. The SCOTUS is inferred it from the
grant of power to Cong. to regulate ecommerce among the states. But imagine the Cong.’
commerce power lies dormant. Nonetheless, a state or local law would be struck down if it’s
following to place an undue burden on interstate commerce.
 2 different meaning of Commerce Clause. 1) the authority for Cong. to act; 2) a limit on
what state local gov’t can do (the Dormant Commerce Clause).  On the Bar, how to
determine which law to apply, focus on who is the actor in the question. If the actor in your
question is Cong., that’s about whether the Cong.’ authority to act; but if the actor is a state or
local gov’t, then the question is whether they are violating the Dormant Commerce Clause.
 Tip: sometimes on the MBE, this refers to the “negative implications of the commerce
clause” = “Dormant Commerce Clause.”
b. The privileges and immunities clause of Article IV
 No state may deprive citizens of other states of the privilege and immunities different from
its own citizens. It is an anti-discrimination provision. It limits the ability of a state to
discriminate against citizens of other states.
c. The privileges or immunities clause of the Fourteenth Amendment
 Tip: on the MBE, the privilege or immunities clause of the 14th AMD is always the wrong
answer, unless the question involves the right to travel. [If it says PI of the 4th AMD, it might
right.]
 Slaughter House Case (1873), SCOTUS’ construction was very narrow. In 1999, the
Court rediscover the privilege and immunities, and the case involved the right to travel.
 Saenz v. Roe, CA had adopted a law that provided that if a person moved into the state
from another state, welfare benefits for the first year of residency will level the state that
person moved from. The case involved a woman from MS who moved to CA. Under the
terms of CA law, her welfare benefits from her first year would be at the MS level. Privileges
and Immunities Clause does not apply here. The state was discriminating her as a newer
resident and in favor of longer terms residents. SCOTUS says CA law would discourage the
interstate migration and thus violate PI Clause. SCOTUS says right to travel is protected as a
fundamental right under the PI Clause of the 14th AMD.
2. Does the state law discriminate against out-of-staters?
 Usually the state or local laws do not discriminate against out-of-staters. Cases involve state
laws that regulating truck length or truck width. These laws apply to all trucks operating in the
state the same, whether or not by in-staters or out-of-staters. Sometimes state or local gov’t tries
to benefit their own citizens at the expense of out-of-staters.
 Philadelphia v. NJ. NJ adopted a law that said no out of state garbage could be buried in NJ
land fills. The law is clearly discriminating against out-of-staters and thus violated the Dormant
Commerce Clause.
 Granholm v. Heald. MI adopted a law that said that in-state wineries could ship wine to
consumers through the mail but wineries outside the state of MI could not ship wine to consumers
through the mail. SCOTUS declared the MI law to be unQnal. The Court said it put a substantial
burden on interstate commerce, it favored in-state companies over out-of-state companies, and it
was found to violate the Dormant Commerce Clause.
3. Analysis if the law does not discriminate
a. The privileges and immunities clause of Article IV does not apply
 It is a provision of anti-discrimination.
b. If the law burdens interstate commerce, it violates the dormant commerce clause if its
burdens exceed its benefits
 Even the law is not discriminatory, it can be challenged under the Dormant Commerce
Clause, if it puts burden on interstate commerce. The burdens of the interstate commerce are
weighed against the benefits of the law.
 Bibb v. Navajo Freight Lines, Inc., IL adopted a law that said all trucks up riding in the
state had a curved mud guards, almost every other state allowed straight mud guards. The IL
law was not discriminatory, it applied to all trucks operating the state, whether owned by in-
staters or out-of-staters. SCOTUS declared the IL law unQnal b/c the law puts a substantial
burden on the interstate commerce. The Court said it could identify no E from the law.
4. Analysis if the law discriminates against out-of-staters
a. If the law burdens interstate commerce, it violates the dormant commerce clause unless it
is necessary to achieve an important government purpose
 SCOTUS said that there is a strong presumption against state and local laws that
the discrimination against out-of-staters and put a burden on interstate commerce.

 Helping in-staters and the in-state economy at the expense of out-of-staters or other states’
 CONSTITUTIONAL LAW 15.
economy, the so-called protectionist will never be sufficient to justify the discriminatory law.
 Main v. Taylor  The only case in history that is ever found to justify the discriminatory law.
ME adopted a law that said no out-of-state bait fish could be imported to the state of ME. ME was
concerned that the out-of-state fish might carry parasites that will endanger species indigenous to
the state. SCOTUS upheld the ME law that the state has an important interest in preserving natural
resources, the law was thus justified. Additionally the ME gov’t show that the law is necessary to
achieve its objective.  This requires that the state or local gov’t must convince the court that no
less discriminatory alternatives can achieve its objective.
i. Exception: Congressional approval
 If Cong. approves the state or local law, it’s then admissible, even if it otherwise would
violate the Dormant Commerce Clause.  Once Cong. has acted, it’s Cong.’ power, no longer
dormant. Once Cong. has acted, it’s a matter outside the realm of Dormant Commerce Clause.
ii. Exception: The market participant exception. A state or local government may
prefer its own citizens in receiving benefits from government programs or in dealing
with government-owned businesses.
 E.g., the SUNY can charge less in tuition to in-staters, and more in tuition to out-of-staters.
Rationale: SUNY is regarded as a gov’t benefited program. The state can favor in-staters who
have long been tax in programs over out-of-staters who have not.
 By contrast, if NY have adopted a law saying, private colleges and universities should charge
to in-staters than out-of-staters, that would violate the Dormant Commerce Clause.
 Reeves Inc. v. Stake, the state of SD owned and operated a cement company. The state-
owned cement factory charged less to in-state purchase of cement and more to out-of-state
purchase of cement. SCOTUS upheld the SD law b/c the state itself was the market participant
w/ the gov’t owned and operated business, so the state could favor in-stater over out-of-staters.
b. If the law discriminates against out-of-staters with regard to their ability to earn their
livelihood, it violates the privileges and immunities clause of Article IV unless it is necessary
to achieve an important government purpose
i) The law must discriminate against out-of-staters.
 PI Clause of Art. IV applies only to discrimination to out-of-staters.
ii) The discrimination must be with regard to fundamental rights or important economic
activities.
 Fundamental rights are rarely litigated under the PI Clause. If a state or local gov’t is infringing
the fundamental rights of an out-of-stater, then it’s action will be struck own for violating those
rights.
 E.g., imagine NY would adopt a law saying no out-of-staters can criticize the governor of NY.
That would violate the PI clause as discriminating as an out-of-staters w/ regard to their
fundamental rights to free speech. But in reality, the law would just be invalidated for infringing
Freedom Speech under the 1st AMD.
 Toomer v. Witsell, SC law said if a person wants a commercial shrimp fishing license, and the
individual is an in-stater a $25 fee, and if the individual is an out-of-stater, $2,500. SCOTUS said
the law is discriminating against out-of-staters w/ regard to their ability to earn their livelihood to
commercial shrimp fishing. The law is deemed to violate the PI Clause.
 Supreme Court of New Hampshire v. Piper, NH had a law that says in order for a person to be
admitted to the bar, to practice law in the state, the person has to be a NH resident. A woman who
lived across the border in VT brought a challenge, she won. The SCOTUS said the state
discriminated against the out-f-staters w/ the ability to earn a living – practicing law in the state,
the Court said this violated the PI Clause.
 Baldwin v. Fish & Game Comm’n of MT, MT said if a person wanted an elk hunting license
and the individual is an in-stater, a small fee; if an out-of-stater, a much larger fee. SCOTUS
upheld the MT law, the Court rejected challenge based on PI Clause. The Court said that elk
hunting is a hobby, it is not with regard to anyone’s ability for a living, so the PI Clause doesn’t
apply .
iii) Corporations and aliens cannot use the privileges and immunities clause.
 Tip: If you have a question where the state or local gov’t is discriminating against out-of-staters,
and the challengers are corporation, you use only the Dormant Commerce Clause in your
analysis. But if the challengers is individual, who is U.S. citizen, you are going to consider both
PI Clause and Dormant Commerce Clause in your analysis.
iv) The discrimination must be necessary to achieve an important government purpose.
 SCOTUS said there must be “a substantial gov’t interest.” Additionally, the state & local gov’t
must be showing to be necessary to achieve the goal, “no less discriminatory alternatives can
achieve its objective.”
[See chart on the following page]
16. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 2

DORMANT COMMERCE CLAUSE/PRIVILEGES

AND IMMUNITIES CLAUSE OF ARTICLE IV

DOES THIS STATE OR LOCAL GOVERNMENT’S ACTION

DISCRIMINATE AGAINST OUT-OF-STATERS?

YES NO

Violates the Dormant Violates the Privileges If the government is Privileges and Immunities
Commerce Clause if it and Immunities Clause of burdening interstate Clause of Article IV is
places a burden on Article IV if it discrimi- commerce, balance the inapplicable.
interstate commerce nates against individuals benefit to the state against
unless it is necessary to with regard to important the burden on interstate
achieve an important economic activities or commerce (if the benefit
government purpose. fundamental rights unless exceeds the burden, the
Two exceptions: it is necessary to achieve law is upheld; if the
a) Congressional an important government burden exceeds the
approval of purpose. benefit, the law is struck
discrimination down).
b)Market
participant
exception.
 CONSTITUTIONAL LAW 17.

CONSTITUTIONAL LAW – CHART 3

Comparison of the Dormant Commerce Clause and the

Privileges and Immunities Clause of Article IV

Dormant Commerce Clause Privileges and Immunities Clause

• Does not require discrimination • Requires discrimination against out-

against out-of-staters in order to apply of-staters in order to apply

• Requires a burden on interstate

commerce • Requires discrimination with regard to
fundamental rights or important
economic activities
• Corporations and aliens can sue under
it • Corporations and aliens cannot sue
under it
• Exceptions: Congressional approval
and the market participant exception • No exceptions
18. CONSTITUTIONAL LAW
C. State taxation of interstate commerce (rarely tested, skim over the CMR on this part)
1. States may not use their tax systems to help in-state businesses.
 New Energy Co. of IN v. Limbach, OH adopted a law that said if a person purchase ethanol produced in state the person
gets a tax credit; if the person purchase ethanol produced out of state, gets no tax credit. The state was obviously trying to help
in state business, at the expenses of out of state business. The law was declared unQnal.
 State taxes on dairy products. Many states had laws that said if a person purchased dairy product produced in state, a small
tax; if a person purchased dairy product produced out of state, a larger tax. The state was trying to milk as much business as
possible for its in state dairies. The laws were declared unQnal.
2. A state may only tax activities if there is a substantial nexus to the state
 Imagine a business that wholly operates in CA, w/ a little or no contact to NY. NY cannot tax that business. In order for
NY to tax, there has to be some activities that has a substantial connection to NY.
3. State taxation of interstate businesses must be fairly apportioned. [a corollary of point 2]
 Imagine an interstate trucking company that operates in all 50 states. NY could calculate the percentage of miles traveled
here comparing to the rest of the country and take that percentage of revenue. Or NY could calculate the percentage of
revenue earned here comparing to the rest of the country, and tax that percentage of the profit. So long as the tax is fairly
apportioned, so long the state was only taxing that which was connected to it, the taxing will be allowed.
D. Full faith and credit. Courts in one state must give full faith and credit to judgments of courts in another state, so
long as: = must be enforced☝
1. The court that rendered the judgment had jurisdiction over the parties and the subject matter.
2. The judgment was on the merits.
3. The judgment is final.
 Imagine that students are filing a suit against Chemerinsky in NY State trial court, for IIED by a joke he made in class. Students
would probably win an action against Chemerinsky. Students could take that judgment and go to any other courts in the country, and
any other state. And those state courts would have to enforce the judgment against Chemerinsky. So long as the 3 requirements are met.
V. The Structure of the Constitution’s Protection of Individual Liberties
A. Is there government action?
1. The Constitution applies only to government action. Private conduct need not comply with the Constitution. 
State Action Doctrine
 Often tested on the bar exam. Eg., prior to being the Dean at Irvine, Chemerinsky was a Professor at Duke, a private
university. If he was there and giving a speech criticizing the president of the university, he would have ordered him fired.
Chemerinsky could not sue him or the university, since it is a private university. 1st AMD and Q don’t apply. If Chemerinsky
criticized president of Irvine and gets fired, he could sue, since it is a state university, the 1st AMD and Q apply.
 Q applies to gov’t AT ALL LEVELS, fed., state and local. The Q applies to the acts of gov’t officers at all levels, fed.,
state and local. It’s that private does not have to comply w/ the Q.
2. Congress, by statute, may apply constitutional norms to private conduct.
 Such law could require that private sectors meet the same standards that the Q impose on the gov’t. Think of race
discrimination, if a gov’t entity discriminates based on race, it could be challenged for denying EP under the Q. But if a
private company discriminates based on race, EP and the Q don’t apply. But Cong. can and Cong. has adopted statutes that
prohibit private race discrimination. In this way, Cong. by statute has applied Qnal norm of equality to private behavior.

a. The Thirteenth Amendment can be used to prohibit private race discrimination.

 The 13th AMD prohibits slavery and involuntary servitude. It is one provision that applies directly to private
 CONSTITUTIONAL LAW 19.
conduct. People cannot be or own a slave. Additionally, Sec. 2 of the 13 th AMD, authorizes Cong. to adopt laws to
enforce it. SCOTUS said that Cong. has broad power under Sec. 2 of the 13 th AMD to prohibit private race
discrimination.
 Tip: in MBE, discrimination never violates the 13th AMD itself, only slavery. Discrimination violates a fed.
statute adopted by Cong. under the 13th AMD.
 E.g., a private landlord has discriminating on the basis of race in renting property. Question is what grounds can
be used to challenge the private landlord. The 13 th AMD is a wrong answer. Discrimination never violates the 13 th
AMD itself.
 E.g., Cong. wants to adopt a new fed. statute prohibiting race discrimination in housing. What ground can Cong.
use to adopt that new fed. law? There the 13 th AMD is a right answer, b/c Cong. has broad power under the 13 th
AMD to adopt laws that prohibit private races discrimination.
b. The commerce power can be used to apply constitutional norms to private conduct.
 Tit. II of the Civil Rights Act of 1964 prohibits hotels and restaurants discriminating on the basis of race.
 Katzenbach v. McClung, it involved in a small restaurant, Ollie’s BBQ in Birmingham, AL. It refused to serve
African American customers. It was sued for violating the Tit. II of the 164 Civil Rights Act. Ollie’s BBQ defends
by saying it wasn’t part of the interstate commerce. It said it was just a small restaurant inside the state, serving
homemade BBQ. Ollie’s BBQ lost in the SCOTUS. SCOTUS noted that a lot of Ollie’s BBQ’s supplies, including
its meat, came across state lines. Even more important, the SCOTUS said when it looked at all of the hotels and
restaurants across the country that discriminated on the basis of race accumulatively, there is a substantial effect on
interstate commerce.
c. Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior.
 Under Sec. 5 of the 14th AMD, Cong. can only regulate the state & local gov’t. SCOTUS had explained that the
14th AMD is directed at state action. It says no state could deprive a person of life, liberty or property w/o DP.
Therefore Cong.’ power under Sec. 5 is limited to regulate state and local action. Cong. cannot use this power to
regulate private behavior.
3. Exceptions: situations where private conduct must comply with the Constitution
a. The public function exception. The Constitution applies if a private entity is performing a task
traditionally, exclusively done by the government.
 Marsh v. AL. ※※ It involved a company town. A company literally owned all the land in a town and ran all the
areas of the town. Some Jehovah’s Witness’s came there and wanted to distribute literature. The company said this
is all private property. The 1 st AMD doesn’t apply. SCOTUS ruled in favor of the Jehovah’s Witnesses. The
SCOTUS explained that running a town is an activity that’s been traditionally, exclusively done by the gov’t. When
a private company does it, it must comply w/ the Q.
 The White Primary Cases. At the turn of the 20th C., Texas refused to allow African Americans to vote. When
TX was ordered to enfranchise blacks, it then said it would no longer hold political primary elections. The state said
it would let the political parties (private entities) run their own primary elections. The political parties then refused
to allow African Americans to vote. SCOTUS said holding an election for gov’t office, even a primary election, is a
task that’s been traditionally, exclusively done by the gov’t. When a private entity does it, it has to comply w/ the Q.
 Jackson v. Metropolitan Edison. It involved a private utility company that went to terminate a customer’s
service. It is clearly established that if a gov’t owned utility goes to terminate a customer’s service, it has to provide
DP: notice and a hearing. The customer of the private utility argued that it, too, was performing a public function. It
was operating a state grant monopoly, so it should have to provide DP. SCOTUS ruled in favor of the utility and
against the customer. SCOTUS said running utility is not a task that’s been traditionally, exclusively done by the
gov’t – there had long been private utility companies. Thus, public function exception does not apply, the utility
company does not have to comply w/ the Q. It didn’t have to provide DP.
b. The entanglement exception. The Constitution applies if the government affirmatively authorizes,
encourages, or facilitates unconstitutional activity. (either the gov’t must stop what they have been doing,
or the private entity must comply w/ Q) Key examples:
i) Courts cannot enforce racially restrictive covenants.
 These were contractual provisions (among members of neighborhood) often found in deeds to property that
limited the ability to sell property to African-American or Jews.
 Shelley v. Kramer. Courts said when a court enforces a racially restrictive covenant, it’s the gov’t. Then the
gov’t through one of the branches of judiciary is enforcing, facilitating discrimination.
ii) There is state action when the government leases premises to a restaurant that racially
discriminates.
 Burton v. Wilmington Parking Authority. It involved Wilmington DE parking authority. It leased space to
The Eagle Restaurant. The Eagle Restaurant refused to admit or serve African-American customers. SCOTUS
said for the gov’t to lease space to a restaurant that racially discriminates, it’s the gov’t that impliedly authorize
to facilitate crimination. The Court said if the restaurant wants to stay on gov’t property, it has to stop
discrimination. If it continues to discriminate, the gov’t must exclude it.
20. CONSTITUTIONAL LAW
iii) There is state action when a state provides books to schools that racially discriminate.
 Norwood v. Harrison, the state of MS adopted a program of giving free text books to all public
and private schools of the state, including segregated all-white private schools. The SCOTUS said
in the context of the MS at the time that for the state to give free books to schools that racially
discriminate was the state to encourage segregation. The Court said if the schools wanted to
continue to get the books, they had to stop their discrimination. If they continue the race
discrimination, no longer could the gov’t give them the free textbooks.
iv) There is no state action when a private school that is over 99% funded by the
government fires a teacher because of her speech.
 Rendell-Baker v. Kohn. There was a public school in MA and it was almost 100% funded by
the gov’t. A teacher criticize the principal, and she was fired. Some other teacher spoke up on her
behalf, they were fired, too. The teacher sued and said given the gov’t’s almost 100% subsidy, it
must be enough entanglement to find that the Q applies. But the SCOTUS ruled against the
teachers and in favor of the school. The SCOTUS stressed that the state had not done anything to
encourage firing the teachers b/c of their speech. That’s how the court distinguished the prior case.
In the prior case, the Court perceived MS is acting w the purpose of encouraging segregation.
Here, the Court did not see MA as encouraging firing teachers b/c of their speech.
 This latter example is led to a principle that’s often tested: gov’t subsidy is insufficient for a
finding of state action. The fact that a private entity, like a private university, receives gov’t
money is not enough to make the Q apply.  The gov’t has to do something much more in the
nature of encouraging the unQnal behavior, authorizing it, facilitating it for the Q to apply.
v) There is no state action when the NCAA orders the suspension of a basketball coach
at a state university.
 NCAA v. Tarkanian. Tarkanian used to be the basketball coach of UNLV. NCAA orders him
suspension b/c of recruiting violations. Tarkanian sued and said he should be given DP. He said
besides, he worked in a public university. But the SCOTUS ruled against Tarkanian, that NCAA is
a private entity so doesn’t have to comply w/ the Q.
 Tip: There are inconsistences among the cases. However, if the case involves race
discrimination, then the Court appears willing to apply the entanglement exception. These pattern
works often, but not always.
vi) There is state action when a private entity regulates interscholastic sports within a
state.
 Brentwood Academy v. TN Secondary School Athletic Ass’n. The TN 2nd Athletic Ass’n is a
private entity that regulates high school sports in TN. It went to impose sanctions on a high school,
the Brentwood Academy, for recruiting violations. The high school sued the Ass’n. The school
said it should be given DP before it was punished by the state. The Ass’n said the Court that we
are a private entity, just like the NCAA. The Q shouldn’t apply to us, no state action. SCOTUS
ruled against the Ass’n and in favor of the Brentwood Academy. The SCOTUS pointed to the
“entwinement” b/t the gov’t and the private entity. The Court noted that the state of TN had
delegated regulating high school sports to this private entity. The Court said any 5% of its money
came from public schools. Thus, the Court found there was state action and the private entity had
to comply w/ the Q.
 The only distinction the Court gave b/t NCAA and TN Secondary School Athletic Ass’n was to
say that the TN Ass’n operates in only one state, while the NCAA operates all over the country.
vii) There is not state action when a private club with a liquor license from the state
racially discriminates.
 Moose Lodge v. Irvis. There is a private club in PA, a Moose Lodge, refused to admit or serve
African-American customers. The challengers argued that the Moose Lodge has liquor license,
which is enough entanglement for the Q to apply. But the SCOTUS ruled against the challengers
and in favor or the Moose Lodge. The Court said there was not sufficient entanglement for the Q
to apply. Thus, the Moose Lodge could keep its liquor license and could continue its
discriminatory policy.
B. The application of the Bill of Rights
1. The Bill of Rights applies directly only to the federal government.
 In the late 19th C., the SCOTUS held the Bill of Rights was meant just to limit the fed. gov’t.
2. The Bill of Rights is applied to state and local governments through its incorporation into the
due process clause of the Fourteenth Amendment.
 Starting in the late 19th and ever since, SCOTUS had said that the DP of the 14 th AMD protects
fundamental rights in state & local interference. Among those rights protected, are those provisions of Bill
of Rights that are deemed fundamental.
 Never had the SCOTUS said that all of the Bill of Rights apply to state and local gov’t. However, all of
the Bill of Rights had been incorporated one by one, except the following ones.
a. The Third Amendment right to not have a soldier quartered in a person’s home.
 There has never been a 3rd AMD case before the SCOTUS. There aren’t a lot of 3rd AMD
questions on the bar exam.
CONSTITUTIONAL LAW 21.
22. CONSTITUTIONAL LAW
b. The Fifth Amendment right to grand jury indictment in criminal cases.
 Before a person to be tried for a crime in fed. court, there must be a jury indictment. But
states don’t have to use grand jury if they don’t want to. This right has never been deemed
incorporated.
c. The Seventh Amendment right to jury trial in civil cases.
 If NY wanted to abolish jury trials in civil cases in state court, it could do so. This right has
never been deemed incorporated.
d. The Eighth Amendment right against excessive fines.
 SCOTUS had acknowledged that it had not yet ruled that the Eighth AMD right against
excessive fines applies to state and local gov’t. The other provisions of the Eighth AMD do apply
to state and local gov’t.
C. Levels of scrutiny
 Whenever a court deals w/ individual liberties or civil rights under the Q, the outcome very much
depends on the levels of scrutiny used.
1. Rational basis test
 Under rational basis test, a law will be upheld, if it is rationally related to a legitimate gov’t
purpose.
 Notice: the gov’t’s goal just has to be something that is permissible.
 The Court does not even insist the gov’t’s actual purpose be legitimate, so long as there is a
conceivable purpose. And the means chosen just have to be a reasonable, a rational means to achieve
the objective. The Rational Basis Test is tremendously deferential to the gov’t. The gov’t usually
wins under the rational basis test.
 BOP: the challenger has the BOP here. The gov’t’s action will be upheld unless the challenger
could show either there is no conceivable legitimate purpose for it, or that the law is not rationally
related to it.
2. Intermediate scrutiny
 Under Intermediate Scrutiny, a law would be upheld if it is perceived substantially related to an
important gov’t purpose.
 Notice: the gov’t goal has to be more than just legitimate for the gov’t to do. The Court must be
persuaded that the gov’t’s objective is an important one.
 Here the Court would only look at the gov’t’s actual purpose. The means chosen must be
substantially related to achieve the goal.  “The means have to be narrowly tailored to achieve
the objective.” The means don’t have to be the best way, the gov’t is not required to use the least
restrictive alternative.
 BOP: The gov’t has the BOP here. Under intermediate scrutiny, the law would be upheld only if
the gov’t could convince the Court that its action is substantially related to an important gov’t
interest.
3. Strict scrutiny
 Under Strict Scrutiny, a law would be upheld if it is necessary to achieve an compelling gov’t
purpose.
 Notice: the gov’t goal has to be more than just legitimate, or even important. The Court needs to be
persuaded that the gov’t’s objective is crucial, vital, compelling. Here, the Court would only look at
the gov’t’s actual purpose. The Court must be convinced that the gov’t actual objective is a
compelling one. And the means chosen, must be shown to be necessary to obtain the goal. This is
where least alternative analysis is used. In order for the gov’t to show that its action is necessary, it
must demonstrate that no less discriminatory alternative can achieve its objective.  also must be
narrowly tailored, but more than that is required under strict scrutiny the gov’t must show that no
less restrictive alternative that can achieve its objective [most exacting type of review, the gov’t
usually loses]
 BOP: Under strict scrutiny, the law would be upheld only if the gov’t can convince the Court, that
its action is necessary to achieve a compelling gov’t purpose.

[See chart on the following page]

 CONSTITUTIONAL LAW 23.

CONSTITUTIONAL LAW – CHART 4

THE LEVELS OF SCRUTINY

LEAST
RESTRICTIVE
ALTERNATIVE BURDEN OF
MEANS? ENDS? ANALYSIS? PROOF

LEGITIMATE
RATIONAL RATIONALLY CONCEIVABLE
BASIS TEST RELATED PURPOSE NO CHALLENGER

IMPORTANT
INTERMEDIATE SUBSTANTIALLY ACTUAL
SCRUTINY RELATED PURPOSE NO GOVERNMENT

COMPELLING
STRICT ACTUAL
SCRUTINY NECESSARY PURPOSE YES GOVERNMENT
24. CONSTITUTIONAL LAW
VI. Individual Rights
A. Definitions
1. Procedural due process
 What procedures must the gov’t follow when it takes away a person’s life, liberty or property. It usually asks
what kind of notice, or what kind of hearing, must the gov’t provide when it takes away life, liberty or
property.
2. Substantive due process
 Whether the gov’t had an adequate reason (a sufficient justification) when it takes away a person’s life,
liberty or property. What’s adequate will depend on the levels of scrutiny.
 SCOTUS has used substantive DP to protect economic liberties and safeguard privacy.
3. Equal protection
 Whether the gov’t’s differences in the treatment of people are adequately justified.
 Tip: you will see these concepts as answer choices on the multistate, and sometimes you have to choose among them.
If you do, always focus on what is the relief requested and what is the nature of the claim. Does the π want better
procedures, better notice, better hearing? Or does the π want the gov’t’s action declared unQnal for violating his or her
rights? Was the π saying that he or she was treated unfairly than other similarly situated?
B. Procedural due process
1. Has there been a deprivation of life, liberty, or property?
a. Definitions
i. A deprivation of liberty occurs if there is the loss of a significant freedom provided by the
Constitution or a statute (the written law)
 Usually it involves the deprivation of a person’s Qnal rights.
 Except in an emergency, before an adult can be institutionalized, there must be notice and a hearing.
Committing a person to an institution means he or she has less freedom, thus unless it’s emergence
situation, commitment must be proceeded by notice and hearing.
 When a parent institutionalizes a child, there only has to be a screening by a neutral fact finder.
SCOTUS said that it assumes that parents act in the best interest of their children, even the parent is
institutionalizing the child.
 Harm to reputation by itself, is not a loss of liberty.
 Paul v. Davis. Louisville, KT had the practice of posting shoplifter’s pictures in department stores. An
individual’s picture was wrongly posted, he sued the city, saying that they deprive him of his reputation,
his liberty w/o DP. But SCOTUS ruled in favor of the city. The Court held and later reaffirmed, that harm
to reputation by itself, is not a loss of liberty.
 Prisoners rarely have liberty interest. When prisoners sue, seeking DP, alleging a loss of liberties,
they usually lose.
ii. A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.
 Tip: on every MBE, there is a question or two w/ an answer choice phrased in terms of the rights/
privileges distinction. Maybe it says gov’t has to provide DP b/c it’s a right, not a privilege, or maybe it
says the gov’t doesn’t have to provide DP b/c they are privileges, not rights. Those are always wrong!!
The SCOTUS no longer use the rights/ privileges distinction. The new magic word is “entitlement.” A
person has a property interest if there is an entitlement. And an entitlement exists if there is a reasonable
expectation to continue to receive a benefit.
 E.g., the question tells you that a person works for the gov’t, and the gov’t promises the individual that
the job is his or hers for the next year. In the middle of the year, the person is fired. The person sues and
says DP should be provided w/ regard of the firing. Was the gov’t there required to provide DP? Yes, the
person had a reasonable expectation that the job would be there for a year. When the job was taken in the
middle of the year, property was deprived, DP was required.
 Roth v. Board of Regents. Roth worked for the U of WI system on a year to year K. Each K made it
clear that he should have no expectation that it would be renewed. The K was expired and was not
renewed. Roth sued and said he should have been given DP w/ regard to the non-renewal. Was the gov’t
required to provide Roth DP? Notice in the hearing the SCOTUS said NO! Though the gripes of Roth was
great, he had no reasonable expectation that the K be renewed. He had no property interest so, no DP was
required.
b. Government negligence is not sufficient for a deprivation of due process. Generally, there must be
intentional government action or at least reckless action for liability to exist. However, in emergency
situations, the government is liable under due process only if its conduct “shocks the conscience.”
 Daniels v. Williams. It involved a prisoner, who slipped on a pillow that had been negligently left on a prison
step. The prisoner sued and said that the gov’t’s negligence had deprived him of his body safety and liberty w/o
DP. The SOTUS ruled against the prisoner, the Court held more generally that the gov’t negligence is not
enough for claim of DP. DP generally requires an intentional, or at least a reckless gov’t act.
 Sacramento v. Lewis. A high-speed police chase ended tragically in the death of a teenage boy. The boy’s
parents sued the gov’t, saying it’s the officer’s recklessness had cost the boy his life w/ DP. The SCOTUS ruled
 CONSTITUTIONAL LAW 25.
in favor of the gov’t, the Court said in an emergency situation, like a high-speed
chase, the gov’t could be held liable only if the officer’s conduct “shocks the
conscience.” The Court says this requires showing that the officers acted w/ the
intent to causing the harm to the V.

c. Generally, the government’s failure to protect people from privately inflicted harms
does not deny due process.
 DeShaney v. Winnebago County Dep’t of Social Services. Joshua DeShaney
was a 4 year old boy who was severely beaten by his father and suffered
irreversible brain damage. Joshua’s guardian then sued the Dep’t of Social Services
saying its failure to respond to complaints of child abuse over 2 year period cost
Joshua his liberty w/o DP. But the SCOTUS ruled against Joshua. The SCOTUS
said the gov’t had no duty to protect Joshua from his father. Generally, the gov’t
had no duty to protect people for privately inflicted harms. Only if a person is
physically in gov’t custody, or only if the gov’t literally creates the danger, does
the gov’t have a duty to provide any protection.

2. What procedures are required?

a. The test: Balance
i) The importance of the interest to the individual
ii) The ability of additional procedures to increase the accuracy of the
fact-finding
iii) The government’s interests
 The gov’t’s interests is usually inefficiency in saving money.
b. Examples (you could be tested only on cases that had already been addressed)
i) Before welfare benefits are terminated there must be notice and a
hearing. (before)

ii) When Social Security disability benefits are terminated, there need be
only a post-termination hearing.

iii) Before a school can discipline a student there must be notice of the
charges and an opportunity to explain. (there doesn’t have to be a trial-
type hearing)
 Corporate punishment of schools does not require any kind of DP (e.g.,
spanking of students).
26. CONSTITUTIONAL LAW
iv) Before a parent’s right to custody of a child can be permanently terminated there
must be notice and a hearing.

v) Punitive damage awards require instructions to the jury and judicial review to
ensure reasonableness (to guide the jury’s exercising of discretion and judicial review
to make sure any award is reasonable)
 Additionally, the SCOTUS had said, “grossly excessive punitive dmg. violate DP.”
 BMW of North America, Inc. v. Gore. Gore is a doctor in AL, he bought a BMW and
discovered that part of it was repainted b/c of acid rain dmg. and that hadn’t been disclosed. He
sued and the jury awarded him $4,000 in compensatory dmg. and 4 million dollars in punitive
dmg., that the AL SC reduced to 2 million dollars. But the SCOTUS said that even the award of
2 million dollars violated DP b/c it’s grossly excessive.

vi) An American citizen detained as an enemy combatant must be accorded due

process.
 Hamdi v. Rumsfeld. Yaser Hamdi is an American citizen who was apprehended on the
battlefield in Afghanistan. He was brought to the U.S., where he was held as an enemy
combatant. The SCOTUS ruled that he could be held as an enemy combatant. But the SCOTUS
said that he had to be given DP. In the minimum, he had to be given the notices of charges,
representation by a lawyer, a meaningful factual hearing.

vii) Except in exigent circumstances, prejudgment attachment or government seizure

of assets require notice and a hearing.
 SCOTUS has explained that if a court attaches a person’s property, or property is seized
under a forfeiture law. The ability for the person to sell, maybe even to use the property is
limited. So the SCOTUS had said that generally attachment or seizure, must be proceeded by
notice and hearing.
 The only exception is what is called “exigent circumstances.” If there is reason to believe
that the person would get rid of the property, if notice came before the hearing, then there
could be attachment or seizure immediately followed by notice in the hearing.
 E.g., the gov’t may seize property used in illegal activity, even if it has an innocent owner.
 Bennis v. Michigan. A man in MI was driving his car and he stopped and picked up a
prostitute. He went to what he thought was a secluded spot, it wasn’t. He was arrested for lewd
and indecent conduct, and the woman was arrested for prostitution. Additionally, the state of MI
seized the car that he was driving, under a state law for “abating a public nuisance.” It turns out
the car was jointly owned with his wife, Tina Bennis. She sued and said, she was an innocent
owner, and to take away her car violated DP. But the SCOTUS ruled against her, SCOTUS said
when property is used in illegal activity, the gov’t may seize it even if it has an innocent owner.

[See chart on the following page]

 CONSTITUTIONAL LAW 27.

CONSTITUTIONAL LAW – CHART 5

PROCEDURAL DUE PROCESS

Has the government deprived a person of life, liberty (a significant freedom secured by the
Constitution or Statute), or property (an entitlement to a continued receipt of a benefit)?
YES NO

What procedures must Government need not provide

government supply? procedural due process.

BALANCE:
a) Importance of interest to the
individual;
b) Ability of additional
procedures to increase the
accuracy of the fact finding;
and
c) The government’s interests

 In an essay, and you conclude that there is no deprivation, always go on and assume
that “if there were a deprivation, the 2nd question would be , what procedures must the
gov’t supply.
28. CONSTITUTIONAL LAW
C. Economic liberties
1. Only a rational basis test is used for laws affecting economic rights. The Constitution provides
only minimal protection for economic liberties.
 In1937,the SCOTUS changed the rule in Lochner v. NY, and only minimal protection for economic
liberties. So e.g., if on MBE question, where there is a DP challenge to an employment regulation,
like the minimum wage law, the answer is rational basis review, and the gov’t wins. If on MBE there is
a DP challenge to a law that regulates trades or professions, and people claim a right to practice their
rights to trades or professions, the answer is rational basis review, and the gov’t wins. If on MBE, there
is a DP challenge to a consumer protection law, like to require the people have to pass bar exams in
order to become lawyers, it’s a rational basis review, and the gov’t wins.

2. The takings clause. The government may take private property for public use if it provides just
compensation.
a. Is there a taking?
i) possessory taking—Government confiscation or physical occupation of
property is a taking.
 It doesn’t matter how small it is the amount of the property involved is. If the gov’t
confiscates it, or physically occupies it, that’s a taking.
 Leretto v. Teleprompter. NYC adopted an ordinance requiring that apartment building
owners make available space for cable television boxes. The amount of the space involved
was only one cubic foot. Nonetheless, the SCOTUS said it was a taking requiring only
nominal compensation. B/c the gov’t had essentially confiscated that space.
ii) regulatory taking—Government regulation is a taking if it leaves no reasonable
economically viable use of the property.
 A gov’t regulating is not a taking, simply b/c it decreases the value of the person’s
property. Gov’t regulation becomes a taking only if it leaves no economic viable use of the
property.
Penn Central v. New York City. A company bought Grant Central Station planning to put
another structure on top of it. Subsequent to purchase, the building was classified as a historic
landmark, and the new construction was not allowed. The owner had sued and said the gov’t
had decreased the value of their investment. The gov’t should have to compensate them. The
SCOTUS ruled in favor of the gov’t. The SCOTUS said the owners still have economically
viable use of the property there, no taking.
 Lucas v. South Carolina Coastal Council. David Lucas bought a piece of beachfront
property in South Carolina for almost a million dollars. Subsequent of purchase, the state
adopted a coastal protection law, that prevented any development of Lucas’ property. Lucas
sued and he won. The SCOTUS said the gov’t had prevented almost any development, any
economically viable use, that’s a regulatory taking.

NOTE: Government conditions on development of property must be justified by a benefit that is

roughly proportionate to the burden imposed; otherwise it is a taking.
 Frequently, the local gov’t tried to put conditions on the development of the property.
Sometimes, the owners would try to argue that those conditions are regulatory taking. The
SCOTUS said as long as the benefit to the government is roughly proportionate to the burden to the
property owner, it’s not a regulatory taking; but if the burden on the property owner is excessive
relative to the benefits to gov’t, then that is a regulatory taking.
NOTE: A property owner may bring a takings challenge to regulations that existed at the time
the property was acquired.
 Imagine that there is a piece of property that cannot be developed b/c of its zoning ordinance or
environmental law. Imagine that a person buys the property, knowing of those restrictions on
development, the new owner may bring a takings challenge to those restrictions, even though they
were already in place at the time the property was acquired.
NOTE: Temporarily denying an owner use of property is not a taking so long as the
government’s action is reasonable.
 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. Lake Tahoe put a
3-year moratoria on development for purposes of doing an environmental study. Owners who could
not develop their property this time, brought a takings challenge. They said the gov’t had to
compensate them for a loss. The SCOTUS ruled in favor of the gov’t. The Court said temporarily
denying an owner use of property is not a taking, so long as the gov’t action is reasonable. The
Court found the 3 year moratoria for the purpose of environmental study is reasonable.
 CONSTITUTIONAL LAW 29.
b. Is it for public use?
 The gov’t may take private property, but only for public use. If it’s not for public use, the
gov’t would have to give the property back. However, the SCOTUS has broadly defined public
use, said virtually every taking will meet this requirement. SCOTUS had said that the taking is
for public use so long as the gov’t act out of a reasonable belief, that the taking will benefit the
public.
 Kelo v. New London. New London was an economically depressed city. It decided to use its
eminent domain power to take title away from home owners, pay them w/ just compensations
and sell them w/ developer. Home owners who didn’t want to sell brought a takings challenge,
they said it’s not public use, it’s taking from some home owners to sell to others. But the
SCOTUS sided w/ the gov’t, the SCOTUS said it was for public use b/c the gov’t was acting
out of a reasonable belief that it’s action would create more economic gross, additional jobs,
more prosperity. The Court said it was public use b/c the gov’t was acting out of a reasonable
belief that the taking would benefit the public.
c. Is just compensation paid?
 Just compensation is measured in terms of the loss to the owner, in a reasonable MV terms.
The gain to the taker is irrelevant.
 E.g., a person that has a piece of property, w/ a reasonable MV of $100,000. The gov’t is
taking the property, and the gov’t is going to get 10 million dollars of benefit from it. What does
the gov’t has to pay? $100,000, the reasonable MV of the loss.

[See chart on the following page]

30. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW –
THE TAKINGS CLAUSE – CHART 6
Government may take private property for public use if it pays just compensation

Is it a taking?

Is there a government Does the government’s

confiscation or physical regulation leave no reasonable
occupation of property? economically viable use of the
property?

If YES to either question there If NO to both questions, there is

is a taking no taking and NO government
compensation is required

Is it for public use? Does the government act

out of a reasonable belief that its action will
benefit the public?

YES NO

Just compensation must be paid. Government must pay Government must return
economic market value of property in hands of owner (gain to the property
the taker is irrelevant)
 CONSTITUTIONAL LAW 31.
3. The contracts clause.
No state shall impair the obligations of contracts. (Art. I Sec. 10 of the Q)
a. Applies only to state or local interference with existing contracts.
 Notice: that K clause never applies to the fed. gov’t. Even if the fed. gov’t is
interfering w/ an already existing K, the K clause does not apply. The fed. gov’t
could only be challenged w/ DP where it’s rational basis review.
 Notice: Also, the K clause applies only if the state and local gov’t is interfering
w/ already existing K. The K clause doesn’t limit the ability of state or local gov’t
to regulate the terms of future K, that have yet to be entered into.
b. State or local interference with private contracts must meet intermediate scrutiny.
— Does the legislation substantially impair a party’s rights under an
existing contract?
— If so, is the law a reasonably and narrowly tailored means of promoting
an important and legitimate public interest?
c. State or local interference with government contracts must meet strict scrutiny.
 SCOTUS said it’s very suspicious if a state or local gov’t tries to get over w/ its
own contractual obligations. The Court said a state or local gov’t can abrogate its
own contract only if it meets strict scrutiny.
d. The ex post facto clause does not apply in civil cases. (An ex post facto law is a law that
criminally punishes conduct that was lawful when it was done or that increases
punishment for a crime after it was committed). Retroactive civil liability only need meet
a rational basis test. (A bill of attainder is a law that directs the punishment of a specific
person or persons without a trial.)
 E.g., imagine tomorrow the NY State legislature adopts a criminal statute
prohibiting the use of puns and lectures. And imagine Chemerinsky is convicted
under that statute for what he had done yesterday. And to punish Chemerinsky
under a law adopted tomorrow, is the essence of impermissible ex post facto law.
This usually comes up in MBE in questions about the K clause.
 E.g., fact pattern says the gov’t interferes w/ an existing K. The facts of the
gov’t action are entirely civil. One answer choice there is a wrong one is that it’s
an ex post facto law.
 For ex post facto clause to be a right answer, the gov’t must be criminally
punishing conduct that was lawful when it was done, or increasing the punishment
for a crime after it was committed.
 Retroactive civil liability only has to meet a rational basis test.
 Ex post facto v. Bill of Attainder. A Bill of Attainder is the law that directs
the punishment of a person or persons w/o a trial. If the NY state legislature would
adopt a law saying Chemerinsky shall be imprisoned, that would be obviously
unQnal Bill of Attainder.
D. Privacy is a fundamental right protected under substantive due process.  strict scrutiny
1. The right to marry (laws prohibiting same-sex marriage violate the right to marry).
 The gov’t generally can interfere w/ marrying decisions only if it meets strict
scrutiny. There was a question about this recently on MBE, the fact pattern said that the
state adopted a law that said, that a couple could obtain a marriage license only if they
first receive a certificate from a counselor attesting they were compatible as a couple.
Correct answer: the state law would be upheld, only if the state can meet strict
scrutiny.
 SCOTUS had ruled that the right to marry, includes the right of same sex couples to
marry.
 Obergefell v. Hodges. In June 2015, the SCOTUS declared unQnal laws in KT, MI,
OH and TN that prohibit same sex marriage. The Court focused primarily on the right to
marry, safeguard the liberty of DP, and said same sex couples also had the right to
marry.
2. The right to procreate.
 Laws that impose involuntary sterilizations must meet strict scrutiny. B/c the right to
procreate is a fundamental right.
32. CONSTITUTIONAL LAW
3. The right to custody of one’s children
 So the gov’t may permanently terminate parental custody only if it meets strict scrutiny, the gov’t has
to prove a compelling need, such as proving parental abuse or parental neglect.
 E.g., the SCOTUS had said on the liberty of DP, parents have a fundamental right to the custody of
their children. Therefore, procedural DP requires a notice and hearing for the custody to be permanently
terminated. Substantive DP had required that the gov’t prove a compelling need to terminate custody.
 A state may create an irrebuttable presumption, that a married woman’s husband is the father of her
child.
 Michael H. v. Gerald D. A married woman, and the Court described as an “international model,”
having an affair. She conceived a child as the result of the affair. She didn’t divorce w/ her husband but
she moved in w/ the biological father and lived w/ him and the child for a year and a half. After 18
months, she rejoined her husband and took the child w/ her. The biological father sued for visitation
rights. But CA had a law at this time that said if a married woman had a child in these circumstances,
there was an irrebuttable presumption that her husband was the father of the child. The CA court used the
law to deny the biological father of all visitation, of all parental rights. The SCOTUS upheld the CA law
and its application saying that a state may create an irrebuttable presumption that a married woman’s
husband is the father of his child.
4. The right to keep the family together. [broader than parents and children]
 It includes the extended family.
 Moore v. City of East Cleveland. Easts Cleveland of OH, had a zoning ordinance, that limited the
number of unrelated people who could live in the same household. The way “unrelated” was defined, it
kept a grandmother, who is living with 2 grandsons (who were first cousins). The SCOTUS said the
ordinance is unQnal. The Court said it’s the fundamental right to keep the family together and that
includes the extended family.
 In order to be considered a family, the individuals must be related to one another.
 Village of Belle Terre v. Boraas. This case involved some college students who wants to share a
home and a town that also has a zoning ordinance that limiting the number of unrelated people who live
in the same household. Here, the SCOTUS upheld the zoning ordinance and ruled against the college
students.
 The difference b/t the two cases. In Moore, it was relatives. In Belle Terre, it was college students, who
are not related to each other.
5. The right to control the upbringing of one’s children.
 The gov’t may interfere w/ parenting decisions only if it meets strict scrutiny. So e.g., the SCOTUS
had said, that parents have the fundamental right to choose to send their children to parochial schools.
Part of the right of a parent to control the upbringing of a child is the right to send the child to a religious
school.
Jenifer Troxel v. Tommie Granville. It violates DP for court grandparent visitations over the parents’
objections, b/c it violates the right of the parent to control the upbringing of the child.
6. The right to purchase and use contraceptives.
 Griswold v. CT. SCOTUS held that this is a fundamental right, so strict scrutiny is used if the gov’t
interferes w/ the right to purchase and use contraceptives.
7. The right to abortion
 Roe v. Wade (1973), SCOTUS held that women have a fundamental right to choose whether to
terminate pregnancies.
 Planned Parenthood v. Casey (1992). The SCOTUS reaffirmed Roe v. Wade. But the court
significantly changed the law w/ regard to abortion. No longer is strict scrutiny used w/ regard to
abortion rights. Strict scrutiny is used for all other rights but not as to the abortion rights.
a. Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they
do not create an undue burden on the ability to obtain abortions.
— Example: a requirement for a 24 hour waiting period for abortions is not an undue burden.
— Example: a requirement that abortions be performed by licensed physicians is not an
undue burden
— Example: the prohibition of “partial birth abortions” is not an undue burden.
 Gonzales v. Carhart, SCOTUS upheld the fed. Partial Birth Abortions Ban Act, law that made it a
crime to remove a living fetus or substantial part of living fetus, w/ the goal of ending the fetus’ life.
b. After viability, states may prohibit abortions unless necessary to protect the woman’s life or
health.
 The government has no duty to subsidize abortions or provide abortions in public
hospitals.
c. Spousal consent and notification laws are unconstitutional.
 The gov’t cannot require that a married woman obtain a consent from her husband, or even giving
notice to her husband, before having abortions.
 CONSTITUTIONAL LAW 33.
d. Parental notice and consent laws for unmarried minors. A state may require parental
notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative
procedure where a minor can obtain an abortion by going before a judge who can approve
the abortion by finding it would be in the minor’s best interests or that she is mature enough
to decide for herself.

8. The right to privacy protects a right to engage in private consensual homosexual activity.
 Lawrence v. TX. TX law made it a crime for even consenting adults in private to engage in
homosexual
activity. The SCOTUS declared the TX law unQnal. The Court said if the right to privacy
means anything,
it’s consenting what an adult do in their own bedroom.
 Notice, the Court did not identify the level of scrutiny in Lawrence.

9. The right to refuse medical treatment

 There is only one SCOTUS case about the right to refuse medical treatment.
 Cruzan v. Direct of Health Services. Three parts in the Court’s holding in Cruzan,
a. Competent adults have the right to refuse medical treatment, even life-saving medical
treatment (even food and water);
 Here, the Court did not say the level of scrutiny that applies.
b. A state may require clear and convincing evidence that a person wanted treatment
terminated before it is ended.
c. A state may prevent family members from terminating treatment for another.
 The right to refuse treatment belongs to each individual.

10. There is not a constitutional right to physician-assisted death.

 Washington v. Glucksberg. This is a challenge brought by a terminally ill patients in the
state of WA,
to the state law that prohibits aiding or embedding suicide. The terminally ill patients argued
that privacy should safeguard a right to death w/ dignity that there should be a right to
physician assisted death. The Court ruled that the right to privacy does not provide a right to
physician-assisted death.

E. The second amendment right to bear arms. “A well-regulated militia, being necessary to the security
of a free state, the right of the people to keep and bear arms shall not be infringed.”
 Until 2008, the SCOTUS always said that this was just about a right to have guns for the purpose of
militia service.
 D.C. v. Heller . In June 2008, the SCOTUS declared unQnal a D.C. ordinance that prohibit private
ownership and possession of handguns. The SCOTUS said that the 2 nd AMD at least protects a right of
people to have guns in their home, for their sake of security. The Court did not identify the level of
scrutiny that it was using. But the Court was clear that this was not an absolute right. The Court said
gov’t can regulate where guns can be located, like preventing guns in airports and schools. The gov’t can
regulate who has guns, like preventing people w/ a felony conviction. The gov’t can regulate what types
of weapon do people have.
 McDonald v. City of Chicago. The SCOTUS ruled that the 2nd AMD is incorporated and applies to
state and local gov’t through the DP of the 14 th AMD. The 2n AMD protects the right of people to have
guns in their homes for the sake of security. The Court said gov’t can regulate where guns can be located
The Court had not identified the level of scrutiny that is used. The gov’t can regulate who has guns. The
gov’t can regulate what types of weapon do people have.
34. CONSTITUTIONAL LAW
F. The right to travel
 SCOTUS had said the right to travel is a fundamental right protected under EP, it is also a fundamental
right under the PI Clause of 14th AMD.
1. Laws that prevent people from moving into a state must meet strict scrutiny
 Edward v. CA. During the depression, CA adopted a law that said no person could move into
the state unless the person could prove the means for supporting himself. The SCOTUS declared
this unQnal, for claiming there is a fundamental right to interstate travel and migration.
2. Durational residency requirements must meet strict scrutiny.
 A durational residency requirement, is where a person must live in a jdx., for a specified
amount of time, in order to get a benefit. The Court had said that durational residency
requirement will chill interstate travel and migration, thus they must meet strict scrutiny.
 Shapiro v. Thompson. PA adopted a law that said no person could receive welfare benefits in
the state until the individual lived in the state for a year. SCOTUS declared this unQnal, using
strict scrutiny based on the right to travel protected under the EP clause. The SCOTUS had said
that for voting, 50 days is the maximum allowable durational residency requirement.
3. Restrictions on foreign travel need meet only the rational basis test.
 SOCTUS has said there is not an fundamental right in international travel.
G. The right to vote
 The 15th AMD said the right to vote shall not be denied on the account of race. Additionally, the SCOTUS
long had said that the right to vote is a fundamental right protected under the EP.
1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of
the electoral process to prevent fraud only need be on balance desirable.
 E.g., poll taxes, the requirement that people pay a fee in order to vote are unQnal.
 Property ownership requirement for voting is almost always unQnal. On MBE, the facts: the
city had adopted a law that provided that in order to vote in a school board election, the person
either have to have children in the city schools, or own property in the city. That’s unQnal.
 When it comes to the restrictions to voting, that is designed to protect the integrity of electoral
process to prevent voter fraud, these will be allowed, if that’s on balance desirable.
 Crawford v. Marion County Board of Education. IN had a law that required in order for
people to be able to vote, they had to show ID. The Court said that the law was designed to
prevent voter fraud, the Court said it was upheld b/c on balance it was desirable. The SCOTUS
said the benefits in protecting the integrity of electoral process outweigh the burdens of
providing photo ID.
2. One-person - one-vote must be (maintained) met for all state and local elections.
 This means w/ any elective bodies that have districts, all districts must be about the same in
population.
 Prior to the 1960s, many state legislatures were badly malapportioned. There might be one
district where 25,000 people were elected representative; and the same district for the same
legislative body where 100,000 people elected a representative. Those in the latter district were
obviously disadvantaged, thus the SCOTUS announced the rule one person – one vote.
3. At-large elections are constitutional unless there is proof of a discriminatory purpose.
 An at large election is where all of the voters vote for all of the office holders.
 City of Mobile v. Bolden. Mobile, AL, had a three-person city council. It might have, but it
didn’t, divide the city in three districts and let each district elect of representative of the city
council. Instead, it had what’s called an at-large election. Every voter casts 3 votes for the 3-
person city council. At the time of the election, Mobile was 2/3 white and 1/3 black. In a long
history of racially polarized voting, never in the 20th C was an African American been elected to
the Mobile City Council. Nonetheless, the SCOTUS upheld this as Qnal. The Court said at-large
elections are allowed unless there is proof that the purpose behind it was discriminating against
African Americans.
4. The use of race in drawing election district lines must meet strict scrutiny
 If the gov’t uses race as a predominant factor in drawing election district, to benefit
minorities, to make it easier to let minorities elect, the gov’t must have to meet strict scrutiny.
5. Counting uncounted votes without standards in a presidential election violates equal
protection.
 Bush v. Gore. Where the SCOTUS held that counting the uncounted votes in the FL
presidential election w/ presets standards violated EP.
 CONSTITUTIONAL LAW 35.
H. There is no fundamental right to education
 San Antonio Board of Education v. Rodriguez. Rodriguez was a challenge to TX system, of funding public
schools largely through local property taxes. The result was that poor areas had a tax at a high rate but still had
relatively little to spend on education. Wealthy areas could tax at a much lower rate, but far more to spend on
education. Nonetheless, the SCOTUS upheld the TX system of funding schools to be Qnal. The Court ruled
and later reaffirmed there is no right to education of the US Q.

[See chart on the following page]

36. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 7

Fundamental Rights
Key Examples

Rights triggering Rights triggering Not a fundamental right

strict scrutiny “Undue burden test” (Only rational basis review) Level of scrutiny unknown

• Right to abortion • Right to practice a trade or • Right to engage in

• Right to marry
profession private consensual
• Right to procreate
homosexual activity
• Right to custody of
• Right to physician-
children • Right to refuse medical
assisted death
• Right to keep family treatments
together
• Right to education
• Right to control raising of • Right to possess firearms
children • Right to international travel
• Right to purchase and use
contraceptives
• Right to travel
• Right to vote
• Freedom of speech
(covered under First
Amendment, §VIII)
• Freedom of association
(covered under First
Amendment, §VIII)
• Free exercise of religion
(if the law burdening
religion is not a neutral
law of general
applicability) (covered
under First
Amendment, §VIII)
 CONSTITUTIONAL LAW 37.
VII. Equal Protection
 Whenever the gov’t draws a distinction b/t people, there is a basis for EP.
A. An approach to equal protection questions any MBE or MEE can be broken down into 3
steps
1. What is the classification? = How is the gov’t drawing an distinction among people?
2. What level of scrutiny should be applied?
 Anything other than the ones discussed below (which apply either strict or
intermediate scrutiny) gets rational basis review.
3. Does this law meet the level of scrutiny?

B. Constitutional provisions concerning equal protection

1. The equal protection clause of the Fourteenth Amendment applies only to state and
local governments.
 Tip: the 14th AMD never applies to the fed. gov’t.
2. Equal protection is applied to the federal government through the due process
clause of the Fifth Amendment.
 There is no provision in the Q that says the fed. gov’t cannot deny EP. But the
SCOTUS had said that the DP clause of the 5th AMD, which does apply to the fed.
gov’t, includes requirement for EP. Substantively, the law of EP is the same whatever
the level of the gov’t, just remember, EP applies to state and local gov’t through the 14 th
AMD, EP applies to the fed. gov’t through the DP clause of the 5th AMD.

C. Classifications based on race and national origin

1. Strict scrutiny is used
 Strict scrutiny is the test whenever the gov’t discriminates against the people on
account of their race or their national origin, the country that they or their ancestors
came from.
2. How is the existence of a racial classification proven?
a. The classification exists on the face of the law.
 That is the law in its very terms draws the distinction among people based on
race or national origin.
 Strauder v. West Virginia. WV had a law that said only white men can serve
on juries. The racial classifications, for that matter the gender classifications,
were right on the face of the statute, and was unQnal.
 Brown v. Board of Education. Southern states had a law that said black
children and white children could not attend the same public schools. The racial
classifications were evident on the face of the statutes.
b. If the law is facially neutral, proving a racial classification requires demonstrating
both discriminatory impact and discriminatory intent.
 Washington v. Davis. WA had a requirement that in order for a person to be a
police officer, the individual had to pass a test. Statistics show that African
American fail that test, significantly more often than white. But the SCOTUS
said, only rational basis review. SCOTUS said proof of both discriminatory
impact by itself, is not sufficient to show a racial classification. To prove there is
a racial classification, to trigger strict scrutiny, rather than rational basis review,
the π would have to show that the intent behind the requirement was an
disadvantage of blacks.
 Example: discriminatory use of peremptory challenges based on race
denies equal protection.
 Laws that provide for preemptory challenges, strikes of perspective jurors
are facially neutral. But SCOTUS had said when peremptory challenges are
exercised in the basis of race, there are both discriminatory impact and
discriminatory intent. It doesn’t matter whether a prosecutor, or a π, or the ∆,
the discriminatory use of peremptory challenges based on race violates EP.
38. CONSTITUTIONAL LAW
3. How should racial classifications benefiting minorities be treated?
a. Strict scrutiny is applied.
 It doesn’t matter whether the racial classification is invidious, disadvantaging minorities, or benign,
benefiting minorities, strict scrutiny is the test, whenever the gov’t uses race or national origin.
b. Numerical set-asides require clear proof of past discrimination.
 During the past quarter C., the SCOTUS had shown that it is very hostile to anything that’s like a
quota, or a set-aside.
 Croson v. City of Richmond. Richmond, VA is the capital of the old Confederacy. It adopted a law
that said 30% of its public work money will be set aside for minority owned businesses. The SCOTUS
declared this unQnal, the set aside was impermissible, b/c it was not a remedy for clear-proven past
discrimination.
 There is only one SCOTUS case approving set-aside that’s still a good law.
 U.S. v. Paradise. A fed. district judge in AL found that the AL State Police engaged in intentional
race discrimination in high-end promotion. The fed. district court said it’s a remedy every time a white
was hired or promoted, an African-American would be hired or promoted, until the effects of
discrimination were alleviated. This was essentially a 50% set-aside. But the SCOTUS upheld it as
Qnal. The SCOTUS said it was allowed b/c it was a remedy for clearly past discrimination.
c. Educational institutions may use race as one factor in admissions decisions to help minorities.
They must show, however, that there is no race neutral alternative which could achieve
diversity. Additionally, educational institutions may not add points to applicants’ admissions
scores based on race.
 Grutter v. Bullinger. The SCOTUS ruled that colleges and universities have a compelling interest
in having a diverse student body. Colleges and universities can use race as one factor, among many,
to benefit minorities and enhance diversity.
 Fisher v. University of Texas at Austin. The Court said in order to do so, the college or university
must prove that there was no race neutral way to achieve diversity. Additionally, the SCOTUS had
said, colleges and universities may not add points to applicant’s admissions scores on the basis of
race.
 Gratz v. Bullinger. The University of Michigan undergraduate admissions office assigned points
to various features in applicant’s profile. Additional points were added to those who were from
minority races. The SCOTUS declared this unQnal, and held that colleges and universities cannot
add points to applicants’ admissions scores based on race.
d. Public school systems (elementary and secondary schools) may use race as a factor in assigning
students to schools unless strict scrutiny is met.
 Parents involved in community schools v. Seattle School District No. 1. There, the Court held
that elementary and secondary schools may use race as a factor in assigning students to schools only
if they can meet strict scrutiny.
D. Gender classifications
1. Intermediate scrutiny is used
 For 40 years now, the SCOTUS had been clear that intermediate scrutiny is the test for sex discrimination.
 Also, that sex discrimination, will be allowed only if there is “an exceedingly persuasive justification.”
2. How is the existence of a gender classification proven?
a. The classification exists on the face of the law.
 That is the law in its terms draws an distinction among its people on the basis of gender.
 Craig v. Boren. OK adopted a law that said women could buy low alcohol, 3.2 beer at the age of
18. But men could not buy low alcohol, until age 21. The gender classification was on the face of the
law, the Court used intermediate scrutiny, and declared the law unQnal.
 U.S. v. VA. VA had a law that said that only a man could attend the VA Military Institute, a state
university. The gender classification was on the face of the law, the Court used intermediate scrutiny,
the Court said there was no “exceedingly persuasive justification,” and the law was declared
unQnal.
b. If the law is facially neutral, proving a gender classification requires demonstrating both
discriminatory impact and discriminatory intent.
 On MBE, facts: city ordinances that say in order for a person to be a police officer or a fire
fighter, the individual has at least to be 5’10”, and be at least 150 lbs. About half men will meet that
height and weight requirement, but only about 2% of women will meet the height and weight
requirements. What level of scrutiny: only rational basis review unless the π can show that the
intent behind the requirement was to disadvantage women.
 Example: discriminatory use of peremptory challenges based on gender denies
equal protection.
 CONSTITUTIONAL LAW 39.
3. How should gender classifications benefiting women be treated?
– Intermediate scrutiny is the test whether the gender classification benefits or disadvantages women.
a. Gender classifications benefiting women that are based on role stereotypes will not be
allowed
 The SCOTUS has explained that many sex-based classification that appeared to benefit women, in
reality perpetuate destructive stereotypes.
 Orr v. Orr. AL had a law that said in case of divorce, a woman could be awarded alimony, but a man
could never be awarded alimony. The Court declared that this was unQnal. The Court said this was
based on the stereotype that women are always economically dependent on their husbands, and men are
always economically independent of their wives. The Court declared that unQnal.
 There had been a number of SCOTUS cases where the laws say, if a woman’s husband dies, she
automatically gets survivor benefits. But if a man’s wife dies, he gets survivor benefits only if he can
prove that he was dependent on her income. Such laws are always unQnal, b/c they are based on role
stereotype of economically dependent women and economically independent men.
b. Gender classifications benefiting women that are designed to remedy past discrimination and
differences in opportunity will be allowed.
 Califano v. Webster. the Social Security Administration used a different formula to calculate benefits
for women than the one it used for men. The formula advantaged women. The SCOTUS upheld that this
is Qnal. The SCOTUS said there is a long history of wage discrimination against women in the
American economy. The Court said the difference in the formula was meant to compensate for
differences in opportunity.
 Schlesinger v. Ballard. The Navy had a regulation that a man who was not promoted w/n 6 years had
to leave the Navy. A woman could go almost 10 years w/o promotion before she had to leave the Navy.
The SCOTUS said b/c men than could serve in combat, whereas women then could not. Men had more
opportunities for the kinds of conduct that would earn promotions. The Court said the differences in
formula was meant to compensate for differences in opportunity.
E. Alienage classifications 1-2 questions
 Alienage classifications referred to laws that discriminate against non-US citizens.  favorite areas for questions on MBE
1. Generally, strict scrutiny is used.
 E.g., a state had a law that said that only U.S. citizens could receive welfare benefits in the state. The
SCOTUS used strict scrutiny and declared the law unQnal.
 Foley v. Connelie. NY state law had said that, only U.S. citizens could have civil service jobs in the
states. The SCOTUS used strict scrutiny and declared the law unQnal.
 In re Griffith. CT law that says only U.S. citizens could be admitted to the bar to practice law in the
state. The Court used strict scrutiny and declared the law unQnal.
2. Only a rational basis test is used for alienage classifications that concern self-government and
the democratic process.
 When the gov’t made a discrimination against non-citizens w/ regard to the voting, serving on a jury,
being a police officer, a teacher, or a probation officer, the SCOTUS long had said that the gov’t reserve
some privileges just for citizens, those that were related to self-gov’t and the democratic process. Thus, it
had long been the law that gov’t can deny non-citizens of the right to vote or the ability to serve on the jury.
 Foley v. Connelie, a state law that says in order to be a police officer in the state, a person has to be a
U.S. citizen. The SCOTUS says police officers are integral to self-gov’t. They enforce the laws that are the
product of the democratic process. The Court used only rational basis review and upheld the law.
 Ambach v. Norwick. NY had a law that says in order to be a teacher in the state, the person had to be a
U.S. citizen. A high school French teacher was a citizen of France, brought a suit against this. She lost. The
SCOTUS said teachers are integral b/c they are responsible for inculcating democratic values in our youth.
The Court said only rational basis review and upheld the law.
 Cabell v. Chavez-Salido. CA law says in order to be a probation officer, a person must be a U.S. citizen.
The Court said probation officers are like police officers, rational basis review, the gov’t wins.
 Bernal v. Fainter. TX law says in order to be a notary public in the state, the person has to be a U.S.
citizen. The SCOTUS says notary public don’t have anything w/ self-gov’t and democratic process. They
just put those anachronistic seals on things. So as to that, the Court said strict scrutiny and the Court said it’s
unQnal.
3. Only a rational basis test is used for Congressional discrimination against aliens.
 If it’s Cong. discriminating against non-citizens, only rational basis. The Court had said the Cong. had
plenary, broad power to regulate immigration. And that’s why it’s just rational basis review for
congressional discrimination.
4. It appears that intermediate scrutiny is used for discrimination against undocumented alien
children. (only one case)
 Plyer v. Doe. TX adopted a law that provided that children of citizens and children of documented
immigrants will get free public education. But children of undocumented aliens have to pay for their public
education. The Court declared TX law unQnal. The Court did not say the level of scrutiny it’s using. But it
seems clear that the Court was using less than strict scrutiny but more than rational basis review. It
appears that the Court used intermediate scrutiny and declaring the law unQnal.
40. CONSTITUTIONAL LAW
F. Discrimination against non-marital children – The Legitimacy Classifications
1. Intermediate scrutiny is used – if the gov’t discriminates those children whose parents were not married.
2. Laws that deny a benefit to all non-marital children, but grant it to all marital children are
unconstitutional.
 Intermediate scrutiny is always the test, but such laws always fail. E.g., state had a law that said only
marital children could inherit from their fathers, no non-marital children could inherit. The Court used
intermediate scrutiny and struck down the law.
 The laws that grant benefits to some non-marital children, but denies to some other non-marital children.
E.g., state had a law that said that in order for a non-marital child to inherit from his or her father, paternity
has to be established during the father’s lifetime. Some non-marital children could inherit where paternity
was established in the father’s lifetime; others could not inherit. The Court used intermediate scrutiny and
upheld that law. The Court said the gov’t had an important interest in preventing fraud and requiring
paternity being established in the father’s life, is substantially related to that goal.
G. Rational basis review is used for all other types of discrimination under the Constitution
 ※※ Intermediate or strict scrutiny under EP: race or national origin (strict), gender (intermediate),
alienage classification (strict, intermediate on self-gov’t + democratic process + children of undocumented
alien), non-marital children (intermediate) ※※ 
1. Age discrimination (frequently tested)
 Question in MBE involves in EP clause to a gov’t mandatory retirement law.  Answer: Rational basis
review, and the gov’t wins. (In all age challenges before SCOTUS, the gov’t wins.)
2. Disability discrimination
 City of Cleburne v. Cleburne Living Center. Cleburne in TX had a zoning ordinance that providing a
home for the mentally disabled from being located in its midst. The SCOTUS held and later reaffirmed only
rational basis review for discrimination against people w/ disabilities. But interestingly, the Court declared
that TX zoning ordinance unQnal. (One of the few instances, where the gov’t lost on the rational basis
review.)
3. Wealth discrimination
 The SCOTUS had been clear that poverty is not a suspect classification. Discrimination against the poor
gets only rational basis review.
4. Economic regulations
 it doesn’t matter whether the economic regulations were challenged under DP or EP, either way it’s only
rational basis review.
 New Orleans v. Dukes. New Orleans adopted an ordinance that says in order to be a pushcart food
venders, persons has to have already worked in the French Quarter for at least eight years. Those who had
worked for less than 8 years said they were discriminated against and brought a EP challenge. The Court said
this is a gov’t economic regulation, rational basis review, the gov’t wins.
5. Sexual orientation discrimination
 There was only one SCOTUS case involved sexual orientation discrimination that indicated the level of
scrutiny that was being used.
 Romer v. Evans. It involved a CO initiative that repealed all laws in the state protecting gays and lesbians
from discrimination and enacted the new laws of the state protecting gays and lesbians from discrimination.
The Court used rational basis review and declared that initiative unQnal.
 U.S. v. Windsor. The Court declared unQnal a provision of Fed. Defense of Marriage Act. as
discriminating lesbians and gays. But the Court didn’t say the level of scrutiny.
 Obergefell v. Hodges. The Court declared unQnal state laws that prohibits same sex marriage and in
addition talking about the right to marry. The Court says the laws deny EP but again the Court didn’t indicate
the law of scrutiny. It’s certainly possible in the future, the Court might approve an intermediate, even strict
scrutiny for sex orientation discrimination. But the only case so far, Romer v. Evans, dealing w/ the level of
scrutiny, used rational basis review.

[See chart on the following page]

 CONSTITUTIONAL LAW 41.

CONSTITUTIONAL LAW – CHART 8

EQUAL PROTECTION ※ the most useful

EQUAL PROTECTION ISSUES CAN BE DIVIDED INTO 3 QUESTIONS:

1 - WHAT IS THE CLASSIFICATION?

Two ways to determine the existence of classifications:
a) The classification is on the face of the law; or
b) If the law is facially neutral, there is both a discriminatory intent for the law and
a discriminatory impact to the law.

2 - WHAT IS THE LEVEL OF SCRUTINY?

Strict Scrutiny Intermediate Scrutiny Rational Basis Test

Law must be necessary Law must be Law must be

to achieve a compelling substantially related to rationally related to a
government purpose. an important government legitimate government
purpose. interest.
• Race
• National origin • Gender • Alienage classifications
• Alienage - generally • Illegitimacy related to self government
• Undocumented and the democratic
alien children process
• Congressional
regulation of aliens
• Age
• Disability
• Wealth
• All other classifications
3 - DOES THIS LAW MEET THE LEVEL OF SCRUTINY?
 42. CONSTITUTIONAL LAW
VIII. The First Amendment
A. Free speech methodology
1. Content-based v. content-neutral restrictions ※
 If you remember no other rules about speech, remember this one. If you have Free Speech in the bar, and you can’t think of
any rule to apply, use this one.
a. Content-based restrictions on speech generally must meet strict scrutiny. Two type of content based laws:
— subject matter restrictions (application of the law depends on the topic of the message)
 Police Dep’t of Chicago v. Mosley. Chicago had an ordinance that says no picketing in residential neighborhood,
unless it was a labor protest related to place of employment. The speech was allowed if it was a labor protest, it
wasn’t allowed if it was any other kind. The Court said that’s a subject matter restriction, a content based restriction.
The test is strict scrutiny and the declared the law unQnal.
 Reed v. Town of Gilbert. Town of Gilbert, AZ had a law that prohibited signs on public property. But there were
many categories of exceptions. One exception was very permissive as to political signs, where as another exception
was very restrictive as to directional signs, signs to give people directions to meetings or worship services.
(Directional signs could be up only 12 hours before the meetings, and a pastor of church sued the town.)The Court
said the application of the laws depends on the topic of the signs. The Court said this was a content based restriction
and the Court used strict scrutiny. The Court declared the ordinance unQnal.
— viewpoint restrictions (application of the law depends on the ideology of the message)
 Imagine that a city had an ordinance saying, pro-war demonstrations allowed in the city park, but anti-war
demonstration not allowed. That’s a viewpoint restriction and clearly unQnal. (Viewpoints restriction –virtually never
allowed.)
 Boos v. Barry, D.C. had an ordinance that said you cannot have a parade or demonstration w/ n 500 feet in front of
a foreign embassy. It was likely to be embarrassing for the foreign gov’t. Demonstrations will be allowed if they were
supportive of the foreign gov’t, but not if they were critical of the foreign gov’t. The Court used strict scrutiny, and
declared the law unQnal.
b. Content-neutral laws burdening speech generally need only meet intermediate scrutiny
 If a law applies to all speech the same, whatever its subject matter and whatever its viewpoint, if the law is content
neutral, it only meets intermediate scrutiny.
 Imagine a city had an ordinance that said, no parades and demonstrations in a particular city park. That would prohibit
all parades and demonstrations, whatever their subject matter, and whatever their viewpoints. Since it’s content neutral, it
only has to meet the intermediate scrutiny.
 The basic framework for free speech analysis, is that content-based restriction on speech generally has to meet strict scrutiny;
where as content-neutral laws have to meet intermediate scrutiny.
2. Prior restraints – is a court order or an administrative system that stops speech before it occurs.
a. Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be
complied with until they are vacated or overturned. A person who violates a court order is barred from later
challenging it.
 A classic form of prior restraint is for a court to issue an order, a TRO, or preliminary injunction preventing speech. The
Court had said such orders must be allowed only if the gov’t meets strict scrutiny.
 New York Times v. U.S.. The Pentagon Papers Case. The fed. gov’t went to fed. court to get an injunction to stop the
N.Y. Times from the publishing the PENTAGON PAPERS – history America’s involvement in the Vietnam War. The
SCOTUS ruled against the U.S. gov’t. The Court said there was no prior restraint b/c the gov’t fails to meet the heavy
burden. So strict scrutiny, necessary to justify a prior restraint.
 If a person violates a statute or ordinance, the individual always has a defense to challenge it and argue it’s unQnal. But
a person who violates a court order, is generally barred from later challenging it.
b. The government can require a license for speech only if there is an important reason for licensing and clear
criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural
safeguards such as prompt determination of requests for licenses and judicial review of license denials.
3. Vagueness and overbreadth
a. Vagueness. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is
allowed.
 The SCOTUS long has said that vague laws violates DP. But the SCOTUS has a special concern about vague laws that regulates
speech.  The Court worries that it would chill Qnally protected expressions. So any law regulating speech must be clear, what’s
prohibited and what’s allowed.
 Butler v. MI. City adopted ordinance prohibiting the sale of any book or magazine, “tending to corrupt the morals of youth.”
(teenager) The Court said no reasonable book seller could tell what was prohibited and what was allowed. So law was declared unQnal,
void on vagueness grounds.
 b. Overbreadth. A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution
CONSTITUTIONAL LAW 43.
allows to be regulated.
 Imagine the gov’t can Qnally regulates certain speech, but the particular law regulates much more than the amount of that speech. The
law was struck down on overbreadth grounds.
 Schad v. Borough of Mount Ephraim. A city adopted an ordinance prohibiting all live entertainment. The city used the ordinance to
close down a nude dancing establishment. The SCOTUS said nude dancing is not protected by the 1 st AMD, the ordinance is unQnally
over broad. It prohibits all plays, all concerts, all athletic events.
c. Fighting words laws are unconstitutionally vague and overbroad.
 Chaplinsky v. New Hampshire. Chaplinsky, a Jehovah’s Witness, called a city marshal a “God damned racketeer” and a “damned
fascist” in a public street and was therefore arrested and convicted under state statute. The SCOTUS held that fighting words are a
category of speech unprotected by the 1st AMD. Fighting words are categories of speech directed to another, that are likely to provoke a
violent response. Chaplinsky never has been overruled. SCOTUS affirmed the conviction and upheld the statute.
 However, since 1942, the SCOTUS has never again has upheld a fighting words conviction. In almost every case, the SCTOSU has
found the law prohibiting fighting words is unQnally vague and overbroad.
 Tip: MBE, always the same form and same answer. It’s always a fact pattern w/ an appealing victim and a nasty speaker, the speaker
said mean, viol things to the victim. And the speaker gets convicted under a fighting words law. Always chooses your answer that the law
prohibiting fighting words is unQnal vague and overbroad.
4. Symbolic speech. The government can regulate conduct that communicates if it has an important interest unrelated to
suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s
purpose.
 Imagine on August, someone beats up a NY bar examiner. And when a person is prosecuted for assault and battery, the assailant is trying
to use 1st AMD defense. The assailant says I am just expressing my displeasure. That defense, is sure to lose. The Court said the gov’t has an
important interest in stopping assault and batter. It’s an interest unrelated to the suppression of the message and the impact on
communication is no greater than necessary to achieve the gov’t’s purpose.
Examples:
— flag burning is constitutionally protected speech.
 TX v. Johnson. + U.S. v. Eichman. The SCOTUS found that people have a 1 st AMD right to burn an American flag as a form of
political protest.
— draft card burning is not constitutionally protected speech
 U.S. v. O’Brien. The SCOTUS upheld a fed. law that prohibited men from burning or destroying the draft cards. The SCOTUS
said that the gov’t had an important interest in making sure that men kept draft cards to facilitate an emergency military
mobilization. The SCOTUS said the impact on communication was no greater than necessary to achieve the gov’t purpose.
— local governments may prohibit nude dancing – nude dancing is not a protected speech
 Barnes v. Glen Theatres, Inc.. + City of Erie v. Pap’s A.M. The Court got to the bare fact, the naked truth, and the Court held
the local gov’t can prohibit naked dancing.
— burning a cross is protected speech unless it is done with the intent to threaten
 Virginia v. Black. VA had a law that prohibited cross burning, 2 cases came to the SCOTUS under that law. One involved an
clan rally on an isolated farm, where cross is burn. The other involved 2 men, who burnt the cross on the lawn of a home recently
purchased by an African American family. The Court held that the member of the clan could not be punished. The Court said it’s a
farm in an isolated area, w/ a few onlookers, there is no E for an attempt to threat. But obviously the two men who burned the cross
on the lawn of the home who purchased by the African American family could be punished, b/c there is an attempt for threating.
— contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional
 The gov’t can limit the amount that a person can contribute to a candidate or a committee for a candidate. But the gov’t can’t
limit the amount that a person spends on his or her own, say in taking out media ads.
 E.g., imagine this year a person has a million dollars to spend on HC for DT, the gov’t can’t stop the person for spending the
million dollars, like taking out ads directly.
 Citizens United v. Fed. Election Commission. It held that corporations, like individuals have the right to engage in limited
expenditures. The gov’t can limit contributions by corporations or unions; but the gov’t cannot limit expenditures.
5. Anonymous speech is protected – There is a 1st AMD right to speak anonymously.
Mclntyre v. Ohio Elections Comm’n. An OH law that prohibited distributing anonymous literature w/ regard to election campaigns. A
woman was convicted of the law for circling leaflets to a school board election. The SCOTUS overturned the conviction. The Court ruled
and later reaffirmed there is a first amendment right to speak anonymously.
6. Speech by the government cannot be challenged as violating the First Amendment.
 Walker v. TX Division, Sons of Confederate Veterans. The State of TX refused to issue license plate to confederate flag. The SCOTUS
ruled in favor of the state of TX. The Court said license plates are a form of gov’t issued ID. The Court said that the Free Speech Clause of
the 1st AMD cannot be used when it’s the gov’t itself is the speaker.
 Imagine the school board puts on the curricular guide, and the people don’t like it. And they think the curricular guide is view point
discrimination. There cannot be a 1st challenge to that curricular guide, since the gov’t itself is the speaker and its speech cannot be
challenged as violating the Free Speech Clause of the 1st AMD.
 Tip: Thus, a basic question whenever dealing w/ freedom of speech is whether the gov’t itself is speaker or the gov’t is regulating the
private speech. When the gov’t is the speaker, its speech cannot be challenged of the Free Speech Clause of the 1st AMD. The Free Speech
Clause of the 1st AMD applies when the gov’t is regulating private speech.
B. What speech is unprotected or less protected by the First Amendment?
1. Incitement of illegal activity. The government may punish speech if there is a substantial likelihood of imminent illegal
activity and if the speech is directed to causing imminent illegality.
 Imagine someone is standing now in the middle of the room w/ a baseball bat, and say let’s beat Chemerinsky b/c of his jokes. Imagine
the person was prosecuted and he or she should be, for incitement. The Court would ask first, what was the substantial likelihood of
imminent illegal activity, the Court would have the testimony of several review and say yes. Next, the Court would ask was the speech
intended, directed to causing imminent illegal activity. The Court would look at the words and the acts, and say yes. The person would be
convicted for incitement.
2. Obscenity and sexually-oriented speech [favorite on the MBE]
44. CONSTITUTIONAL LAW
a. The test
i. The material must appeal to the prurient interest – a local standard
 The Court referred to the “prurient interest” – “a shameful or morbid interest of sex.” See Roth v. U.S.
 In the 1950s, the SCOTUS ruled that the obscenity is unprotected by the 1st AMD.
 Brockett v. Spokane Arcades, Inc., the state of WA in its obscenity law didn’t use the word “prurient interest,’
instead it said “the materials that will excite lustful or lascivious thoughts.” The SCOTUS declared the WA
obscenity law unQnal. The Court said it failed to distinguish b/t “heathy or normal interest in sex” as compared to
“a shameful or morbid interest of sex.” The Court said only the latter is to the prurient interest.
ii. The material must be patently offensive under the law prohibiting obscenity. – a local standard
 Any law, local, state or federal that prohibits obscene material must delineate what depictions showing what
things, are deemed patently offensive. And the material must fit w/n that definition.
iii. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific
value. – a national standard ※
 Social value is determined by a national standard, not a local standard. Whether work is deemed to have
serious redeeming artistic, literary, political or scientific value, is determined by how they were regarded in the
entire country, not just in that community. Prurient interest, however, is a local standard
b. The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
 Sometimes questions are based on previous cases.
 Young v. American Mini Theatres, Inc. Detroit had a zoning ordinance that limited the number of adult bookstores or
movie theatres that could have been in any city blocks. SCOTUS upheld this and said the city has an important interest in
preserving the nature of its neighborhoods.
 City of Renton v. Playtime Theatres, Inc.. WA had a zoning ordinance that required all the adult bookstores and movie
theatres be in one corner of the city, occupying less than 5% of the area of the city. Again, the SCOTUS upheld this as
Qnal.
 Tip: keep in mind, erogenous zoning is permissible.
c. Child pornography may be completely banned, even if not obscene (To be child pornography, children must
be used in production of the material).
 Ashcroft v. Free Speech Coalition. Cong. amended the Child Pornography Prevention Act to include what was
prohibited “computer generated images of children and sexual situations; or adults who were childlike in sexual situation.”
The Court declared this unQnal and said the gov’t may prohibit child pornography even it doesn’t meet the definition of
obscenity so to safeguard children being used in its production. But if no children being used in its production, then it
cannot be considered to be pornography.
d. The government may not punish private possession of obscene materials; but the government may punish
private possession of child pornography.
 Whereas a person cannot be punished for having obscene materials in his home, a person can be punished for having
child pornography even in the home. The Court said the gov’t has a compelling interest in drying out the market for child
pornography so as to protect children, so it can punish even private possession.
e. The government may seize the assets of businesses convicted of violating obscenity laws.
 Alexander v. U.S.. (often tested) Ferris Alexander owned a chain of bookstores and movie theatres in MN. He was
convicted of selling 7 obscene items. For doing this, he was sentenced to 6 years in prison and was fined $100,000.
Additionally, the fed. gov’t, pursuant to the fed. RICO (Racketeer Influenced and Corrupt Organization Act) seize all of
the contents of all of his stores. The gov’t literally burnt all of the books and magazines and crushed all the video tapes. By
the gov’t own estimate, it destroyed 9 million dollars of merchandise. Although only 7 of the items were obscene, but the
SCOTUS nonetheless ruled in favor of the gov’t, holding that it may seize the assets of businesses convicted of obscenity
law violations.
f. Profane and indecent speech is generally protected by the First Amendment
 Cohen v. California. A boy was in a courtroom in L.A. w/ a jacket, on the back of the jacket were the words “F**k the
draft.” The boy was convicted of disturbing the peace. The SCOTUS overturned his conviction. In an eloquent opinion by
Justice Harlan, the Court said to censor words is to censor ideas, the gov’t cannot cleanse the English language to please
the most squeamish among us.
i. Exception: over the broadcast media
 Over free, over the air, television and radio
 FCC v. Pacifica. A radio station in NY broadcast a George Carlin (a comedian) monologue on the seven dirty words
(“filthy words”). The Court ruled the radio station could be punished b/c the broadcast media is uniquely intrusive of the
home and accessible to children. And those exception is just for free, over the air television and radio. The gov’t cannot
punish speech like this over cable television, or over the internet. The Court says that people choose to bring cables and
internet into their homes.
ii. Exception: in schools
 Bethel’s School District v. Fraser. Mathew Fraser gave a speech at a school assembly, nominating another student
position in student gov’t. The speech actually had no profanities, but was filled w/ sexual innuendo. Fraser was suspended
from school and the SCOTUS ruled in favor of the school. SCOTUS said school is responsible for teaching civilized
discourse to our youth, so they can punish profane and indecent speech.
 This is in accord w/ a more general trend of the SCOTUS giving more deference to school authorities when they
punish their student speech.
 CONSTITUTIONAL LAW 45.
 Morse v. Fredrick. The Olympic torch was coming to Juneau AK. A school released its students from class to stay on
the sidewalk and watch. A student unfurled a banner and said “bong hits for Jesus.” Just as soon as said, he had no idea
what that meant, but the principal thought that it was a message to encourage illegal drug use. She confiscated the
banner, and suspended the students from school. The SCOTUS ruled in favor of the principal. The Court said schools
have an important interest in discouraging illegal drug use, school can punish speech that they see as encouraging it.
3. Commercial speech
a. Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment –
the gov’t prohibit and punish such speech.
b. True commercial speech that inherently risks deception can be prohibited
i. The government may prevent professionals from advertising or practicing under a trade name
 Friedman v. Rogers. TX had law that says optometrists and opticians could not advertise or practice
under trade names. They couldn’t call themselves House of Vision, or For Eyes. The SCOTUS upheld
the TX law. The Court acknowledges that there is no E that these optometrists and opticians would do
anything deceptive. But the Court said a state could believe that trade names are inherently risky of
deception. Bad optometrists and opticians could keep changing their names and full the public.
ii. The government may prohibit attorney, in-person solicitation of clients for profit
 Bates v. State Bar of Arizona. A lawyer went to automobile accidents and hospital rooms and
offered to represent on a contingency fee basis. The lawyer was disciplined for impermissible
solicitation. The lawyer raised 1st AMD as defense. The lawyer lost. The SCOTUS said when the
lawyer solicits from perspective clients, face to face, there is no one there to monitor the
communication. There is, too, great danger of deception or pressure.
 It involved an attorney from SC ACLU (Americans Civil Liberties Union), who offered to represent
a woman for free, when welfare department told the women that she had to be surgically sterilized in
order to receive state welfare benefits. The bar brought disciplinary proceedings against the lawyer from
making personal solicitation. The lawyer raised the 1st AMD as defense. Here the lawyer won. The
SCOTUS said when the lawyer offers free representation to a client, there is less reason to fear
deception or pressure. The speech is protected under the 1st AMD.
 Shapero v. KT Bar Ass’n. It involved a lawyer in KT, who sent letters to perspective client,
soliciting business. The lawyer was disciplined for impermissible solicitation, the lawyer raised 1 st
AMD as a defense. Here, the lawyer won. The SCOTUS said when it’s letter solicitation, there is less
fear of deception, b/c there is written record in the communication. There is no reason to fear pressure,
b/c we are all used to thrown away junk mail.
 The rule merges: the states may prohibit attorney, in-person solicitation of client for profit.
iii. The government may not prohibit accountants from in- person solicitation of clients for profit.
 Edenfield v. Fane. FL attempted to apply to accountants exactly the same rule that the SCOTUS
approved for lawyers. But in Edenfield, the SCOTUS declared the FL unQnal. The Court said attorneys
and accountants are different. The Court said attorneys are trained in advocacy, so there are to be
distrusted when they are soliciting perspective clients. Accountants are trained in accuracy, no need to
distrust them when they solicit perspective clients.
c. Other commercial speech can be regulated if intermediate scrutiny is met
 Assuming the speech is truthful, and not deceptive for legal activities, doesn’t have the risk of deception, the
gov’t can regulate if it meets intermediate scrutiny.
 Florida Bar v. Went For It, Inc.. FL had a law that said that attorneys could not solicit accident Vs or their
estates from 30 days after the accident. The Court used an intermediate scrutiny and upheld the law. The Court
says the gov’t had an important interest in protecting the privacy and sensibility of the accident of the victims.
The Court said the 30-day waiting period was substantially related to the goal.
d. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the
least restrictive alternative.
 SUNY v. Fox. The NY state legislature adopted a law prohibiting commercial solicitations in dormitories at
state universities. The solicitors brought a challenge, they said the state could achieve its goal – safety w/n
dormitories – using less restrictive means. The state could just require the solicitor register or they wore IDs.
The SCOTUS upheld the NY law. The Court said when the gov’t regulate commercial speech, it doesn’t have
to use least restrictive alternatives. The Court said the means have to be narrowly tailored and found the NY
law to meet the requirement.
4. Defamation and intentional infliction of emotional distress
 The SCOTUS long had said that defamatory speech, libel and slander unprotected by the 1 st AMD. But the
SCOTUS had been clear that the 1st AMD limits ability of gov’t to allow recovery for defamation or other torts.
a. If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by
proving w/ clear and convincing E, falsity of the statement and actual malice.
 It is essential that there be open and robust debate about those who hold and run for public office. It’s
therefore very difficult for such π to win a defamation action. The π is going to prove w/ clear and convincing
E, falsity of the statement, and actual malice.
 Actual Malice: the ∆ knew the statement was false or acted w/ reckless disregard of the truth.
46. CONSTITUTIONAL LAW
b. If the plaintiff is a “public figure’” the plaintiff can recover for defamation by proving
falsity of the statement and actual malice
 The SCOTUS has never defined w/ any precision who is a public figure. But the Court had
said that public figures are those who “thrust themselves into the limelight,” who are likely to
have the access of media and respond to any attack. Celebrities are essential to public figures.
c. If the plaintiff is a “private figure” and the matter is of “public concern,” that state may
allow the plaintiff to recover for defamation by proving falsity and negligence by the
defendant. However, the plaintiff may recover presumed or punitive damages only by
showing actual malice.
 Private figures are those who are not public officials or public figures.
 The Court never defined what’s a matter of “public concern.” First, what matters is in which
the public has a legitimate interest. If the π is a private figure and the matter is of public
concern, the π may recover compensatory damage by proving falsity and negligence by the ∆.
 Negligence: the speaker wasn’t as careful as a reasonable speaker should have been.
 Presumed damages: are automatic damages. It’s where the state law says that π who proves
defamation is automatically entitled to the following sum. Punitive damages are damages of
punishment.
d. If the plaintiff is a “private figure” and the matter is not of “public concern,” the plaintiff
can recover presumed or punitive damages without showing actual malice.
 There was only one case about this in the Court. The Court never said who has the BOP, or
even what is the standard for compensatory damages, if it’s a private figure and the matter is
not of public concern. All the Court said about this category is that “presumed or punitive
damages do not require proof of actual malice.”
e. Liability for intentional infliction of emotional distress for defamatory speech must meet
the defamation standards and cannot exist for speech otherwise protected by the first
amendment
 Hustler v. Falwell. Hustler Magazine had a charactery that depicted Jerry Falwell
(president of Liberty University) having his first sexual experience w/ his mother in an
outhouse. He sued for IIED. He lost in the SCOTUS. The SCOTUS said in order to recover,
he would have to meet the requirements for defamation.
 Snyder v. Phelps. It involved w/ a Westboro Baptist Church that goes to funerals of those
who died in military service and used it as an occasion to express a vile anti-gay/ anti-lesbian
message. The father of Lance Snyder (who died in military service), Albert Snyder, sued them
and the jury awarded them $10 million for IIED. But the SCOTUS said such liability violated
the 1st AMD. The Court ruled in favor of the ∆. The Court said the speech were protected by
the 1st AMD. The Court said the gov’t cannot punish speech or hold it liable just b/c it’s
offensive, even it’s deeply offensive. The Court said they cannot be liable for IIED for speech
protected by the 1st AMD.

[See chart on the following page]

 CONSTITUTIONAL LAW 47.

CONSTITUTIONAL LAW – CHART 9

DEFAMATION

LIABILITY BURDEN OF
PLAINTIFF STANDARD DAMAGES PROOF

Compensatory Plaintiff Must Prove

Public Official Actual Malice Presumed/Punitive Falsity

Compensatory Plaintiff Must Prove

Public Figure Actual Malice Presumed/Punitive Falsity

Compensatory for
Actual Injury;
Private Figure, Presumed or
Matter of Public Negligence and Punitive Damages Plaintiff Must Prove
Concern Actual Injury Require Actual Falsity
Malice
Compensatory for
Actual Injury;
Presumed or
Private Figure, Punitive Damages Unclear -
Matter of Private Unclear - Do Not Require Burden on Defendant
Concern Negligence Actual Malice to Prove Truth
48. CONSTITUTIONAL LAW
5. Privacy
a. The government may not create liability for the truthful reporting of information that
was lawfully obtained from the government
 Florida Star v. B.J.F. + Cox Broadcasting Corp. v. Cohn. A couple of SCOTUS case that
involve state laws that prohibiting rape victims identities w/o the victim’s consent. In both
cases the reporter lawfully obtained the names and truthfully communicated them. The victims
sued for invasion of privacy. In both cases, the Court ruled against the victims, and in favor of
the press. The Court said the press cannot be held liable, b/c they lawfully obtained the
information and truthfully reported it.
b. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if
the media did not participate in the illegality and it involves a matter of public
importance
 Bartnicki v. Vopper. Two teacher’s union officials were having what they though was a
private conversation. One was a landline and the other was a cell phone. Unknown to them,
their conversation was illegally intercepted and illegally recorded. Somehow a tape of the
conversation ended up w/ a local talk show host. He broadcast it a couple of times. The two
teacher’s union officials sued the talk show host and the radio station for invasion of privacy.
But the SCOTUS ruled in favor of the talk show host and the radio station. The Court said they
could not be held liable even though the conversation was illegally intercepted and illegally
recorded. B/c they had not participated in the illegal activities, and b/c the conversation
involved in a matter of public concern – legal management negotiations for the schools.
c. The government may limit its dissemination of information to protect privacy.
 Under 5.a., if the press lawfully obtained the information, it can truthfully report it. But
generally, there is nothing in the 1st AMD that requires that the gov’t open its papers or
proceedings to the press or the public. In fact, there is only one instance in which the SCOTUS
has found 1st AMD to attend gov’t proceedings.
The SCOTUS had said that the press and the public have a 1st AMD right to attend criminal
trials and most criminal pre-trial proceedings . But other than this, the gov’t has a broad
latitude to restrict its own dissemination of information so as to protect privacy.
6. Speech by government employees on the job in the performance of their duties is not
protected by the First Amendment.
 Garcetti v. Ceballos. Richard Ceballos is a deputy D.A. in L.A. County. He believed a W in
one of his cases, a deputy sheriff was lying. He wrote a memo to that. His supervisor told him to
soften the tone of the memo. He refused, and gave a copy of the memo to a criminal defense
lawyer, b/c he thought he was Qnally required to do. He said he was then removed from his
supervisory position and transferred to a much less desirable location. He sued saying that he was
punished for speech. The SCOTUS ruled against Ceballos. The SCOTUS said there was no 1 st
AMD protection for the gov’t employees on the job in the scope of their duties.
7. Other government restrictions based on the content of speech must meet strict scrutiny.
(Example: restrictions on violent speech must meet strict scrutiny).
 Schwarzenegger v. Entertainment Merchants Ass’n. CA had a law that prohibited the sale or
rental of violent video games to minor under 18. The Court used strict scrutiny and declared that
CA law unQnal.
C. What places are available for speech?
 Many 1st AMD cases involve a claim to use gov’t property for speech purposes. The SCOTUS deal w/
these cases by categorizing the types of gov’t properties.
1. Public forums—government properties that the government is constitutionally required to
make available for speech.
 Sidewalks and parks are the classic public forum. The Gov’t can regulate speech in public
forums only when certain requirements are met.
a. Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must
be met.
 If the regulation is subject matter and viewpoint neutral, then go to b.
 CONSTITUTIONAL LAW 49.
b. Regulations must be a time, place, or manner regulation that serves an important government
purpose and leaves open adequate alternative places for communication.
 If the regulation is both subject matter and viewpoint neutral, then it only has to meet an intermediate
scrutiny. But here, intermediate scrutiny had a more specific phrasing: the regulation has to be a time,
place and manner restriction that serves an important gov’t interest and leaves open adequate alternative
places for communication.
 Saia v. New York. A city adopted an ordinance saying that no trucks w/ sound amplification equipment
could operate in residential neighbors at night time. The SCOTUS upheld it saying it’s a time, place and
manner restriction serving an important interest of tranquility in residential neighborhood at night time,
and left open adequate alternatives for communication.
c. Government regulation of public forums need not use the least restrictive alternative, but
must be narrowly tailored. ※※
 Ward v. Rock Against Racism. NYC adopted an ordinance and said in order to have a concert at a city
park (Central Park), you have to use a city sound equipment and a city sound engineers. Concert
promoters brought a challenge and said the city could have achieved its goal or reduction by just setting
maximum decibel levels. But the SCOTUS ruled in favor of the city, saying it does not have to use the
least restrictive alternatives. The Court found the ordinance was Qnal, b/c it was narrowly tailored.
d. City officials cannot have discretion to set permit fees for public demonstrations & parades
 Forsyth County v. The Nationalist Movement. A county in GA adopted an ordinance and said in order
to have a parade or demonstrate in a city park, it was necessary to get a permit from the mayor. The
mayor was to charge up to $1,000 for each permit. The SCOTUS declared this unQnal. The Court
explained that if the mayor had the discretion in setting the amount of the fee, there is, too, a great risk,
the mayor would charge a high fee if the mayor doesn’t like the speech and low fee if the mayor does like
the speech. The Court said such discretion is unQnal, b/c it inherently risks content based discrimination.
2. Designated public forums—government properties that the government could close to speech, but
chooses to open to speech. The same rules apply as for public forums.
 Often tested: school facilities. Public school facilities, evening and weekends, are non-public forums. But
if the gov’t chooses to open them to public speech, the gov’t has created a designated public forum.
3. Limited public forums – government properties that are limited to certain groups or dedicated to
the discussion of only some subjects. The government can regulate speech in limited public forums
so long as the regulation is reasonable and viewpoint neutral.
 Lehman v. City of Shaker Heights. A city in OH had an ordinance and says commercial ads will be
allowed on city buses, but political ads would not be allowed on city buses. The SCOTUS said the gov’t
here, was opening the place to only certain topics. The Court found the regulation was Qnal, b/c it was
reasonable and viewpoint neutral.
4. Non-public forums—government properties that the government constitutionally can and does
close to speech. The government can regulate speech in non-public forums so long as the regulation
is reasonable and viewpoint neutral. ※
— Military bases, even areas of military bases that are usually open to the public are not public
forums.
— Areas outside prisons and jails, the STOTUS has said that for the sake of security, areas outside
prisons and jails are non-public
— Sidewalks on post office property  often come up on MBE
— Airports  International Society for Krishna, Inc. v. Lee, the SCOTUS held that airports are non-
public forum. Thus, the Court ruled that the gov’t can prohibit solicitation of money in the airport.
Board of Airport Comm’rs of the City of Los Angeles v. Jews for Jesus, Inc.. The Court ruled in
favor of the distribution of literature in airport. The Court said it failed the rational basis review to
ban the distribution of literature.
 Airport is not a place of public forum, the gov’t may prohibit the solicitation of money, but may not
prohibit the solicitation of literature.
5. There is no First Amendment right of access to private property for speech purposes
 ※ There is no 1st AMD right to use private owned shopping centers for speech purposes.

[See chart on the following page]

50. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 10

PLACES AVAILABLE FOR SPEECH

SUBJECT METHOD OF
MATTER VIEWPOINT REGULATIO INTEREST
NEUTRAL? NEUTRAL? N ALLOWED? REQUIRED?

PUBLIC FORUMS
(e.g., sidewalks,
parks) TIME, PLACE,
YES YES OR MANNER IMPORTANT

DESIGNATED
PUBLIC FORUMS
(i.e., non-public
forums that the
government opens
to speech)
TIME, PLACE,
YES YES OR MANNER IMPORTANT

LIMITED PUBLIC
FORUMS
(i.e., government
property that the
government opens
to certain groups or
discussion of some
subjects)

NO YES REASONABLE LEGITIMATE

NON-PUBLIC
FORUMS
(e.g., military
bases, airports) NO YES REASONABLE LEGITIMATE

PRIVATE NO FIRST AMENDMENT RIGHT TO USE

PROPERTY PRIVATE PROPERTY FOR SPEECH PURPOSES
 CONSTITUTIONAL LAW 51.
D. Freedom of association
 The SCOTUS long had said that freedom of association is protected as a fundamental right under 1st AMD.
1. Laws that prohibit or punish group membership must meet strict scrutiny. To punish
membership in a group it must be proven that the person:
a. actively affiliated with the group;
b. knowing of its illegal activities;
c. with the specific intent of furthering those illegal activities.
2. Laws that require disclosure of group membership, where such disclosure would chill association,
must meet strict scrutiny
 NAACP v. Alabama. AL had a law that required groups like the NAACP disclose their membership list.
The Court said in the context of AL in 1950s, that will be chilling people from disjoining the NAACP. The
Court used strict scrutiny and the Court declared the AL law unQnal.
3. Laws that prohibit a group from discriminating are constitutional unless they interfere with
intimate association or expressive activity.
 Freedom of Association generally does not protect a right to discriminate, unless it’s intimate association
or the discrimination is integral to the expressive activity of the group. Many states have laws that prohibit
private clubs and groups from discriminating, based on race, sex or religion, or sex orientation. Sometimes
groups that want to discriminate, bring a challenge argue that freedom association should give them a right
to determinative members and to exclude others. Generally the anti-discrimination laws are upheld and the
discriminatory groups lose.
 Roberts v. U.S. Jaycee. MN has a law that prohibits private groups from discriminating among other
grounds, based on sex. The Jaycees were a national all male organization. They brought a challenge and
argue that freedom of association should give them the right to determine their members and exclude others.
But the SCOTUS upheld the MN law and ruled against the Jaycees. The Court said that the state had an
important interest in stopping sex discriminations and this justifies interfering w/ the freedom of
associations. But the Court acknowledged there is a couple of situations where freedom of association would
protect the right to discriminate.
— Intimate association – e.g., a small dinner party, if someone is not invited to a small dinner and
sued up for it, freedom of association would protect the right to preclude, assuming you are a
small intimate gathering.
— The discrimination is integral to the expressive activity of the group – e.g., the clan can exclude
blacks, the Natzi parties can exclude Jews. Those groups have expressive message that it’s
discriminatory.
 Boy Scouts of America v. Dale. James Dale was a lifelong scout in Scout Eagle. When the Boy Scouts
know that he was gay, and told him that he is no longer welcome to participate in the scout activity. He sued
under a NJ statute that prohibited private groups from discriminating, among other grounds, based on sexual
orientation. The Boy Scouts raised freedom of association, under the 1st AMD as a defense. The Boy Scouts
won at the SCOTUS. The SCOTUS said the Boy Scouts have an expressive message that it’s anti-gay, they
may discriminate in furtherance of it.
E. Freedom of religion
1. The free exercise clause
a. The free exercise clause cannot be used to challenge a neutral law of general applicability. ※
 Employment Division v. Smith. OR law prohibited consumption of peyote, hallucinogenic substance.
Native Americans brought a challenge, arguing that their religious rituals require the use of peyote. The
SCOTUS ruled against the Native Americans. The Court explained that Oregon law was neutral in the sense
that it was not motivated by desire to interfere w/ religion. The Court said it’s a law of general applicability,
b/c the law applied to everyone in the state. The SCOTUS said the free exercise clause cannot be used to
challenge a neutral law of general applicability, no matter how the law burdens religion.
 If it could be shown that the law was not neutral, in the sense that it was motivated by desire to interfere
w/ religion, then it had to meet strict scrutiny. Or if it could shown that the law was not of general
applicability, and it targeted a religion or religions. Then it would have to meet strict scrutiny. But so long as
the law is neutral, not motivated by desire to interfere w/ religion, and so long as it’s of general applicability,
it applies to everyone, the free exercise clause cannot be sued to challenge it. (every MBE has at least one
question that could be answered based on this rule, that free exercise clause cannot be use to challenge a
neutral law of general applicability)
b. The government may not deny benefits to individuals who quit their jobs for religious
reasons.
 Sherbert v. Verner. A woman in SC quitted her job rather than work on her Saturday Seventh. The state
denied her on employment benefits on the grounds that she voluntarily left work. The SCOTUS ruled
against the state. The Court said the state was impermissibly forcing her to choose b/t a religion and an
income. The Court held and later reaffirmed the gov’t cannot ban benefits to those who quit their jobs for
religious reasons.
52. CONSTITUTIONAL LAW
c. The government may not hold a religious institution liable for the choices it makes as to who will be its
ministers.
 Hosanna-Tabor Evangelical Luthern Church and School v. EEOC (Equal Employment Opportunity
Commission) There was an elementary school in MI, a religious school. It designated all of its teachers as ministers. A
fifth grade teacher became ill and had to take time off work. When she came back, there was no longer a job for her. She
sued the school for violating the ADA. But the SCOTUS ruled in favor of the school. The Court said since the teacher
had been designated of a minister, the school could not be held liable. Religious institutions cannot be held liable for the
choices they make as to who will be its ministers.
2. The establishment clause
 The provision of the 1st AMD that the gov’t may make no law respecting the establishment of religion.
a. The test
 Lemon v. Kurtzman. The SCOTUS articulated a 3 part test of the Establishment Clause. The gov’t action is unQnal, if
it fails any prong of the test.
i. there must be a secular purpose for the law
 If the primary purpose of the gov’t action is to advance religion, it violates the Establishment Clause.
 McCreary County v. ACLU. The SCOTUS declared unQnal a county in KT’s ordinance that require that
the Ten Commandments be posted in all county buildings. The SCOTUS explained that the Ten
Commandments are inherently religious. The Court said there was no secular purpose for requiring the Ten
Commandments being posted in all county buildings.
ii. the effect must be neither to advance nor inhibit religion
 The gov’t cannot symbolically endorse religion or a particular religion. ※※
 Allegheny County v. ACLU. This involved 2 matters that came to the SCOTUS together. One involved a
county courthouse, where there is a large stairway display case. In it in December was put a nativity scene.
The other involved the Pittsburgh city building, in front of it in December, was placed a menorah, a
Christmas tree and a proclamation of tolerance in the holiday season. The SCOTUS found the nativity was
unQnal, but found the menorah was Qnal. It’s not that the SCOTUS was favoring Jewish religious symbols
over Christian’s. Rather the Court said a nativity scene, all by itself on gov’t property, is impermissible
symbolic endorsement of Christianity. Earlier, the Court said there can be nativity scenes on the gov’t
property, so long as they are accompanied by symbols of other religions and by secular symbols. That’s why a
menorah was allowed, it’s unquestionably a Jewish symbol, and it was accompanied by a Christmas tree and a
proclamation of tolerance as overall holiday display.
 Van Orden v. Perry. It involves a 6 feet high 3 feet wide Ten Commandments monument that sits directly
in the corner of Texas State Capitol and Texas Supreme Court. Chemerinsky argued this case before the
SCOTUS and lost five to four. Chemerinsky represented Van Orden. Justice Breyer wrote the key opinion for
the Court. He said this Ten Commandments display was not an impermissible symbolic endorsement for
religion. He said it had been there since 1961 and no one complained about it until Van Orden brought his law
suit. He said it wasn’t paid for by the state of Texas. It was paid for by Cecil B. DeMille in promoting the
movie Ten Commandments. Breyer said there was 20 other monuments on the grounds of TX State Capitol,
thus it’s not a symbolic endorsement for religion. It doesn’t violate the Establishment Clause.
iii. there must not be excessive entanglement with religion
 The gov’t generally cannot directly pay teacher salaries in parochial schools. If the gov’t is to generally pay
teachers’ salaries in parochial schools, they gov’t will have to monitor and see if they’re teaching secular or
religious materials.  Any such monitoring will be excessive entanglement w/ religion.
 Tip: Often to get a question right in MBE, just know the 3 part test. If there is an essay question, you need to
state and apply the 3 part test. “SEX”  Secular Purpose; Primary Effect; Excessive
b. The government cannot discriminate against religious speech or among religions unless strict scrutiny
is met.
 If a gov’t would allow a secular speech but not a religious speech, it would be a content based restriction that has to
meet strict scrutiny. If the gov’t discriminates among religions, favoring some and disfavoring the others, the gov’t must
meet strict scrutiny under Establishment Clause.
c. Government sponsored religious activity in public schools is unconstitutional. But religious student and
community groups must have the same access to school facilities as non-religious groups.
 School prayer, even voluntary school prayer, is not allowed.
 Lee v. Weisman. There cannot be clergy prayers at public school graduations.
 Santa Fe Independent School District v. Doe. Student delivered prayers at high school football games violates the
Establishment Clause.
 Wallace v. Jaffree. The SCOTUS said that a moment of silent prayer, is not allowed. AL adopted a law requiring each
state w/ a moment of silent prayer. The SOTUS declared this unQnal.
 The SCOTUS has not yet ruled as to whether there would be allowed that was called “a moment of silent reflection.”
The Court has just said if it’s called silent prayer it violates the Establishment Clause.
 If the school is going open its facilities evenings and weekends, to student community groups, it cannot exclude
religious groups. If the school is gonna let student clubs, like the chess club and the debating team, use school facilities,
it cannot exclude a bible club.
d. The government may give assistance to parochial schools, so long as it is not used for religious
instruction. The government may provide parents vouchers which they use in parochial schools.
 Mitchell v. Helms. The state of LA adopted a program of giving instructional equipment, computers, audio visual
equipment, to all public and private schools in the state, both secular and religious private schools. The SCOTUS upheld
this as Qnal. The Court said it was allowed b/c religious schools were getting the same aid as secular schools. And it was
permissible so long as the aid was not actually used for religious instructions.
 And the gov’t may provide the parents vouchers that they could use in parochial schools.
 Zelman v. Simmons-Harris. OH created a voucher system for students who are living in the Cleveland area. The
parents could use the vouchers in any secular/ religious schools. 96% of all the vouchers were used in religious schools.
Nonetheless the Court said it’s Qnal. The Court said the gov’t had a secular purpose of improving education for children
in Cleveland. The Court said if the money ended up in religious it’s b/c of parents choices, not b/c of gov’t decisions. So
it’s allowed.
CONSTITUTIONAL LAW 53.
54. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 11

An approach to constitutional law questions
Ask: Who is the actor in the question?

President or Federal Private

executive branch State/local (non-government
Congress Federal Courts government actor)

The issue is either or

The issue is either or both The issue is: The issue is: The issues are:
both
1) Has the President/
1) Does Congress Executive branch Does the federal court Has the state/local 1) Is there state
have the authority exceeded the scope of have the authority to government violated a action?
to act? executive powers? hear limit on its power? (outline § V)
(outline, esp. § II) (outline, esp. § III) the case? (outline, esp. §§ IV,
(outline, esp. § I) VI, VII, VIII) and, if so,
and/or and/or
2) Does it violate the
2) Has Congress 2) Has the Constitution?
violated a limit on President/ Executive (outline, esp. §§ VI,
its power? branch violated a VII, VIII)
(outline, esp.§§ VI, limit on
VII, VIII) government power?
(outline, esp. §§ VI,
VII, VIII)