Con Law Final

Walz v. Tax Commission of the City of New York (1970)

- (pg140) added to Abington, law might violate Establishment Clause if it created a, excessive entanglement with religion

Reconstruction Amendments (1865-1870)

- 13th: abolished slavery and involuntary servitutde, except as punishment for crime (yet, share cropping, vangrancy laws, convict leasing) - 14th: elevated federal citizenship over state citizenship, made ex-slaves citizens, extended to all persons guarantees of due process and "equal protection of the laws" (yet, black codes; Jim Crow) -15th: prohibited voting discrimination based on race, color, previous condition of servitude (yet, lynching, literacy tests, poll taxes, gerrymandering, white primaries)

Sexual Orientaiton, Gender identity, and statutory law

- 14th Amendment (after Civil Rights Cases) only applies to 'state action' not private actions (eg private employment or housing discrimination) - Federal protections against private discrimination must be enacted by statute- eg, the Civil Rights Act of 1964 - Bostock v. Clayton County (2020) - matter of statutory interpretation: does the prohibition of employment discrimination based on a person's "sex" in Title VII of the CRA include sexual orientation and gender identity? - Court ruled (6-3) employment discrim based on sex orientation or gender identity necessarily treats persons differently based upon their sex

Road to Brown

- 1930s-50s, NAACP Legal Defense and Education Fund litigated aggressively against segregation in public education

Crawford v. Marion County Board of Elections (2008)

- 2005 GOP controlled state gov in Indiana enacted law requiring state issued photo ID to vote in primary/general elections with some exceptions (absentee ballots, casting provisional ballot without photo ID)- challenged as arbitrary law not meaningfully tailored to curb voter fraud (which is more common with absentee voting than in-person voting) and ensure integrity of elections - Stevens, 6-3: voting restrictions ok to prevent fraud (690) - Scalia with Thomas and Alito, concurring: ID law reasonable, not too much of a burden, state interests valid (692) - Souter and Ginsburg, dissenting: must show threats outweigh impediments. State doesn't do this.

Giving the 4th amen teeth

- 4th amen puts limits on police procedures, but how can limits (and our rights) be enforced against gov? 1) police liability: unlawfully obtained evidence is admitted at trial, but victim can sue police for damages (used in UK) - lets state violate rights as long as it (possibly) pays for it - enforced in a separate trial, primarily by (civil) juries (ie the people) - partly limited in the US by the doctrine of qualified immunity (law enforcement can't be the subject of civil lawsuits for a lot of their conduct) 2) exclusionary rule: evidence obtained through unlawful searches and seizures is excluded at trial - prohibits the state from profiting from its own wrongdoing - enforced in the same (criminal) trial, primarily by judges (ie part of the state)

Privacy and Substantive Due Process

- 5th (to fed) and 14th (to states) requires due process - Two interpretations: 1) Procedural: state must follow certain constitutional and statutory procedures in doing things, like depriving ppl of life, liberty, property. 2) Substantive: some legal outcomes altogether forbidden, regardless of procedures followed in arriving at them. Some rights permanently ensrhined by Due Process Clauses. Unclear when this arose, but developed around cases dealing w/economic rights and liberties. Eventually bled into civil liberties. - Dred Scott v. Sanford (1857): right to property in slaves. Missouri compromised deprived slave holders of their property, not due process. - Lochner v. New York (1905): liberty of contract, can't limit employment contracts - Meyer v. Nebraska (1923) (367): liberty includes right of individual to engage in occupations of life, like getting married, having kids, etc - ORIGINALLY used for economically conservative purposes, now used by libs for civil rights

Whither of Privacy

- 6 justices likely to overturn Roe 1) will it be repudiated entirely or incrementally? Upholding new restrictions one at a time or enitirely trashing Roe? 2) what comes after Roe? a) states can regulate abortion however, right wing states being strict and left wing states being extremely lenient. b) right wing states could try to criminalize out of state abortions, but this would violate Article IV Comity Clause. c) SC might rule fetus as a person: unclear if this would require states to treat abortion as murder. More likely to provide basis to criminalize abortion.

Shelley v. Kraemer (1948)

- 6-0 - whether or not 14th allows courts to enforce these contracts or not - refused to overturn Civil Rights Cases- 14th applies only to state action - private racially restrictive covenants are unconstitutional if they are "secured only by judicial enforcement by state courts" (593) when private racial discrim is effectuated by courts, gov becomes a discriminatory - later criticized for (in effect) applying constitution to private individuals

Burton v. Wilmington Parking Authority (1961)

- 6-3 - black man denied service based on race at private coffee shop that was in commercial space owned/lessed from city gov - since city was landlord, was it private discrim legally attributable to city and thus prohibited by EPC? - local govs did not usually care about discrim - Clark: - Land for public use, public owned, part of the building can't be racist, if owned by gov EPC applies (596)

Right to Counsel

- 6th amen, accused have right to assistance of counsel for defense Powell v. Alabama (1932) - nine young black men quickly tried and convicted on capital charges (rape of white woman) with poorly prepared private counsel - Court 7-2: 6th and 14th require adequate counsel in all capital cases, overturned conviction, but decision was vague. Didn't define adequate or effective counsel. Held that denial of adequate counsel in this case violated due process of law. Did not establish right to state-appointed counsel in all criminal cases (eg non-capital felonies or misdemeanors) Betts v. Brady (1942) - Court 6-3: state-appointed counsel is not required 1. in non-capital cases and 2. when defendant is not indigent or uneducated.- echoed Powell v. Alabama's limited, ad hoc approach - Black, dissenting (502): denial of state-appointed counsel to criminal defendants who cannot provide their own defeats point of democracy that is supposed to provide equal justice under law (this view eventually wins)

Classification to benefit racial minorities

- Affirmative Action: policies and programs that aim at "reducing the effects of past discrimination" 1) preferences for historically disadvantaged groups (racial and ethnic minorities) in hiring, promotion, and admission to education and training programs 2) minority set-aside programs, requiring that a certain proportion of gov business by awarded to companies operated by minority owners (611)

Plessy v. Ferguson (1896)

- After Civil Rights Cases and despite Yick Wo, southern states (re-)enacted various racial segregation laws - 1890 Louisian law segregated rail travel based on race (i.e. 'separate but equal' cars); akin in form and effect to many state segregation laws - Homer Plessy (1/8th black) arrested for traveling in whites-only car, sued (with railroad support) to overturn law - lower court thought in was invalid for trains crossing state lines because it burdened flow of interstate commerce, but was upheld within state - law challenged again by Homer, railroad arranged to have Plessy arrested Legal Question: does legal segregation - impose a badge of servitude, contrary to the 13th? - deny 'the equal protection of the laws' contrary to the 14th? Justice Brown 7-1 - On 13th: slavery is a state of bondage, even a law that imposed a badge of inferiority would not impose actual bondage (pg542) - On 14th: 14th creates legal political equality , but it doesn't create social equality. Social inequality is natural. Certain discriminatory state action is ok (if it codifies social inequality, like segregating train cars) No forced comingling (pg566) - separate but equal facilities - adopts rational basis test. Segregation served for public peace. White supremacy race relations preserved. (pg567) Harlan, dissent - 13th: Decreed universal civil freedom, made gov responsible to make this come true. LA law hostile to spirit of constitution, sidesteps slavery abolition, restricts civil rights of minorities and makes them an inferior class. (pg567) - 14th: there isn't no dominant race in the constitution. All citizens equal before law no matter the race. (pg568)

Restraints on power to regulate speech (201-202)

- Appropriate purpose: restriction must serve valid gov purpose. Must be compelling. - Prior restraint: may not intervene before the fact (like a speech that hasn't been given) - Content/viewpoint discrimination: must be content/viewpoint neutral - Overbreadth: must be tailored narrowly to meet an appropriate purpose - Vagueness: must be precise, making clear what is prohibited and allowed - Chilling effect: restriction should not have effect of discouraging other, permitted acts of expression

Citizens United v. Federal Election Commission (2010)

- BCRA prohibited electioneering communication by corporations within 30 days of a primary and 60 days of general election - 501c4 conservative non-profit Citizens United political advocacy group brought suit to gain exemption from this law for Hillary documentary - Legal Questions: originally argued as case seeking exemption from BCRA for one film, Roberts directed the case to be re-argued addressing the questions of whether BCRA violates the Free Speech Clause and what free speech rights corporations enjoy Kennedy, 5-4 (695): law bans speech, laws burdening political speech are subject to strict scrutiny, BCRA restricts speech on specific types of speakers, controls certain kinds of content by limiting corporations, corporations should have the same rights as people. Stevens, dissenting (699): BCRA does not ban any speech- it imposes a legitimate time, place, and manner restriction. Corporations aren't a member of societies, can't vote or run for office, could be controlled by non-residents. Too much money could drown out American voices. Broke with precedent.

Police Interrogation

- Brown v. Mississippi (1936) - police beat + tortured confessions out of African-American suspects- unanimous court ruled that violent extraction of testimony violates 14th amen Due Process Clause - Justice Hughes: pg480 - Spano v. New York (1959) - police used a false story to intimidate a suspect into confessing - unanimous court ruled that intimidation could not be used to obtain confessions (again, 14th amen grounds) - three justices noted in concurrence that defense counsel ought to be present for all police questioning

Hustler Magazine v. Falwell (1988)

- Campari ad depicting Falwell's incestuous sexual encounter (as a joke) - bottom of ad says it is a parody in small print - Falwell sued for libel and damages for "emotional distress" - lower courts found magazine lot liable for libel, but had to compensate - Rehnquist, unanimous (319): Falwell a public figure so case must show malice. Ad self-identified as false. OVERTURNED damages ruling.

Fighting Words

- Chaplinsky v. New Hampshire (1942) - Chaplinsky attached in public for his religion (Jehovah) because he was distributing pamphlets, insulted and cursed at by police, arrested for using offensive language in public and calling cop a damned fascist. - Court upheld law, it prohibits fighting words (utterances that can lead to aggression) - Cohen v. California (1971) - Cohen arrested for wearing a "f#$% the draft" jacket, state invoked fighting words doctrine - 5-4 reversed Cohen's conviction: statement impersonal, not directed at someone, so not fighting words. Freedom of speech is meant to keep open a public forum. State can't cleanse public debate of offensive words. Censoring words is censoring ideas.

Schenk v. U.S. (1919)

- Charles Schenck arrested for printing and distributing pamphlets urging resistance to draft during WWI. Socialist. - Schenck: First Amen protects right to advocate legal and political change - U.S. gov: Schenck incited lawlessness and endangered the military cause. Used espionage act. Holmes, unanimous court (185): can't shout fire in a theater. Clear and Present Danger Test 1) Look at context of utterance 2) Does the utterance in context create a clear and present danger of substantive evil? Can be restricted if... 3) the gov otherwise has authority to legislate to prevent such evils Ex: internet influencer posting about a dangerous diet. State can't do anything abt this.

Gideon v. Wainwright (1963)

- Clarence Earl Gideon arrested for breaking into a pool hall - too poor to hire lawyer, provided none by state, Gideon defended himself and was convicted - revisited and clarified the 6th amen questions from Powell and Betts - hand written appeal to court while in prison Legal Question: does 6th amen guarantee state appointed counsel for all non-capital cases? Black, unanimous (502): it does guarantee lawyers to all by state. 14th amen incorporates essential constitution rights in states. In Betts, court refused fundamental counsel. Court here incorporates 6th amen right to counsel here. Basic level of fairness

Cleburn v. Cleburn Living Center (1985)

- Cleburn, TX City Council refused zoning permit to a group home for the intellectually diabled (classifying it as a 'hosptial for the feeble minded') using existing laws - big dif between group home and hospital - CLC argued the zoning decision was manifestly motivated by discrimination against the disabled - Court applied rational basis scrutiny. Unanimously ruled City Council applied a more stringent zoning standard to the group home than it did to all other residential properties (both low and high density,) demonstrating (perhabs unwittingly) that the decision was based on ableism (606)

Mapp v. Ohio (1961)

- Cleveland police searched Dollree Mapp's home and seized items from it without a warrant, didn't even suspect her of a crime; Mapp tried and convicted for possession of illegal materials (obscenity) - state conceded that the evidence was gathered unlawfully, but evidence was admitted at trial and was the sole basis of Mapp's conviction - Clark, 6-3 (467): overturned conviction - exclusionary rule (from Weeks) applies to states via the 14th. Letting states use illegal evidence undermines federal exclusionary rule as well (could give illegal evidence to state) - Harlan, dissenting: law enforcement different from state to state, shouldn't tell them how to deal with crimes

Cases on political process

- Colegrove v. Green (1948): apportionment claims under the Guarantee Clause raise non-justiciable 'political questions', wrong for courts to decide. Up to legislatures. - Baker v. Carr (1962): after Colgrove, many states left decades-old district maps unchanged - from 1900's to 1960's, population became increasingly concentrated in and around cities, while rural population remained constant or declined - Brennan for court: a suit seeking protection of a political RIGHT doesn't present a non-justiciable political QUESTION. Protection of rights to access politics shouldn't be left to the political process itself. Implicates 14th amendment EPC, it is a justiciable dispute. No fixed criteria for what constitutes 'political question' - court must decide case by case. Wesberry v. Sanders (1964): congressional districts must be as roughly equal in population as practically possible, average is 710,000. Can't be perfectly equal. There are bigger ones and smaller ones.

Free Speech Clause

- Congress shall make no law abridging the freedom of speech - clause has been incorporated (Gitlow v. NY) - speech includes most forms of expression, verbal, non-verbal, written, symbolic - "law" includes all gov action and policy - Free Speech Clause has never been interpreted as a categorical protection of all speech - When a right is recognized to be less than absolute, its meaning becomes a matter of which exceptions/infringements are allowed

Freedom of the Press

- Congress shall make no law abridging the freedom of the press - Prior restraint (281): when gov reviews material to determine if it is allowe in advance. Like a law restricting publication of certain speech content, or a gov body that approves content before being published/broadcasted. - First Amen generally forbids prior restraint, however: First amen doesn't impair non-disclosure agreements. Criminal law allows to punish speech after the fact. Civil laws may allow remedy for the publication of certain kinds of materials after the fact (ex: libel.)

Brown v. Board of Education of Topeka (1954)

- Consolidation of several state and federal school segregation cases - Warren for unanimous Court: education important for state and local govs, must be available to all on equal terms, so separate but equal has no place, they are unequal (pg574) - Brown II (1955) determined course of remedy: - local school boards must desergregate, with continuing federal judicial oversight - yet such desegregation must proceed "with all deliberate speed" (pg579)

Criminal Laws: State and Federal

- Criminal laws: prohibit/require specific actions (murder, taxes) - enforced by 1) police arresting suspects, 2) gov prosecutors bringing charges, and 3) criminal courts hearing the trial (leading to conviction and punishment or to acquittal) - most criminal law is state law because they are derived from state police powers to keep public order. Police power inherent in sovereign gov. - federal criminal laws deal with crossing state lines, affecting interstate commerce (drug-trafficking, kidnapping, racketeering), failure to comply w/fed law and regulations (tax fraud) or actions against US (treason) - no general federal 'police power' (US v. Lopez 1995) - criminal justice process p. 429 (LOOK AT IT)

Miranda v. Arizona (1966)

- Ernesto Miranda (indigent, almost illiterate, truck driver, arrested on suspicion of kidnapping + rape. - Cops took him in for questioning and he confessed under interrogation. Neither requested counsel during questioning, counsel wasn't offered. - challenged his conviction, interrogations are inherently coercive and individuals should be made fully aware of 5th and 6th amendment rights - Legal Question: are statements admissible in court when obtained from a person in custody who has not been apprised of his/her rights and how to exercise them? Warren 5-4 (487): statements made by individuals not informed of their rights are not admissible at trial, case most famous for preventative procedural measure it created (miranda warning) White, dissenting (488): ruling will deprive police of yet another valuable tool

Katz v. United States (1967)

- FBI thought Katz was involved in illegal gambling, had warrant to search physical evidence, but no warrant for the listening devices that they put on public phone booths - Katz challenged use of listening devices as a search and seizure without warrant. Are public places covered by fourth? - Stewart, 7-1: listening devices constitute search and seizure, 4th protects people (468) - broke from physical Olmstead standard - warrant could have authorized FBI actions - Black, dissenting: no textual basis that eavesdropping is a 4th search and seizure

Campaigns and Elections

- Federal Election Campaign Act of 1971: Set limits both on contributions to campaigns and spending by campaigns. Record keeping and reporting requirements. - Buckley v. Valeo (1976): whether FECA's spending limits violated freedom of speech. Upheld record keeping and individual contribution limits. Struck down law limits on individual group and candidate expenditures. Politics in money considered speech. Contributions resources that enable political speech, not political speech in itself. - First National Bank of Boston v. Bellotti (1978): Ruled (5-4) that political advocacy by corporations on matters of public concern is protected speech. - Austin v. Michigan Chamber of Commerce (1990): ruled (6-3) that corporate contributions to and spending on elections could be regulated in order to prevent unfair advantages in electoral politics. Did not effect lobbying, though. - Bipartisan Campaign Reform Act of 2002 (McCain-Feingold): 1) limited all forms of political contributions, 2) raised the limits on contributions, 3) prohibited unions and corporations from engaging in 'electioneering communication' shortly before elections. No direct public political advocacy close to election. - McConnell v. Federal Election Commission (2003): Upheld (5-4) BCRA as legitimate protection of electoral process - Randall v. Sorrell (2006): plurality struck down a Vermont law strictly limiting individual campaign contributions - Davis v. Federal Election Commission (2008): court (5-4) struck down down BCRA provision limiting the advantage of wealthy, self-financed candidates

Bush v. Gore (2000)

- Florida statewide margin for Bush of fewer than 1800 votes triggered machine recount, after which Bush's lead fell to 250 with overseas absentee votes still outstanding. Went to hand recount. - close vote, technical problems w voting machines, irregular results prompted lawsuits from both sides - Bush seeking to end recount, Gore seeking to continue. - under federal and state laws, deadline for (irreversible) certification of results was December 18 - Republican Secretary of State and Republic Governor (Jeb Bush) opposed continuing recount - FL Supreme Court ordered extension to continue hand recount- contradicting the court, FL sec. of state (R) certified results, Bush ahead by 537 votes - Question: Did FL Sup. Ct. order to extend the recount, without a statewide uniform procedure, violate the 14th amendment and federal election laws? - how to treat punch-card ballots that counting machines couldn't read (hanging chads,) enough irregular ballots in play to potentially reverse Bush lead - 5-4 per curiam opinion: recount not consistent with proceudres needed to protect rights of voters. Need uniform procedures across state. Equal Protection Clause violation. (671-3) - Stevens, dissenting: disenfranchises voters to rule this way, court is stepping into politics that is beyond its power, recount should go on (674) - Souter, dissenting: FL needs more uniform standards, but could probably comply before vote deadline (675) - ironic: majority normally preached state rights EXCEPT this case,

Preferred Freedoms Doctrine

- Footnote Four US v. Carolene Products (1938) about interstate milk shipment. Shift from economic liberties to civil liberties (194) 1) laws that conflict w BoR will be subjected to higher scrutiny 2) judiciary has special responsibility to defend rights essential to political process (speech, press) 3) judiciary has special role to play in protecting rights of minorities Thomas v. Collins (1945) - explicitly applied a preferred freedoms standard to freedom of speech - must be clear and present danger to be restricted- overturn TX law EROSION - caused by Frankfurter Kovacs v. Cooper (1949) - Ad Hoc balancing test - (211) stepped back from footnote four and preferred freedoms doctrine - gave greater presumption to the constitutionality of restrictions of free speech Dennis v. U.S. (1951) - communists arrested in violation of Smith Act - clear and probable danger test - Vinson (219): court should consider size of potential danger, how probable it is (instead of how immediate,) and is it more harmful to allow or prohibit the speech. - first amen protects public good as well as individual rights - Douglas, dissenting (217): must be immediate danger

Future of Equal Protection

- Given post-Ginsburg composition of Court... - Court with continue to chip away at use of race conscious criteria in service of 'liberal' policies (school integration, employment opportunity, public university admissions) - unlikely that Court with altogether abandon major sex/sexual orientation discrim doctrines - likely that Court will permit more exceptions to such previous cases (eg religious exceptions, as in Masterpiece Cakeshop)

Town of Greece v. Galloway (2014)

- Greece, NY town council opened public session with prayer from local volunteer. Open to anyone. In practice most prayers were Christian - Kennedy, 5-4: (168) town neutral about the prayer, not their fault they were mostly Christian. The prayer was for lawmakers, not so much the public. - if gov not actively taking sides between religions (is netural,) it is ok for actions to have net effect of putting a particular view forward. - in a town of 99 Christians and 1 non-Christian, public prayer law neutral with un-neutral effects - community doesn't have to pretend it isn't majority Christian - Kagan, dissenting (170): divides citizens. Those who don't want to participate have to single themselves out. Non-denominational invocation would be satisfy establishment clause. - if not non-denominational, it is favoring religious majority - in a community of 99 Christians and 1 non-christian, have state blessing to demonstrate majority religion - gov not a stage for religion

Exclusionary Rule under Roberts Court

- Hudson v. Michigan (2006) - knock and announce requirement - 5-4: Not all police procedures derive from 4th amen, those that don't (like knock and announce) aren't subject to exclusionary rule - Scalia (474) Herring v. United States (2009) - police acting on expired warrant - 5-4 Court extended 'good faith' exception to errors by law enforcement (expanded Leon), minor or unintentional mishandling of paperwork or procedure (acting on an expired warrant) does not trigger exclusion of evidence - Utah v. Strieff (2016) (479) - 5-3 ruled that evidence gathered to search incident to arrest may be admissible in court, EVEN IF the justification of arrest was byproduct of unconstitutional stop - violation of 4th amendment at front end of police procedure (stop or arrest) does not automatically trigger exclusion of evidence fathered later in process

McCullen v. Coakley (2014)

- In Hill v. Colorado (2000) 6-3 court upheld state law prohibiting protest within 8 feet of healthcare facilities as a valid time, place, & manner restriction. Meant to protect employees and clients from unwanted speech. Protesters can still express their views publicly. - MA law criminalized standing on sidewalk within 35 feet of health clinic that did abortions. Limit confrontation (not necessarily protest.)- Law challenged as limiting only anit-abortion speech, viewpoint discrimination. - Roberts, unanimous (220): it does restrict free speech. State has valid interest in regulating public spaces. Law does NOT discriminate against one view, but court struck down the law because buffer zone wasn't the "least restrictive means."

State Action Requirement

- In the Civil Rights Cases (1883) the court (8-1) insisted that the 14th amen only prohibits racially discriminatory state action. Does NOT a) directly prohibit private racial discrim or b) authorize federal laws (criminal or civil) prohibiting private racial discrim - Racially restricting covenants were long used (including in the North) to maintin de facto racial segregation in housing- for instance: -- Person A sells their house to person B, the sale contract includes a clause prohibiting B from selling/renting property to non-whites -- If person B violates the contract, person A might sue for damages in civil court -- an indirect, private (non-gov) tool for mainting housing segregating

Liberalizing Roth Case

- Jacobellis v. Ohio (1964) - "contemporary community standards" of propriety (to decide if work is obscene) should apply national standard, no local - Potter Stewart (328) says pornography "I know it when I see it" - Memoirs v. Massachusetts (1966) - work not obscene if it contains "a modicum of social value" (326) - narrows scope of obscenity, expanding on possible redeeming features

United States v. Jones (2012)

- Jones convicted for evidence gathered by long-term, warrantless GPS surveillance. Planted GPS outside of warrant geo-zone and after it expired - police claimed no warrant was needed because GPS was on public roads, it could be seen by the public - what standard should be used (katz, when it violates reasonable privacy) or olmstead (property trespass) - Scalia, unanimous: GPS surveillance is a search. Katz and Olmstead apply, added reasonable expectation of privacy to Olmstead physical trespass standard. Violating either violates the 4th. - Alito, concurring: only Katz matters, not Olmstead. Public road travel isn't private. Physical trespass not required. GPS tracking only violated 4th because warrant didn't authorize for how long they used it.

Zelman v. Simmons-Harris (2002)

- Lemon eroded, neutrality main standard - Ohio school voucher program, send children to public school and get paid or get voucher for almost full tuition to private school. 80% private schools religious. Many people left public to for private religious school. Steered students/tax money to religious schools. - does voucher system violate neturality? Rehnquist, 5-4 (149): neutral application. individual choice, wasn't intentional of gov to send money to religion. Law constitutional. Breyer, dissenting: vouchers give state support to full blown religious education, partners church and state in education. Past programs were also more limited. Not neutral in effects, intermingles state and church. Souter, dissenting: vouchers violate Everson, aid religious institutions to teach religion

Everson v. Board of Education (1947)

- Local NJ school board reimbursed families for bussing costs w/tax money, for students of religious/private and public schools. Only for transportation. Everson claimed law violated establishment clause by using tax money for religious school transit. - Black for 5-4: (pg129) originalist view, cites Jefferson and Madison advocates of E clause, clause creates wall of separation. However, ruling is accomodationist. - funding policy not a violation, doesn't directly aid religious institution, would violate Free Exercise Clause to exclude someone from public benefits for their faith - Jackson, dissenting (130): state can't pay for religion. Thought the law favored religion.- Rutledge, dissenting (131) Outcome: incorporated Establishment Clause

Edwards v. Aguillard (1987)

- Louisiana law required teaching of evolution science and creation science in public schools to maintain neutrality - state argued that evolutionary theory also derived from religion: atheism - Brennan for 7-2 (166): Creationism Act created to make science conform to a religious view, violates first amen. Law didn't have secular purpose.

Gitlow Free Speech Views

- Majority (Sanford) - Free speech is only an individual liberty, public order/welfare always trumps free speech. Dangerous ideas have no redeeming value. Free Speech Clause only requires that gov have good reason to silence expression. Restrictions presumed constitutional. - Dissenters (Holmes) - free speech essential to democratic society and individual liberty, and it is a part of shared public welfare, limited in immediately dangerous cases. Dangerous ideas should be allowed to be debated. Free Speech Clause requires that free speech be restricted in rare and urgent cases

New York Times v. United States (1971)

- NYT and Washington Post published info about Pentagon Papers (classified info abt US military involvement in Vietnam) - US gov sought injunction to prevent further publication on grounds of national security - Legal question: was prior restraint justified in this case on grounds of national security? - Per Curiam Opinion 6-3: prior restraint bears a strong burden to prove it constitutional, gov failed to meet the burden. Overturned order prohibiting publication. Black and Douglas (C): secrecy in gov is antithetical to healthy democracy. Prior restraint forbidden by first amen. Brennan (C): Prior restrain can't be justified based upon speculation about bad consequences. Would require a direct threat to national security.Stewart and White (C): the only sure limit on Executive power is an enlightened citizenry. Info keeps gov in check. (Nixon was super secretive) Burger (D): Court proceeded to hastily, may have missed facts that would have justified a different ruling. Harlan (D): Court has exceeded its authority to pronounce on matters of foreign policy, duly given over the Exec branch. Court shouldn't be so involved on matters of national security. Blackmun (D): First amen isn't absolute, and the Court has promoted it over clear provisions in Article II regarding Exec power.

New York Times v. Sullivan (1964)

- NYT published full-page ad in support of civil rights movement, criticizing unnamed figures who fought integration. Police commissioner Sullivan of Montgomery sued for libel, claiming the ad targeted him and conveyed false/damaging statements. - NYT claimed they can criticize the gov - Brennan, unanimous (311): constitution allows for the debate of what is true/accepted, untruth of what was said doesn't mean it is totally unprotected, even false speech can be protected because people have a right to say untrue things. Public officials are open to more criticism. So damaging false criticism of public official PROTECTED by first amen (unless falsehoods were spread with malice)

Obscenity after Miller

- New York v. Ferber (1982) 9-0: Child porn not protected by first amen. State must protect children and prosecute child porn crimes. - Reno v. ACLU (1997): 1996 communications decency act prohibited 'knowing' online display of obscene materials to persons under 18, contained 'good faith' exception, providing protection for content providers who were deceived by content consumers - Stevens, 7-2 (343): 1) CDA unconstitutionally vague, 2) carries chilling effect, 3) is overbroad. - Can't reduce adult population to only what is ok for children.

United States v. O'Brien (1968)

- O'Brien and others burned draft cards in protest of Vietnam War, violated 1948 Selective Service Act - is symbolic speech protected by first amen? Is burning a draft card such speech? - Warren 7-1 (203): upheld Selective Service Act. Gov regulation justified if 1) it is within constitutional power of gov, 2) it furthers gov interest 3) gov interest unrelated to suppression of free expression, 4) if the incidental restriction on alleged first amen freedoms is no greater than is essential to the furtherance of that interest (least restrictive means) - non-speech element can trigger valid restrictions of speech element

Lemon v. Kurtzman (1971)

- PA law allowed state tax revenues to pay for books/teacher salaries for secular classes, two sets of accounting records were kept to track secular + religious expenditures - challenged as establishment clause violation 1) aimed to keep religious schools fiscally solvent (violating Abington test,) prevented religious schools from closing and 2) creating 'excessive entanglement' of church and state (violating Walz) - created LEMON TEST (secular purpose, neutral in effects, can't cause excessive entanglement) - Burger for unanimous court (142): law can violate establishment clause even if it doesn't completely establish a certain religion, violation on grounds that moving in forbidden direction, separationist. All 3 lemon test standards must pass. This case decided on third part of test

Planned Parenthood of Southeaster PA v. Casey (1992)

- PA law required 1) informed consent requirement 2) 24 hr wait 3) parental/judicial consent 4) spousal notification/consent for married women - 2 new conservative justices. Bush also seeking re-election so Rehnquist tried to delay proceedings for a year to have stronger case. Stevens said he'd go public about this so this didn't happen. - Plurality O'Connor Kennedy and Souter (390): reaffirmed Roe. State can protect viable fetus + have informed consent provisions. Stare Decisis. Replaced trimester system with UNDUE BURDEN standard. - Court would've overturned Roe if O'Connor and Souter hadn't agrred that legal stability is more important than a political agenda. Kennedy switched sides as well. Majority opinion fell apart. Scalia, dissenting (395): 1) constitution says nothing about abortion rights 2) rational basis test upholds whole law Post-Casey:- new restrictions tested like admittance privs, ultrasound requirement, pushing viability boundaries to 6 weeks when there's a heartbeat - Whole Women's Health v. Hellerstedt (2016) 5-3: struck down admitting privilege law and building code, undue burden that caused 55% of state clinics to close. - June Medical Services v. Russo (2020) 5-4: struck down LA law that was the same as the Hellerstedt law. - Roberts: (dissented Hellerstedt) voted w/majority on stare decisis grounds - left open possibility of new restriciton and chance to overturn Roe

Abington Township v. Schempp (1963)

- Public schools may not impose prayer, even when participation is voluntary. Religion is fundamentally important, and should remain private and untouched by the state

New test for sex discrimination

- Reed recognized sex discrim as constitutionally problematic, the protection it afforded was marginal and the standard was unclear (i.e. rational basis or something distinct and stronger) - Frontiero v. Richardson (1973) - Air force policy gave benefits to wives of officers more freely, than to husbands of female officers - court 8-1 ruled that this was an overbroad and arbitrary disctinction between men and women - effectively applied rational basis scrutiny - yet 4 justice plurality called for treating sex as a 'suspect class' like race (warranting strict scrutiny) Craig v. Boren (1976) - Oklahoma law (informed by recent statistical data) set age to buy beer at 18 for women, but 21 for men - Court 7-2 overturned law, articulating a clear standard for sex discrim- declining to treat sex exactly like race under EPC - Brennan: classifications by gender must 1) serve important gov objectives and 2) be substantially related to achievement of those objectives (637)

Abrams v. U.S. (1919)

- Russian immigrants convicted of printing/distributing pamphlets calling for general strike that would hinder war effort. - 7-2 court- Bad Tendency Test: gov can restrict speech that bears a general tendency to (likely) produce harm (not immediate) - expands the reach of governmental censorship - Holmes and Brandeis, dissenting: defended Schenck, this case is short of clear and present danger. Pamphlets weren't going to do anything. Also standards shouldn't get because there is a war going on.

US Congressional Electoral system

- Single Member Plurality Districts: each house district has only one representative (and each state has 2 state-wide senators, not elected simultaneously, sharing the same district) - winners in house and senate general elections are selected according to First-Past-the-Post, Winner-Take-All voting rules (in all states but GA and LA). Candidate with most votes wins, even if they win less than 50% of vote. In 3 way race, candidate with 33%+1 of the votes. Most contested House and Senate races have more than 2 candidates on the ballot (and write-ins are allowed in some states), hence many elections are won with <50% - in GA and LA, if no candidate gets 50%+1 votes, top two finishers face each other in run-off. Guarantees candidate will win numerical majority.

Cruel and Unusual

- Solem v. Helm (1983) - a repeat, non-violent, petty criminal was sentenced to life without parole - Powell 5-4 (528): 8th amen prohibits not only brutal punishments, but also those disproportionate to the crime - to determine what is proportionate, courts must consider 1) the gravity of offense and harshness of penalty 2) the sentences imposed on other criminals in the same jurisdiciton 3) sentences imposed for commission of the same crime in other jurisdictions Ewing v. California (2003) - challenge to CA's 'three-strikes' law, which required severe sentences for repeat offenders, even if offense is minor - Kennedy 5-4: 3 strike laws don't violate the 8th, history of minor offense can warrant more substantial punishment than any single offense would. States have a compelling interest in reducing recidivism, courts should defer to the judgement of the legislature. Graham v. Florida (2010) - juvenile sentenced to life in prison for two armed robberies -Kennedy 6-3: determinations of cruel and unusal punishment requires a moral judgement. Life sentences for minors must be limited to homicide, later prohibited by Miller v. Alabama 2012.

Sweatt v. Painter (1950)

- Texas created a materially inferior law school for blacks - court ruled that separate educational facilities must be 'substantially equal'

Affirmative Action in Higher Education

- U of Michigan created separate and dif programs to promoter undergrad/law school student diversity. - Gratz v. Bollinger (2003) (6-3): point system gave 20 points to minorities. Struck down Michigan system, too rigid and formuliac (followed Bakke) - Grutter v. Bollingeer (2003) (5-4): upheld Michigan Law School's more holistic admissions policy, race and ethnicity only plus-factors in a non-formulaic decision process. Not guaranteed benefit. Survived strict scrutiny. - Thomas, dissenting: constitution doesn't allow for gov to distinguish based on race, can't favor or disfavor. Sociological foundations of affirmative action is mistaken (539)

Regents of the University of California v. Bakke (1978)

- UC-Davis Medical School created a dual-admissions system to promote minority enrollment - the system set aside 16 of 100 seats for minorities - admitted minorities applicants generally had lower academic credentials than many admitted/rejected white applicants - program challenged by a rejected white applicant as violation of EPC. Rigid quota of minority admissions makes race (a 'suspect class') the primary ground fro differential treatment - proved he would've been admitted without the quota - can race be used as a criterion in college admissions? - Powell, 5-4: - strict scrutiny - EPC ensures individual rights, not group rights - struck down the program, but took on question of constitutionality - Not equal to not give whites and POC the same protection 614 - program forced Bakke to be discriminated against to solve a problem he didn't cause - university can be flexible in admitting people, but can't make race a deciding overwhelming factor - UC-Davis minority quota isn't the least restrictive means to achieving state's interest in remedying discrimination - less rigid, formulaic affirmative action policies might pass Equal Protection scrutiny - Brennan, Marshall, White, Blackmun, dissenting - education not 'fundamental right' (San Antonio v. Rodriguez where Brennan dissented) equal protection clause doesn't guarantee education access - whites don't fit court's definition of a 'suspect class', thus UC Davis program should be subject to intermediate, rather than strict, scrutiny. - Remedying discrimination is a good purpose, enough to justify affirmative action(618)

Exclusionary Rule exceptions

- US v. Calandra (1974): exclusionary rule doesn't apply to grand jury hearings - US v. Leon (1983): evidence used to arrest Alberto Leon was gathered with a fault warrant (fault of judge, not police) - 6-3 court created good faith exception: if police believe they are respecting the 4th, evidence ending up as unlawful can be used. Exclusionary rule exists to deter police misconduct, not punish them for others mistakes (judges) - Brennan, dissenting, 4th amen rights are fundamental to constitutional order and, once lost, are difficult to recover (473) - Nix v. Williams (1984): inevitable discovery exception, if they would have found it anyways, it can be used in court

Fisher v. University of Texas (2016)

- UT undergrad admissions policies (after grutter) a) admitted top 10% of students from in-state high schools (often highly racially homogenous) and b) treated race as a non-decisive plus-factor in holistic evalutation of individual applications -Kennedy 4-3: - Fisher 1 (2013) ruled that race-conscious programs 1) must be subjected to strict scrutiny, 2) may not use quotas, but "reasoned, principled" programs might withstand scrutiny, 3) must be proven to achieve what "available" and "workable" race-neutral programs could not - UT demonstrates (and Fisher doesn't refute) that policies a) and b) are complementary, together they better serve a diverse student body (understood in more than just racial terms) than either would alone - Public universities are labs like states, there shouldn't be one policy to promote diversity (629)

Poe v. Ullman (1961)

- Victorian era law prohibited state sale/use of contraceptives - was it a fourth amen violation for police to enforce this? - case unripe, plaintiffs bringing suit lack standing because law not being enforced. - Harlan, dissenting (368): violates 14th amen on procedural grounds, intrudes upon the home, calls for strict scrutiny

American Legion v. American Humanist Association (2019)

- WW1 Latin cross memorial on public land, maintained by tax money, challenged by secular separationist org as a gov endorsement of a Christian symbol - Alito 7-2: Lemon test failed to provide versatile consistent standard, court has deviated (Zelman, Van Orden, Town of Greece,) unknown what original purpose of monument was for but has gained secular value overtime, removing it could be hostile to religion, - does the monument have secular and religious signifigance? And would removing it violate neutrality to religion? - cross more than religious, so constitutional- Breyer and Kagan: Since Van Orden, Lemon test flawed, neutral main standard for establishment cases - Thomas (7): concurring in judgement only, establishment clause shouldn't be incorporated against states - Establishment doctrine for majority: if a religious display is a) accepted today, despite being religious and/or b) has acquired secular meaning overtime, it satisfies establishment clause. If gov creates/maintains religious display, it assumes a protected status, removing display violate clause by favoring non-religion. - Ginsberg and Sotomayor, dissenting (8): court's decision erodes neutrality precedent to religion (since Everson) isn't secular because it's a war memorial, elevates Christianity over other religions - Establishment doctrine for dissenters: whether or not a display is religious isn't about the age of monument, but symbolism. Can't satisfy neutrality just because it doesn't bother majority of people. Violation of clause for gov to endorse religion, must remove display.

Snyder v. Phelps (2011)

- Westboro Baptist Church non-violent protest, police approved, on public land near private funeral for Marine Corporal Matthew Snyder. Called him a fag, argued gays are a plague and God was punishing America by killing soldiers. Father sued for civil damages - Roberts, 8-1 (260): The speech was addressed to a matter of pubic concern, so has full first amen protections. Even if the messages are horrible. Would be viewpoint discrimination, so Snyder lost. - Alito, dissenting: Content is protected, but not the form it was expressed in, and not in the time/place it happened in. Right to buried loved one in peace.

United States v. Alvarez (2012)

- Xavier Alvarez falsely claimed to have served in Marine Corps + receiving Congressional Medal of Honor. Prosecuted by FBI under 2005 Stolen Valor Act. - Kennedy 6-3 (232): Gov can only restrict damaging content. Gov interest in protecting integrity of military honors doesn't justify all means to preserve the integrity. Must be least restrictive means. Sustaining this law could lead to gov restricting more political beliefs. Gov not the truth police.

Capital Punishment

- a long tradition in the US, explicity upheld on 8th amen grounds in Louisiana ex rel. Francis v. Reswever (1947) - Furman v. Georgia (1972) - 5-4 court ruled that existing death penalty laws violate 8th amen partly due to racial disparity in sentencing (POC more likely to get death penalty than white for same crime,) and due to arbitrariness of its imposition from case to case (eg for same crime in same jurisdiction) - create temporary moratorium on capital punishment, pending state revisions of death penalty statutes Gregg v. Georgia (1976) - numerous states revised their death penalty statutes after Furman - Stewart 7-2: - constitution repeatedly identifies possibility of capital punishment (eg 5th and 14th amen) - legislative responses post-Furman demonstrate society's continued approval of capital punishment- death penalty has dual justification: retribution and deterrence - Georgia and other states have suitably narrowed and clarified their criminal statutes as to reduce the chance that the death penalty may be imposed "capriciously and arbitrarily" - Suitably reformed death penalty statutes satisfy the 8th amen - since Gregg, court has taken few cases challenging death penalty as such - most appeals are about specific execution protocols (Baze v. Rees 2008) or about its use for specific crimes or upon specific classes of persons - McCleskey v. Kemp (1987): measurable racial discrepancy in death sentences does not violate the 8th amen - Atkins v. VA (2002): an individual convicted of murder (committed w another person) was, on appeal, found to have a mental disability potentially affecting his ability to understand and make decisions - Stevens 6-3 (543): death penalty is cruel and unusual punishment if imposed upon persons with mental retardation that affects their reasoning and decision-making. Significant and growing number of states have abolished death penalty for persons with mental retardation. If the death penalty does not serve the goals of both retribution and deterrence, then its imposition has nopurpose, needless pain imposed. Executing mentally handicapped serves neither goal. - Scalia, dissenting: 8th amen allows death penalty regardless of convict mental capacity. Continued existence (and use) of death penalty statutes shows persistent social support for the practice. Kennedy v. Louisiana (2008): death penalty for any crime other than murder/crimes against gov (treason, insurrection) violates the 8th

6th Amendment

- accused enjoy the right to be informed of nature+cause of accusation, be confronted with witnesses, compulsory process for obtaining witnesses in his favor, have the assistance of counsel for his defense - applies only to criminal (not civil) cases- ensures genuinely adversarial proceeding (defense can actively mount a case) - places prosecution and defense on a procedurally equal and fair footing (knowledge of charges, equal access to evidence and witnesses) - facilitates the finding of the truth at trial, rather than just a display of superior gov resources (defense may cal/subpoena favorable witnesses) - 6th amen rights are procedural, aimed at securing just process, not necessarily just outcome - doesn't guarantee a right against false conviction - appeal of a conviction must allege an error of law, not of fact (factual innocence)

Reynolds v. Sims (1964)

- after decades without reapportionment, Alabama state legislative districts were severely malapproportioned. Most populous house district had a population 16x the size of the smallest. Most populated senate district 41x bigger than the least. - Warren, 8-1 (709): representatives represent voters, not areas on a map. EPC demands equal state legislature representation for all citizens. - created principle of 1 person, 1 vote (711)

Texas v. Johnson (1989)

- arrested for burning an American flag outside 1984 RNC - law defended as valid preservation of public order, Johnson claimed viewpoint discrimination - is flag burning protected speech? - Brennan 5-4 (208): First amen protects symbolic speech, but it isn't unlimited protection. Must look at context of expression. The flag burning law created to prevent offense, but court ruled that something isn't well like doesn't mean the gov can prohibit it. OVERRULED arrest. - Rehnquist, dissenting: burning the flag wasn't essential to expression and was widely offensive. Flag is greatly revered. This could be restricted for public safety (it could have resulted in violent reactions.)

Political Representation

- article 1 section 2, and federal law, after every census: state congressional representation much be reapportioned based on state populations. States (legislatures, special commission) redraws the district maps. - article 4 section 4: federal gov guarantees every state a republican form of government. Big in regards to right to vote.

Moose Lodge No. 107 v. Irvis (1972)

- as dejure segregation was being dismantled (by court rulings and statute) and notions of 'state action' were being expanded, many private clubs continued to restrict membership based on race - 6-3 - this case, private club allowed only white members and only white guests of members - black guest of member denied service, sued alleging that, in granting the club a liquor license, the state endorsed club's discriminatory policy - Rehnquist: - 1st amen freedom of association has long allowed membership restriction rights based upon race, even if they receive benefit/service from state (everyone needs gov for dif things, like electricity/water) state action requirement would be meaningless (598) - didn't overturn shelley or burton because there were complicated entanglements of gov and private, but not in this state - Brennan, dissenting: - liquor licenses are just revenue measures for state, by granting a license, the gov and private club blurs lines of separation. Private club w state licensed privilege, then 14th applies (599)

American Justice System (criminal and civil process)

- both parties (in principle) should be evenly matched by: 1. applying same rules and procedures to both sides (both sides can object in court, etc) nothing only defense/prosecution can do 2. both sides may employ professional counsel (public defender) - counsel on both sides actively make their own case (arguments, evidence, witnesses) and respond to other side's case - judge serves as disinterested referee, ensures fair procedures are followed - best case wins 1. truth is just one element of the process, since evidence is often incomplete/inconclusive, winning is also a matter of HOW evidence is used 2. procedure is independently valued, as both protecting rights and limiting gov- treats guilty as well as innocent

5th amendment self incrimination clause

- can't be compelled to be a witness against yourself 1. protects a dimension of privacy 2. limits how the state can obtain evidence - 4th amen is physical evidence, 5th amen incrim clause deals with testimonial evidence - no coerced testimony, allows voluntary plea-bargaining - applies to any testimony before the gov (potentially) related to criminal matters - Congressional committees, grand juries, as well as criminal trials - applies only to self-incrimination, you can be subpoenaed to testify against others (as limited by statute and common law) - does not entitle one to lie in order to avoid self-incrimination - does not protect one against charges of perjury

Double Jeopardy Clause

- can't try someone for same crime twice if found innocent first time (5th) - generally prevents gov from repeatedly trying a person on the same charges until achieving a conviction, acquittal meant to stick (Ashe v. Swenson 1970) - Nonetheless, a person may... - be tried for the same crime under both federal and state criminal law (Heath v. Alabama 1985) - be subject to civil lawsuit for same alleged action (eg wrongful death lawsuit) 7th amen limits how such civil judgements may be retried or reversed - be kept in state custody (eg civil commitment for mental health reasons) after completing criminal sentence (Kansas v. Hendricks 1997) - be placed on public registry (eg sex offenders) (Connecticut Department of Public Safety v. Doe 2003)

Reed v. Reed (1971)

- challenge Idaho law, gave preference to men over women in executing estates- petitioner urged Court to apply strict scrutiny (as with race) to sex discrimination - is sex discrim ok under 14th EPC? if it is under EPC, what test should court use? - Burger 7-0: - 14th amen doesn't deny to states the power to treat different classes of persons in different ways. EPC denies states power to legislate different treatment based on criteria unrelated to statute objective. (634) - test to apply a slightly more stringest rational basis test: sex discrim is unconstitutional unless differentiall treatment advances valid legislative purpose - can't favor men over women just to save time and money

Trinity Lutheran Church v. Comer (2017)

- church-operated daycare in MO denied renovation funding grant because of state constitutional provision prohibiting tax funds to go to church - sued because it would have received funding if it wasn't a church. Claimed violation of free exercise clause. Establishment clause also implicated. - Roberts 7-2 (156): free exercise holds that persons or groups 1) may not be disfavored by gov because of religion unless compelling reason 2) not entitled to religious exemptions from otherwise valid criminal law. This law discriminated against religion. Violates free exercise. - Sotomayor, dissenting (158): case has establishment clause implications. Changes relationship between church and state. Requires gov to fund a church, not ok. Step of direction where gov could start to favor some religions over others.

United States v. Miller (1939)

- congressional Federal law requiring taxes/registration on certain guns was challenged under second amendment. Crime to transport across state lines without registration - no one showed up to defend Miller - McReynolds unanimous court (389): argued part 1 of amendment limits part 2. Second amen protects collective right related to common defense, not right to individual right to gun ownership

Roe v. Wade (1973)

- consolidated challenge to restrictive abortion laws from TX and GA (Doe v. Bolton) no abortion even in rape cases - first argued 1972, but conflict within court and upcoming presidential election led Chief Justice Burger (Nixon appointee) to schedule re-argument for 1972 term - Bad decisions made: 1) Burger voted strategically with Roe and was assigned task of writing opinion to Blackmun, even though Burger was in the minority. Shouldn't have assigned opinion. 2) scheduled re-argument to give more time to decide case well. Burger knew how libs would rule, wanted to help Nixon by delaying controversial ruling. - STRUCK DOWN TX law - Blackmun 6-2: Griswold right to privacy includes women's right to end pregnancy. But state has valid interest to regulate abortion to keep the procedure safe. Must be balanced with right to privacy. - Regulation must adhere to trimester framework system laid out in case (on slides) - State has right to regulate when fetus is viable. But health of mother being in danger is the most important thing. Rehnquist, dissenting: right to privacy is substantive due process. Reviving this would be unincorporation of first amen. He is ok with majority controlling minority. - Even if right to privacy involved in due process, these laws should be subjected to rational basis NOT strict scrutiny - Abortion isn't under right to privacy. Involves a doctor (a licensed professional) and has exchange of money. - Trimester framework acts as legislature

Civil Rights Act of 1964

- created civil prohibitions of and remedies for race (and sex) discrimination by both state actions and private actors - enacted under Article 1 Commerce Clause (upheld in Heart of Atlanta Motel v. US 1964)

Communications Decency Act of 1996 section 230

- current debates about social media regulation not about First Amen, but about statutory regulations and rights - Comm Dec Act: no provider or user on an internet platform should be treated as publisher. - When you post content, you are the speaker. Not the social media platform. - protects platform from crim/civil liability (posting copyrighted content on youtube that isn't yours) - the platform is property of the service provider, so can moderate posters. - conservatives criticize it because it supports Big Tech being anti-conservative - Libs criticize it because it gives Big Tech too much power. Can allow/promote dangerous content to boost usage and profits.

Right to fair trial

- due to plea bargaining, etc, 10% of criminal cases go to trial - right to speedy trial: Court has adopted flexible standards rather than a fixed timeframe Right to jury trial: - defendant may opt for jury trial in nearly all criminal cases (not maybe speeding ticket tho) (Duncan v. Louisiana 1968) - jury selection: Batson v. Kentucky (1986) prosecution may not use peremptory challenges during jury selection to craft racially discriminatory jury (later applied to sex discrimination as well) - jury size: williams v. florida (1970) 12 member jury is not required by 6th amen, the amen says nothing about this. Generally, more serious charges = larger jury - jury verdict: Johnson v. Louisiana (1972) unanimous verdict is not required by 6th amen Press Coverage - Sheppard v. Maxwell (1966): extensive media coverage (and non-sequestered juries, can go home) can compromise the 6th amen guarantee of a fair trial. - Richmond Newspapers v. Virginia (1980) (pg 523): court ruled right to attend criminal trials implicit in guarantees of first amen freedom of speech + press Right to confront witnesses against oneself: - right to be present at one's own tiral, yet can be waived/forfeited. Illinois v. Allen (1970) defendants conduct in court room can require them to be removed from proceedings. - Maryland v. Craig (1990): 6th amen allows closed-circuit video witness testimony (eg adolescent victims) - right to cross-examine witnesses (thus limiting use of out-of-court statements/depositions, can't be done in criminal cases normally, must show up in court) Crawford v. Washington (2004) - however, some evidence (eg recorded 911 calls) is not 'testimony' and is therefore exempt: Davis v. Washington (2006)

Crisis, Threat, and Restriction of Speech

- during times of crisis or perceived threat, fed and state govs have passed laws restricting speech, like criticism of gov - Alien and Sedition Acts of 1798: enacted by federalists, criminalized criticizing fed gov. Later repealed, many pardons. - Civil War, Reconstruction Act of 1867: criminalized southern cause advocacy and anti-union crits - Post WW1 criminal syndicalism laws: illegal to advocate for violent political action, aimed at commies - Post WW2, criminalization of 'un-American' political activities and affiliations (Smith act): can't advocate violent action against gov, leftists - Post 9/11 PATRIOT Act monitoring and intelligence

Gerrymandering

- electoral district deliberately drawn to concentrate or dilute a voting group for political advantage - could be based on any factors that allow one party to benefit from the electoral map (race, political party) - under a system of 'proportional representation' if a party wins x% of the vote, it will receive ~x% of seats in the legislature Racial gerrymandering cases - Gomillion v. Lightfoot (1960): gerrymandering meant to disenfranchise racial minorities may be unconstitutional - United Jewish Organizations of Williamsburg v. Carey (1977): upheld creation of majority-minority districts meant to ensure representation of minority groups - Miller v. Johnson (1995) - Kennedy (5-4) (717): laws classifying citizens based on race must pass strict scrutiny, you can draw districts that encompass specific communities, but if state assumes that a group of voters will vote a certain way from their race is stereotyping, goes against equal protection mandates - Ginsburg, dissenting: drawing legislative districts groups individuals based on common characteristics, so majority-minority districts aren't problematic Partisan gerrymandering cases - Davis v. Bandemer (1986): partisan gerrymandering is a non-justiceable question under EPC - Arizona State Legislature v. Arizona Indep. Redistricting Commission (2018): article 1 section 2 permits (but does not require) state legislatures to create independent districting commissions to draw electoral maps. this case interprets part of constitution in regards to who gets to draw districts, doesn't require state to do it. - Rucho v. Common Cause (2019): - Roberts (5-4): 1) partisan gerrymandering generally not unconstitutional, 2) constitution doesn't require proportional representation. - partisan gerrymandering presents a non-justiceable political question, so solutions to partisan gerrymandering lie where the 'causes' do: in the political process

Abington School District v. Schempp (1963)

- establishment clause requires that 1) there must be a secular legislative purpose and 2) primary effect must neither promote or inhibit religion (135) - two part test

2020 Presidential Election

- evidence that Joe Biden won popular and electoral vote, Trump campaign initiated dozens of legal challenges against results at state and federal levels - majority of state courts denied challenges, several issuing a 'denial w prejudice' (court refuses to hear a suit, thinks suit has no merit, will b charged w contempt of court if they try again) - federal courts also denied challenges, SC refused to hear/decide Trump suits, or those brought by other parties for similar purposes (eg Texas suit) - 2020 court approach: - Roberts court didn't want to play a big role in election, like what happened in Rehnquist 2000 - nature of legal challenges (alleging errors in states decided by huge margins) were 1) unsuitable to justify Court intervention and 2) unlikely to change outcome even if succesfful

Libel

- expression (printed or broadcast) that defames a person/corporation by maliciously conveying false info about that person/corporation - Libelous expression must be: 1) damaging 2) false 3) conveyed with intent to do harm - truth that could be damaging/malicious isn't libel. Libel doesn't protect you from being criticized. - Libel under CIVIL law, victim can sue and seek: 1) compensatory damages 2) punitive damages (Ex: Dominion Voting Sytems $1.3 billion defamation lawsuit against Rudy Giuliani about how the voting systems was rigging the election) Libel Evolved - Protections against libel (ex: civil laws allowing libel lawsuits) entail restrictions of freedoms of speech and press - Who enjoys fewer libel protections? - Public officials (Sullivan) - Non-gov public figures (Associated Press v. Walker) - Private persons involved in matters of public concern (Rosenbloom v. Metromedia) - Yet, individuals accidentally/unwillingly drawn into public spotlight enjoy full protections against libel (Gertz v. Welch)

Hate Speech

- expression that is intended to injure or defame an individual on account of their identity - R.A.V. v. City of St. Paul, MN (1992) 9-0: Someone burned cross on black couples lawn. First amen prohibits the restriction of speech based on viewpoint expressed, no matter how vile. Hate speech may not in itself be criminalized. - Wisconsin v. Mitchell (1993) 9-0: 'penalty enhancements' for bias/hate speech incident to other crimes are constitutional. Doesn't punish speech, but conduct. Akin to disinctions like first and second degree murder.

Valid regulation of speech (200-201)

- falls outside of first amen (obscenity, libel) - injures or incites violence - damages private or public property - is in itself criminal (spreading state secrets) - interferes w/lawful activity or rights of others (blocking clinic doors) - hinders legit gov functions (blocking mail trucks) - intrudes upon private or public property (trespass) - reasonable restriction may be placed on the time, place, and manner of expression

Roth v. United States (1957)

- first case where court considered whether obscenity is protected by first amen - what is obscenity, who decides - Brennan 6-3 (324): obscenity not protected. Has no redeeming social value. New test: dominant theme of material, would the average person think it is pornographic? - Douglas and Black, dissenting (326): leaves to individual to decide what's is or isn't obscene, gov shouldn't be involved

Constitution shaped by anxiety, how law enforcement helps + creates anxieties

- framers didn't want weak, ineffective government (eg Articles of Confederation) - also worried about gov having too much power (eg British Colonial Rule) - law enforcement + criminal justice system needed for modern system of government - still a threat to individual (and collective) rights and liberties

Government Speech

- free speech clause clearly limits gov power to restrict or compel the speech of private individuals+groups - But the clause doesn't require gov to 1) refrain from expressing a clear viewpoint of its own (ex: encourage mask wearing) or 2) simultaneously express an alternative viewpoint for the sake of balance (by also drawing criticism to public health research. Gov DOESN'T have to do this) - Pleasant Grove City v. Summum (2009) 9-0 (256): City gov got to decide what private monuments to display at a public park. Court ruled gov has the ability to decide what messages it wants to display through monuments.

Democracy

- gov of the ppl, by ppl, for ppl (gettysburg address) Question 1: How do people rule? - Direct Democracy: citizens govern directly and continuously- proposing and/or voting on legislation and policy directly. Voting referenda, ballot initiatives, juries. - Representative Democracy: citizens vote periodically to select representatives who govern on their behalf or in their interest. Two models of representation---Delegate: representatives act precisely as their constituents would, give them what they want Trustee: representatives act in the best/true interest of their constituents, even if it means frustrating their immediate desires or opinions Question 2: Who/what counts as 'the People' or their 'will'? - Majoritarianism: the will of people reflected in party/policy/official with most votes (prob >50%) - US House; statewide elections in most states (like for governor,) ballot initiatives and voter referenda - Minoritarianism: instituions and rules filter/translate raw votes into outcomes that don't necessarily reflect majority preferences, enables a minority (<50%) to govern majority - electoral college: candidate with a) fewer than 50% of popular vote and b) fewer popular votes than their opponent can win election - US Senate: a) equal representation of each state in senate allows minority of population a majority of seats in senate, b) cloture rules allow minority party to block most legislative action - primary elections: most active, often ideologically extreme voters have an outsized role in determining a party's candidate, especially in a crowded primary field

Minority set-asides

- gov programs (often in procurement and contracting) reserving a fixed number or percentage of contracts for minority-owned businesses - City of Richmond v. J. A. Croson Co. (1989) - 6-3 Court (O'Connor) struct down Richmond set-aside program as too broad and directed at an insufficiently demonstrated social ill - limits how far govs can go to end inequality - Adarand Constructors Inc. v. Peña (1995) - 10% bonus for contractors who had minority subcontractor - white subcontractor beat bid but lost deal, so sued - 5-4 (O'Connor) held that strict scrutiny should be applied to federal, state, and local affirmative action programs. Allowed possibility that set-aside could be constitutional. - Scalia and Thomas, concurring, added that gov never has 'compelling interest' in using racial criteria (no affirmative action should survive strict scrutiny)

Matal v. Tam (2017)

- gov speech case - Asian-American rockband wanted trademark its name, which was an anti-Asian slur. Wanted to reappropriate the term. Application denied due to federal law prohibiting trademarks that disparage groups or people (262) - Alito, unanimous court: although issued by gov, trademarks are private speech (private to whoever holds the trademark) so it's constitutionally protected. Free Speech Clause was violated. Can't be banned because it's offensive.

Walker v. TX Div., Sons of Confederate Veterans (2015)

- gov speech case - Sons wanted a Confederate license plate and were denied, they sued on grounds of viewpoint discrimination. - TX claimed 1) license plates are gov speech, not individual speech, and 2) state doesn't have to be neutral between viewpoints - Breyer 5-4 (257): gov and individual free speech regulated differently under free speech doctrine. Can't favor private speech, but it can decide what it wants to say because it is accountable to citizens. Doesn't have to cater to some minority. - Alito, dissenting (259): it would be private speech, establishes precedent that threatens private speech that gov doesn't like.

Places searched

- home enjoys greatest 4th protections - Florida v. Jardines (2013) - with no warrant, drug sniffing dog around marijuana grow house - it was a violation (450-452) - Scalia, 5-4: 4th amen right would be worthless if this were allowed - Alito, dissenting: common law rules of trespass more stringently applied against police than ordinary persons, over-extends reasonable expectation of privacy - prison cells and discarded trash don't enjoy 4th amen protections - vehicles have fewer protections than the home, they are extensions of owner/occupant of vehicle - Michigan State Police v. Sitz (1990) (6-3): sobriety checkpoints ok as long as they are equally applied to all drivers - Arizona v. Gant (2009) (5-4): incident to recent occupant's arrest, police may search parts of vehicle within drivers reach that might reasonably contain evidence related to arrest. Or probable cause that car contains evidence related to arrest - Birchfield v. North Dakota (2016) (5-3): breath tests may be administered to suspected drunk drivers without a warrant, blood tests may not - public school students enjoy fewer 4th amen protections - lower standards required to justify warrantless search of students (reasonable suspicion, not probable cause) - Safford Unified School District #1 v. Redding (2009) (8-1): some searches (strip searches) may require warrant

Sex Discrimination

- in American law, sex discrim lags behind race - voting rights: 15th amendment didn't allow women voting rights, 1870; 19th amen 1920 - sex added to race in Civil Rights Act of 1964 via amendment during debate in an attempt to kill the bill - Equal Rights Amendment, designed to prohbit all sex-based discrimination, failed ratification ('72/'82) - Race-based classification/discrimination receive 'strict scrutiny' while sex-based classifications/discrimination receive less stringent 'intermediate/heightened scrutiny'

Lawrence v. Texas (2003)

- interracial gay couple arrested for violating TX law banning gay sex. Challenged as violation to right to privacy, and Due Process and Equal Protection Clauses of 14th. - Kennedy 6-3 (401): Overturned Bowers for flawed logic, opinions on the gays have changed. Law discriminatory and criminalized intimate relations. Cited Casey and Romer v Evans about liberty of persons. Stare decisis doesn't require Bowers be upheld. - O'Connor: Bowers shouldn't be overturned, but TX law violates 14th amen Equal Protection Clause - Scalia, dissenting: 14th doesn't guarantee this liberty, only that it can be violated w/due process. Majorities can say gay sex is bad.

McCutcheon v. FEC

- legal challenge to BCRA's a) per-candidate and b) aggregate limits on individual campaign contributions. Struck down b) - Roberts (5-4) (702): first amen protects political campaign speech, can't stop someone from supporting as many candidates as they want. (Buckely logic) - gov can't allowed speech that it thinks is "good for democracy" and restrict what is "bad for democracy" - Breyer, dissenting (704): creates loophole for rich people, can advertise ideas that will benefit themselves, majority wants to convince us that the constitution is money blind, it isn't.

Civil Rights

- legal provisions emanating from the concept of equality. Unlike civil liberties issues, which focus on personal freedoms protected by the BoR, civil rights issues involve the status of persons with shared characteristics who have been disadvantaged in some way. Civil rights laws attempt to guarantee full and equal citizenship for such persons and to protect them from arbitrary and capricious treatment (556)

Rational Basis Scrutiny

- lenient - it is about determining the legislative purpose behind a law or action - most often, courts accept gov stated purpose. Not always though - under equal protection standards, desire to treat group X worse than group Y is not constitutional. Gov must show connection between disparate treatment and valid gov interest being advanced. - rational basis scrutiny asks, at least, whether individual/group A is being treated differently from B simply because of characteristic X which is unrelated to legit goal Y. If answer is YES, law/action can be overturned

US voting rights

- of all criteria according to which voting rights could be unequally enjoyed or protected (eg sex, class, partisan identification) none has been or continues to be more actively contested than race - despite 15th amen, blacks in US faced partial, if not complete, disenfranchisement in south until 1960s - in 1960s court decided numerous cases regarding voting rights, both based on race and more generally - Louisiana v. US (1965): invalidated use of 'understanding tests' as qualification for voting. Test based on state constitution. Registrar could decide if person in front of them understood state constitution. - Kraermer v. Union Free School Dist. (1969): invalidated ownership or rental of real estate as a qualification for voting - Dunn v. Blumstein (1971): states could not impose more than a 30-day residency requirement in order to register to vote

Roe unintended Effects and decline

- link between reproductive rights and privacy/due process (Griswold). Cut link to Equal Protection - became big issue of women's rights/equality issue. - Culture wars left v. right - increased salience of abortion issue in politics. Litmus test for politicians/judges. - Generated conservative opposition to Equal Rights Ammendment (1923/1972-82) - more violence against clinics, 77 bombings, 117 arson acts between 82 and 88 - spurred legislative experimentation with restrictions on abortion Decline - Roe Pushback: 1) consent laws (parental/spousal consent) and 2) laws to eliminate gov funding of abortion - parental consent ok (except in cases of abuse) Harris v. McRae (1980) 5-4: upheld federal law prohibiting Medicaid coverage of elective abortions Akron v. Akron Center for Reproductive Health (1983) 6-3: Informed consent provision. Struck down ordinance. Upheld Roe, but had a weakened majority. O'Connor dissent: called for new standard. Replace trimester system. Too rigid along with viability standard could lead to contradictions. Medical tech changes, so law could be both illegal and legal. Use an undue burden standard. Webster v. Reproductive Health Services (1989) 5-4: Missourri law prohibited state facilities from providing abortions, and required viability test. Upheld state law, but didn't vote to repeal Roe.

Wallace v. Jaffree (1985)

- moment of silence in public schools unconstitutionally advance religion

8th amendment and punishment

- no cruel + unusual punishment - meant 1) to prohibit the use of punishments not authorized by statute, 2) to limit the use of ritualized torture and mutliation (often public) historically used by European monarchies (drawing and quartering) - by today's standards, 1791 punishments were still 1) severe or cruel (whipping, branding) 2) severe in comparison to the crime (eg execution for theft, prison or forced labor for defaulting on debt) - 20th century, punishment in US (including execution) often public, last public execution carried out in Kentucky in 1936 (20k people attended) - what does 8th prohibit? standards change of humane/inhumane punishment

Dred Scott v. Sanford (1857)

- nominally about citizenship and the scope of federal power over private property and over the states - slavery and race at heart of case - CJ Roger Taney concluded that black persons were incapable of becoming federal citizens, and 'counted' as what individual States classified them to be

Privacy as a constitutional right

- not explicity mentioned but implied 1st: free exercise, freedom of association 3rd: no peacetime quartering soldiers in private homes 4th: no unreasonable searches and seizures (Brandeis) 5th: guarantee against self-incrimination 9th: Common Law Rights, embedded in legal culture, evolved slowly through decisions of judges. Natural rights, naturally belonging to humans (declaration of independence)

Defending Miranda

- not specifically identified in constitution to inform rights, created by courts, to enforce other constitutional provisions - some decisions have slowly (but not completely) eroded Miranda Dickerson v. US (2000) - 1968 federal law directed federal trial judges to admit evidence obtained without/before a Miranda warning, so long as it was otherwise deemed 'voluntary' - Rehnquist 7-2: Miranda warnings are not just one possible way of ensuring 5th amen protections, 5th amen provides an independent constitutional basis for informing a suspect of their rights prior to police questioning, Miranda cannot be circumvented by statute Missouri v. Seibert (2004) - 'question first' police technique, ask incriminating questions before giving Miranda rights to 1) increase likelihood of getting such statements and 2) getting the suspect to repeat the statements after the warning (so they can be used in trial) - Souter 5-4: novel police techniques may not side-step Miranda. Even if post-warning statements reiterate what a suspect said prior to a Miranda warning, these statements may not be used as evidence

Epperson v. Arkansas (1968)

- pg162 - state law prohibited teaching evolutionary theory. Only allowed for creationism.- unanimous court struck down law. Religion clauses mandate gov neutrality between religion and nonreligion. This law mandated teaching religion. Promotes this.

Eisenstadt v. Baird (1972)

- post Griswold - law against contraceptives for unmarried couples - struck down the law - Brennan 6-1 (372): applied right to privacy of non-married couple use of contraceptives. Individuals enjoy right, not married couples as a single unit. Women are autonomous. Individuals should be free from unwarranted gov intrusion into personal matters. Reproductive rights essential to right to privacy.

Santa Fe Independent School District v. Doe (2000)

- prayer before public school sporting events is an unconstitutional advancement of religion. Impose religious message upon those required to attend (players, band, etc)

Lee v. Weisman (1992)

- prayers (even non-denominational) at public school graduation unconstitutionally (and coercively) advance religion, entangle state in choosing who shall administer the prayer

Van Orden v. Perry (2005)

- privately donated 10 commandments monument on Texas capitol grounds - display challenged as an endorsement of religion, violate establishment clause, religious display by state- Governor said not a state endorsement, no one forced to look at it, also said they aren't just a religious symbol - is it secular enough to be a neutral display abt state heritage - Rehnquist, 5-4 (173): upheld display. Lemon test just a guide. Says it is religious, but has valid secular purpose abt Moses being a lawgiver. - Scalia: establishment clause permits non-proselytizing promotion of religion - Thomas: the clause should not be incorporated at all - Breyer: prohbiting display would unconstitutionally disfavor religion - Stevens, dissenting: courts reasoning has erased any establishment clause limit, clearly a religious promotion - Souter, dissenting: Texas admonishing all to embrace 10 commandment views

Miller v. California (1973)

- publisher arrested under state obscenity law for mass mailing of porn material - Burger 5-4 (329): reaffirmed that obscenity not protected by first amen. Obscenity restricted to depiction of sexual conduct (porn.) - Miller test standards: a) would average person using community standards find that the work appeals to prurient (sexual) interest, b) does the work depict/describe offensive sexual conduct, c) does work lack merit/value (science, literary, political, etc)

Griswold v. Connecticut (1965)

- recognized constitutional right to privacy, but applied only to contraceptive use by married couples - Griswold opened birth control clinic (after Poe v. Ullman) with purpose of being arrested under CT law to challenge it. Collusive case. - Is there a constitutional right to privacy? What supports it? And what is covered by it? - Douglas 7-2 (370): listed amendments that imply protection of privacy. Zones of Privacy, include first, third, fourth, fifth, ninth. - some aspects of home life gov can't regulate, doesn't need to be explicity mentioned in constitution - contraceptives at heart of right to privacy. Police can't search bedroom to look for used condoms. - Black, dissenting (372): legal terms to oppose right to privacy. Textualist approach. Doesn't mention it in constitution. Thinks court is acting like legislature here. Black helped dismantle economic substantive due process during New Deal.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)

- religious school regarded teachers as 'minsiters' of the faith. Fired teacher w/narcalepsy challenged her termination under federal employment law. - raised question whether religious orgs are exempt from civil employment discrimination laws - Roberts, unanimous (178): in favor of church. Can't impose unwanted minister, against free exercise clause. Also violates establishment clause - strong accomodationists ruled this way to elevate role of religion to exempt religious orgs from regulation - separationists ruled this way to prevent church and state entanglement - shifting in a direction that allows state aid to religion under establishment clause

Fourth Amendment

- restricts gov collection of physical evidence, how it should be collected, how people should be taken into custody 1. general restriction: searches and seizures may not be unreasonable (without justification or basis in law) 2. a) warrants must be based on probable cause and b) no general warrants Views on what it protects 1) places and property (home and possessions) geographically fixed 2) persons (even in public) portable, personal right Olmstead v. US (1928) - with no warrant,feds tapped phone lines to gather evidence, never intruded on home or property of suspects - court ruled 5-4 that fed action didn't violate the 4th, protects places, not people

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

- school board policy allowed high school students to rank-order their choices for which school to attend, assignment decisions used, among other things 1) the racial balance of each school and 2) the studen'ts race in making decisions, giving preference to selections that enhanced racial integration of each school - policy STRUCK DOWN, violated both premises established by SC (written below) - Roberts for 5-4: - race-conscious policies to integrate schools only valid if 1) aimed at remedying effect of past segregation and 2) when student's race is only one part of 'highly individualized, holistic review' - seattle never segregated, race too weighted in the decision - this policy is discrimination (pg589) - Thomas, concurring: racial imbalance isn't segregation, so it isn't unconstitutional (589) - Stevens, dissenting: chief justice didn't note that before brown it was only black students being ordered around, so he re-wrote history (590) - Breyer, dissenting: limits aren't to segregate, but to integrate (591)

What US Constitution requires for democracy

- see Unit XIII slide Democracy in US Con

Missouri ex rel. Gaines v. Canada (1938)

- segregationist states must provide in-state public graduate school programs for whites and blacks

Obscenity

- sexual connotation Regina v. Hicklin (1868): obscenity is material with tendency to "deprave and corrupt those whose minds are open to immoral influence" (322) - US courts used this standard mid 20th century - problems w/Hicklin test: 1) Considred whether the material would corrupt a child 2) didn't consider work as a whole 3) didn't account for the social value of the work Butler v. Michigan (1957): court rejected Hicklin child standard

Classifications that harm racial minorities

- single out groups for less favorable treatment because of being racial minority - Loving v. Virginia (1967) 9-0: overturned state laws prohibiting interracial marriage. Violated Equal Protection Clause to prevent marriage on racial classification. (609) - zoning policies,

Near v. Minnesota (1931)

- state law allowed restriction of malicious, scandalous, or defamatory written publications - law used to stop sale of Saturday Press (owner Jay Near published stories defaming Jews, black ppl, and city gov) - Near challenged law as violation of freedom of the press, prior restraint censorship. State defended it as valid use of police power. - Hughes 5-4 (283): OVERTURNED restraining order. Gitlow incorporated freedom of press in 14th amen, applied them to states. State law amounts to prior restraint, which is unconstitutional.

Postebellum Civil Rights Law and Path Not Taken

- states have different powers than fed over civil rights - state police powers let state enact any civil rights law (within constitutional right) while fed gov power to ensure rights is more complex and limited - Civil Rights Act of 1875: enacted to enforce 14th amen, criminalized racial discrim by states and by private persons and businesses - Civil Rights Cases (1883) 8-1: struck down CRA of '75 because 14th amen only prohibits STATE (not private) action - Justice Bradley for Court: (in the '76 tied election, tie went to house and justices including Bradley, Bradley cast deciding vote, gave it to Republicans and let Dems implement racial segregation) (pg109) after slavery abolished, fed could ensure entering into society as citizens. But this can't go on forever. - Harlan 1, dissenting: 1) 13th guarantee universal civil freedom, 2) law has systematically elevated whites over blacks, court pretending it is being neutral (pg109)

Race + Civil Rights in Antebellum America

- unamended US Constitution condoned (but didn't name) chattel slavery as it existed before ratification - 3/5's clause (and electoral college) protection of importation of slaves until 1808, fugitive slave clause (if a slave runs to a free state, virginians can get slave back)

The Establishment Clause

- under first amen - make no law regarding establishment of religion - answers questions like: can state pick religious favs, can state favor religion over non-religion, Historically: 1791 U.S. very protestant christian, several states had established (official) churches, some faiths persecuted (Quakers and Catholics,) Establishment and Free Exercise of first amen created in fear that 1) fed would interfere w/religious exercise in states and/or 2) force disestablishment of state churches/establish natural church - Interpretations (pg126) 1) Separationist: creates wall between church and state - no public aid to religion. Hands-off. To prevent evil of state using coercive force to favor a religion. Thomas Jefferson created "wall" imagery in letter to Danbury Baptist. Madison agreed. 2) Weak Accomodationist: prohibits state from favoring one religion over another, nondiscriminatory aid permissible. Neutral public support valid. Prevent use of state tipping scales in favor of any religion. 3) Strong Accomodationist: prohibits only establishment of an official national (or state) religion. Can't compel ppl to embrace a religion, but other support/favoritism is ok. Rehnquist supported this.

South Carolina v. Katzenbach (1966)

- voting rights act of 1965 was enacted as an enforcement provision of the 15th amen (congress can enforce article by appropriate legislation) - applied more stringent requirements to states and counties that: 1) had used racially discriminatory mechanism in 1964 and 2) in which under 50% of the eligible population was registered to vote in the 1964 presidential election - challenged as exceeding the enforcement of powers of congress under the 15th amen by 1) infringing upon constitutionally explicit powers of the states over elections and 2) treating the states unequally Warren for 9-0: under 15th amen, congress has power to do whatever to prevent racial discrim in voting (680) - rational basis test: any law clearly adapted to express purpose of the amendment is within Congress's enforcement power - 15th created new congressional power, subject only to other constitutional limits (like due process clause, free speech clause, guarantee clause) - Black, partial dissent: voting rights act is basically reconstruction, telling states how to use their powers. (681)

Shelby County, AL v. Holder (2013)

- voting rights act requires that states and counties w/histories of racial discrimination in voting, based upon a 'coverage formula' that congress have repeatedly reauthotized, must get federal 'pre-clearance' of proposed voting law changes - Shelby county argued that it changed and didn't want to be under federal oversight - Roberts, 5-4: actual conditions of area no longer justify voting rights act impositions. These parts of act are legal dinosaurs. Coverage formula too outdated. Federalism requires amendment enforcing powers by congress to be limited. (684) - states must follow 15th, but doesn't let congress require states to run voting laws by gov. Can only sue after the fact. - Ginsburg, dissenting: Second-generation barriers. Voter discrim has evolved, isn't gone. VRA didn't get rid of racism. VRA worked because it prevented backsliding. (687)

"The Postbellum Problem"

- war between 2 different kinds of racists - slavery gone but black ppl still here, which was "bad"

Arrests and the 4th

- what constitutes arrest - seizure of a person (subject to 4th amendment requirements and protections) - some police actions aren't an arrest, like 'stops' to ask questions, not protected by fourth. Is frisking the same as a search? - Terry v. Ohio (1968) - plain clothed officer saw 2 men pacing in front of jewelry store. Officer followed them, grabbed one, frisked him, found gun. Arrested on weapons charges. - does 4th amen permit stop and frisk without justification for arrest? - (8-1) stops and frisks ARE subject to the fourth, but police can stop and frisk individuals who are resonably suspected 1) to be engaged in criminal activity and 2) to pose a threat to the officer's safety - Douglas, dissenting: gives police too much discretion, should be voted on (462)

Illinois v. Gates (1983)

- what information can establish probable cause? - anonymous informant sent police a note abt illegal activities of neighborhood couple, - needed to demonstrate 1) how they knew, 2) show reliability. This case showed 2, not 1. - Rehnquist, 6-3: flexible "totality of the circumstances" - no fixed list of criteria must be met to show probable cause, decided case-by-case - weakens check on law enforcement, gives them more discretion - Brennan, dissenting: replacing 2 part test with discretion bad for American rights (447) - easy to get warrants now

Escobedo v. Illinois (1964)

- when in custody on suspicion of murder, Escobedo was refused access to his lawyer, police interrogated Escobedo for 14 hours until he made self-incriminating statements - technically a 6th amen case, but also implicated the 5th - when in police work does right to counsel become active - Goldberg, 5-4: - 6th amen right to counsel is activated when investigation focuses on an individual - enforcing this right won't hinder law enforcement - the state cannot use and prolong ignorance of one's rights to gather incriminating evidence - adversarial system begins when a person is brought into any form of police custody, triggering all relevant constitutional rights White, dissenting: - constitution doesn't require counsel so early in police process - work of law enforcement will be crippled by the ruling

Yick Wo v. Hopkins (1886)

1) extended 14th to ppl of all races, including non-citizens 2) ruled that state may not apply neutral laws in a discriminatory fashion

4th amen warrant requirement

1) probable cause 2) issued by authorized magistrate 3) specifies narrowly the persons, places, and things to be searched/seized - exceptions to warrant requirement (448) - searches incident to a valid arrest: search individual when they are arresting the individual. Can't search things not immediate to the criminal, though. Can't search after arrest without warrant. - Loss of evidence searches: reason to believe evidence could be lost/damaged - consent searches: must be voluntary consent by person who is able to consent. - safety searches: search someone about to go into custody - hot pursuit - plain view/feel doctrine: if you can see something illegal, you can search

Second Ammendemt

1) well regulated militia needed for free state security 2) right of the people to keep and bear arms shall nor be infringed - 1780s US had no standing army, each state used citizens - BoR adopted to mitigate fears of federal overreach, such as fed attempts to disarm citizens. - ongoing debate: does 1 limit 2? - gun rights advocates say no. Amendment protects individual right to firearm ownership for any reason (not just for militia) - gun control advocates say yes. Amendment doesn't protect unconditional gun rights. Should be conditioned by legislature for public good.

How Americans vote

Australian Ballot: secret ballot with candidates for each office listened individually (often with party identification next to their name,) voters select individual candidates, rather than list prepared by parties, voters may still choose to vote 'straight ticket' Single, non-transferable vote: 100% behind one candidate. each voter may cast one vote for one candidate per race, each vote is an all-or-nothing choice for a particular candidate. Both extra votes for the winning candidate and all votes for non-winners are 'wasted' - none of these mechanics required or mentioned by US Constitution

Privacy and Personal Liberty

Bowers v. Hardwick (1986) 5-4: upheld GA law prohibiting oral and anal sex for all White: right to privacy doesn't cover this, sodomy not a deeply rooted right in society

Incitement, threats, and intimidation

Brandenburg v. Ohio (1969): dealt w/KKK demonstration. imminent lawless action test- speech unprotected if it demonstrates the following 1) speaker's intent to incite lawless action 2) imminence of lawlessness in context of speech 3) likelihood of lawlessness from pseech - advocating lawlessness protected, but not incitement Virginia v. Black (2003): intimidation and 'true threats' - O'Connor (343): intimidation is a true threat that is meant by speaker to scare victim of fear of harm - incitement, threats, intimidation are equally unprotected regardless of whether the speaker is a public figure or a private person. - But gov officials could be protected by executive immunity doctrine that protects public officials from civil/criminal litigation (ex: pres could disclose US secrets to foreign leader, while acting in official capacity) Article I speech and debate clause protects politicians from lawsuit for what they say while in session.

Cases that fulfilled Brown

Griffin v. Prince Edward County School Board (1964): ruled VA county plan to close all public schools a violation of Equal Protection Clause Green v. School Board of New Kent County (1968): ruled that states have the duty to take whatever steps to convert to a unitary system in which racial discrimination would be eliminated (pg582) Swann v. Charlotte-Mecklenburg Board of Education (1971): federal district courts have broad authority to issue tailored, mandatory guidelines for state and local school desegregation policies (eg teacher placement, school construction and closure, busing for purposes of integration) - Gerald Rosenberg (in The Hollow Hope, 1991) observed court desegregation orders were of limited effect until fed elected officials took steps to ensure compliance (eg Eisenhower and little rock, civil rights act of '64, elementary and secondary education act of '65)

Obergefell v. Hodges (2015)

LEAD UP - 14th amen equal protection clause - cases leading to this case: - Bolling v. Sharpe (1954): applied equal protection clause to federal gov - Loving v. Virginia (1967): allowed interracial marriage as fundamental right (implied straight couples) - 1993 Hawaii SC legalized gay marriage - 1996 Defense of Marriage Act: state doesn't have to recognize gay marriage from another state, marriage defined as being between man and woman - Romer v. Evans (1996) 6-3 Kennedy: struck down state constitutional amendment that protected private discrimination based on sexual orientation. Lenient rational basis standard. - Lawrence v Tex - US v. Windsor (2014) 5-4: struck down DOMA not recognizing marriage of other states, upheld definition of marriage - combined 4 cases from 6th circuit - gay couples wanting to get married in prohibited state or wanted recognition of their marriage in prohibition state - 1) does fourteenth require a state license to marry gays and 2) does 14th require state to recognize gay marriage from another state - Kennedy 5-4: marriage fundamental, involves individual autonomy, supports union between persons - Dissenters (412): should be further debated and should be up to legislative.

Plessy v. Ferg Majority v. Dissent

Majority (Brown) - segregation doesn't impose a badge of inferiority, separate can be equal - 14th ensures narros legal equality, not broad social equality - future of race relations depends on choices of private persons, not laws and gov action Dissent (Harlan) - segregation deliberately creates an inferior class, preserving slavery's legacy - 14th ensures complete legal equality and meaningful social equality - laws and gov action created and protected white supremacy, they have a necessary role in dismantling it (dissent in Civil Rigths Cases)

Parents v. Seattle Majority v. Dissent

Majority (Roberts) - The EP Clause prohibits (nearly all) laws and policies that use race as a primary criterion, whether it is for racist or egalitarian purpose - Beyond remedying past racial discrimination, race-conscious education policies are generally unconstitutional - using race to assign individual students in order to craft 'balanced' schools is as much 'discriminating based on race' as is deliberately trying to exclude individuals based on race to craft segregated schools - sin of racial discrimination is its method, as well as goal Dissents (Stevens+Breyer) - the EP clause prohibits laws and policies that seek to (dis)advantage individuals based on their race- not laws and policies that seek to create substantive racial equality - the effects of past discrimination reach deep into our social fabric -race- conscious education policies are sometimes needed to get beyond superficial remedies - Brown and constitution demand more than colorblind neutrality that ignores inequality - sin of racial discrim is goal, not necessarily the method

Two views of public forum (from Snyder)

Majority view (Roberts) - free speech protects unpopular+offensive, and popular+agreeable speech. Especially when discussing issues of public concern. - price of admission to public forum is toleration of some forms of offensive speech. Some forms subject to restriction (libel, obscenity, fighting words, etc) - foreshadowing McCullen, restrictions on public fora must be the exception, not the rule. Alito's View - While Free Speech Clause broadly protects content, it allows restrictions on the manner based upon decency, time and place - price of admission to public forum is basic decorum (fighting words doctrine illustrates this) - when speech is deliberately calculated to cause injury, lose constitutional protection, individuals have right not to hear certain forms of (otherwise permissible?) speech (echoes Hill)

intermediate scrutiny and single-sex education

Mississippi University for Women v. Hogan (1982) - 5-4, O'Connor: struck down all-female admissions policy for public university nursing program- policies that discriminate in the service of sex/gender-based stereotypes may mail intermediate scrutiny United States v. Virginia (1996) - VMI, state institution, historically mainted all-male enrollment and trained cadets using 'adversative' model (extreme mental/physical discipline) - single-sex admission policy challenged as a violation of EPC- VMI responded by creating separate women's program at Mary Baldwin College, which was challenged as inferior substitue - Ginsburg, 7-1: - VMI admission policy vioates EPC - differences between men and women doesn't allow for denigration of women, VMI wouldn't have to go soft to admit women (644) - fails intermediate scrutiny, discrim against women for reasons unrelated to purpose of VMI - women's leadership program an inaqdequate remedy - Scalia, dissenting: - tradition of men's military college important in US (646) - court imposes made up tests instead of deferring to democratic processes

Justifications for Punishment

Retributivism: punish so as to extract a moral payment for crime, punishment revenge for wrong done to victim Deterrence: punish so as to make it less likely that a) the same person will offend again and/or b) to limit possibility that others will commit the same crime. Punishment creates desired outcomes. Rehabilitation: punish so as to correct/improve the criminal, punishment is a therapeutic practice Expressivism: punish to enable community to express its a) condemnation of the criminal and b) superiority and coherence of the community, punishment is a social ritual

4th amen in digital age

Riley v. California (2014) (9-0) - smartphones subject to 4th amen protections - Roberts (373) Carpenter v. US (2018) (5-4) - data from cell phone tower location data can't be used by police without emergency conditions without a search warrant based on probable cause (443)

Sexual orientation and equal protection

Romer v. Evans (1996) - Colorado state constitutional amendment protected discrimination based upon sexual orientation - Court (6-3 Kennedy) ruled that the amendment failed a rational basis test, and signled out gays for special legal burdens. No valid state interest. - can't give different legal status to gay ppl, rational basis test, no clear precedent on sexual orientation discrim (654) - Scalia, dissenting: Colorodans are entitled to hate gay ppl, it is normally liberal on these issues (repealed anti-sodomy laws) (655) - Personal liberty cases (eg Lawrence v. Texas) and same-sex marriage cases (Windsor v. Obergefell) illustrate an evolving understanding of sexual orientation under the 14th amen - no clear and consistent constitutional standard has emerged for sexual orientation- at least (and perhaps at most) rational basis scrutiny

Strict Scrutiny v. Rational Basis Test

Strict Scrutiny - highest level of judicial scrutiny, applied to most fundamental rights and liberties - presumes law unconstitutional - law must 1) serve compelling gov interest for public welfare/purpose of gov, and 2) must be the least restrictive means Rational Basis - law default constitutional. Low level scrutiny applied to less fundamental rights and liberties. - must be 1) reasonably adapted/connected 2) to accomplishment of a valid gov interest - (McCulloch v. MD)

Origins of Exclusionary Rule

Weeks v. United States (1914) - police and federal marshal searched private property without warrant, seized large amounts of evidence, some later used to convict Weeks - challenged as violation of 4th, wanted sentence repealed - Day: if illegally gathered evidence can be used, fourth is useless. Must exclude evidence that is illegal. (463) - created federal exclusionary rule - Wolf v. Colorado (1949) - deputy sheriff (state) gathered evidence without a warrant, defendant wanted evidence excluded from trial because of 4th - Frankfurter, 6-3: - 4th applies to states - exclusionary rule isn't necessary to the 4th, states not required to adopt it

Discrimination

disparate treatment of persons/groups based upon differentiating characteristics (race, sex, age, nationality, religion)