PSC 1387 Block Final

The Undue Burden Test (Abortion Rights)

"A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

Article II Vesting Clause

"The executive power shall be vested in a President of the United States of America."- The office will be held by one person who has certain qualifications- - "The Executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years."

Suspect and Non-Suspect Legal Classifications (Equal Protection)

-There are four generally agreed-upon suspect classifications: race, religion, national origin, and alienage. -Suspect classification refers to a class of individuals that have been historically subject to discrimination. -non-suspect: anything not classified under suspect

Lochner v. New York (1905) (Liberty of contract)

-Year: 1905 -Author Justice Peckham -Facts: NY enacted a law regulating labor in bakeries, which prohibited bakery employees from working in a bakery more than 60 hours in a week or 10 hours in a day. Lochner, a bakery owner in New York, was charged with, and convicted of, violating the law by contracting with an employee to work more hours than was permitted by the law. -Question: Did the NY law deprive Lochner of liberty without due process of law and thus violate the 14th Amendment? -Answer: Yes -Justice Peckham Majority Opinion: -State Police Power: -Power to secure and protect public health, public morals, and public safety -"Liberty of Contract" is Part of the "Liberty" Protected by Due Process Clause -"Reasonability" Standard: -Is the law a reasonable infringement on the liberty of contract? Is the law actually adapted to resolve problems related to the ends of state police? -The policy is too broad and too narrow to be considered an employee health law or a public safety law. You cant have a law directly targeting one person/group of people.

-Roe's "Trimester Framework"

1.No Regulation of Abortion Procedure/Procurement -Health of Mother Not a Compelling Interest to Prohibit Abortion (technological development has made abortion safer than giving birth) -Protecting Potential Life not Compelling Interest (no reason given) 2.Abortion Procedure Becomes More Dangerous; State Interest in Regulating Abortion for Maternal Health Becomes Compelling 3.Protection of Potential Life of Fetus Becomes Compelling after "Viability"

Pierce v. Society of Sisters (1925) (14th amendment freedom of contract)

-Year: 1925 -Opinion of the Court: Justice McReynolds -Factual Background: In 1922, the Oregon state legislature enacted the Compulsory Education Act, which required children between the ages of 8-16 to attend a local public school, and attendance at private schools did not satisfy this attendance requirement. The Society of Sisters, a Catholic parochial school, sued on the grounds that this was an infringement of their own property rights and the parental right to direct the education of their children without due process of law. -Question: Did the Compulsory Education Act deprive the Society of Sisters of property or liberty without due process of law, in violation of the 14thAmendment? -McReynolds Opinion: - "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." -the state has no valid goal in requiring standard education of American values to children; interferes with the parents right to educate their child how they want. -"No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare." -"Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the State upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property."

West Coast Hotel v. Parrish (14th ammendment freedom of contract)

-Year: 1937 -Author: Justice Hughes -Facts: Parrish was employed as a maid for the West Coast Hotel and received wages below a state mandated minimum wage. She sued to have the difference in her wages from the state-mandated minimum wage recovered. -Question: Is the state-imposed minimum wage law a violation of the liberty of contract protected by the 14th Amendment? -Answer: No. -Chief Justice Hughes Opinion: -The "liberty of contract" has no special or preferred constitutional status: -It lacks textual basis -It is liberty "subject to the restraints of due process" -If the state has a "rational basis" for regulating the liberty of contract for the purposes of public health, public welfare, and public morals, this is "due process" -State economic regulation is "presumptively" constitutional *There is a "rational basis" for Washington's minimum wage for women: -Special protection for women -The interests of the taxpayer

Griswold v. Connecticut (1965) (14th amendment right to privacy)

-Year: 1965 -Author of Opinion of the Court: Justice Douglas -Facts: Connecticut law criminalized the use of any drug or article for preventing conception, and the state's criminal accessory statute prohibited any person from assisting or abetting in the commission of a criminal act and subjected accessories to the same criminal penalties as the principal offender. Griswold, the director of the Planned Parenthood League of Connecticut, was convicted as an accessory for providing contraceptive counseling to married couples and for prescribing contraceptive devices to them. -Question: Was the Connecticut statute prohibiting the use of contraceptive drugs or devices a violation of the Constitution in as much as it infringes a "right to privacy" protected by the Constitution? -Justice Douglas Opinion: - "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy": -First Amendment - The Right of Association -Third and Fourth Amendments - Protections of certain places from governmental intrusion and observation -Fifth Amendment's Non-Incrimination Clause -Ninth Amendment -"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'" -says the government shouldn't interfere in relationships and marriage. The government has the power to regulate contraception but they do not have the power to control choices adults in a marriage because it interferes in their private relationship. -"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." -marriage is so important bc it doesn't serve self interest or commercial purposes, it serves some sort of higher & noble purpose that is almost above the law and deserves privacy when dealing with that relationship. **didn't recognize the right of privacy to the INDIVIDUAL only recognized the right to privacy in a MARITAL relationship **raises the question what is unconstitutional due to the status of being married. (ex. If cocaine makes the couple happier in their marriage, would that make it constitutional?)

Roe v. Wade (1973)

-Year: 1973 -Author: Justice Blackmun -Facts: A Texas abortion-statute prohibited abortion except in cases where the life of mother was threatened. Roe, a divorced and pregnant woman, sued on the grounds that the decision to procure an abortion was a fundamental constitutional right that was unduly restricted by Texas' prohibition. -Question: Did the Texas law violate the Due Process Clause of the 14thAmendment by prohibiting the decision to procure an abortion? -Answer: Yes (in part) -Blackmun Opinion: -There is no 14th Amendment right to life of the unborn? (does the constitution protect life before you're even an actual person? Are the unborn considered persons under the constitution?) -At the time of the adoption of the 14th Amendment (in 1868), some states allowed some abortion procedures, and thus there was no consensus that "persons" protected by the Due Process Clause included the unborn. -No judicial decision had ever recognized the unborn as persons possessing 14th Amendment rights. -The Right to Privacy (i.e. the decision to beget a child or not "fundamentally affects" the individual) is "Fundamental" -State Legislation Interfering with Fundamental Right Reviewed Under Strict Scrutiny: -Compelling State Interest Must be Shown -Policy Must be "Narrowly-Drawn" to Achieve the Interest. -Texas Interests in Prohibiting Abortion: 1.Health of the Mother 2.Protection of "Potential Life" of the Unborn -State Means to the End: Blanket Prohibition on Abortion Except for Saving Life of Mother -Trimester Framework: 1.No Regulation of Abortion Procedure/Procurement -Health of Mother Not a Compelling Interest to Prohibit Abortion (technological development has made abortion safer than giving birth) -Protecting Potential Life not Compelling Interest (no reason given) 2.Abortion Procedure Becomes More Dangerous; State Interest in Regulating Abortion for Maternal Health Becomes Compelling 3.Protection of Potential Life of Fetus Becomes Compelling after "Viability"

NFIB v. Sebelius (2012)

-Year:2012 -Facts: Amid intense public interest, Congress passed the Patient Protection and Affordable Care Act (ACA), which became effective March 23, 2010. The ACA sought to address the fact that millions of Americans had no health insurance, yet actively participated in the health care market, consuming health care services for which they did not pay. The ACA contained a minimum coverage provision by amending the tax code and providing an individual mandate, stipulating that by 2014, non-exempt individuals who failed to purchase and maintain a minimum level of health insurance must pay a tax penalty. The ACA also contained an expansion of Medicaid, which states had to accept in order to receive Federal funds for Medicaid, and an employer mandate to obtain health coverage for employees. The plaintiffs argued that: (1) the individual mandate exceeded Congress' enumerated powers under the Commerce Clause; (2) the Medicaid expansions were unconstitutionally coercive; and (3) the employer mandate impermissibly interfered with state sovereignty. -authors of opinions of Court: Chief Justice John G. Roberts, Jr., largely joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, authored the majority opinion. -constitutional questions raised answer/reasoning: question: Is the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act barred by the Anti-Injunction Act, 2 U.S.C. 7421(a)? Does Congress have power under Article I, Section 8 of the Constitution, specifically under the Commerce Clause or the Taxing and Spending Clause, to require most Americans to purchase health insurance? Is the individual mandate severable from the ACA? Did Congress exceed its enumerated powers and violate principles of federalism when it pressured States into accepting conditions that Congress could not impose directly by threatening to withhold all federal funding under Medicaid, the single largest grant-in-aid program? answers: No; Yes, under the Taxing and Spending Clause; Unanswered; Yes reasoning:The justices unanimously agreed that the Anti-Injunction Act did not bar the suit. Congress did not intend that the payment for non-compliance with the Individual Mandate be a tax for purposes of the Anti-Injunction Act. Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, concluded that the Individual Mandate penalty is a tax for the purposes of the Constitution's Taxing and Spending Clause and is a valid exercise of Congressional authority. The payment is not so severe as to be coercive, is not limited to willful violations like fines for unlawful acts, and is collected by the Internal Revenue Service by normal means. As part of a jointly written dissenting opinion, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito disagreed, arguing that because Congress characterized the payment as a penalty, to instead characterize it as a tax would amount to rewriting the Act. Chief Justice Roberts, with Justices Scalia, Kennedy, Thomas, and Alito, concluded that the Individual Mandate was not a valid exercise of Congress' power to regulate commerce. The Commerce Clause allows Congress to regulate existing commercial activity, but not to compel individuals to participate in commerce. This would open a new realm of Congressional authority. Justice Ginsburg, as part of an opinion concurring in part and dissenting in part, joined by Justices Breyer, Sotomayor, and Kagan disagreed with this conclusion, arguing that the Chief Justice's distinction between economic "activity" and "Inactivity" is ill-defined and unsupported by either the Court's precedents or the text of the Constitution. Furthermore, even if the distinction were permissible, individuals who fail to purchase insurance nonetheless frequently participate in the healthcare marketplace, substantially impacting healthcare commerce, and may therefore be regulated by Congress. Justice Thomas, in a separate dissent, added that the "substantial effects test" has encouraged Congress to push the limits of its power. The majority did not address the serverability question after concluding that the Individual Mandate was constitutional. Justices Scalia, Kennedy, Thomas, and Alito argued that the Individual Mandate and Medicaid expansion are inserverable, and that the entirety of the ACA is therefore unconstitutional. The provisions of the Act, they argue, are "closely interrelated," with the two unconstitutional provisions serving as "pillars." Chief Justice Roberts, with Justices Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan, concluded that the Medicaid expansion provisions was unconstitutionally coercive as written. Congress does not have authority under the Spending Clause to threaten the states with complete loss of Federal funding of Medicaid, if the states refuse to comply with the expansion. Justices Ginsburg and Sotomayor disagreed, arguing, "Congress' authority to condition the use of federal funds is not confined to spending programs as first launched. The legislature may, and often does, amend the law." Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, concluded that the remainder of the Medicaid expansion provision, without the unconstitutional threat to completely withdraw Medicaid funding, could stand as a valid exercise of Congress' power under the Spending Clause. Justices Scalia, Kennedy, Thomas, and Alito argued that the Court does not have the power to remedy the unconstitutional expansion as written. Such power should be vested exclusively in Congress.

1st Amendment (Establishment and Free Exercise Clauses)

-prohibits the government from making any law "respecting an establishment of religion." This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. -Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Jefferson's "Opinion on the Constitutionality of the Bank" (1791)

1791 "Foundation" of Constitution laid on the 10th Amendment-No constitutional authority to incorporate the national bank of 1791:-Not a Tax to Pay Debts-Not a Regulation of Commerce Among the States-Not "Providing for the General Welfare"-Not "necessary and proper" for executing any of these enumerated powers.-"It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are "necessary," not those which are merely "convenient" for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore, it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory."-must give the narrow meaning in the constitution so that congress's power cannot grow too strong so that states can keep their rights-lays out strict construction of the constitution with dealing with the question if the formation of a national bank is constitutional-cant have a flexible construction of the constitution bc the government would become to powerful and leave nothing for the states.

Article 1 Vesting Clause

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.-hereign granted" provides the check on congress that all laws passed have to be traced back to a power they're specifically granted

9th Amendment

Citizens entitled to rights not listed in the Constitution The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

14th amendment sec.1 due process clause

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Judicial Balancing Tests

Rational Basis: default standard of review, determines whether a law is "rationally related" to a "legitimate" government interest, constitutional rights A. Policy Purpose: "Legitimate Governmental Interest" B. Policy Means: Policy Means are "Rationally-Related" to the Policy Purpose C. Presumption of Constitutionality of Policy D. Judicial "Rubber Stamp" E. Example of Non-Fundamental Right: Liberty of Contract Strict Scrutiny: -Compelling State Interest Must be Shown -Policy Must be "Narrowly-Drawn" to Achieve the Interest A. Policy Purpose: "Compelling State Interest" B. Policy Means: Narrowly-Tailored and/or Least Restrictive Means for Achieving Policy Purpose C. Presumption of Unconstitutionality of Legislation D. "Strict in Theory, Fatal in Fact" E. Example of Fundamental Right: Freedom of Speech

14th amendment sec.1 equal protection clause

The Equal Protection Clause of the 14th Amendment prohibits states from denying any person within its jurisdiction the equal protection of the law. The clause is not intended to provide equality among individuals or classes but only equal application of the law.

Doctrine of Incorporation

The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so. Barron v. Baltimore, a landmark decision that influenced U.S. constitutional law for almost a century, limited the reach of the Bill of Rights to the national government. The Supreme Court reasoned that the framers of the Constitution did not intend the Bill of Rights to extend to state actions. Under selective total incorporation of the Bill of Rights so that the states would be prohibited from the same actions as the federal government. Other justices advocated selective incorporation of only certain portions of the Bill of Rights

Article III Vesting Clause

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Plessy v. Ferguson -Harlan Dissent (14th amendment equal protection)

Year: 1896 Facts: Louisiana enacted the Separate Car Act, which required separate railway cars for blacks and whites. In 1892, Homer Plessy - who was seven-eighths Caucasian - agreed to participate in a test to challenge the Act. He was solicited by the Comite des Citoyens (Committee of Citizens), a group of New Orleans residents who sought to repeal the Act. They asked Plessy, who was technically black under Louisiana law, to sit in a "whites only" car of a Louisiana train. The railroad cooperated because it thought the Act imposed unnecessary costs via the purchase of additional railroad cars. When Plessy was told to vacate the whites-only car, he refused and was arrested. At trial, Plessy's lawyers argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments. The judge found that Louisiana could enforce this law insofar as it affected railroads within its boundaries. Plessy was convicted. Author: HENRY B. BROWN Questions: Does the Separate Car Act violate the Fourteenth Amendment? answer: Equal but separate accommodations for whites and blacks imposed by Louisiana do not violate the Equal Protection Clause of the Fourteenth Amendment reasoning: The Court held that the state law was constitutional. In an opinion authored by Justice Henry Billings Brown, the majority upheld state-imposed racial segregation. Justice Brown conceded that the 14th Amendment intended to establish absolute equality for the races before the law, but held that separate treatment did not imply the inferiority of African Americans. The Court noted that there was not a meaningful difference in quality between the white and black railway cars. In short, segregation did not in itself constitute unlawful discrimination. In dissent, John Marshall Harlan argued that the Constitution was color-blind and that the United States had no class system. Accordingly, all citizens should have equal access to civil rights.

Brown v. Board of Education (14th amendment equal protection)

Year: 1954 Author: Justice Warren Facts: This case consolidated several cases in which states provided segregated public elementary schools with equal facilities, pay for teachers, funding, but which were challenged as contrary to the Equal Protection Clause. Question: Did states that provided separate public schools for whites and blacks that had similar funding and facilities violate the Equal Protection Clause? Warren Opinion: Intention of 14th Amendment with regard to racial segregation unclear Public Education Was Not a Principal Function of the State in 1868 and 1896, but has become so in the 1900's. "Separate is Necessarily Unequal" Social Psychological Studies Segregated Schools Produce Feelings of Inferiority in Minority Children; Feelings of Inferiority Produce Worse Education; Segregation Therefore Produces Worse Educational Quality for Black Children.

Sherbert v. Verner (1st amendment religious freedom)

Year: 1963Facts: Adele Sherbert, a member of the Seventh-Day Adventist Church, was fired by her South Carolina employer because she would not work on Saturdays, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provided that a claimant was ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. The State Commission denied Sherbert's application on the ground that she would not accept suitable work when offered, and its action was sustained by the State Supreme Court.Question: Was Sherbert entitled under the Free Exercise clause to an exemption to the condition that she take "suitable work" in order to be eligible for state unemployment benefits?Author: Justice Brennan Sherbert v. VernerBrennan OpinionThe state burdens Sherbert's free exercise of religion, because: It required Sherbert to choose between obeying the dictates of her religious belief and partaking in benefits that the state makes available to all.The Doctrine of "Unconstitutional" Conditions:"In Speiser v. Randall, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression, and thereby threatened to 'produce a result which the State could not command directly.'" Sherbert v. VernerBrennan OpinionWas the state's burden on religious exercise justifiable?The state must show a "compelling interest" in refusing to grant a religious exemptionThe State's interest in preventing fraudulent unemployment claims is not compelling:No evidence presented in the record to show that people will abuse religious freedom to dilute the unemployment compensation fund.If there were such evidence, the state must show that no other means to prevent fraud can be used that will avoid the infringement of religious exercise. Sherbert v. VernerStewart Concurring Opinion"[T]he Establishment Clause, as construed by this Court, not only permits but affirmatively requires South Carolina equally to deny the appellant's claim for unemployment compensation when her refusal to work on Saturdays is based upon her religious creed. For, as said in Everson v. Board of Education, the Establishment Clause bespeaks "a government . . . stripped of all power . . . to support, or otherwise to assist any or all religions. . . ," and no State "can pass laws which aid one religion. . . ." In Mr. Justice Rutledge's words, adopted by the Court today in Schempp, the Establishment Clause forbids "every form of public aid or support for religion." In the words of the Court in Engel v. Vitale, reaffirmed today in the Schempp case, the Establishment Clause forbids the "financial support of government" to be "placed behind a particular religious belief." To require South Carolina to so administer its laws as to pay public money to the appellant under the circumstances of this case is thus clearly to require the State to violate the Establishment Clause as construed by this Court. This poses no problem for me, because I think the Court's mechanistic concept of the Establishment Clause is historically unsound and constitutionally wrong....our Constitution commands the positive protection by government of religious freedom -- not only for a minority, however small -- not only for the majority, however large -- but for each of us."

Richmond v. Croson (14th amendment equal protection)

Year: 1989 Author: O'Connor Facts: The city council of Richmond initiated a policy requiring prime contractors awarded city construction projects to sub-contract at least 30% of the dollar amount for each contract to businesses anywhere in the country, at least 51% of which are controlled and owned by "black, Spanish-speaking, oriental, Indian, Eskimo, or Aleut citizens." Croson Company was denied a contract and a waiver to the set-aside, even as it was the sole bidder on a construction contract. Question: Did the Richmond racial set-aside policy violate the Equal Protection Clause of the Fourteenth Amendment? Richmond v. Croson O'Connor Opinion: Equal Protection Clause Protects Individuals, not Racial Groups. All use of race classification in state or local law is constitutionally "suspect." There is no way to prove a law is actually intending to remedy/prevent racial discrimination (rather than simple revenge against whites, or mere racial politics) unless the state shows it is using a policy that is "narrowly-tailored" to remedy and prevent its actual racial discrimination. Compelling State Interest: Remedying its own past discrimination/Preventing City Funds From Being Used in Discriminatory Ways. Richmond v. Croson O'Connor Opinion: Asserted Interest of Richmond: Remediation of Past Racial Discrimination in "Society" Lack of "Narrow-Tailoring" of the Richmond Law: Broadness of the Class of Beneficiaries Rigidness of the Quota Difficulty in Getting Waivers No Way of Preventing Abuse by Self-Interested Minority-Owned Subcontractors 30% Quota Lack of Consideration of Non-Racial Alternatives to Achieve Purpose of Increasing Minority Participation in Construction Industry Lack of City Investigation into Causes for Low Minority Participation in Construction Industry

Oregon v. Smith (1st amendment religious freedom)

Year: 1990Facts: Alfred Smith was an employee at a drug rehab clinic, who was fired after a drug test revealed that he ingested Peyote, an illegal hallucinogenic drug often used in traditional Native American religious ceremonies. Oregon's unemployment compensation law disallowed individuals fired for workplace misconduct from collecting unemployment benefits, and did not provide a religious exemption for drug use for religious practice. Question: Did Oregon violate the Free Exercise Clause by refusing to grant Smith unemployment benefits because he was fired for engaging in illegal conduct he claimed was related to his religious practice? Author of the Opinion of the Court: JusticeScalia Employment Division v. SmithScalia Opinion:Religious Belief/Profession is Absolutely Protected from Government Regulation by the First Amendment; Religious Conduct is Not.The Return to the Secular Regulation Rule"Neutral" laws of "general applicability" made without anti-religious intention are constitutional, even if they impose a substantial or prohibitive burden on religious conduct

Grutter v. Bollinger (14th amendment equal protection)

Year: 2003 Author: O'Connor Facts: The University of Michigan Law School Admissions Program Employed a race-based "plus-factor" to increase minority enrollment at the law school, with the stated purpose of achieving educational benefits that flow from a diverse (racially and otherwise) student-body. Questions: Did the use of a racial "plus-factor" violate the Equal Protection Clause of the 14th Amendment? O'Connor Opinion: All race classifications are subject to strict scrutiny. In the University setting, academic freedom protected by the First Amendment requires deference by the Court to judgments of universities as to what will improve and better the education they provide.

McCulloch v. Maryland (1819)

Years: 1819 Authors of the court: : Chief Justice John MarshallQuestions raised: Does Congress have constitutional power to incorporate the bank? Was Maryland's imposition of a tax on a nationally-incorporated bank constitutionally-permissible?Answer to question: -The Necessary and Proper Clause: "Congress shall have the power...to make all laws necessary and proper for carrying into execution the foregoing powers..."-The Two Possible Meanings of "Necessary":1. Absolute Physical Necessity2. Convenient/Useful -Choice of Means to Bring Other Powers into ExecutionReasoning behind answer:-constitution is not meant to be a super strict "law- like document", its supposed to delegate objectives that branches of the government can pursue. Over time the methods of accomplishing those goals will vary. This is why the constitution is broad about the objectives and isn't super specific so that the constitution can last a long time. If it were super specific it would end up like the AOC. The flexibility given to congress to make necessary and proper laws gives the government a broad range of laws they can make to achieve long held objectives in a changing society.- "The clause is placed among the powers of Congress, not among the limitations of those powers."-"Its terms purport to enlarge, not to diminish, the powers vested in the Government."-The National Supremacy Clause-"Power to Tax Is Power to Destroy"-Intergovernmental Tax Immunity****** McCullough vs Maryland establishes intergovernmental tax immunity : states cannot tax the government and the government cannot tax the states, this would give one body of government the power to destroy each other.Facts: The Second Bank of the United States was chartered by Congress in 1816, and a growing number of state governments found themselves opposed to the bank's operations within their borders. In 1818, Maryland's legislature levied a tac on all banks not chartered by the state, a clear reference to the Baltimore branch of the Bank of the United States. The law required that the bank pay an annual fee of $15,000 or place tax stamps on all bank notes issued. James McCulloch, the cashier for the US Bank, refused to pay the taxes which had been assessed and was convicted of violating the Act in a Maryland court. The Maryland Court of appeals upheld the conviction, and McCulloch appealed to the Supreme Court.

Secular Regulation Rule

a person cannot be exempted on the basis of religious belief, if the law deals with a non-religious basis.

strict construction

interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes.

Article 1 Section 8

lists specific powers of Congress, including the power to establish and maintain an army and navy, to establish post offices, to create courts, to regulate commerce between the states, to declare war, and to raise money. It also includes a clause known as the Elastic Clause which allows it to pass any law necessary and propper for the carrying out of the previously listed powers.Commerce, Tax, Spending, Necessary and Proper Clause

-The Sherbert Test/Compelling Interest Test (Free Exercise Clause)

sherbert test: the Supreme Court ruled that a state must have a compelling interest and demonstrate that a law is narrowly tailored in order to restrict an individual's right to free exercise under the First Amendment.

substatntive due process -freedom of contract -right to privacy (14th amendment)

substantive due process is a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution. Freedom of contract is the process in which individuals and groups form contracts without government restrictions. This is opposed to government regulations such as minimum-wage laws, competition laws, economic sanctions, restrictions on price fixing, or restrictions on contracting with undocumented workers. The right to privacy refers to the concept that one's personal information is protected from public scrutiny.

Judicial review (constitutional basis and limits)

· -courts ONLY exercise judicial powers and functions, not like the functions of the legislative and executive branch.· - judicial branch can make a judgement but doesn't have the power to enforce it keeping it from getting powerful. Also, the supreme court doesn't get to pick which cases they see so there is no influence or personal agenda in a ruling.· -Main question that is answered in this section is mainly: what's the point of life tenure?· - Secures judicial independence from the other branches· -Secures judicial independence from the "ill humors of society"· -Provides an incentive to attract the best qualified candidates to judicial office (temporary candidates often attract tyranny)( you want to try and bring the best most qualified judges and to do that you want to give a substantial compensation so that they agree to be apart of the supreme court).· - if the courts were not truly independent, they would be influenced by congress and would not be able to properly deliberate on the validity and constitutionality of laws without being influenced. Because they don't have a connection to congress, they can review the laws without outside influence.· - enforce laws already in place not make new ones and enforce them.· -refer to the constitution as the fundamental law rather than laws passed by congress.· -judicial review basically is determining if a law goes against the constitution which is the supreme law of the land.

Federalist 78 (1788)

· Alexander Hamilton (federalist) 1788· Argument FOR judicial review· Hamilton said that the Judiciary branch of the proposed government would be the weakest of the three branches because it had "no influence over either the sword or the purse, ... It may truly be said to have neither FORCE nor WILL, but merely judgment."· Alexander Hamilton argued for judicial review by an independent judiciary as a necessary means to void all governmental actions contrary to the Constitution.· if federal courts stick to the delegated powers granted by the constitution and nothing more, then they will actually be the weakest of the branches.· - -Main question that is answered in this section is mainly: what's the point of life tenure?· - Secures judicial independence from the other branches· -Secures judicial independence from the "ill humors of society"· -Provides an incentive to attract the best qualified candidates to judicial office (temporary candidates often attract tyranny)( you want to try and bring the best most qualified judges and to do that you want to give a substantial compensation so that they agree to be apart of the supreme court).· - if the courts were not truly independent, they would be influenced by congress and would not be able to properly deliberate on the validity and constitutionality of laws without being influenced. Because they don't have a connection to congress, they can review the laws without outside influence.· - enforce laws already in place not make new ones and enforce them.

The extended republic

· Felt the best way to solve the problems of faction is to construct a union rather than many small communities.· its easier to control everyone with a larger government· Faction: group of people that are held together by a common action or feeling· Madison feels factions are harmful to the ideas of others and minority groups. Puts the wellbeing of society in the future at risk over temporary ideals.· " refining" of public views through election· This is caused by society electing "the best of the best" to represent the views of the people· Usually have virtues that are desired and respected that allows them to be elected and voted in by many people· Representative government allows us to extend the size and scope of the political community· Shouldn't have a homogeneous community, the benefit of having such a big government and area being represented increases the diversity and "factions" so many more viewpoints are being expressed.· Keeps extreme policies from being adopted because a mass amount of diverse people all have to agree to adopt a law. Only laws that are good for a wide amount of people get passed.

Planned Parenthood v. Casey (14th ammendment right to privacy)

· Planned Parenthood v. Casey -Year: 1992 -Authors (Joint Opinion): O'Connor, Souter, Kennedy -Facts: Pennsylvania enacted a statute requiring that women seeking an abortion give their informed consent prior to receiving an abortion. -24-Hour Waiting period -Requirement that doctors provide information about the abortion procedure, including the status of the fetus, to the woman seeking an abortion/information about establishing paternity -Parental consent requirement (with judicial bypass provision) -Spousal Notification (with numerous exemptions) -Question: Should Roe v. Wade be overturned? Did these Pennsylvania abortion regulations violate the 14th Amendment by depriving a woman seeking an abortion of liberty without due process of law? -joint opinion: -Should Roe be upheld? -Yes and No. -Preserves "Central Holding" of Roe: Pre-viability abortion right -Liberty protected by Due Process Clause provides rights to "autonomy" -The Doctrine of Stare Decisis -Discards the "trimester framework" from Roe: -Establishes "Undue Burden Test" rather than "Strict Scrutiny" to evaluate state abortion regulations -"Our cases recognize 'the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.' .... Our precedents 'have respected the private realm of family life which the state cannot enter.' ... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." -Why Pre-viability abortion right: -First reason: Stare decisis -"The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman...The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child." -Roe's essential holding: 1.Right to procure pre-viability abortion without "undue burden" on that right 2.State authority to prohibit abortion after viability, if the law contains maternal life and health exceptions 3.The state has legitimate interests "from the outset of the pregnancy" in protecting the health and life of the mother and the fetus. -The Undue Burden Test: "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." -The Application of the Undue Burden Test: -Informed consent requirements: Not an Undue Burden -The requirement for delivery of "truthful, non-misleading information" both about the medical risks to the woman and to the fetus -The 24-hour waiting period: Not an Undue Burden -Travel burden? -Cost Burden? -One-Parent Consent Requirement (with judicial bypass): Not an Undue Burden -Spousal Notification: An Undue Burden -The lower court found that a substantial number of women for whom the spousal notification requirement was "relevant" would be incapable of obtaining a pre-viability abortion because of the spousal notification requirement -The interests of the father in the care of his children are insubstantial until they are born.

Brutus, Letter #1 (1787)

· The small republic argument · Year: 1787· Author: Brutus Summary: Antifederalist paper saying that constitution provides for an unchecked power for the federal government so that eventually the states will be stripped of their power and not needed. A free republic of such a large size cannot survive, historically. It will lead to the oppression of the people and inefficiency.· If the constitution plans to consolidate 13 states into 1 government, it should not be passed.

Federalist 10 (1787)

· Year: 1787· Author: James Madison· Summary: One of the most frequently heard complaints about our nation (and other nations) is the extreme factions that often lead to violence. A republic (not a democracy) can be the cure for this! The constitution established this Republic/remedy. Factions will always be present. But with a larger federal government/republic, each faction will be weaker and will therefore not have the resources to initiate significant violence.

Federalist 51 (1788)

· Year: 1788 · Author: Madison · Summary: separation of powers! Branches can be mostly independent of each other but not abolutely.

Brutus #15 (1788)

· Year: 1788· Author: "Brutus" Summary: The Supreme Court has too much power, unchecked by other branches. OK to have "operation under good behavior," but no accountability for decisions of the court (as Britain had); This makes the Supreme Court way too powerful! Could abuse power and eventually get rid of state governments.

Marbury v. Madison (1803)

· Years: February 24, 1803· Authors of opinions of court:- Chief Justice John Marshall· Constitutional questions raised? 1. Did Marbury have a legal right to his judicial commission? 2. Did the laws afford him a remedy for the violation of this right? 3. Was the remedy Marbury was seeking (a writ of mandamus from the supreme court) constitutionally valid?· How the author answered the questions-- He relied on a grant of authority to the Supreme Court given under the Judiciary Act of 1789, which gave the Supreme Court the authority to 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'- Congress cannot alter the Constitution through normal legislative act: - The Supreme Court cannot enforce an act of Congress contrary to the Constitution· Reason behind the answer in the following question: so Marbury could not get a writ of mandamus from the supreme court because that power itself is unconstitutional. The supreme court only has certain delegated powers and being able to offer a writ if mandamus would expand the judiciary branches power beyond what is already stated.·