US Civil Liberties midterm

Article III of the constitution

-"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" -The Judiciary Act of 1789 defined the three tier system

legacies of constitutional disagreements

-(constitutional) rights of englishmen -emergence of judicial review as american constittuion -powers of parliament in the colonies --written v unwritten in the colonies --british constittuional innovation system built on prior governmental practice and precedent -parliamentary supremacy

Bowers v. Hardwick

--Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, -Sodomy laws were meant to be enforced against men having sex with men or woman btu only enforced against gay people -The officer arrested Hardwick for violating a Georgia law that declared, "A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. -Question: Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal? -5-4 decision declared that states could regule homosexual sodomy -The right to sodomy is hard to find in histroy -Analogous to previous Substantive due process: --Standard for determining which rights are fundamental: the standard is deeply rooted in history and tradition or implicit in ordered liberty → neither of these formulations would extend to a fundamental right to homosexuals to engage in acts of consensual sodomy -Sodomy was a criminal offense at common law

structuralism

--Structural arguments rely on the general principles that best explain the structure of and relationships between governing institutions. -structural arguments, Charles Black claims, provide an "inference from the structures and relationships created by the Constitution in all its parts or in some principal part."17 Such basic principles as the "separation of powers," "democracy," or "federalism" are not stated explicitly in the constitutional text. Nevertheless, those principles help us understand the constitutional institutions established by Articles I, II, and III. -Structuralists decide whether states may constitutionally regulate interstate commerce on the basis of their understanding of the constitutional commitment to federalism.

Whole Women's Health v. Hellerstedt

--TX law: admitting privileges and surgical center requirements regarding abortions -Whole women;s health and other orgs providing abortion services in TX immediatley filed a lawsuit against the Commissioner of the TX Department of State Health Services claiming that admitting privileges requirement was an undue burden on abortion that violated the due process clause of the 14th amendment -5-3 declared admitting privileges and surgical center requirements unconstitutional -Starting point is Casey -The biggest change- they are not looking at history or tradition but now look at social science/ medical research ; the interests are found in the data -Texas claims that the provisions at issue here do not impose a substantial obstacle (undue burden) because the women affected by those laws are not a "large fraction" of Texan women "of reproductive age," which Texas reads Casey to have required. But Casey used the language "large fraction" to refer to "a large fraction of cases in which [the provision at issue] is relevant," a class narrower than "all women," "pregnant women," or even "the class of women seeking abortions identified by the State." Here, as in Casey, the relevant denominator is "those [women] for whom [the provision] is an actual rather than an irrelevant restriction." -Who is actually counting on this? We need to think of the people who are actually affected by this law → if we understand which group of women makes it a more targeted inquiry.

police power

-10th amendment → "the powers not delegated to the federal government are reserved to the state or to the people" → does not give the states the police power ; it is an inherent power of the states it was not given to them -All the 10th amendment does is recognize that states have inherent rights: Explains why the state's police powers are so ambiguous -Places a limit on what the federal government can do → you cannot take away from what the states already have -These inherent powers can be found in social contract theory (where did the state get their power in the first place)

Planned Parenthood v. Casey

-4 requirements in PA: informed consent, 24 hour waiting period prior to the procedure, a minor consent of one parent, notifying their husband -Parental consent (ok), spousal notification (not ok), 24 hours (ok), informed consent (ok) -Undue burden: a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus --Kind of hard to enforce. See what the supreme court has upheld but this is pretty narrow because they have upheld a lot of things. --Undue burden is whatever the court decides -Role of Stare decisis: adhering to precedent → at this point one of the strongest reasons --If the only change is the composition of the members of the court then that defeats a opposing argument -We grew accustomed to this: The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. -What is the essential holding of Roe → the fundamental right of privacy for women and under substantive due process right to liberty

Mugler v Kansas

-A Kansas law prohibited the manufacture or sale of intoxicating liquor. Mugler was arrested for making and selling beer. -Q: Does the Kansas law violate the due process clause of the 14th amendment? -8-1 ruled that the Kansas Prohibition law was CONSTITUTIONAL -Harlan majority: prohibition laws were legitimate uses of police power and that states did not take property when they imposed police power restrictions on private property -Police powers: Protection of health, safety, welfare, morals -If you have property you cannot use it for illegal uses -Is it a taking? The property is still yours - this is just about not using the property in a wrong way (nuisance). This is not a taking, this is just getting you to use your property in the right way

Jacobson v. Massachusetts

-A Massachusetts law allowed cities to require residents to be vaccinated against smallpox. Cambridge adopted such an ordinance, with some exceptions. Jacobson refused to comply with the requirement and was fined five dollars. -Q: Did the mandatory vaccination law violate Jacobson's 14th amendment right to liberty? -Source of authority: police powers, at least means of public health and safety --As long as it does not affect people of other states --Limits on police powers: whatever the constitution says the states cannot do --There was no religious objections at the supreme court level: this could have been a limit -Limits on personal liberty: --Liberty can be restrained for the common good --These laws apply to everyone --Injury to others -Who decides: the state legislature: the best way to change a state legislature gone rogue - elected officials/ political process -"A community has the right to protect itself against an epidemic disease which threatens the safety of its members"

Everson v Board of Education

-A New Jersey law authorized reimbursement by local school boards of the costs of transportation to and from schools, including private schools. 96% of the private schools who benefitted from this law were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion violated both the New Jersey state constitution and the First Amendment. After losing in state courts, Everson appealed to the U.S. Supreme Court on purely federal constitutional grounds. -Did the New Jersey statute violate the Establishment Clause of the First Amendment? -A divided Court held that the law did not violate the Constitution. Justice Black reasoned that the law did not pay money to parochial schools, nor did it support them directly in anyway. It was rather enacted to assist parents of all religions with getting their children to school.

Williamson v. Lee Optical

-An Oklahoma law prohibited persons who were not licensed optometrists or ophthalmologists to fit lenses for eyeglasses. Non-licensed individuals were also prohibited from duplicating optical instruments without written prescriptions from licensed ophthalmologists. The Lee Optical Company challenged the law. -Question: Did the Oklahoma law violate the DPC of the 14th amendment? No -* majority: economic regulations would have to satisfy a very toothless rational basis standard -"It is for the legislature, not the courts, to balance the advantages and disadvantages..." -"The law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction... The particular legislative measure was a rational way to correct it. " -, the Court held that while the law may have been "needless" and "wasteful," it was the duty of the legislature, not the courts, "to balance the advantages and disadvantages of the new requirement." That is, Courts should not be able to invalidate state economic regulations on the grounds that they disagree with the theories supporting them. Even if the state law imposes burdens or waste, the legislature has the sole authority over weighing its benefits against its costs. In sum, the opticians could not prove that the law had no rational relationship to legitimate state objectives.

aspirationalism

-Aspirational arguments, often referred to as "purposive" arguments, interpret constitutional provisions in light of the fundamental principles of justice underlying the Constitution. Ronald Dworkin, the leading proponent of aspirationalism, insists that constitutional decision makers have an obligation to make the Constitution "the best it can be. --> They do so, he believes, by discerning what general principles best justify American constitutional practice. They then determine whether particular governmental practices are consistent with that normative commitment.

Bliss v. Commonwealth

-Bliss appeared in public with a ceremonial sword sheathed in his cane. He was arrested and indicted under a Kentucky law that forbade persons from carrying concealed weapons. At trial, Bliss was found guilty and fined $100. He appealed to the Court of Appeals of Kentucky on the ground that the state law violated the state constitutional right to bear arms. -Exact wording of the clause in KY constitution : "that the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned" → in defense of themselves (self-defense) and shall not be questioned (unclear about the distinction from infringed) different from the second amendment -Extent of impermissible interference with the right? --"To be in the conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form" --"Whatever restrains the full and complete exercise of that right, though not an entire destruction if it, is forbidden by the explicit language of the constitution" -No difference in principle between prohibiting carrying concealed weapons and openly carrying them -The clause of self-defense can be limiting → self defense you do not have to run around with it

Bostock v. Clayton County

-Bostock fired for joining gay softball laegue, claimed sex discrimination (title VII of the civil rights act) -Does Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination "because of . . . sex" encompass discrimination based on an individual's sexual orientation? -"Only the written word is the law" -[I] is impossible to discriminate against a person for being homosexual or transgender withotu discriminating against that individual based on sex" -"Limits on the imagination" - the words meant what they meant with the drafters but it was just the limit of the drafters imagination

Marbury v. Madison

-But the SC lacks the power to issue a writ of mandamus directing the president to deliver Marbury's commission. -Section 13 of the Judiciary Act of 1789 conflicts with the constitution -Importantly, if an act of the legislature goes against the constitution, it is void. -If we have to pick between the constitution and the judiciary act - we pick the constitution - and now we have the power of judicial review

State v. Buzzard (1842)

-Buzzard was indicted for carrying a concealed weapon. At trial he successfully moved to have the indictment quashed on the ground that the Arkansas law banning concealed weapons violated the right to bear arms protected by the state and federal constitutions. The state appealed this decision to the Supreme Court of Arkansas. --racial component: in order to own a gun you had to be a citizen. Could it be a fundamental right if important segments of the populations were excluded --Citizenship and military service- at some ports thought of the second amendment as an individual and not collective right -who protects citizens: "... the object must have been to provide an additional security for the public liberty and the free institutions of the state..." ; And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide -Is well-regulated militia a limit of the right --If you put the emphasis on a well-regulated - the object is to secure the right to a militia and in order to do this you need the right to bear arms. You need the militia instead of needing a right to bear arms. There is no limit on the individual right because it was not an individual right in the first case. --This is just a right to a militia - a right to bear arms is just a part of this

Griswold v. Connecticut

-CT law prohibits the use of contraceptives + the head of planned parenthood in CT opened at birth control clinic -Q: does the constitution protect the right of marital privacy (9th and 14th) against state restrictions on a couple's ability to be counseled in the use of contraceptives? -Standing : because griswold had been arrested and fined, she had standing to challenge the constitutionality of the CT law. By the time Griswold reached the SC, more than one million women were using the Pill, which had been approved by the US Food and Drug admin -Douglas majority- CT could not constitutional forbid married persons from using birth control -""Specific guarantees in the bill of rights have penumbras, formed by emanations from those guarantees that help give them life and substance... various guarantees create zones of privacy"" --Fifth amendment in its self incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender his detriment -If you look at the fundamental rights altogether → although not mentioned, there is space for where you can decide what you can do - absence of the state from the space. Read all of these fundamental rights together and they radiate privacy. -Put a limit on the police powers... this creates a zone that is free from state interference -"governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. concurrence: -One of the reasons why the federalists did not want a bill of rights was because we are bound to forget a right and it will be excluded

Religious Freedom Restoration Act (RFRA)

-Creates statutory right requiring that compelling interest test is applied in cases where free exercise of religion is burdened by law of general applicability -But: RFRA applies to states unconstitutional (City of Boerne v Flores), only valid applied to Federal government (O Centro) --Note that states have passed their own state RFRAs

departmentalism

-Departmentalists believe that all federal institutions have an equal right to interpret the Constitution. Departmentalists favor judicial review, the judicial power to make constitutional decisions that bind the particular parties before the court. Proponents of departmentalism, however, reject the position that elected officials must always adhere to the principles that justices announce in those decisions. They maintain that judicial supremacy subverts constitutionalism by inviting politicians to ignore their constitutional responsibilities and allowing unchecked judges to warp constitutional principles through abuse and misinterpretation.

doctrinalism

-Doctrinal arguments resolve contemporary controversies by interpreting past precedents. Rather than focus on the constitutional text or what various provisions meant when adopted, doctrinalism emphasizes what government officials, particularly judges, have said about the Constitution over time. The Constitution is interpreted in light of previous constitutional decisions or precedents. -Doctrinal arguments often rely on drawing analogies to previous constitutional decisions. -Precedents do not have the same binding force as text. The doctrine of stare decisis states that courts should generally adhere to the principles laid down in previous rulings. Nevertheless, stare decisis is not absolute.

McDonald v. Chicago

-Does the Second Amendment apply to the states because it is incorporated by the Fourteenth Amendment's Privileges and Immunities or Due Process clauses and thereby made applicable to the states? -incorporation of the second amendment through Due Process Clause of 14th amendment (not under privilege immunities- petitioners wanted this) -Standard for incorporation: Is the right "fundamental to our scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition" -... it is clear that the framers and ratifiers of the 14th amendment counted the right to keep and bear arms among those fundamental rights necessary to out system of ordered liberty → second amendment only applies to the federal government; the 14th amendment makes it applicable to the states

DOI

-End of engagement with british constitution -In the english bill of rights- we are going to give some of the kings power and give it to parliament -DOI- they declared themselves outside of the british sphere of influence and we are leaving if you do not give us a voice inside of parliament

DC v. Heller

-Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied. Heller sued the District of Columbia. He sought an injunction against the enforcement of the relevant parts of the Code and argued that they violated his Second Amendment right to keep a functional firearm in his home without a license -Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment? -5-4 decision: the ban on registering handguns and the requirement to keep gun in the home disassembled or nonfunctional with a trigger lock mechanism violate the 2nd amendment -"bear arms": used to refer to the carrying of weapons outside of an organized militia -Role of the prefatory clause: limit of purpose → ​​The former does not limit the latter grammatically, but rather announces a purpose -"The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family," ... would fail constitutional muster." -[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

originalism

-Historical or originalist arguments maintain that constitutional provisions mean what they meant when they were ratified. -Proponents of originalism sometimes refer to the original intentions underlying constitutional provisions, but most now emphasize original meanings. --> What matters is the public meaning of the constitutional text at the time the provision was ratified—not private understandings between particular framers, specific goals or applications the framers had in mind, or what that constitutional language might mean in the present. -Some originalists focus on practices at the time a constitutional provision was ratified.--. They think Roe v. Wade (1973) was wrongly decided because bans on abortion were common when Congress proposed the Fourteenth Amendment

Fletcher v Peck

-In 1795, the Georgia state legislature passed a land grant awarding territory to four companies. The following year, the legislature voided the law and declared all rights and claims under it to be invalid. Fletcher argued that since the original sale of the land had been declared invalid, Peck had no legal right to sell the land and thus committed a breach of contract. -Marshall court unanimously held that the GA law rescinding the land grant constitutionally deprived the 3rd party purchases of their property -Majority: declared land grants were contracts. Therefore, laws rescinding land grants impaired the obligation of contracts -Original transaction: did the purchaser know of fraud? No -Power of the legislature to repeal? No -Was land conveyance a contract? Yes -Is the legislature's power limited? Yes, the contract clause (article 1 section 10) and deprivation of property (once the third party has bought the grant) without due process

the attitudinal model

-Jeffrey Segal and Harold Spaeth, the two leading proponents of the attitudinal model of judicial decision making, insist that Supreme Court decisions are based almost entirely on policy preferences. -"Justices," they write, "make decisions by considering the facts of the case in light of their ideological attitudes and values." -Supreme Court justices are particularly well positioned to act on their ideology and values. Unlike legislators, they cannot easily be held accountable for their decisions by voters or other political actors. Unlike lower-court judges, their decisions are not reviewed by other courts and cannot easily be overturned. The cases that reach the Supreme Court are precisely those in which the law is unclear and political values might matter -routinely conservative and liberal blocs

June Medical Services v Russo

-LA law almost identical to TX law in WWH -because this is identical to WWH, same result -stare decisis

employment division v smith *

-Lower courts still used sherbert + yoder → that's why they won in the lower courts -Drug counselors fired and denied unemployment because of sacramental use of peyote (controlled substance) -There is an argument to (kind of mentioned in the dissent)- is this a neutral law, why is peyote listed in the law? Scalia: no constitutional claim for exemption from generally applicable law Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. Cite this page

judicial supremacy

-Most Americans support judicial supremacy, the view that the Supreme Court is the institution authorized to resolve disputes over the Constitution. -With few exceptions, Supreme Court justices have aggressively asserted that their institution has the final authority to determine what the Constitution means. Judicial supremacy includes the judicial power to ignore unconstitutional acts when resolving specific cases and to establish principles that bind all other actors. -Proponents claim that judicial supremacy is a necessary ingredient of constitutionalism. If the Constitution is fundamental law, they believe, then the primary responsibility for interpreting the Constitution should be vested in the institution responsible for interpreting the law, the judiciary.

Kelo v. City of New London

-New London, a city in Connecticut, used its eminent domain authority to seize private property to sell to private developers. The city said developing the land would create jobs and increase tax revenues. Susette Kelo and others whose property was seized sued New London in state court. The property owners argued the city violated the Fifth Amendment's takings clause, which guaranteed the government will not take private property for public use without just compensation. Specifically, the property owners argued taking private property to sell to private developers was not public use. The Connecticut Supreme Court ruled for New London. -Q: Does a city violate the Fifth Amendment's takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city's bad economy? -NO -the majority held that the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. Such justifications for land takings, the majority argued, should be given deference. The takings here qualified as "public use" despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require "literal" public use, the majority said, but the "broader and more natural interpretation of public use as 'public purpose.'"

influence of parliament on colonies

-North american colonies were a part of the british constitutional sphere of influence -Because they were not directly represented, they felt like they were excluded from the social contract. If it is about the consent of the governed- we are not a part of it and we are leaving. -They considered themselves englishmen up until the DOI

Obergefell v. Hodges

-Obergefell and arthur married in MD, lived in OH (which did not recognize same-sex marriages), when Arthur died, Obergefell wanted to be listed as existing spouse -After Arthur died, Obergefell filed a lawsuit against Richard Hodges, the director of the Ohio Department of Health, claiming a constitutional right under the due process and equal protection clauses of the Fourteenth Amendment to have Arthur's death certificate list him as the surviving spouse. -5-4 vote held that same sex couples have a constittuional right to be married -Marriage is a fundamental right, marriage evolved over time --The court has long held the right to marry in protected by the cosntittuion --Individual autonomy -The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples -Because there are no differences between a same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from the right to marry violates the Due Process Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law -dont Leaves it to a majority to decide → the majority can be against it but it might be right

prior restraint

-Obtain official permission before publishing -Licensing Acts of 1643 and 1662 -Freedom of press comes to mean no more prior restraints on speech (but distinguish: preventing someone from speaking v punshing them afterwards)

Wisconsin v. Yoder

-Old order amish parent do not want kids to attend his school, Wisconsin compulsory education law -Burger majority: only interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion -In this case: no compelling state interest to deny exemption from compulsory education, because Old Order Amish do not just fine without sending kids to high school -The amish community does just fine and two more years of education do not really add that much

Muller v. Oregon

-Oregon enacted a law that limited women to ten hours of work in factories and laundries. The owner of a laundry business, Curt Muller, was fined $10 when he violated the law. Muller appealed the conviction. The state supreme court upheld the law's constitutionality. -does an Oregon law limiting the hours women are allowed to work violate the 14th amendment -The court upheld the Oregon regulations -Distinguishes Lochner: we don't restrict hours for bakers but women child-bearing nature and social role of women provided a strong state interest in reducing their working hours -brandeis brief: 1. The right to purchase or to sell labor is part of the "liberty" protracted by the 14th amendment of the federal constitution 2. This right to "liberty" is however, subject to such reasonable restraint of action as the state may impose in the exercise of the police power for the protection of health, safety, morals, and the general welfare -How does the court justify different treatment of men and women? --Women's physical structure and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should permitted to toil --The physical wellbeing of women becomes an object of public interest and care in order to preserve the strength and vigor of the race

PA Coal Company v Mahon

-Pennsylvania Coal Co. entered an agreement with H.J. Mahon in 1878 to gain full rights to mine the coal located beneath his surface-level property. However in 1921 the state of Pennsylvania passed the Kohler Act, which prohibited miners from extracting below-surface coal that supported surface-level buildings. When Pennsylvania Coal notified Mahon that it would mine coal beneath his property, Mahon filed suit in the Court of Common Pleas to prohibit mining in accordance with the Kohler Act. -Q: Did the Kohler Act restrict coal mining to an extent that violated the Takings Clause of the Fifth Amendment by depriving mine owners of coal without compensation? -declared kohler unconstituional -Insisted that the government took property, even when the state did not actually take physical possession, when government regulations substantially reduced or destroyed the value of the property. Such actions became known as "regulatory takings." -no police powers:He reasoned the state exceeded its police powers by significantly diminishing the value of the land estates without having a strong public interest reason to do so. -The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking -brandies nuiscance exception: --if a land use is itself noxious, dangerous, or causes a public nuisance, the legislature is free to regulate its use without compensation, even though the police power may cause great loss to the property owner. --In this case, he reasoned, the police power applied insofar as the Kohler Act prohibited a noxious use of the subsidence of buildings. Brandeis further argued that the diminution-of-value test presented by the majority was flawed because value is relative and cannot be determined by a court of law.

prudentialism

-Prudential arguments examine the costs and benefits of different constitutional policies -Given several plausible interpretations of the Constitution, prudentialists claim, decision makers should choose the interpretation that will produce the best consequences.

buck v bell

-Rape victim who became pregnant -After she gave birth the superintendent of the colony recommended sterilization when he discovered that a revised Binet-Simon IQ test revealed her mental age was 0 -VA law permitted forced sterilization of people considered feebleminded -8-1 sustained the VA forced sterilization saying mandating sterilization were reasonable exercises of police power -I don't understand how to see a ban on contraceptives will reinforce the state's ban on illicit extramarital affairs

Lee v. Weisman

-Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony -Does the inclusion of clergy who offer prayers at official public school ceremonies violate the establishment clause of the first amendment? -5-4 ruled that prayer exercises during middle school graduation ceremonies violated the establishment clause -At a min, constitution guarantees no coercion (direct) -"Prayer exercises in public schools carry a particular risk of indirect coercion" -Role of graduation in society - everyone will want to be there -Role of adolescent psychology in the decision - younger children susceptible to peer pressure -What does non participation even look like -"The mixing of government and religion can be a threat to free government, even if no one is forced to participate"

Sherbert v. Verner

-Seventh day adventists denied unemployment benefits, not available for work on saturdays -Brennan: (1) burden on free exercise of religion and (2) no compelling state interest -Choice between following religion and forfeiting benefits on the one hand and abandoning demands of religion to accept work on the other -Only potentially fraudulent claims on the side of state interests→ then people are going to say that they are going to lie and say I can't work on saturday- weak state interest

Brandeis Brief

-Short legal argument and a lot of data -Introduction of social science into supreme court decision: makes it more convincing -Con: looks like policymaking

seditious libel

-Speaking of ill of/criticizing the kong, government, or government officials -Seditious libel → if you think that the king was chosen by god, this was bad to criticize this sanctity; does not work well if you a democratic government where the debate of idea is the basis -Truth no defense -The judges were appointed by the king (they are going to be on the king's side)and the jury was appointed by the community -Threat to public peace, political order

Before Sherbert

-Standard of review under free exercise clause: strict scrutiny -Compelling state interest, narrowly tailored law → Written by Justice Brennan (very liberal justice). -After Sherbert + Yoder, Employment Division v Smith - neutral laws of applicability. If you do not have a constitutional claim to an exception, you have a statutory claim (go to your state legislature and pass a law to say i am exempt to this)

Roe v. Wade

-TX law restricts terminating pregnancy to saving life of mother -7-2 ruled that the Texas ban on abortion unconstitutional -state interest: --Discourage illicit sexual conduct - TX does not argue this --2. Concerned with abortion as a medical procedure → modern medical techniques have altered this situations --3. ** duty of protecting prenatal life → only when the life of pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail -Maintained that the right of privacy in Griswold encompassed the right to terminate a pregnancy: found in 14th amendment of personal liberty or ninth amendment reservation of rights to the people -person: does not include unborn -trimester:With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact ... that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. stewart concur :... Griswold stands as one in a long line of ... cases decided under the doctrine of substantive due process, and I now accept it as such. douglass Importance of physician-patient relationship → basic to 14th amendment

textualism

-Textualist arguments emphasize the specific language of the Constitution. This includes the relations among the terms used, as well as the common meaning of those terms. -. In Story's view, interpreters should look only to "what is written," not to "scattered documents" and "probable guesses" about what those who adopted the Constitution meant. -Some textualists place constitutional language in a historical context, looking to usages at the time that constitutional words were ratified -Other textualists focus on the language without regard to any particular historical context. They are willing to use modern dictionaries.

Oliver Cromwell

-That struggle ended in 1649 with Parliament victorious and King Charles beheaded. For the next eleven years, from 1649 to 1660, Great Britain was ruled by a protectorate under the authority of Oliver Cromwell, the leader of the parliamentary forces during the English Civil War. The monarchy was restored to power in 1660 (the Restoration) after Cromwell died and a badly divided Parliament invited Charles II, the son of Charles I, to occupy the throne.

magna carta

-The American revolutionaries who demanded their rights engaged in practices that were both centuries old and novel. From at least 1215, the year the Magna Carta was written and signed, Englishmen had demanded that their king respect their rights. -What changed was who demanded rights. Throughout much of English history, kings, aristocrats, and religious elites were the only persons who insisted that they had fundamental rights and liberties. The Magna Carta was a peace treaty between King John I and rebellious English barons. -Over time, more and more English subjects insisted that they also had fundamental rights. By the time the colonies were settled, legal authorities recognized that the principles of the Magna Carta limited royal power over all persons, not just persons with a title. Over the next 150 years, liberal and republican political thinkers popularized claims that government was the product of a social contract in which all rulers promised to protect the fundamental rights of all people.

english bill of rights

-The English Bill of Rights sharply limits royal power to violate rights. Few provisions, however, limit parliamentary power. -Compilation of common law decisions and uncodified -Unwritten constitution

Trinity Lutheran Church v. Comer

-The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion." Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment's protections of freedom of religion and speech. -Intersection free exercise and establishment: establishment (are we allowed to include them without violating establishment clause; funding going to religion) and free exercise (the exclusion prevents us from entirely exercising our religion) -What does play in the joints mean: at what point are you allowed to do something under the establishment clause under those provisions that say you cannot fund directly and at what point does this interact with the free exercise clause -Free exercise right to benefits given to secular institutions? its a playground, they are not praying -"the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution" -The law did not need to prevent the religious organization from practicing its religious; it was sufficient that the law denied a religious organization the same opportunity to compete for a benefit that is otherwise available to all secular organizations. Because the state's interest in using this policy was simply to draw a wide berth around religious establishment concerns, it was not a sufficiently compelling interest.

Slaughter House Cases

-The state legislature claimed that moving animal slaughtering into one central, regulated location was a justifiable exercise of the state's "police power", which is the traditional legislative authority to pass laws that promote public health safety, or morality -Butchers disagreed → they believed that the Crescent City monopoly unconstitutionally deprived them of their right to make a living (13th and 14th amendment) -US SC 5-4 vote ruled that state granted monopolies did not violate the 13th or 14th amendment -Samuel Miller majority: insisted that states remained responsible for protecting the fundamental rights of citizens -States have the power (police power) -13 + 14th amendment were primarily meant to protect these individuals freed from slavery; -Distinguished between the "privileges and immunities" of state citizens and "the privileges and immunities" of the US citizens --P+I clause: This is not a limit of state power- this does not apply to their own state. You can't possibly mean everything's up to congress and nothing is up to the states. --Equal protection and due process: No for this scenario of monopoly holders. It was meant to protect a group of people that is not this group of people.

Lochner v NY

-The state of New York enacted a statute known as the Bakeshop Act, which forbids bakers to work more than 60 hours a week or 10 hours a day. Lochner was accused of permitting an employee to work more than 60 hours in one week. -Does the Bakeshop Act violate the liberty protected by the Due Process Clause of the Fourteenth Amendment? -declared that the Bakeshop Act violated the due process clause of the 14th amendment -ruled that the measure was neither a valid health law nor valid labor law -Significant interference with liberty of contract (protected by DPC) -The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right -Regulation of private labor not within state's police powers -Even if health regulation: must have more direct relation as means to end -Problematic: searches for "true" legislative purpose, no deference to legislature, close judicial scrutiny of legislative judgment -There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State

Strategic model

-The strategic model suggests that justices seek to achieve their policy preferences by adjusting their behavior to take into account the behavior of other actors. Constitutional decision makers vote and write strategically, rather than sincerely -An opponent of the death penalty might strategically sign an opinion holding that capital punishment may be constitutionally imposed, but only when the condemned person was represented at trial by a criminal defense specialist, if this were the practical alternative the justice believed would result in the fewest executions. -The strategic model recognizes that justices need the cooperation of colleagues on the bench, lower-court judges, legislators, executive branch officials, and ultimately the citizenry to achieve policy and legal goals. Governing officials implement judicial decisions, appoint like-minded justices to the bench, and preserve the constitutional and statutory foundations of judicial independence. -When justices act too far outside the political mainstream, they invite backlash.

Engel v. Vitale

-T​​he New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each school day. -A group of organizations joined forces in challenging the prayer, claiming that it violated the Establishment Clause of the First Amendment (incorporated against the states through the 14th amendment). -Question: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment -Practice is wholly inconsistent with establishment clause -Government without power to prescribe by law any particular form of prayer, official prayer in program of governmentally sponsored religious activity -Indirect coercive pressure to conform even if denominationally neutral and voluntary -Union of government and religion destroys government and degrades religion -Governmentally established religion leads to religious persecution

West Coast Hotel v. Parrish

-Under Washington state law, the Industrial Welfare Committee and Supervisor of Women in Industry set a minimum wage of $14.50 for each work week of 48 hours. Elsie Parrish, an employee of the West Coast Hotel Company, received an amount less than this wage. -In ruling for the hotel, the lower court relied on Adkins v. Children's Hospital (1923), in which the Court struck down a minimum wage law for working women. -Q: Does a minimum wage law for women violate the due process clause of the fifth amendment, as applied to the states by the 14th amendment? No; it is constitutional / the state may use its police power to restrict that individual freedom to contract. -Adkins was wrong; circumstances change over time so it does not apply anymore/ we cannot reconcile this ruling with Muller's well considered declarations -In Muller: We emphasized the consideration that "woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence" and that her physical well being "becomes an object of public interest and care in order to preserve the strength and vigor of the race. -"Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment " -"recent economic experience" teach: changing circumstances

substantive due process

-What is liberty in the due process clause and does it encompass reproductive rights, etc. -It is about the substantive (the content of liberty in the due process clause) meaning of due process → giving substantive meaning to liberty in the due process

Politics have shifted regarding free exercise

-Why would you want strict scrutiny if you were a liberal? The religions in Sherbert and Yoder were seventh day adventists and amish (minority religions) then in the spirit of the countermajoritarian idea that what fundamental rights are, you want to be that the minority is protected by judicial review (you want to make it as hard for the state and easy for the petitioner). A legislative exemption is always possible but it is hard for minorities to get a legislative exemption because they are acting against the majority -Scalia in Smith → this is a drug that is illegal, we are going to say that if you want an exemption go convince the Oregon state legislature. If you are less likely to give minorities a closer look because you believe if the people want to change things go through the legislature you believe the courts are not the means to fix it. -NOW: masterpiece cakeshop, you have a majority religion coming to court → they could not get it through the legislature so they have to court and make their case that they are a minority and being discriminating against. It has to do with framing → are you a part of the christian majority or the chrisitan minority (very conservative chrisitains)

zenger trial

-Zenger trial→ end of seditious libel prosecutions in the US -The point of the jury was to say did the person publish this, but they rejected the premise of the question and we have to the power to say not guilty because we do not agree with the system -Even it was not really their job to say whether it was libel or not, they turned in a non guilty verdict because they did not believe in the idea of seditious libel to start with -etween the right to a jury and free speech during the eighteenth century. When local juries rather than royally appointed judges determined law, all persons who obtained a jury trial were in practice free to make popular criticisms of governing officials. Not surprisingly, colonists who criticized locally elected officials were less likely to regard the petit jury as a bulwark of freedom.

customary international law, law of nations

-controversial -less clear in the hierarchy

natural law

-controversial -less clear in the hierarchy -set of rights pre-existing to the constitution/DOI type rights

federal courts

-crime under statutes enacted by Congress -most cases involving federal laws or regulations -matters involving interstate and international commerce -can involving securities and commodities regulation -admiralty cases -international trade matters -patent, copyright... -cases involving rights under foreign treaties, foreign states, and foreign nationals -state law disputes when "diversity of citizenship" exists -bankruptcy matters -disputes between states -habeas corpus action

state courts

-crimes under state law -State constitutional issues and cases involving state laws or regulations -family law issues -real property issues -landlord/tenant dispures -most private contact disputes -most disputes involving regulation of trades or professions -most professional malpractice issues -most issues involving internal governance of business associations -most personal injury lawsuits -probate and inheritance matters -traffic situations

political connections

-different rights are connected by politics -political parties, political movements, and interest groups typically pursue a variety of rights policies

procedural rights

-ensure that persons are given a fair hearing before the state is permitted to take away any of the aforementioned rights -the 5th amendment declares that defendants in criminal trials cannot be complled to testify against themselves

Positive rigths

-government has to give you something -providing counsel for you if you cannot afford it in criminal trials -no guarantees for social security -vaccine mandates standing in the face of a negative right country ex: believing that the national government had a constitutional obligation to provide former slaves with the goods and services they needed to become full citizens

political rights

-grant persons powers to influence state and national policymaking -the first amendment protects the right to criticize public officials

Equality Rights

-guarantee all persons the same government benefits and burdens that are provided to other similarly situated persons. -the 15th amendment prohibits state laws that deny the ballot to otherwise qualified persons because of their race

individual rights

-limit the extent to which national and state officials may regulation personal behavior -article I, section 10 prohibits states from interfering with freely made contractual obligations. neither congress nor state legislatures, proponents of legal abortion assert, may pass a law forbidding a woman from terminating a pregnancy

functional connections

-particular rights are both intrinsic goods and vital means for protecting other rights. -American colonists believed that the right to trial by jury helped guarantee free speech and property rights.

the legal model

-proponents of the legal model believe that history, text, and precedent influence constitutional decision makers, even though these sources do not provide answers to all constitutional questions.23 They point out that American constitutional history is littered with instances in which law constrained constitutional decision making -Before joining the Supreme Court, Felix Frankfurter was a prominent proponent of free speech rights. Frankfurter was also committed to judicial restraint. When on the Court, he often voted to sustain what he thought were unwise legislative decisions regulating speech. -Elected officials are also motivated by their beliefs about the best interpretation of the Constitution, even when those beliefs clash with cherished policy preferences. Abraham Lincoln believed that slavery was an atrocious evil, but he also thought that the Constitution did not allow Congress to interfere with slavery in the states.

principled connections

-rights are connected by their broader underlying principles -rights may be connected by principles of constitutional interpretations

Church of the Lukumi Babalu Aye v City of Hialeah

-shortly after the announcement of the establishment of a santeria church in Hialeah, Florida, the city council adopted several ordinances addressing religious sacrifice -did the ordinance violate free exercise -Kennedy's starting point: Smith -A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice -A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest -At a minimum, free exercise clause protects against law that discriminates against some or all religious beliefs -Here, legitimate interests in protecting public health and animal welfare, but the way the law was written in underinclusive and overboard (regulated beyond what it needed to get at animal sacrifice) -Motivated by animosity to Santeria, gerrymandered to only reach activities of Santerians -Law burdening religious practice that is not neutral or not of general application must pass strict scrutiny; this law does not

the federal court system

-supreme court: US Supreme Court -appellate courts: United States Courts of Appeals (12 Regional Courts of Appeals and Court of Appeals for the Federal Circuit) -trial courts: United States District Courts, Court of Federal Claims, Court of International Trade

hierarchy among sources

-the constitution of the US -federal laws -state constitutions -state laws -judge made common law

historical institutionalism

-too often proponents of attitudinal, strategic, and legal models of constitutional decision making explore only one element of constitutional decision making at the expense of all others. -Rather, historical institutionalists hold that judges and others try to make the best decision from a value or policy perspective that is permitted by legal texts, history, and precedent -Historical institutionalists are interested in why people with particular policy preferences and constitutional visions exercise constitutional authority at a particular time. -Historical institutionalists think explaining constitutional decision making requires looking at constitutional politics as a whole rather than just asking why a particular constitutional decision maker made a particular decision.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

-~ to Lukumi because the law is not neutral general applicable -Philips refuses to bake cake on religious ground, alleged violation of CO antidiscrimination law -"... it is a general rule that [religious and philosophical] objections do not allow business owners and others in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law" -Impermissible hostility toward sincere religious belief -The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips' perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs. -The Court concluded that the Commission's actions violated the State's duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips' religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause.

police powers

... a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.

Lawrence v. Texas

0-Garner and Lawrence arrested and fined for violation of TX sodomoy law (though unclear what the facts were) -6-3 declared TX law unconstitutiona;l -How does he define right? A right to have your privacy protected from the government. This is about the absence of government from certain spaces of our lives. --Liberty protects the person from unwarranted government intrusions into a dwelling or other private places -The way the court framed it in Bowers got it wrong -Role of stare decisis --You cannot make the same argument about reliance → one was a detrimental one and one never existed --The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. ... The holding in Bowers ... has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. -"Their right to liberty under due process clause gives them the full right to engage... " Role of history: history was not on the side of the Bowers decision and it was not until the 1970s that any state signled out same sex relations for criminal prosecution

DOI v English Bill of Rights

1. DOI -More general statements -Allusions to god and religion -Qualify their authority - in the eyes of God / origins of rights -Uses problems as grounds to separate from the king 2. English BOR -Calls out specific people, times, instances -Names the protestant religion specifically -Qualify their authority- god granting them rights / origins of rights -government structures -both: list of grievances similar

Free exercise timeline

1. Sherbert/Yoder → 1) burden on free exercise of religion and (2) no compelling state interest --Yoder: The state interest would be two additional years of school NOT school at all according to majority → not compelling --Sherbert→ unemployment --The religious freedom claim always lost except in the previous two cases 2. Employment Division v Smith→ no constitutional claim for exemption from generally applicable law 3. RFRA: Back to Sherbert v Yoder (religious free exercise claim for an exemption from that law; strict scrutiny test for free exercise clause for an exemption for other laws); BUT: Boerne v Flores (states)

effects of english civil war and glorious revolutions

1. liberalism -John Locke and other liberal thinkers claimed that society was based on a social contract between free persons in a state of nature. The purpose of the government created by this contract was to protect certain natural rights, most notably life, liberty, and property. 2.republicanism -James Harrington and other seventeenth-century republican thinkers understood freedom as self-government. Constitutions guaranteed that all citizens had the opportunity to participate in the political processes that determined what liberties were protected.

reconstruction amendments

13th: abolished and continues to prohibit slavery and involuntary servitude, -Congressional enforcement power against the states -Does very little - "except for punishment.. crime" 14th: -what was a bipartisan coalition for the 13th amendment, fractured for the 14th amendment. -citizenship clause -Equal protection clause -Privileges and immunities clause -Section 5: congressional enforcement power 15th: prohibits each government in the United States to prevent a citizen from voting based on their race

Glorious Revolution

Charles II ruled from 1660 until his death in 1685. The throne then passed to his brother, James II, who, as a Catholic ruler in a country with an established Protestant church, quickly proved unacceptable to prominent English elites. James also attempted to restore many monarchial privileges that had been lost after the execution of Charles I. Protestant political leaders quickly mobilized. In 1688 James fled the country before an imminent invasion led by William of Orange and his wife Mary, who was James's daughter. This event became known as the Glorious Revolution. In 1689 Parliament confirmed the rule of William and Mary by passing An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown. This measure is better known as the English Bill of Rights.

Secession, Civil War, and Reconstruction

Constittuional crisis resulting in permanent changes to constittuional order: 13, 14, 15 amendments: reshaped national powers and constittuional federalism -more power to Congress, far greater authority to regulate local affairs -broad construction of national power (nec and proper clause, Art I, sec 8) Major political isssues: secession, slavery, taxation, civil liberties in wartime (suspension of habeas corpus, drat, marital law), reconstruction, suffrage and civil rights

takings

Government acquires property for public use under the power of eminent domain

regulatory takings

Insisted that the government took property, even when the state did not actually take physical possession, when government regulations substantially reduced or destroyed the value of the property.

standard for incorporation

Is the right "fundamental to our scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition"

Meyer v. Nebraska

Nebraska passed a law prohibiting teaching grade school children any language other than English. Meyer, who taught German in a Lutheran school, was convicted under this law. -Q: Did the Nebraska statute violate the Fourteenth Amendment's Due Process Clause? -SC 7-2 vote declared the Nebraska law unconstitutional -What does liberty in the due process of the 14th amendment mean: Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men -The stature as applied is arbitrary and without reasonable relation to any end within the competency of the state -state interests: homogenity, civic development, -BUT: No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We

Extraterritoriality

No strong consensus exists on whether the Bill of Rights restricts federal officials acting in American territories or in foreign countries. In a series of decisions at the turn of the twentieth century that have become known as the Insular Cases (1900-1904), a narrow judicial majority ruled that Congress must respect the liberties set out in the Bill of Rights when governing territories that are being prepared for statehood, but that the national legislature need not respect those liberties when governing territories held for other reasons.

English struggle between court and country movements

The dominant Court movement, which was based in the Whig Party and included most of England's mercantile community, sought to centralize power in Parliament in ways that better enabled Great Britain to become a modern state. Members of the Country movement, which included many Tories, dissident Whigs, and the rural nobility, insisted that centralization corrupted politics and threatened traditional English liberties. Prominent notables who identified with the Country movement, such as John Wilkes, Peter Trenchard, and John Gordon, penned numerous essays on free speech and other rights.

Charles I (the colonial era: before 1776)/ glorious revolution / Civil war

The first was the English Civil War and the Glorious Revolution. During the 1640s Parliament rebelled against King Charles I. That rebellion ended with the execution of the king in 1649. Forty years later, after the reigning monarch King James II fled the realm, Parliament adopted the English Bill of Rights. That proclamation established parliamentary supremacy and asserted that Englishmen had certain fundamental rights that future kings (though perhaps not Parliament) had to respect.

Alien and Sedition Acts

These consist of four laws passed by the Federalist Congress and signed by President Adams in 1798: the Naturalization Act, which increased the waiting period for an immigrant to become a citizen from 5 to 14 years; the Alien Act, which empowered the president to arrest and deport dangerous aliens; the Alien Enemy Act, which allowed for the arrest and deportation of citizens of countries at was with the US; and the Sedition Act, which made it illegal to publish defamatory statements about the federal government or its officials. The first 3 were enacted in response to the XYZ Affair, and were aimed at French and Irish immigrants, who were considered subversives. The Sedition Act was an attempt to stifle Democratic-Republican opposition, although only 25 people were ever arrested, and only 10 convicted, under the law. The Kentucky and Virginia Resolutions, which initiated the concept of "nullification" of federal laws were written in response to the Acts.

effect of english civil war on americans

They assumed that the liberties asserted in the 1689 English Bill of Rights belonged to them as English colonists. Prominent colonial politicians adopted the Country movement's critique of the English government. Frequently citing Wilkes, Trenchard, and Gordon, Americans claimed that English politics had been corrupted by the shift toward centralization. This corruption explained the tendency of Parliament to violate the traditional rights of English subjects residing in the colonies. Americans also cheered when Wilkes and other members of the Country movement condemned political parties. The more English politics became a struggle between Whigs and Tories for control of the government, the more Americans became convinced that governing officials in Great Britain no longer had the republican independence necessary for good governance.

federalism

This difference between constitutional restrictions on the federal government and constitutional restrictions on state governments was extremely important for most of American history. During the twentieth century, however, the Supreme Court slowly began ruling that the due process clause of the Fourteenth Amendment obligated states to respect most, but not all, of the liberties in the Bill of Rights.

negative rights

Those rights that prohibit government from acting in certain ways; rights that are not to be interfered with. -congress shall make no law

Trump v. Hawaii **

case determining whether or not an Executive Order temporarily suspending admissions from selected countries constitutes religious discrimination -Why the establishment clause: can be simply favoring a country; violation of disfavoring a religion -Role of president's statements -Immigration and national security: executive branch --are very broad, the president can decide and has very wide latitude to decide in these matters. This is within the authority of the executive branch. A bunch of agencies were involved so it was not solely decided by the executive -Proclamation based on legitimate purpose

Establishment Clause

extreme establishment → direct coercion → reasonable observer → indirect coercion

nuisance exception

if a land use is itself noxious, dangerous, or causes a public nuisance, the legislature is free to regulate its use without compensation, even though the police power may cause great loss to the property owner.

court system: hierarchial structure

supreme court appellate courts trial courts

what is neutral law of general applicability

whether the law is written in such a way that is applies broadly to everyone or is it written in such a way that is targeting one group -Is it the way it is written or the way it is applied → the way that the court frames it / interprets decides it