1. CONSTITIONAL LAW
Text – Chapter 3

2. Learning Objectives Basics of the Constitution and federalism
Relationship between federal and state powers
Important legal principles: supremacy, preemption
Constitutional guarantees and limitations
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3. Overview of the Constitution
Establishes a tripartite government to ensure a separation of powers:
Article I sets forth the legislative powers of Senate and Congress
Article II gives executive power to execute legislation, command armed forces, make treaties
Article III provides judicial power to the Supreme Court and subsidiary courts
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4. Judicial Review
In Marbury v. Madison (1803), the Supreme Court interpreted the Constitution to grant federal courts the power of judicial review – the power to declare a statute or governmental action unconstitutional and void
Irony: the statute in question gave the Supreme Court special powers
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5. A System of Checks & Balances
No single branch may control government
Supreme Court has power of judicial review
Federal powers are limited
States reserve certain powers
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6. The Power to Regulate
Federal government has exclusive power to administer certain national concerns, such as war and currency
Some powers are shared with the states
Example: power to tax, power to spend
States possess exclusive power to enact laws to protect general welfare, health, and safety
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7. Federal Supremacy
The Constitution and statutes enacted by Congress, including treaties, are the supreme law of the land
Article VI, Clause 2
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8. Federal Preemption
Article I, Section 8 lists issues on which Congress may pass statutes
Thus, if Congress enacts a law on a certain issue, then Congress “preempts” state regulation of that issue
Example: Congress enacted the Civil Rights Act of 1964, thus a state cannot enact a law allowing discrimination based on race, religion, or gender
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9. Testing Constitutionality
Courts apply a means-ends test to review allegedly unconstitutional statute
Rational basis test (minimal scrutiny)
if law has rational basis, it will stand
Intermediate scrutiny
law must substantially relate to important governmental objectives to stand
Strict scrutiny
Law presumed invalid if, on its face, it is based on race, ethnicity, and religion
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10. The Commerce Power
Commerce clause literally applies to interstate commerce
Article I, Section 8, Clause 3
Supreme Court has applied the power to intrastate commerce when the activity affects interstate commerce
Gonzales v. Raich emphasizes the far reach of the commerce power
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11. Gonzales v. Raich Facts:
Federal Controlled Substances Act (CSA) prohibits possession and sale of marijuana
California statute created criminal prosecution exemption for patients (Raich and Monson) possessing and using marijuana for physician-approved medicinal purposes
Federal Drug Enforcement Administration agents seized Monson’s cannabis plants
Raich and Monson filed for an injunction to bar enforcement of the Federal CSA as applied to medical use because enforcement violated the Commerce Clause and the Due Process Clause of the Fifth Amendment
Good case for class discussion and debate
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12. Gonzales v. Raich Procedural History:
Federal District Court denied preliminary injunction
U.S. Ninth Circuit Court of Appeals agreed with the Commerce Clause argument and directed the lower court to issue a preliminary injunction
The U.S. Supreme Court granted the federal government’s petition for a writ of certiorari
Issue: “[W]hether Congress’ power to regulate interstate markets for medicinal substances encompasses. . .markets that are supplied with drugs produced and consumed locally?”
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13. Gonzales v. Raich Reasoning: Holding:
Discussed legislative history, public policy
Judicial precedent (Wickard v. Filburn): Congress has power to regulate activities substantially affecting interstate commerce
Wickard (wheat) and this case (marijuana) are similar, but Lopez and Morrison are distinguishable
Holding:
Locally cultivated product used domestically is subject to federal regulation
Appellate decision vacated, case remanded
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14. The First Amendment
First Amendment guarantees freedoms of religion, speech, press, assembly, and petition to individuals
And to corporations
Protection has never been afforded to certain classes of speech
False, lewd, obscene, profane, libelous, and insulting speech is not protected
See U.S. v. American Library Assoc., Inc.
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15. Commercial Speech Speech proposing a commercial transaction
Neither noncommercial expression nor political, thus commercial speech not fully protected
A restriction on commercial speech is valid if it (1) seeks to implement a substantial gov’t interest, (2) directly advances the interest, and (3) is the least restrictive method of achieving the interest
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16. Kasky v. Nike, Inc. What were the facts?
What was the arguments of the parties?
What three elements did the court consider in categorizing Nike’s speech?
What did the California Supreme Court hold and why?
Follow-up: Nike appealed to U.S. Supreme Court, which rejected and remanded the case to trial; parties settled pre-trial in 2003.
Nike, Inc. mounted a public relations campaign in order to refute news media allegations that its labor practices overseas
were unfair and unlawful. This campaign involved the use of press releases, letters to newspapers, a letter to university presidents
and athletic directors, and full-page advertisements in leading newspapers. Relying on California statutes designed
to curb false and misleading advertising and other forms of unfair competition, California resident Mark Kasky filed suit
in a California court on behalf of the general public of the state. Kasky contended that Nike had made false statements in
its campaign and that the court should therefore grant the legal relief contemplated by the California statutes. Nike demurred
on the ground, among others, that the First Amendment barred Kasky’s action. The court, holding Nike’s campaign
to be fully protected under the First Amendment as noncommercial speech, sustained Nike’s demurrer and dismissed Kasky’s
complaint. Kasky appealed, and the California Court of Appeal affirmed. The Supreme Court of California granted Kasky’s
petition for review.
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17. Issue: Compelled Advertising
When government requires producers to pay for generic industry advertisements
U.S. Supreme Court concluded in Johanns v. Livestock Marketing Association that the beef assessment funding was for government speech, thus the promotional program is not subject to a First Amendment compelled-subsidy challenge
“Beef. It’s What’s for Dinner.” This familiar tagline has been featured in numerous television commercials during recent years. The beef advertisements were government-initiated and government-approved. If producers or marketers of the regulated products disagree with the advertisements’ content but are still compelled by federal law to help pay for the advertisements, are those parties’ First Amendment rights violated? That was the issue presented in Johanns v. Livestock Marketing Association, 125 S. Ct (2005), in which the U.S. Supreme Court considered numerous
livestock marketers’ First Amendment challenge to the government’s beef advertising program. The beef marketers who challenged the advertising
program objected to its generic pro-beef message, which they saw as impeding their individual efforts to advertise their particular beef (e.g., grain-fed, certified Angus, or Hereford) as superior to other beef. They based their challenge on two lines of cases: the compelled speech decisions, which found First Amendment problems with governmental attempts to require persons to communicate messages with which they disagreed; and the compelled
subsidy decisions, which established that the First Amendment is implicated when the government requires one party to subsidize (in a financial sense) the speech of another party even though the subsidizing party disagrees with the speech. A federal district court and court of appeals both ruled in favor of the beef marketers, holding largely on the basis of the compelled subsidy line of cases that the beef advertising program violated the First
Amendment. In Johanns v. Livestock Marketing Association, however, the Supreme Court reversed the lower courts’ decisions. The Supreme Court stressed that the compelled speech and compelled subsidy cases apply only when the mandated message, or the speech being subsidized, is
private in nature, as opposed to that of the government. The Court held that when government speech is involved, there is no First Amendment barrier to the government’s requirement that individuals or corporations contribute financially—whether through general tax revenues or targeted assessments—to the communication of that speech. According to the Court, the advertising program at issue in Livestock Marketing was government speech because Congress set up the legal parameters of the beef promotions initiative, required the Secretary to take certain actions to launch and maintain it, and gave the Secretary final authority to approve the content of the advertisements. The Court conceded that the beef promotions program upheld in Livestock Marketing was exceedingly similar to the federal government’s mushroom promotions program, which the Court had struck down as a violation of the First Amendment only four years earlier. In that earlier case, however, the government speech issue had not been before the Court. Because the government speech issue was properly presented in Livestock Marketing, the Court reasoned that it was not bound by the earlier decision and was free to sustain the beef promotions program on the government speech ground.
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18. Constitutional Limitations
Fifth Amendment prohibits federal government from depriving “any person of life, liberty, or property without due process of law.”
Known as the due process clause
Applied to states through Fourteenth Amendment by process of incorporation
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19. Constitutional Limitations
Due process clause interpreted liberally to be guarantee of protection from
Unreasonable procedures
procedural due process
Unreasonable laws
substantive due process
Protection from government action
Federal funding may create “government” nexus
See Brentwood Academy v. Tennessee Secondary School Athletic Association
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20. Constitutional Limitations
Equal protection clause of Fourteenth Amendment applies to states and federal government when classifying or distinguishing people
Basic test: rational basis (minimal)
Compare the tests applied in:
City of Dallas v. Stanglin
Bush v. Gore
The city of Dallas, Texas adopted an ordinance restricting admission to so-called “Class E” dance halls to persons between
the ages of 14 and 18. However, it did not impose similar age limitations on most other establishments where teenagers might
congregate—for example, skating rinks. Charles Stanglin, who in one building operated both a Class E dance hall and a
roller-skating rink, sought an injunction against enforcement of the ordinance in a Texas trial court. One of his arguments
was that the ordinance denied equal protection because its distinction between Class E dance halls and other establishments
for teenagers was irrational. The Texas trial court upheld the ordinance, but a higher Texas court struck down its age restriction.
The city appealed to the U.S. Supreme Court.
An equal protection claim involving the fundamental right to vote was addressed in high-profile fashion by the Supreme Court in Bush v. Gore (2000). A five-justice majority in the historic and controversial decision terminated an ongoing vote recount in Florida because, in the majority’s view, Florida law’s “intent of the voter” test was not a sufficiently clear standard for determining whether a ballot not counted in the initial machine count should be counted as valid during the manual recount. The majority was concerned that in the absence of a more specific standard, vote counters taking part in the recount might apply inconsistent standards in determining what the voter supposedly intended, and might thereby value some votes over others.
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21. Constitutional Limitations
Equal protection clause prohibits a government from treating one person differently than another without reasonable grounds for classifying differently
“Suspect” classifications (race, gender, ethnicity) require higher level of scrutiny
Examples: Gratz v. Bollinger, Grutter v. Bollinger
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22. The Gratz & Grutter Cases
Facts:
Caucasian, academically-qualified applicants were denied admission to University of Michigan’s undergraduate college (Gratz) or law school (Grutter)
Plaintiffs filed suit alleging discrimination violating the Equal Protection Clause and Title VI of the Civil Rights Act of 1964
Evidence:
Undergraduate admissions process applied point advantage to minority applicants
Law school admissions process was “narrowly tailored,” individualized, and not a quota system
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23. The Gratz & Grutter Cases
U.S. Supreme Court Decision:
Applicable legal precedents and public policy:
Student body diversity is a compelling state interest
Regents University of California v. Bakke
“All racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized”
Adarand Constructors, Inc. v. Pena
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24. The Gratz & Grutter Cases
U.S. Supreme Court Decision (cont.):
Racial classifications are constitutional only if they are narrowly tailored to further compelling governmental interests
Regents University of California v. Bakke
Applying law to facts (conclusion):
Undergraduate admission process not narrowly tailored
Law school admission process is individualized, flexible
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25. Constitutional Limitations
Phrase “depriving a person … of property” known as the takings clause
Interpreted to require government to pay property owner just compensation in exchange for taking property through eminent domain
Public use purpose required
“Takings” for economic development purpose satisfies public use requirement
Kelo v. City of New London
The Supreme Court’s 2005 decision in Kelo created substantial controversy.
Does the government’s taking of private property for the purpose of economic development satisfy the public use requirement set forth in the Fifth Amendment’s Takings Clause? In Kelo v. City of New London, 2005 U.S. LEXIS 5011 (2005), the U.S. Supreme Court answered “yes.”
The takings clause often has been litigated in the context of environmental statutes, such as those protecting wetlands.
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