Chapter 6. International Affairs 171 results (showing 5 best matches)
- law, not federal constitutional law. The constitutional underpinnings of the act of state doctrine relate more to the separation of powers than to the constitutional origins of the doctrine. Thus, Congress can change the act of state doctrine and, by statute, require the courts to look to “customary international law.”
- Because specific constitutional references to foreign relations are sparse, much of the foreign affairs power has evolved from constitutionally implied powers and, perhaps, from extra-constitutional sources. Our effort to understand the constitutional sources of our foreign relations will begin with a study of the Constitutional text, and the roles that the Constitution envisions for the President, Congress and the courts in foreign affairs. We shall also examine the case law and historical tradition. Then we shall look more closely at specific areas of foreign affairs, the treaty power, executive agreements, and the war power.
- 252 U.S. at 432–33, 40 S.Ct. at 383 (emphasis added). See also Peter Hay, Supranational Organizations and United States Constitutional Law, 6 Va.J. of Internat’l Law 195, 198 n. 10 (1966).
- suggests that executive agreements might not be completely equal to treaties in all respects. The Restatement of the Law, (Second) Foreign Relations Law of the United States, has summarized the effect on domestic law of an executive agreement entered into pursuant to the President’s constitutional authority, the first type of executive agreement described above:
- The executive power vested in the President by the Constitution, particularly his duty to see that the laws are faithfully executed, refuted the idea that the chief executive can make laws. Congress has “exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in the federal government.
- Open Chapter
Chapter 1. The Origins of Judicial Review 98 results (showing 5 best matches)
- See also, Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129 (1893); Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1 (1959), and H. Wechsler, Principles’ Politics and Fundamental Law (1961).
- Marshall’s discussion of the constitutionality of legislative acts falls into two parts. First, Marshall held that a law that was not in conformity with constitutional principles could not be the law of the land. This proposition established the Constitution as a binding law superior to any other federal action.
- Because these confrontations of Court authority involve no legitimate principle of constitutional law, we give them no extended treatment in this treatise, although we do note individual challenges if they are relevant to an historical explanation of an area of constitutional interpretation. To the extent that state officers choose to disregard federal rulings, they are subject to penalty under the contempt power and individual federal statutes. The executive branch may also enforce federal law in these instances.
- Scholars and Justices have almost universally accepted these arguments, as well as those made in the early cases concerning the review of state laws. Even Justice Holmes, who opposed active review of federal laws, agreed that the review of state acts was a necessary part of Professor Thayer in his classic article on the nature of the judicial power in matters of constitutional law found no theoretical difficulty with the review of state acts.
- See e.g., Charles Beard, The Supreme Court and the Constitution (1912); Raoul Berger, Congress vs. The Supreme Court (1969); Julius Goebel, 1 The Oliver Wendell Holmes Devise History of the Supreme Court of the United States—Antecedents and Beginnings to 1801 (1971); 1 A.A.L.S. Selected Essay on Constitutional Law, Chapter 1 (D. Maggs, Ed., 1938); Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan.L.Rev. 843 (1978); Meigs, The American Doctrine of Judicial Power and Its Early Origin, 47 Am.L.Rev. 683 (1913); Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790–1860, 120 U.Pa.L.Rev. 1166 (1972); Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 1 (1893); Rotunda, Original Intent, The View of the Framers, and the Role of the Ratifiers, 41 Vanderbilt Law Review 507 (1988).
- Open Chapter
Appendix B. Researching Constitutional Law on Westlaw® 66 results (showing 5 best matches)
- Constitutional Law
- The following chart lists selected Westlaw databases that contain information pertaining to constitutional law. For a complete list of constitutional law databases, see the online Westlaw Directory or the printed
- The fields discussed below are available in Westlaw case law databases you might use for researching issues related to constitutional law.
- For example, the topic Constitutional Law has the topic number 92. To retrieve U.S. Supreme Court cases with headnotes classified under topic 92 that discuss ex post facto laws, access the SCT database and type a query like the following:
- • If you find a topic and key number that is on point, run a search using that topic and key number to retrieve additional cases discussing that point of law. For example, to retrieve federal cases containing headnotes classified under topic 92 (Constitutional Law) and key number 1296 (Secular Purpose), access the ALLFEDS database and type the following query:
- Open Chapter
Chapter 11. Substantive Due Process 161 results (showing 5 best matches)
- During the modern, post-1937, era the Court will engage independent judicial review if the law substantially impairs a fundamental right or employs certain classifying traits that have special constitutional status (such as race, nationality, gender, or illegitimacy). If a law does not employ a classification that would require independent judicial review, the Court will examine the law under the rationality test unless the law significantly impairs a fundamental constitutional right. If a law substantially impairs the exercise of a fundamental right by all persons, the law will be reviewed under the due process clause. If the law restricts the exercise of a fundamental constitutional right by only a class of individuals, the law will be reviewed under the equal protection clause, or the implied equal protection guarantee of the Fifth Amendment due process clause.
- An economic or social welfare law will be subject to more rigorous standards of review under equal protection if the law employs a classification that receives special constitutional protection (such as gender or illegitimacy classifications or the “suspect classifications” of race, national origin, and alienage.) These cases are examined in Chapter 18.
- Even if the law does not involve a fundamental constitutional right, a law that burdens a classification of persons because of the “suspect” traits of race, national origin, or status as a resident alien, the Courts will engage in an independent review of the classification to determine if it is narrowly tailored to promote a compelling interest of government. Even when a law classifies persons in a manner that does not involve the exercise of fundamental rights, the Court will use an intermediate standard of review (less strict than the compelling interest test but less deferential than the rational relationship test) if the classification is based upon traits such as gender or illegitimacy. When the Court reviews a law that does not involve a fundamental constitutional right and does not classify persons on the basis of traits such as race, resident alien status, gender, or illegitimacy, the Supreme Court will give great deference to the decision of the legislature. The Court will...
- the constitutionality of a state’s “right-to-work” law. After noting the Court’s rejection of the “Allgeyer-Lockner-Adair-Coppage constitutional doctrine,” Justice Black stressed that the states have the authority to legislate against “injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.”
- Despite claims to the contrary, there has never been a period of time wherein the Court did not actively enforce values which a majority of the Justices felt were essential in our society even though they had no specific textual basis in the Constitution. Indeed, some of the most noted “conservative” Justices advocated the use of a natural law analysis to select and protect the forms of liberty under the due process clause. Thus, it was that Justice Black could accuse Justice Frankfurter of assuming too great an authority by adoption of a natural law approach to constitutional issues rather than by making use of specific provisions of the Bill of Rights. However, the use of a subjective natural law analysis under the due process and equal protection clauses did not work out well in the period between 1887 and 1937. When the Court rejected the substantive due process approach in 1937, it restricted the ability of the Justices to rely upon a natural law or openly subjective basis for...
- Open Chapter
Chapter 2. Federal Jurisdiction Part 4 20 results (showing 5 best matches)
- E.g., Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1, 8 (1959); Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Kentucky Law Review 707 (1988).
- See, Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 2.15(f) volume 2, (Thomson West, 4th ed. 2007) (6 volumes).
- 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), on remand 206 F.Supp. 341 (M.D.Tenn.1962). See Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, vol. 1, § 2.16(c) (Thomson West, 4th ed. 2007) (6 volumes).
- R. Berger, Impeachment: The Constitutional Problems (1973). Contrast, Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L. J. 707, 728–32 (1987–1988).
- The school claimed that the investigation would violate its religious freedom; while the administrative proceedings were pending, the private school sued to enjoin the agency. “Our Federalism” required abstention. The state’s interest in prohibiting sex discrimination was an important one, and the agency will give the private school adequate opportunity to raise its constitutional claim. Even if the state agency will not review the constitutional claim, the constitutional claim may be raised in a state court on judicial review. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), on remand 802 F.2d 457 (6th Cir.1986).
- Open Chapter
Chapter 7. The President and Congress Part 2 45 results (showing 5 best matches)
- On constitutional problems related to the enactment of federal legislation, and an analysis of how a bill becomes a law, see vol. 2, R. Rotunda & J. Nowak, and J. Young, Treatise on Constitutional Law: Substance and Procedure §§ 10.1–10.9 (Thomson Reuters, 4th ed. 2007) (6 volumes).
- See, e.g., C. Burdick, The Law of the American Constitution (1922) § 50, at 125–27; 3 W. Willoughby, The Constitutional Law of the United States (2d ed. 1929) §§ 979–80, at 1497–1500.
- On the Common Law Contempt Power of Congress, see 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 8.2–8.3 (Thomson Reuters, 4th ed. 2007) (6 volumes).
- Justice Stevens argued that the law’s cancellation provisions amounted to the President amending “two Acts of Congress by repealing a portion of each,” the bill becomes law.” But, under the statute at issue, the “statutory cancellation occurs the bill becomes law.” The constitutional silence on the issue of a line item veto, Stevens contended, should be treated as equivalent to an express constitutional prohibition.
- See, 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 7.1(c) (Thomson Reuters, 4th ed. 2007)(6 volumes).
- Open Chapter
Chapter 4. The Federal Commerce Power 82 results (showing 5 best matches)
- The Court has upheld a wide variety of legislation under the commerce power including health regulations, criminal laws, and civil rights acts. If there is a rational basis for finding a sufficient relationship between the regulation and commerce under one of the three tests discussed above, the act is within the commerce power. If it does not violate a constitutional restriction or fundamental constitutional right the law must be upheld.
- The congressional power to pass laws limiting the use of tribal property or regulating the action of tribal members is subject to some constitutional restrictions. Although the Supreme Court has not made clear exactly which provisions of the Bill of Rights restrict congressional power in this area, it has held that the just compensation clause applies to the federal appropriation of tribal property.
- The federalism principle that prevents the federal government from ordering state or local government to take certain governmental actions does not grant state and local government immunity from federal regulation of commercial activity. Thus, a federal labor law regulating the wages paid to employees of any business in or affecting commerce could apply to state and local governments just as it would apply to private sector activities. Similarly, a federal law regulating the disposal of waste products, such as atomic waste or chemically hazardous waste, that applied to private persons or corporations could be applied to state or local governments that disposed of such waste. But the structure of “dual sovereignty” that the Tenth Amendment represents, under our constitutional structure of federalism, prohibits the federal government from using the Commerce power to conscript state instrumentalities as its agents.
- The dissenters argued that the majority had gone beyond the proper role of the judiciary in our constitutional system. They believed that the scope of federal power to regulate state governments should be decided by the democratic process, rather than by the courts. They claimed that neither constitutional text nor history supported the Court’s ruling. Because the majority had failed to ground its ruling on a clear constitutional principle or objective test, the dissenters asserted that future rulings would be based on Justices’ personal views of the proper balance of federal and state power rather than on legal standards.
- , which had denied constitutional immunity to states or cities that suffered financial burdens when complying with federal commercial regulations that govern both private sector and public sector activities. The line of cases represented by Congress may use section 5 of the Fourteenth Amendment to enact laws that impose burdens on states. It may also “bribe” the states by using its spending power. And, Congress may use the Commerce power to impose burdens on the states if the states are subject to “generally applicable” laws. In other words, Congress can set the minimum wage for all workers in or affecting interstate commerce, and the minimum wage will apply to state workers in or affecting interstate commerce. But Congress cannot simply order states to pay their Governors a special minimum wage because that law would not be “generally applicable.”
- Open Chapter
Chapter 2. Federal Jurisdiction Part 2 116 results (showing 5 best matches)
- However, exercising federal jurisdiction can raise unnecessary constitutional problems when a plaintiff sues in federal court protesting state action and a decision as to the applicable interpretation of state law is relevant to the federal constitutional issue. Where state law is unclear, the federal court is faced with several unpleasant alternatives. The court can proceed and decide the state law question in such a way as to avoid the constitutional issue, but a state court may later disagree with the federal court’s interpretation. Or, the federal court can apply the state law in such a way as to require a decision on constitutional grounds, but this alternative is not favored if there are nonconstitutional grounds for decision. Under either alternative, the federal rule as to the constitutionality of the state law is binding on state courts, but the state courts are still free to interpret the state law differently in a later case (except in the atypical case where the Supreme...
- Opinions often state that when a law is challenged as unconstitutional, “this Court first ascertains whether the statute can be reasonably construed to avoid the constitutional difficulty.” Courts normally presume that statutes are constitutional. Illustrating this policy is the fact that some legislators may vote against a measure on the grounds of its unconstitutionality and later, when they become judges and are on the bench, they hold that the same law is constitutional. Though they may not have changed their personal viewpoint, they have exercised the self-restraint of the judiciary.
- If the state court holds the state law valid under both state and federal constitutional provisions, then the Supreme Court may review. In that case, if it disagreed with the state court’s view of the federal constitution (or of the federal statute or of the treaty), the state decision would be reversed, regardless of the interpretation of the state law.
- When the resolution of the state procedural question depends on a federal constitutional ruling—e.g., whether a federal constitutional challenge was waived—then the state law prong of the state court holding is not independent of the federal law and the Supreme Court is not precluded from exercising jurisdiction.
- Now consider the situation where the state court holds that a statute violates both the state and U.S. Constitution, but the state court did not intend that its decision rest independently on the state ground. Assume, for example, that it said that the state free speech guarantee means exactly what the federal free speech guarantee means. If the state court interprets its state law ground to be as broad as the federal constitutional provision, then the Supreme Court may review the federal issue. Because the state court felt compelled, in construing its own law, to follow federal case law, the U.S. Supreme Court may review because the state court may have misapprehended federal law. The state ground is not really “independent” of the federal ground. If the U.S. Supreme Court reverses and remands, the state court may change its interpretation of state law.
- Open Chapter
Chapter 10. Individual Liberties—An Overview 126 results (showing 5 best matches)
- So long as a law does not restrict a fundamental constitutional right or employ a constitutionally significant classifying trait (such as alienage, illegitimacy, race, or sex) the law enjoys a presumption of constitutionality. Such a law will be upheld so long as the law, or a classification within the law, has a rational relationship to a legitimate interest.
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure Vol. 2, Chapter 14.(4th ed. 2008, with supplements) (6 volumes).
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed. 2008, with supplements) Vol. 2, § 14.6 (6 volumes).
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure Vol. 2, § 14.6 (4th ed. 2008, with supplements) (6 volumes).
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure Vol. 2, § 14.6; Vol. 3, § 18.3 (4th ed. 2008, with supplements) (6 volumes).
- Open Chapter
Preface to First Edition 2 results
- As has been often noted, it may be impossible to prepare a single volume treatise on Constitutional Law. To keep this volume within manageable size, we have had to exclude a variety of constitutional issues from consideration, and focus instead on selected areas of constitutional adjudication and decisionmaking. We have omitted most issues relating to jurisdiction, conflicts of laws, and criminal procedure; there are many fine texts which examine these specialized subject areas. In general, we have emphasized those areas of Constitutional Law which are most often studied and litigated today as well as those emerging issues that we believe will be of most importance in the years ahead. In the annual supplements to this edition we will include references to all constitutional opinions of the Supreme Court; these later developments, indeed, may alter the scope of our coverage in future editions. But for the present we have had to make subjective judgments concerning the areas that will...
- It is far too late in the history of constitutional scholarship for the authors of a text such as this to claim full credit for the ideas presented in their work. In a very real sense we are indebted to all of those scholars whose works have gone before us and aided us in our own studies—from the late Professors Corwin and Thayer to the many outstanding scholars of today. In particular, we have been aided by the many excellent casebooks that are currently published for law school use; these texts have served all professors of Constitutional Law as important research resources as well as stimulating teaching tools. We have cited casebooks, texts and articles where we thought that those works would be of particular aid to the reader who refers to this book for study or research guidance; unfortunately, space requirements have limited our citations to secondary authorities.
- Open Chapter
Chapter 16. Freedom of Speech 113 results (showing 5 best matches)
- If a law is not invalid on its face, the litigant can still argue that it is invalid as applied in a specific case. In an “as applied” challenge to a law, a defendant charged with violating the law is, in effect, saying, “Even if the law is constitutional on its face, I cannot be convicted under this law for what I did.”
- The void for vagueness doctrine applies to all criminal laws, not merely those that regulate speech or other fundamental constitutional rights. All such laws must provide fair notice to persons before making their activity criminal and also to restrict the authority of police officers to arrest persons for a violation of the law.
- Individual students and individual faculty remained free to voice their disapproval of the military’s message, whatever that message is. The federal law did not place any unconstitutional condition or First Amendment burden on the receipt of federal funds. Anyone was free to say what he or she wanted to say. The law simply required the schools not to interfere with a law (“don’t ask, don’t tell”) that the litigants had stipulated was constitutional.
- Several rationales justify special judicial strictness to insure that laws that regulate speech, a fundamental constitutional right, are not vague. First, the requirement that a law place persons on notice as to precisely what activity is made criminal is particularly important when the activity relates to a speech. To the extent that the law is vague, it might have an effect and deter persons from engaging in protected activities. An unclear law, a law that does not draw bright lines, might regulate (or appear to regulate) more than is necessary, and thus deter or chill persons from engaging in protected speech.
- Justice Frankfurter strongly criticized the use of the “preferred position” terminology, because its use might imply that any law touching communication has a “presumptive invalidity,” radiating “a constitutional doctrine without avowing it.”
- Open Chapter
Chapter 15. Congressional Enforcement of Civil Rights 104 results (showing 5 best matches)
- , but only he reserved judgment on whether the federal law (which eliminated English literacy tests as a requirement for voting, as applied to anyone who successfully completed the sixth grade in school accredited by Puerto Rico) was constitutional in all respects. Justice Douglas would reserve “judgment until such time as [the issue] is presented by a member of the class against which that particular discrimination is directed.” Should a person literate in a language other than English (e.g., French) be able to challenge the law on equal protection or other constitutional grounds? If a person learned Spanish not in a Puerto Rican school but in a school in Spain, or in Mexico, should he be able to challenge the law on equal protection or other constitutional grounds?
- The Court applied the methodology of the prior cases and, this time, upheld the law, which it found to cover a protected class (sex-based discrimination) and it was congruent and proportional to the constitutional injury that the law sought to prevent.
- The law did not protect The federal statute merely offered a different procedure, but the state already offered a procedure was adequate for Constitutional purposes.
- The Court explained that laws enacted pursuant to § 5 must be for the purpose of remedying or preventing constitutional violations. But the TRCA did not enforce property rights.
- See 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 19.1–19.39 (Thomson Reuters, 4th ed. 2008)(6 volumes).
- Open Chapter
Chapter 11. Substantive Due Process Part 4 117 results (showing 5 best matches)
- See also, Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (a state constitutional amendment prohibiting legislatures in the state from enacting laws that would prevent discrimination against persons on the basis of sexual orientation violates equal protection, even though there was, at the time, no fundamental constitutional right to engage in homosexual activity).
- In less than twenty years from the time of its rendition the crucial ruling in ‘Wynehamer’ was far on the way to being assimilated into the accepted constitutional law of the country. The ‘due process’ clause, which had been intended originally to consecrate a mode of procedure, had become a constitutional test of ever increasing reach of the substantive content of legislation. Thus was the doctrine of vested rights brought within the constitutional fold, although without dominating it. For confronting it was the still-expanding concept of the police power.
- Id. See generally, the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 2, Chapter 11, and Vols. 3 & 4, Chapter 18.
- For further references to the history of the Civil War Amendments, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements). Vol. 3. Chapter 18.
- B.F. Wright, The Growth of American Constitutional Law at 80–82 (1942) [hereinafter cited as Wright].
- Open Chapter
Chapter 14. Equal Protection Part 12 75 results (showing 5 best matches)
- The possible impact of this amendment on constitutional analysis of gender classifications was noted in J. Nowak, R. Rotunda & J. Young, Constitutional Law 618 (1st ed. 1978). In that text, we also noted the progress of the proposed amendment through the ratification process. See id. at App. C, and 1982 Supplement to the first edition at Appendix C.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 4 §§ 18.25, 18.41.
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 4, §§ 18.26–18.30.
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 4 § 18.28.
- For references to additional secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 4, § 18.28.
- Open Chapter
Chapter 16. Freedom of Speech Part 5 102 results (showing 5 best matches)
- The 1965 Amendment easily met the requirements of the first part of the test because it is within the constitutional power of the Government to raise and support armies and to make all laws necessary to that end. This requirement is part of the basic Constitutional principle that the federal government is one of enumerated powers, and every government regulation must find authority in an enumerated power, either express or implied.
- This disclaimer points to a broad problem in the case. Because the Court dealt only with the facial validity of two typically-comprehensive anti-obscenity statutes, the Court was able to treat obscenity as an abstract proposition and to formulate a definitional standard for obscenity in terms of abstract Constitutional principle. While in a limited technical sense, there was nothing “advisory” about test was not dictum, the opinion came perilously close to a loose theoretical exercise in Constitutional law. Unburdened by the factual circumstances that triggered the case in the first place, the Court in
- without a dissent, upheld a law that passed both the vagueness and overbreadth requirements. The legislature had designed this statute to prevent the abuse of children. New York made it a crime for a person knowingly to promote sexual performances by children under the age of 16 by distributing material that depicts such performances even though the materials themselves were not necessarily “obscene” in a constitutional sense.
- whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves.
- resident aliens sued Attorney General Janet Reno and others, claiming that the defendants targeted them for deportation, in violation of the First and Fifth Amendments, because they were affiliated with the Popular Front for the Liberation of Palestine. While the plaintiffs’ suit was pending, Congress enacted a law restricting judicial review of the Attorney General’s “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” The Court held that this new law, deprived the federal courts of jurisdiction to issue injunctive relief, and was constitutional. The Court broadly stated: “Our holding generally deprives deportable aliens of the defense of selective prosecution.”
- Open Chapter
Preface to Eighth Edition 4 results
- Nearly 35 years have passed since we first signed an agreement with West Publishing to prepare a one-volume treatise on constitutional law. We have been very pleased by the acceptance that the first seven editions of this text have received from lawyers, judges, and scholars, as well as law students. The passage of time, and changes in constitutional doctrines that are the product of new Supreme Court decisions, have made it necessary for us to publish this new edition. We hope that the eight edition of this reference text will be as well received by law students and professors as were the earlier editions.
- A one-volume text on constitutional law cannot serve both the needs of law students and the needs of all segments of the bench and bar. For that reason, in 1986 we published a multivolume Treatise on Constitutional Law, which is an expansion of this one volume treatise. We published the fourth edition of the multivolume Treatise in 2007 to 2008. To distinguish our six-volume Treatise from its single volume counterpart, we have rotated the sequence of the authors’ names, but the nature of the contributions and our editorial responsibilities has not been altered. Professors Nowak and Rotunda share equally the responsibility for the six volume Treatise and this one volume text.
- In this text we provide analysis of the constitutional issues that are most studied and litigated today. As in earlier editions of this single volume book, we give little attention to issues that are not commonly studied in law school courses on constitutional law, such as conflict of laws, and criminal procedure. At appropriate points we refer the readers to our multivolume Treatise and to some other texts that examine those subjects. Many issues that we cover only briefly in this one-volume work, including litigation problems under the Civil Rights Acts and problems of state and local taxation, are analyzed at length in our six-volume Treatise.
- Our colleague, coauthor, and friend, J. Nelson Young, died before we began work on the third edition of this text. We still miss him. Nelson was responsible for our sections on state and local taxation, which now appear primarily in the multivolume Treatise. Nelson’s contribution to the first two editions of this text, and the Treatise, was greater than a single chapter, however. When we were young professors beginning to work on the first edition, Nelson gave us not only knowledge about an area of constitutional law with which we were not familiar, but also an insight into the meaning of scholarship and collegiality. Although this edition does not contain Nelson’s words, we hope that it reflects Nelson’s view of legal scholarship.
- Open Chapter
Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures 111 results (showing 5 best matches)
- Earlier in the century there was a distinction in constitutional law between “rights” and “privileges.” The government could not deny someone a “right” except for specific reasons which complied with constitutional standards. However an individual could be denied a “privilege” by the government for any reason and with no constitutional restrictions. For example, when a policeman lost his job for engaging in political activities, the Supreme Court of Massachusetts upheld the dismissal. As Justice Oliver Wendell Holmes noted: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
- It is most common for the government to affect the life, liberty or property interest of a great number of people through its legislative functions. When the legislature passes a law which affects a general class of persons, those persons have all received procedural due process—the legislative process. The challenges to such laws must be based on their substantive compatibility with constitutional guarantees. Similarly, an administrative agency may make decisions that are of a legislative or general rulemaking character. When an agency promulgates generalized rules there is no constitutional right to a hearing for a specific individual. However when the agency makes rules that might be termed adjudicative in that they affect a very defined group of interests, then persons representing those interests should be granted some fair procedure to safeguard their life, liberty or property.
- “Liberty” in its most general sense includes the ability of individuals to engage in freedom of action within society and free choice regarding most aspects of their private life. Of course, not every limitation of individual freedom constitutes a violation of “liberty” in a constitutional sense or requires that the government grant the individual a hearing. When the government acts so as to regulate an area of human activity for all persons, the law will be tested under the substantive restrictions of the due process clause and the specific protections of the Constitution. But unless some specific fundamental constitutional right is involved the government will be able to regulate most areas of human activity. So long as the government does not classify persons in such a way as to violate the equal protection clause, it may also regulate certain classifications of persons.
- the Court held that high school students who were suspended for up to ten days were entitled to procedural protections against unfair or illegal suspensions. The applicable state law established an entitlement to attend school so as to create a constitutional property interest. The suspension also was found to impinge upon the “liberty” of the students because it might limit their employment or associational opportunities.
- Liberty includes the freedom of choice to engage in certain activities. When those activities have specific constitutional recognition, the liberty to engage in them is protected by the due process guarantee. In one sense it may be said that all activities or liberty have constitutional recognition because none is singled out for special limitations. But the government has broad powers to curtail individual freedom of action to promote the legitimate ends of society except where there is some specific constitutional limitation on its powers.
- Open Chapter
Chapter 14. Equal Protection Part 8 129 results (showing 5 best matches)
- definition of “election” provided that an election in the constitutional sense occurs, regardless of how small the universe of possible electors or candidates. The smallness of the universe is merely a possible constitutional argument for striking the whole procedure, not an argument for immunizing the scheme from constitutional scrutiny. For example, Georgia law formerly allowed the chairman of the party’s state executive committee to appoint delegates to the Democratic National Convention. as supported by later case law may be read to support some federal judicial intervention to protect the constitutional “right of qualified voters … to cast their votes effectively.”
- The statute denying the appellants absentee ballots was then judged constitutional under traditional, deferential equal protection standards and the state law was upheld.
- , not a single Justice of the United States Supreme Court found that the state law or the state court ruling was clear enough for the Court to address federal constitutional issues on December 4, 2002. The Florida Supreme Court would not clarify its decision concerning the Secretary of State’s powers until December 11.
- Besides the explicit constitutional provisions that pertain to the election process, the Supreme Court has held that the Fourteenth Amendment restricts the power of the states to place qualifications on the exercise of the franchise in several ways. The Court has used the Amendment to fashion a fundamental right to vote. Because the right to vote is a fundamental right, any classification defining the ability to exercise the right must meet, under a strict scrutiny review, the dictates of the equal protection guarantee before the Court can sustain the measure as constitutional. Additionally because the Fourteenth Amendment does apply to state laws that regulate the
- the Justices were unanimous in invalidating a state constitutional provision that denied voting privileges to persons convicted of “any crime … involving moral turpitude.” Justice Rehnquist, writing for the Court, found that the records of the state constitutional convention, and the testimony of historians analyzing the facts surrounding the adoption of this constitutional provision by that convention, established “beyond peradventure” that this constitutional provision would not have been adopted “but for” the purpose of disenfranchising black persons. Because of the motivation of the delegates at the 1901 convention and the fact that the provision “continues to this day” to have the effect of disproportionately denying the vote to black persons, Justice Rehnquist’s majority opinion found that the disqualification provision “violates equal protection.”
- Open Chapter
Chapter 3. Sources of National Authority 82 results (showing 5 best matches)
- The basic constitutional limitations on state and federal laws regulating aliens who seek admission into, or have been admitted into, this country are examined in §§ 14.11, 14.12 of this text. For an expanded examination of the constitutional principles governing immigration and naturalization, see, 5 R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure, Chapter 22 (West Group, 3d ed. 1999). See also, Nowak & Rotunda, A Comment on the Creation and Resolution of a “Nonproblem”: Dames & Moore v. Regan, the Foreign Affairs Power, and the Role of the Court, 29 U.C.L.A.L.Rev. 1129 (1982).
- Opponents of state term limit laws have claimed that such, as applied to officials, violate federal constitutional rights. The case law has rejected that argument For example, the West Virginia Supreme Court, in the course of upholding that state’s law prohibiting its governor from seeking a third term, said that it found no U.S. Supreme Court case “even arguably on point holding a limitation on incumbent succession contrary to the Fourteenth Amendment….”
- The great bulk of the constitutional cases dealing with Congress’ power to enact laws focus on only a few clauses in the Constitution, particularly the interstate commerce
- The Articles were ratified on July 9, 1778. The text of the articles may be found in R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure, vol. 6, Appendix B (Thomson West, 4th ed. 2007).
- 1 Farrand, Records of Federal Convention of 1787, (1911) at 47, 53; Vol. 2, id. at 25–27, 181–82. See, 6 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure §§ 23.6–23.7 (4th ed. Thomson Reuters, 2008)(6 volumes).
- Open Chapter
Chapter 16. Freedom of Speech Part 4 93 results (showing 5 best matches)
- This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.
- the Court finally came full circle and invalidated the Feinberg Law, which had upheld only fifteen years earlier. Noting the pertinent constitutional doctrines that had arisen in the interim, and the absence of any claim of vagueness in was no longer controlling. Justice Brennan, speaking for the Court, ruled that the complex law was unconstitutionally vague.
- the first significant venture of the Court into loyalty programs, involved a teacher’s dismissal under a New York statute that disqualified from civil service and public school employment any person advocating, advising, or teaching governmental overthrow by force or violence. The Court found no violation of the teacher’s freedom of speech and association because, at this point in the development of the law, the Court did not consider employment to be constitutionally a “right,” thus removing it from constitutional protection. If the states employees do not choose to work on the terms that New York requires, they are at liberty to retain their beliefs and associations and go elsewhere.constitutional right to talk politics, but he has no constitutional right to be a policeman.”
- The Supreme Court affirmed the conviction, with Justice Frankfurter concurring in the result and only Justices Black and Douglas dissenting. First, the licensing statute, as construed by the state court, required uniform, nondiscriminatory, and consistent treatment regarding the granting of licenses for public meetings on public streets and parks. This law was constitutional on its face; it provided only a ministerial role for the police.
- Subsequently, the doctrine that public employment was as a mere privilege, and the state could condition employment on an employee surrendering constitutional rights, eroded and eventually disappeared. and eventually removed its constitutional underpinnings.
- Open Chapter
Title Page 3 results
Chapter 8. The Commerce Clause and Restrictions on State Regulatory Powers 151 results (showing 5 best matches)
- state laws by incorporation, but he indicated that such action was not constitutional. Justice Curtis, we now know, was in error in equating Congressional adoption of future laws by incorporation as indistinguishable from Congress redelegating, back to the states, the power over interstate commerce.
- Even if a matter is appropriate for diverse treatment, does that mean that all state laws are constitutional, even if they discriminate against the commerce from other states. Although a state might be regulating a local subject matter, the legislation could still be discriminatory in purpose or effect, thereby favoring residents over non-residents.
- Second, judicial invalidation of state laws under the commerce clause does not interfere with democratic processes in the same way as does the invalidation of state laws under most of the other provisions of the Constitution or its Amendments. When the judiciary invalidates state legislation under a provision of the Constitution other than the commerce clause, such as by finding that the state legislation violates the Fourteenth Amendment due process clause, the state cannot use that legislation, absent an amendment to the United States Constitution. Congress cannot give states the authority to disregard provisions of the Fourteenth Amendment. A state law that is held to violate due process cannot be resurrected by a congressional action. On the other hand, a constitutional amendment is not needed to revise a state law that was held to violate the dormant commerce clause. When the Court holds that a state law violates the dormant commerce clause, Congress can effectively reverse...
- established the constitutional power of a state to impose taxes on individuals whether or not domiciled there. In the case of individuals domiciled in the taxing state, domicile alone is sufficient to sustain the tax because the domiciliary enjoys personal benefits under the laws of the state. In the case of an individual who is neither domiciled in, nor resident of, the taxing state, an income tax on income earned in the taxing state is justified because the taxing state provides benefits by protecting the taxpayer’s income-producing occupation, business, and property located within the state.
- Under the Articles of Confederation, the federal government could not resolve economic disputes between states; states were free to create trade barriers against economic competition from other states. An initial meeting to revise the Articles of Confederation made it clear to the participating states that a new form of government had to be created if states were going to resolve their commercial conflicts. The inability of the states to resolve commercial conflicts under the Articles of Confederation provided the impetus for calling the convention that we now refer to as the Constitutional Convention. The Constitution ...would be eliminated by the Constitution if the affirmative grant of power to Congress was intended to deny states the power to create tariffs and trade barriers. It seems difficult to believe that the members of the Constitutional Convention, which was called, in part, to resolve interstate economic conflicts, had not intended to place some limitation on... ...laws...
- Open Chapter
Chapter 2. Federal Jurisdiction Part 3 90 results (showing 5 best matches)
- See 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure § 2.13(a) (West Group, 3d ed.1999) for further analysis of the case law.
- U.S. Const. art. III, § 1. See Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, vol. 1, § 2.1 (Thomson West, 4th ed. 2007) (6 volumes).
- 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1869). Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, vol. 1, § 2.10 (Thomson West, 4th ed. 2007) (6 volumes).
- Contrast Zablocki v. Redhail, 434 U.S. 374, 382, n. 9, 98 S.Ct. 673, 679 n. 9, 54 L.Ed.2d 618 (1978) (revision of state law under constitutional attack does not moot controversy because by its terms the new statute is to be enforced only if enforcement of the old statute is enjoined by court order).
- 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 15.12(b) (West Group, 3d ed. 1999).
- Open Chapter
Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures Part 3 92 results (showing 5 best matches)
- Statutory notice and the question of vagueness. Individuals receive sufficient notification of a change in substantive law through the enactment of the law and publication of that law in the normal legislative process. If a law as written and construed by appropriate courts within the jurisdiction does not give reasonable notice to individuals that conduct in which they otherwise would reasonably engage has been made criminal, the statute could not be applied to them due to a lack of notice; such a statute should be considered “void-for-vagueness.” It is rare that a statute that does not regulate a fundamental constitutional right would be found to be void-for-vagueness because individuals may have to exercise a high degree of carefulness when engaging in activities that do not relate to fundamental constitutional rights. Nevertheless, a statute which does not provide any reasonable notice, even though it does not regulate fundamental rights, might be void-for-vagueness. See...
- Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968).
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 2 § 17.3
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3 § 17.4.
- Justice White’s concurring opinion noted clearly that liberty interests entitled to constitutional protection were not solely definable by state law even though due process might not guarantee the prisoner any administrative safeguards for denial of his request for release or sentence reduction. 452 U.S. at 467, 101 S.Ct. at 2466 (White, J., concurring).
- Open Chapter
Chapter 14. Equal Protection 59 results (showing 5 best matches)
- The mere existence of cases invalidating laws under the rationality standard leads one to question whether the Supreme Court might return to using a reasonableness standard similar to the one the Supreme Court used between the late 1890s and 1937 to review all laws. We must emphasize, however, that the Court continues to state that unless a law impairs a fundamental constitutional right, or employs classifying traits of race-ancestry, sex, illegitimacy, or, in some circumstances, alienage [U. S. citizenship] the law will enjoy a presumption of constitutionality, and will not be invalidated unless the party attacking the law can demonstrate that the law [or the classification established by the law] could not conceivably have a rational relationship to any possible legitimate interest of government.
- When the Court renounced the theory of substantive due process, it also rejected the claim to an institutional ability to determine the reasonableness of classifications when reviewing laws under the equal protection guarantee. However, as we noted in Chapter Fifteen, the Court did not at this time reject its function of protecting interests that the Justices believed were fundamental constitutional values.
- The Fourteenth Amendment commands that no person shall be denied equal protection of the law by any state. This clause introduced a new concept into constitutional analysis by requiring that individuals be treated in a manner similar to other similarly situated persons. There are similar concepts in the privileges and immunities clause of Article IV, and the commerce clause requirement that states not discriminate against interstate transactions, but these relate only to state treatment of certain specific matters. The equal protection guarantee, however, governs all governmental actions which classify individuals for different benefits or burdens under the law.
- The Supreme Court in recent years appears to have altered the standard of review for laws regulating the exercise of fundamental constitutional rights. The identification of a right as “fundamental” is a substantive decision unrelated to equal protection or technical standards of review. Judicial review of a classification in a law that restricts the exercise of a fundamental right involves equal protection analysis. The Court in the 1960’s and early 1970’s indicated that laws making differentiations between persons exercising fundamental rights would be subject to strict judicial scrutiny and would not be upheld unless the government could demonstrate that it was necessary for it to use the classification in order to promote a compelling interest. ...some majority opinions continue to invoke strict scrutiny—compelling interest language in fundamental rights cases, it has been more common for the Court to review the legitimacy of such laws without stating a clear standard of review...
- A law that burdens the ability of all persons to exercise a fundamental right will be examined under substantive due process. A law that uses a classification that burdens or impairs the ability of only one class of persons who wished to exercise a fundamental constitutional right will be examined under equal protection. Because most government laws regulating fundamental rights impose special burdens on one classification of persons (rather ...on all members of society) most of the fundamental rights cases are equal protection decisions. For that reason, they are examined in this Chapter. When the Court has used a formal test for the analysis for fundamental rights problems, it has most often stated that the law impairing the fundamental right must survive strict scrutiny and must be narrowly tailored to promote a compelling or overriding interest. However, in some cases, the Court has ruled on government regulations of fundamental rights without stating any clear...
- Open Chapter
Chapter 14. Equal Protection Part 9 100 results (showing 5 best matches)
- When a law is challenged under the due process or equal protection clauses, the judiciary will uphold the law so long as it is rationally related to any legitimate end, unless the law substantially impairs a fundamental right or employs a classifying trait (such as race, ancestry, gender or illegitimacy) that justifies independent judicial review. A law that restricts the movement of persons between states will not be subjected to independent judicial review under the due process or equal protection clause unless the law regulates the “right to travel” that the Supreme Court has found to be a fundamental constitutional right. A law that substantially impairs the ability of all persons to engage in the right to travel would be tested under the due process guarantee; a law that restricts the right to travel of one class of persons will be subject to review under the equal protection guarantee.
- we have a complete listing of all interests which the Supreme Court has found to be fundamental constitutional rights. While laws limiting these rights will be subjected to strict review under the due process and equal protection guarantees, laws limiting other rights will be subjected only to the rationality test because the Court finds them to be matters of “economics or social welfare.” Under the due process guarantee of fair adjudicative procedures, the Court has granted some protection against the termination of individual interests which do not qualify as fundamental constitutional rights. Yet such procedural rights have not increased the substantive protection of those interests.
- for a fundamental constitutional right to adequate housing or a freedom of choice regarding housing. the Court upheld a zoning ordinance for a small community that restricted the community to one family dwellings. Under the ordinance not more than two persons who were unrelated to each other by blood, adoption or marriage could live together in a single family residence in this community. The majority opinion by Justice Douglas found that the law should not be subjected to strict judicial scrutiny because it did not restrict any fundamental constitutional right and it did not impose a burden on a suspect classification. Justice Douglas found that this law was only a form of “economic and social legislation” which should be upheld under the due process and equal protection guarantees so long as it had a “rational relationship” to a permissible governmental objective.
- Separating the types of laws that relate to the fundamental constitutional right to travel from the types of laws that restrict transportation or travel of persons is not easy. A state law that restricts interstate movement of individuals or products, but neither restricts the ability of individuals to establish residency in the state nor treats newly arrived residents less favorably than long time residents, should not be seen as an impairment of the fundamental right to travel. For example, a state license fee for trucks that travel through a state certainly restricts travel (in the sense of reducing the amount of transportation through a state), but it does not impair the right to travel. The Court has not subjected truck license fees to strict judicial scrutiny under the due process or equal protection clauses. If the state’s truck license fee discriminates against interstate commerce, the licensing fee would be invalidated under commerce clause principles.
- However, it is worth noting four particular interests that have been the subject of great debate as to their constitutional significance. The Court has refused to declare these to be of fundamental constitutional value. Even as to these interests we will list only the most recent, or major, decisions of the Court since the findings of “non-fundamentality” are part of every case in which the Court has considered a law burdening these interests. The four interests are: (1) governmental subsistence payments or welfare; (2) housing; (3) education; and (4) government employment.
- Open Chapter
Chapter 14. Equal Protection Part 11 61 results (showing 5 best matches)
- See R. Rotunda & J. Nowak, note 1 supra, for further discussion of congressional power over immigration. Congress does not derive its power to regulate immigration from a specific constitutional grant. This federal power is simply regarded as a power inherent to a sovereignty. See Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). See generally, Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 U.C.L.A. L. Rev. 1 (1998); Gabriel J. Chin, Is There a Plenary Power Doctrine? A Tentative Apology and Prediction of Our Strange but Unexceptional Constitutional Immigration Law, 14 Georgetown Immigration L. J. 257 (2000).
- For references to additional cases, and secondary works on this topic see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3 § 18.10.
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed, 2008, with supplements) Vol. 3 § 18.10.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3 § 18.10.
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3 § 18.10(b).
- Open Chapter
Chapter 14. Equal Protection Part 2 122 results (showing 5 best matches)
- the Court, in an opinion by Justice Rehnquist, held that the Court of Appeals, which had invalidated this law, had correctly found that the persons attacking the law were required to show that the intent to disenfranchise persons because of their race was the purpose of the state constitutional convention that adopted this voting qualification. Justice Rehnquist noted that it was often more difficult to demonstrate discriminatory purpose when a law was adopted by a large body, such as a legislative chamber or state constitutional convention, than when a law or regulation was adopted by a small legislative body or administrative agency. After a person attacking a law as the establishment of an unconstitutional classification in its impact or effect establishes that the legislative body that adopted the law had a discriminatory purpose, the burden shifts to the state to show that the law would have been adopted regardless of that discriminatory purpose for other, constitutionally...
- argued that the constitutional amendment was designed to protect the associational freedom of landlords or employers who did not want to deal with homosexuals based on their religious or philosophical beliefs. The state also argued that it had a legitimate interest in preventing the city and state legislatures from adding homosexuality to antidiscrimination laws because expanding the scope of the antidiscrimination laws would drain state financial resources that otherwise could be used to fight discrimination against other groups (such as racial minorities or women). Only the three dissenting Justices believed that the state constitutional amendment was rationally related to protecting legitimate state interests.
- did not establish any new principles of constitutional law. Nevertheless, the majority opinion demonstrated the difficulty that any court will have in determining whether a legislative district with a majority of minority race persons should be treated as a racial classification.
- supports the view that a law may be justified by moral or ethical concerns, so long as the law does not restrict a fundamental constitutional right or employ a constitutionally significant classifying trait (such as race-ancestry, alienage, gender, illegitimacy or, sometimes U.S. citizenship).
- It is important to remember that establishing the existence of a racial classification in a law is only the first step in the constitutional analysis. Following the definition of the racial classification, the court must determine whether the racial classification can be justified as being necessary to promote a compelling interest, which would override one of the central purposes of the Fourteenth Amendment equal protection clause and, in voting laws, a central purpose of the Fifteenth Amendment.
- Open Chapter
Chapter 16. Freedom of Speech Part 6 15 results (showing 5 best matches)
- Justice White, joined by Marshall, Blackmun, and Stevens, dissented. They argued that the Indiana law was not really a general prohibition of nudity because the law did not prohibit nudity in the home. (They also noted that Indiana could not constitutionally prohibit nudity in the home.) Hence, they would invalidate the law and could find no way that the legislature could write a statute that would be constitutional.
- the operator to prohibit patently offensive or indecent programming on leased access channels was found to be constitutional. A “ ” is a channel that the relevant federal law required a cable system operator to reserve for commercial lease by unaffiliated third parties. Finally, the fragmented Court invalidated a third provision, that
- If the state does not prosecute criminally, and brings a civil obscenity case, such as a proceeding to abate a public nuisance, or a case of prior restraint, there is no federal constitutional mandate requiring the state to use a jury.
- Chief Justice Rehnquist’s plurality opinion accepted the notion that nonobscene nude dancing has some free speech protection, but he also acknowledged the substantial governmental interest in protecting societal order and morality. He treated the Indiana law as a question of symbolic speech and upheld the law because its restrictions were unrelated content and hence unrelated to the suppression of free speech. The law prohibited nudity, whether or not that nudity is combined with any expressive activity. The law does not single out and ban only nudity that conveys an erotic message. It bans all nudity. Nor does the law ban erotic dancing. Dancers can present erotic dances so long as they are not nude. They must wear at least a scant amount of clothing.
- such as a proceeding to abate a public nuisance. In such instances, there is no federal constitutional requirement of proof beyond a reasonable doubt.
- Open Chapter
Chapter 16. Freedom of Speech Part 8 61 results (showing 5 best matches)
- 18 U.S.C.A. § 700(a)(2). Some commentators argued that the new federal law was constitutional. Hearings on Statutory and Constitutional Responses to the Supreme Court Decision in Hearings Before the Subcommittee of the House Committee on the Judiciary, 101st Cong., 1st Sess. (1989), at 48 (testimony of Professor Walter Dellinger); at 99 (testimony of Professor Laurence Tribe); Hearings Before the Committee of the Judiciary, United States Senate, 101st Cong., 1st Sess. (1989) at 140 (testimony of Professor Laurence Tribe, arguing that it is a “bizarre constitutional theory” that a federal statute could not make flag burning a crime).
- 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), motion denied 376 U.S. 967, 84 S.Ct. 1130, 12 L.Ed.2d 83 (1964). See 5 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 20.33 (Thomson Reuters, 4th ed. 2008)(6 volumes).
- See Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, vol. 5, § 20.42 (Thomson Reuters, 4th ed. 2008)(6 volumes).
- Van Alstyne, The Demise of the Right–Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968).
- Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. 328, 333, 95 L.Ed. 280 (1951) (concurring). See, 5 R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure § 20.46 (Thomson Reuters, 4th ed. 2008)(6 volumes).
- Open Chapter
Chapter 11. Substantive Due Process Part 2 96 results (showing 5 best matches)
- Laws that alter rules of criminal procedure but do not affect the substantive rights of the defendant are not violative of the Laws, for example, that change the number of appellate judges or enlarge the potential class of competent witnesses do not affect substantive rights and are constitutional. Such laws do not impose an increased penalty for past conduct.
- The Supreme Court of the United States has long upheld the power of the government to seize and take title to property that has been used in the violation of “customs and revenue laws” and that has been used in connection with a crime or that has been used to commit “wrongs” to society or persons. However, the Court has not provided clear constitutional
- In an excellent mid-twentieth century article that remains relevant to takings issues in this century, Professor Michelman described the term “taking” as “constitutional law’s expression for any sort of publicly inflicted private injury for which the Constitution requires judgment of compensation.”
- terms of the general principles of constitutional law, the term “police power” is used to designate the inherent power of government to take acts to promote the public health, safety, welfare or morals. But in the area of eminent domain cases and analysis, “police power” is used more narrowly to designate only the power of government to regulate the use of land and property without the payment of compensation. Authorities in the law of eminent domain view that power as distinct from such powers as the general police power and the power to tax.
- This section will trace the historical development of the constitutional law of eminent domain. It will also describe the case law currently governing the scope of the power of the state and federal governments to affect property interests without incurring any liability to compensate property owners. No single formula exists, however, to explain what one leading commentator has called the “crazy-quilt pattern of Supreme Court doctrine”
- Open Chapter
Chapter 7. The President and Congress 102 results (showing 5 best matches)
- The idea of executive pardoning power was so firmly established in the common law that delegates to the Constitutional Convention adopted, with little debate, a clause granting the President the power of executive pardon. Article II § 2 of the Constitution gives the President “… Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Case law has now developed the extent of the power to pardon far beyond that recognized at common law.
- Earlier case law had stated that qualified immunity is not available if the official “ ” that his actions would violate the plaintiff’s constitutional rights “ to cause a deprivation of constitutional rights or other injury….”
- President Nixon’s second argument was that, as a matter of constitutional law, executive privilege prevails over the subpoena
- [T]he duty [of the court] to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such
- we simply do not see how the President’s need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.
- Open Chapter
Chapter 14. Equal Protection Part 10 112 results (showing 5 best matches)
- A state constitutional amendment that prohibited local legislatures from passing laws that protected people against discrimination on the basis of race was invalidated in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). See §§ 12.4(b), 14.8 for further discussion of . A state constitutional amendment prohibiting any local or state legislature within the state from passing laws that prohibited discrimination against persons on the basis of their sexual orientation was invalidated in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). In part based on , the Supreme Court in Lawrence v. Texas 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), on remand 2003 WL 22453791 (Tex.App.2003) invalidated a law prohibiting sodomy when performed between persons of the same sex. The
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3 § 18.3.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol.3 § 18.3.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 2 Chapter 13, Vol. 3 § 18.3.
- See § 11.3. For references to additional cases and secondary authorities, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed. 2008, with annual supplements) Vol. 3 § 18.3.
- Open Chapter
Chapter 17. Freedom of Religion Part 2 128 results (showing 5 best matches)
- Let us assume that a jurisdiction had a religiously neutral law, which was uniformly applied to all persons and organizations, that forbid the slaughtering of animals. The law was not designed to suppress religiously motivated acts; the law was designed to promote both public health interests and to prevent the “cruel” treatment of animals. If members of a religious sect in religious rituals slaughtered animals in a manner that violated the law, could they be punished under that law? The Court in indicates that the religious sect would not have a constitutional right to an exemption from the law.
- The free exercise clause does not require exemptions for religious persons who cannot comply with a religiously neutral law. Justice Scalia’s majority opinion stated: “The only decisions in which we have held the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the free exercise clause alone, but the free exercise clause in conjunction with other constitutional protections.”
- Early in the country’s history, several states by statute or constitutional provision, had prohibited members of religious orders or ministers from holding public office. By the turn of this century it was generally recognized that these laws conflict with the free exercise and establishment clauses, and—although the Court had not held them to be invalid—these laws were repealed or annulled in almost every state that had adopted them. Tennessee had, by statute, barred “ministers of the gospel, or priest[s] of any denomination whatever,” from serving as delegates to the state’s constitutional convention; this statute mirrored a provision of the state constitution barring such persons from membership in the state legislature. The Supreme Court unanimously found that the statute was unconstitutional in to the Tennessee disqualification laws divided the Court.
- The government attorneys argued that granting the exemption for this group would lead to a wide variety of claims for exemptions from laws restricting or prohibiting drugs. Chief Justice Roberts, writing for the Court in , called this a “slippery slope” argument that “echoes the classic rejoinder of bureaucrats throughout history: if I make an exception for you, Ill have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions [to otherwise religiously neutral laws and regulations].” The Chief Justice’s opinion nowhere examines constitutional values that might be endangered by courts being required to define religion or to test the sincerity of an individual’s claimed religious faith.
- These two Justices believed that only two questions should be asked in determining whether the equal access law was consistent with the establishment clause. First, did the law give direct benefits to religion in such a way as to establish a state religion or to have a clear tendency to establish a state religion? Second, did the government act coerce student participation in religious activities? These two Justices found that both questions should be answered in the negative and, therefore, that the Act was constitutional. They did not believe that the establishment clause requires the Court to determine whether the law could be described as government endorsement of religion. They would not use the purpose, effect, and entanglement tests to place significant restrictions on government accommodation of religion.
- Open Chapter
Chapter 16. Freedom of Speech Part 2 94 results (showing 5 best matches)
- but also to those with a general curiosity about, or genuine interest in, the subject matter or the law of another State and its development, and to readers seeking reform in Virginia. [Also], the activity advertised pertained to constitutional interests…. Thus, in this case, appellant’s First Amendment interests coincided with the constitutional interests of the general public.
- The Court did not reach the question whether the law is constitutional as applied to “disclosures of trade secrets or domestic gossip or other information of purely private concern.”
- information sought was material and relevant, that it could not be secured from any less intrusive source, and that the defendant had a legitimate need to see and use it. Several other state courts have also shown hostility to state shield laws both on federal and state constitutional law grounds.
- While the federal law and its state analog are content-neutral laws of general applicability, still, this “naked prohibition against disclosures is fairly characterized as a regulation of pure speech,” not conduct, just like the delivery The general rule, said the Court, is that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.”
- State shield laws may vary greatly in how they are applied in state cases to prevent a state court from subpoenaing information from a reporter when such information may be helpful to a criminal defendant. For example, the New Jersey Supreme Court decision, held that its seemingly strong shield law must yield to the Sixth Amendment rights and state constitutional provisions giving rights to criminal defendants. The state court said: “[W]hen faced with the shield law, [the criminal defendant] invokes the rather elementary but entirely sound proposition that where the Constitution and statute collide, the latter must yield.”
- Open Chapter
Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures Part 2 10 results (showing 5 best matches)
- While individuals whose welfare benefits were terminated were entitled to due process, that included only a fair initial hearing. As there is no fundamental constitutional right to welfare payments, the state could impose such filing fees on all persons. The Supreme Court, however, has never determined that legislatures are totally free to commit authority to make determinations over significant rights of individuals without providing for some system of appellate or judicial review. The Court’s decision upholding the state procedural system which required a filing fee for appellate review of welfare eligibility determinations might be limited by the fact that the process did not involve fundamental rights and the administrative system met all requirements for procedural fairness. If fundamental constitutional ...by statute or regulations, it is possible that there may be a constitutional requirement that the state provide for administrative appellate review or judicial review...
- The summary action in such a situation was held to comply with both the due process and equal protection clauses because the Court found no fundamental constitutional liberties involved in such cases. The Supreme Court has continually allowed states to create laws which rationally further governmental purposes even though they burden poor persons so long as they do not allocate the exercise of fundamental constitutional rights on the basis of wealth.
- Judicial review of punitive damages involves both substantive and procedural constitutional issues. Procedural due process principles require that a person be given a fair process for the deprivation of life, liberty, or property; these principles may require the establishment of procedures to limit the discretion of courts or juries that award punitive damages. When the Supreme Court uses the concept of substantive due process to examine a law, including a court ruling, it is determining whether the substantive rule of law is an unconstitutional limitation of life, liberty, or property interests. Substantive due process principles might be used to place a limit on the size of punitive damage awards.
- A significant issue in terms of a right of access to courts arises when some individuals cannot pay the fees required by the government for the use of the courts. The Supreme Court has not held that there is any right to judicial process for an individual who seeks to use that process to his benefit. However, the state may not withhold this process when to do so would constitute the deprivation of a fundamental constitutional right. The government is also restrained by the equal protection guarantee in its granting of access to the judicial process. Filing fees are merely a way of allocating the judicial process to a certain class of plaintiffs—those who are willing and able to pay. The government may not impose filing fees which prohibit access to the courts by indigents when that would impair a fundamental constitutional right of the indigent or when the fees are so arbitrary that they invidiously exclude poor persons from the judicial process.
- Where access to the judicial process is not essential to the exercise of fundamental constitutional rights the state will be free to allocate access to the judicial machinery on any system or classification which is not totally arbitrary. Thus, filing fee requirement for such actions may be enforced so as to bar indigents from using the judicial process unless the fees are totally arbitrary.
- Open Chapter
Chapter 2. Federal Jurisdiction 121 results (showing 5 best matches)
- Thus, the Court has allowed injunctions to issue if a state law is “flagrantly and patently violative of express constitutional prohibitions,” approved the issuance of an injunction if the facts would indicate that equitable relief was necessary to prevent irreparable injury to constitutional rights.
- [A]lthough the validity of a law was formally drawn in question, it is our duty to decline jurisdiction whenever it appears that the constitutional question presented is not, and was not at the time of granting the writ, substantial in character.
- Concededly, one can find a lot of dictum in the case law that suggests that Congress’ power over federal court jurisdiction is plenary. However, a careful survey of congressional limitations on the jurisdiction of the lower federal courts demonstrates that the Supreme Court will not uphold a statutory infringement of constitutional rights, even if that statute is written in the guise of a jurisdictional statute. If the dictum is read in context, it does not undercut this principle. The cases also show that courts do not construe ambiguous jurisdictional statutes to infringe on constitutional rights. Let us review this case law.
- The restriction on jurisdiction did not deprive any illegal alien of a constitutional right because, the alien’s continuing presence in this country was in violation of the immigration laws. The “Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.”
- Neither will the Court accept a case where the parties make a contract for the purposes of instituting a suit so that the parties may “procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to this suit….” Thus, the Court would not accept a case where both sides argued and agreed that an anti-busing law was constitutional.
- Open Chapter
Chapter 17. Freedom of Religion Part 3 78 results (showing 5 best matches)
- There are substantial constitutional issues connected to the judiciary defining “religion,” or testing the sincerity an individual’s asserted belief in a religion, which he is using to request an exemption from a religiously neutral law. See notes 45, 46, and accompanying text, supra.
- For references to secondary works regarding establishment and free exercise clause issues, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance & Procedure (4th ed. 2008, with supplements) vol. 6, ch. 21.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure Vol. 6 §§ 21.6–21.16 4th ed., 2008, with supplements).
- For references to secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements). Vol. 6, Chapter 21.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 6 § 17.8.
- Open Chapter
Chapter 12. State Action 117 results (showing 5 best matches)
- Similarly, if a public defender conspires with public officials to violate the constitutional rights of the public defender’s client, because of the conspiracy, the public defender may be found to have acted “under color of” state law and be subject to liability under section 1983 of the Civil Rights Act. Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984).
- If a private actor who is alleged to have harmed persons by violating a constitutional provision was not performing a public function, a court must examine the totality of facts and circumstances in the case to determine whether the government has been involved with the private actor in a way that makes it fair to subject the private actor to constitutional ...the government being involved in the harm caused to the victims of the private actor the court is likely to conclude that the private actor was acting with state action and violated the civil liberties of the victim. In other words, when a case does not involve a traditional government function, a court must simply look at the totality of facts and circumstances in determining whether: (1) the harm caused to the victim was somehow traceable to the private actor using a right granted to him by state law; and (2) whether the connection of the government to the private actor, and the harm caused by the private actor, is...
- When the government provides some direct, specialized subsidy to an entity which impairs fundamental constitutional rights there can be no question but that the government aid program violates the Constitution. Regardless of whether the private party has a right to act free of constitutional restraints, it is clear that the government has no authority to provide specialized benefits to those who effectively burden the exercise of constitutional rights.
- Those who conspire with a government official to take action that deprives others of federal constitutional rights do so “under color of law” and are subject to a federal lawsuit even though the official is immune from civil liability.
- In contrast, if a public defender conspires with public officials to violate the constitutional rights of the public defender’s client, the public defender may be found to have acted “under color of” state law and be subject to liability under section 1983 of the Civil Rights Act on the basis of the conspiracy. Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984).
- Open Chapter
Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures Part 4 10 results (showing 5 best matches)
- J. Nowak, R. Rotunda & J. Young, Constitutional Law 511 (1st ed. 1978).
- The most significant decisions of this type are noted in the following paragraphs. For references to secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3, Chapter 17.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3 § 17.9.
- Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). This case involved some confusion of substantive and procedural issues; it is examined in § 11.4, supra. For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 3 § 17.10.
- found that the attack on punitive damages had not been properly raised in the lower court and refused to rule on any issues related to punitive damages. In later cases, the Court examined the constitutional limits on punitive damages, which are damages designed to punish particularly egregious action by a defendant who had injured a plaintiff and to deter similar conduct by other persons.
- Open Chapter
Chapter 14. Equal Protection Part 6 93 results (showing 5 best matches)
- The constitutional protection for classifications burdening poor persons, sometimes called wealth classifications, can be described as nothing more than the protection given to any other classification of persons or business entities which are described by criteria which the Court does not regard to be suspect. The Court will uphold legislative actions which burden poor persons as a class under the equal protection or due process guarantee if the actions have any rational relationship to a legitimate end of government. So long as these laws do not involve the allocation of fundamental rights, the Court will consider them to be regulations concerning economic and social welfare policy. As such, these laws have no relationship to values with constitutional recognition so as to merit active judicial review under the strict scrutiny-compelling interest standard. It is apparently the view of the majority of the Justices that there is nothing in the judicial function which makes them...
- opinions of the Supreme Court had indicated that classifications which burden the poor were to be reviewed under an increased standard of review as suspect classifications. However, the Court had not yet squarely faced a law which burdened a class of persons who lacked financial resources for the allocation of benefits which had no other constitutional recognition. In the Court reviewed a statute which set a formula for the provision of aid to families with dependent children that in effect did not offer any benefits for children born to families over a certain size. Since the Court has never recognized the interest of an individual in government subsistence benefits as a fundamental constitutional interest, there was no fundamental right present in this case. The majority opinion then upheld the law under a rational relationship test, finding an arguable basis for relating the classification to the state interest in economy and the provision of certain families.
- Justice White’s concurrence followed through on this due process theory; he found no legitimate end of government which could support this law. The state claimed that the statute was to deter illicit sexual relationships but there was no likelihood that a ban on contraceptives for married persons would promote that end. Thus the statute restricted a fundamental constitutional value arbitrarily.
- , ruled that the classification that prohibited state or local legislatures from passing laws that would stop discrimination against persons on the basis of their sexual orientation did not have a rational relationship to any legitimate interest. The state constitutional amendment that prohibited legislation stopping discrimination based on sexual orientation, in the view of the majority, was not related to any legitimate interest because there could not be a legitimate interest in denying some persons the ability to lobby the legislature for laws that would protect their interests. The majority opinion in made it clear that the state and local legislatures did not have any obligation to pass laws that protected homosexual persons from private sector discrimination. Nevertheless, the state had no legitimate interest in denying homosexual persons the ability to lobby legislatures for laws that would protect them from discrimination. Justice Kennedy stated: “A law declaring that in...
- The Court has held that governmental entities may not take actions which limit the capabilities of a class of persons to engage in the exercise of fundamental constitutional rights because of their lack of economic resources. In this area the Court has a separate basis for engaging in the active review of the actions of other branches of government: these laws burden interests which the Court has found to be of such a value as to merit special protection against arbitrary limitations. The state may be free to allocate economic benefits on any economic policy it chooses but the fact that these rights are of fundamental constitutional magnitude means that they cannot be given only to those who can afford to pay for them.
- Open Chapter
Chapter 4. The Federal Commerce Power Part 2 81 results (showing 5 best matches)
- See § 4.8, 4.9 for the development of modern commerce power standards. See 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, §§ 4.1 to 4.10 (Thomson Reuters, 4th ed. 2007) (6 volumes).
- Articles of Confederation, art. IX, par. 1. The Articles are reprinted in volume 6, Appendix B, of R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (Thomson Reuters, 4th ed. 2008)(6 volumes).
- For further analysis of the Supreme Court’s decisions upholding modern federal commerce power legislation in a wide variety of contexts, see the footnotes to 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law: § 4.8 (4th ed.2007, with annual supplements).
- For further analysis, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure, vol. 1, § 4.8 (Thomson Reuters, 4th ed. 2007)(6 volumes).
- See discussion in, 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure § 4.10 (Thomson Reuters, 4th ed. 2007)(6 volumes).
- Open Chapter
Chapter 8. The Commerce Clause and Restrictions on State Regulatory Powers Part 2 53 results (showing 5 best matches)
- For a more extensive analysis of all the principles that are touched upon in this Chapter, see the multivolume version of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure, Vol. 1 Chapters 3, 4, 6; Vol. 2 Chapters 11, and 13 (4th ed. 2008, with annual supplements).
- Id. For citations to additional cases, including lower court cases, and secondary works on this topic see our multivolume Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure Vol. 2 Chapter 9 (4th ed. 2008, with annual supplements).
- See Chapter 4. For references to additional cases, and secondary works on this topic, see the multivolume version of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure Vol. 1, chapter 4, Vol. 2, Chapters 11 & 13 (4th ed. 2008, with supplements).
- R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure Vol. 2, Chapter 13. (4th ed. 2008, with supplements)
- For references to additional cases, and secondary works on this topic, see the multivolume version of the Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure, Vol. 2 Chapter 13. (4th ed. 2008, with supplements)
- Open Chapter
Chapter 16. Freedom of Speech Part 7 91 results (showing 5 best matches)
- See, 4 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, vol. 5, §§ 20.1–20.61 (Thomson Reuters, 4th ed. 2008)(6 volumes).
- 304 U.S. at 152–53 n. 4, 58 S.Ct. at 783–84 n. 4 (1938). See, 6 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 23.5(a)(Thomson Reuters, 4th ed. 2008).
- See, 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 2.13(f)(3) (Thomson Reuters, 4th ed. 2007)(6 volumes).
- Westen, Incredible Dilemmas: Conditioning One Constitutional Right on the Forfeiture of Another, 66 Iowa L.Rev. 741 (1981); Mark Yudof, When Government Speaks: Politics, Law, and Government Expression in America 234–45 (U.Calif.Press, 1983).
- Briscoe, Circuit J., citing Treatise in American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092, 1100 (10th Cir.1997).
- Open Chapter
Chapter 14. Equal Protection Part 7 127 results (showing 5 best matches)
- decisions relates to the role of the United States Supreme Court when examining state, as opposed to federal, statutes. When reviewing a state or local law the Justices must evaluate the law as it is written, or as it has been interpreted by state court. On the other hand, because the Supreme Court is the final interpreter of federal statutes, the Justices are often able to interpret a federal statute in a way that avoids constitutional issues. , the Supreme Court was able to interpret the Act in a way that removed potential constitutional defects from the statute.
- If a state law establishes a parental consent or notification requirement that meets constitutional standards (because it has a judicial bypass procedure), the state may require the minor to wait for 48 hours after her parents have been notified before the abortion is performed. It is unclear whether a waiting period that is greater than 48 hours would be permissible.
- Many state laws usually allow for involuntary commitment of an adult to a mental health care facility if the government, or other persons, can prove that the individual represents a danger to himself. Are these commitment statutes constitutional?
- If a law regulating abortions would meet constitutional standards when applied to most pregnancies and most abortion procedures, a court may be required to uphold that statute on its face, even if the statute, in rare circumstances, applied in an unconstitutional manner. In other words, if a statute by its own terms appears meets the standards established by the Supreme Court in , the statute should not be totally invalidated even though some possible applications of the law would violate the undue burden standard.
- , Justices Stewart and Powell, wrote separately to indicate that the constitutional flaw in the statute was the absolute veto given to the minor’s parents. They would have voted to uphold a law that required parental consent or parental consultation if the law provided some alternative (such as a judicial bypass procedure) to protect the interests of the pregnant minor.
- Open Chapter
Chapter 9. Federal Regulation and State Authority 72 results (showing 5 best matches)
- Cf. Michael H. Hoeflich & Ronald D. Rotunda, Simon Greenleaf on Desuetude and Judge–Made Law: An Unpublished Letter to Francis Lieber, 10 Constitutional Commentary 93 (1993).
- was not decided on constitutional grounds. “It seems entirely plausible that Congress intended by eliminating [a restrictive proviso in 1867] to open the whole case for review by the Supreme Court, if there is a federal question in the case sufficient to take the case to the Supreme Court.” C. Wright, Law of Federal Courts 543 (3d ed. 1976). But, with very few exceptions, federal courts consider state courts to speak with final authority on questions of state law.
- All rights directly protected by the Constitution, such as First Amendment rights, or other constitutional rights that the Court has been found to be fundamental for the purposes of due process and equal protection analysis, constitute privileges and immunities of citizenship. Thus, state or municipal laws that make local residency a requirement for the exercise of such rights are subject to the restraints of Article IV.
- Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948), rehearing denied 335 U.S. 837, 69 S.Ct. 12, 93 L.Ed. 389 (1948). See 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 12.6–12.7 (Thomson Reuters, 4th ed. 2007)(6 volumes).
- In other words, it was the Fugitive Slave Clause—and not the Due Process Clause or other Constitutional provision, as the majority in claimed—that guaranteed that runaway slaves who escaped into free states would remain slaves in spite of the state law of the free states forbidding slavery. See, Gary Lawson & Guy Seidman, the Constitution of Empire (Yale University Press 2004).
- Open Chapter
Table of Contents 62 results (showing 5 best matches)
Chapter 11. Substantive Due Process Part 5 11 results (showing 5 best matches)
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements). Vol. 2 § 15.14.
- also held that the constitutional limitation on any state law impairing the obligation of contracts was not intended to limit the exercise of eminent domain.
- case is examined in § 11.12 of this Treatise. For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 2 § 15.14.
- did not rule on whether the government action constituted a taking. For references to secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 2 § 15.14.
- The federal government may take state and local governmental property if the federal government pays just compensation. State and local governments are only entitled to the same compensation as private persons for the federal taking of property. There is no constitutional requirement that the federal government pay for the cost of a substitute facility which is taken from a state or local government. The state is only entitled to the market value of the property taken, just as a private owner would be, if that value is ascertainable and not manifestly unjust to the governmental owner, United States v. 50 Acres of Land, 469 U.S. 24, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984).
- Open Chapter
Chapter 14. Equal Protection Part 13 91 results (showing 5 best matches)
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 4 § 18.31.
- For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 4 § 18.32.
- For references to additional cases, and secondary works on this topic, see R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements) Vol. 4 § 18.32.
- For references to additional cases, and secondary works concerning the right to become a candidate, see the multivolume version of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2008, with supplements Vol. 4 § 18.32).
- See Chapter 12, supra. For references to additional cases, and secondary works on this topic, see the multivolume edition of this Treatise: R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (4th ed., 2003, with supplements). Vol. 3 § 18.33.
- Open Chapter
Chapter 5. Federal Fiscal Powers 27 results (showing 5 best matches)
- See generally 1 R. Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 5.1–5.11 (Thomson Reuters, 4th ed. 2007)(6 volumes).
- independent constitutional bar
- , is a fascinating chapter in American history. After the Populist movement produced the Income Tax Act of 1894, the Populists continued to gain momentum. In the campaign of 1908, the Democratic platform contained a plank supporting a constitutional Amendment to authorize an income tax. William Howard Taft, the Republican candidate, expressed his view that the country could have an income tax without a constitutional Amendment. In 1909, the pressure for an income tax culminated in a compromise with the addition of the Corporate Excise Tax of 1909 as an Amendment to the Payne–Aldrich Tariff Bill and the adoption of a joint resolution by the Senate and House of
- tax may be an exercise of the taxing power, it may be invalid in light of specific constitutional limitations, such, for example, as the Fifth Amendment prohibition against self-incrimination.
- The Constitutional power to spend is coupled with the power to tax and is cast in terms of the power to tax “and provide for the common Defense and general Welfare.”
- Open Chapter
Chapter 17. Freedom of Religion 79 results (showing 5 best matches)
- case that was, in part, a majority opinion and, in part, a plurality opinion. Writing for a majority of the Court, Justice Souter ruled that the New York law creating the Village School District was a sect preference that violated the neutrality principle, which is a core value of the establishment clause. If the Village had been able to establish a school district by following laws of general applicability, the majority might have ruled that the mere existence of a public school district that primarily served children of one religion, in a local geographical area, did not violate the First Amendment. The flaw in the New York law, according to the majority, was that the law creating the Village School District constituted a clear preference for one religious sect. New York had defended its law as a secular way of accommodating the desire of children and parents in the Village to keep their children close to home and their religious way of life. The state believed that the law...
- Two of the Justices refused to reach any constitutional issues because of their belief that the constitutional issue should be avoided and that the case should be remanded for an exploration of statutory issues. Justices who reached the constitutional issue in
- Toward the end of Chief Justice Rehnquist’s and Justice O’Connor’s tenure on the Supreme Court, a majority of the Justices could not agree on a standard that could be used by lower courts to resolve establishment clause issues. Without adopting any constitutional standard, the Court upheld a tuition subsidy program that excluded students studying “devotional theology,” and a federal statute that required states to make some accommodation for religious practices of institutionalized persons (e.g., prisoners). The majority opinions in both of these cases simply stated that the law at issue fell within “the play in the joints” between the establishment and free exercise clauses.
- Even though a program of aid to religious schools has been held invalid under the establishment clause, payments may have been made to schools under the law prior to its invalidation. The question then arises as to whether the recipient institutions should be ordered to return the funds. This is precisely the situation that was present in Pennsylvania had made substantial payments to parochial schools under the challenged act. The Court held that two factors were relevant in determining whether to grant a retroactive remedy: (1) the reasonableness and degree of reliance by the institution on the payments, and (2) the necessity of refunds to protect the constitutional right involved.
- The Supreme Court has not adopted a constitutional test that would separate unconstitutional aid to religiously affiliated schools from constitutional aid going to students or the parents of students who attend religiously affiliated schools. Instead of using a “student aid” versus “aid to religious schools” distinction, the Supreme Court has used the purpose-effect-entanglement tests to determine the validity of each type of government aid that is given to religious schools or their students. Nevertheless, the Supreme Court is most likely to uphold a government student assistance program if that programs is viewed primarily as aid to individual students and their parents rather than a form of aid to the religious schools.
- Open Chapter
Chapter 14. Equal Protection Part 4 71 results (showing 5 best matches)
- there was no need for the majority to clarify the constitutional limits on federal racial affirmative action laws. Justice O’Connor found that the city whose law was challenged in unlike Congress, could not rely on evidence of “nation-wide discrimination” in the construction industry to justify the local law.
- Having found that diversity in education was a compelling governmental interest, the majority opinion went on to consider whether the University of Michigan’s Law School was narrowly tailored to promote that compelling interest. The majority opinion, like the four dissenting Justices in , found that the use of race in admissions, to any extent, constituted a racial classification that had to be reviewed under “strict scrutiny” and that “this means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interest.”
- In the quarter century between 1978 and 2003, lower courts were left with virtually no guidance regarding how they should assess the constitutionality of the university’s consideration of race in an admissions process. No other Justice had joined Justice Powell’s constitutional analysis in would become established as the law of the land, employed Justice Powell’s views and upheld the University of Michigan’s Law School’s race conscious admissions policy. The
- , five Justices, with no majority opinion, did vote for the proposition that Title VI bars only such racial discrimination as would violate the equal protection clause if it involved state action. However, the Supreme Court ruled only that the Davis program violated Title VI. It did not hold that the Davis program violated the equal protection clause. It is important to note that the Court also did not establish the constitutional standards to be employed in reviewing benign or affirmative action race classifications. Four of the five Justices who reached the constitutional issue would have used an intermediate standard of review for affirmative action classifications. Justice Powell was the only Justice reaching the constitutional issue who would have subjected all race conscious affirmative action programs to strict judicial scrutiny and the most exacting test of constitutionality.
- Voluntary Remedial Measures—Constitutional Issues.
- Open Chapter
Chapter 16. Freedom of Speech Part 3 72 results (showing 5 best matches)
- The Court did agree that the government has a substantial interest in the health, safety, and welfare of citizens by preventing “strength wars,” among brewers competing based on the potency of their beers. However, the federal law did not “directly and materially advance” that interest because of its “overall irrationality.” For example, the federal law allows disclosure of alcohol content on the labels of wine and hard liquor, and even compels disclosure for wines of more than 14% alcohol. The law also allows brewers to signal high alcohol content by using the term “malt liquor.” The government’s labeling ban also is not sufficiently tailored to its goal. Instead of the restriction on speech, the government, e.g., could directly limit the alcohol content of beer. Even a ban on marketing efforts emphasizing high alcohol strength (assuming that is constitutional) would be less intrusive of free speech rights.
- has never been explicitly rejected, it should not represent present law in light of The Court held that constitutional protections for speech and press limit state powers to award damages in libel actions brought by public officials against critics of official conduct.
- However, there may be some First Amendment protection from discovery in other circumstances. The case should be different if plaintiff claimed libel for a false statement of opinion rather than a false assertion of fact. The majority specifically stated that: “There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed.”
- then the Court said, enigmatically, “the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape.”
- The Supreme Court confined its holding to the narrow facts of the case—accurate republication of information in court records lawfully available to the public. At this point in the development of the law, the Court left unresolved the constitutional question of a state policy that denies access to the public and press of certain kinds of official records that are not public information and normally cannot be lawfully obtained by the press, such as juvenile court proceedings.
- Open Chapter
Chapter 14. Equal Protection Part 3 27 results (showing 5 best matches)
- De jure (“by law”) segregation is racial separation which is the product of some purposeful act by government authorities. De facto (“by the facts”) segregation occurs because of housing and migration patterns and is unconnected to any purposeful governmental action to racially segregate schools. If a school system involves de jure segregation, it violates the equal protection guarantee; the courts will intervene if necessary to remedy this situation. But if a school district has become unintentionally (de facto) segregated, there is no constitutional violation and the courts will not intervene.
- the Supreme Court for the first time considered a charge of racially discriminatory behavior against a school system in a large metropolitan area outside the South. The Denver school district had never operated under a constitutional or statutory provision that explicitly required or permitted racial segregation in the public schools. However, there was proof that at least some of the schools had been used to isolate blacks and Hispanic-Americans. The Court adopted the de jure-de facto analysis and held that there was a constitutional violation to the extent there was “segregative purpose or intent” in school board actions.
- According to the majority opinion, school district lines are not sacrosanct, but local autonomy in education is of great importance. In determining the validity of a court decree requiring cross-district or inter-district consolidation in order to remedy segregation found in one district, the Court stated that the controlling principle is that the scope of the remedy must be determined by the extent and the nature of the constitutional violation. “Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district.”
- The District Court had found that the constitutional violation was limited to a few schools within the district, but the Court of Appeals had found that the school board had not effectively rebutted the inference of area wide discrimination that arose once there was proof of purposeful discrimination as to some schools in the district.
- the Court was confronted with a school board which adopted such a plan, beginning with the first grade in 1957. Thus, in 1966 the 10th, 11th, and 12th grades remained segregated by law. The Court in a per curiam decision reversed the lower court’s denial of the request by black high school students for immediate integration. The Court again noted that delays were no longer tolerable. Clearly such tactics could not be used to evade a constitutional mandate any longer.
- Open Chapter
Chapter 14. Equal Protection Part 5 103 results (showing 5 best matches)
- The Supreme Court attempted to clarify the constitutional status of resident aliens in In this case the Court invalidated a state law which granted aid for higher education to citizens and resident aliens who were or would be applying for citizenship. By a six to three vote the Court
- the law was never seriously questioned. The individuals who are refused entry have not been given a constitutional right to a hearing to determine the basis for their exclusion. This decision may now be constitutionally infirm, even though it has never been overruled. In any event, it does demonstrate the historic refusal of the Court to review immigration decisions. The Supreme Court has been able to avoid ruling on the continuing validity of earlier decisions that failed to place any significant constitutional restrictions on the ability of the executive to exclude or detain persons who were seeking initial admittance into the country by finding that current federal statutes and regulations established limitations on executive agency discretion.
- If racial considerations were not the primary motive in establishing the legislative districts, a districting map should be upheld if it does not violate a constitutional principle applicable to voting laws (such as the one-person, one-vote rule). On the other hand, if a government entity is found to have changed voting district boundaries for the purpose of diminishing or increasing the voting power of a racial group, those districts will be deemed to be racial classifications and will be subject to the strict scrutiny compelling interest standard. Such racial classification usually will be found to violate the equal protection clause of the Fourteenth Amendment.
- Many types of laws or executive actions may distinguish between citizens of the United States and noncitizens. Such actions raise the question of the constitutionality of classifications based on “alienage”, the status of being a noncitizen. Aliens do not receive the protection of constitutional guarantees that by their terms apply only to “citizens.”
- In examining the permissibility of excluding the illegally resident children from public education, the Court noted that education is not a right specifically granted by the Constitution, nor a right which in the past has been found by the Supreme Court to be a fundamental constitutional right. Thus, there was no basis for subjecting the law to strict scrutiny and requiring a compelling state interest to justify the exclusion of these children. However, the importance of education to a person’s ability to function in society, and the fact that denial of all educational benefits to these children would result in their being deprived of any opportunity to advance their personal or economic interests on the basis of individual merit, led the majority to the conclusion that the Court should not simply defer to the state decision to deny an education to these children.
- Open Chapter
Chapter 16. Freedom of Speech Part 9 7 results (showing 5 best matches)
- “[C]hildren are not to be included … as part of the ‘community’ as that term relates to the ‘obscene materials’ proscribed by 18 U.S.C.A. § 1461.” 436 U.S. at 297, 98 S.Ct. at 1812. This decision is based on an interpretation of the federal statute. Whether the states, as a matter of constitutional law, must follow this ruling, was not an issue in the case.
- . There is no federal constitutional requirement of a jury. Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973) (per curiam), rehearing denied 414 U.S. 881, 94 S.Ct. 29, 38 L.Ed.2d 128 (1973), mandate conformed 214 Va. 539, 203 S.E.2d 441 (1974).
- . In an injunctive proceeding, which is civil, there is no federal constitutional requirement that proof be beyond a reasonable doubt, Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 102 S.Ct. 172, 70 L.Ed.2d 262 (1981) (per curiam), on remand 128 Cal.App.3d 937, 180 Cal.Rptr. 728 (1982), certiorari denied 459 U.S. 944, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982), rehearing denied 459 U.S. 1093, 103 S.Ct. 581, 74 L.Ed.2d 940 (1982).
- On remand the New York State Court of Appeals held that the state statute violated the free speech provisions of the state constitution, because the Twenty–First Amendment does not confer a power on the states that is superior to, or free from, state constitutional restraints. 54 N.Y.2d 228, 445 N.Y.S.2d 87, 429 N.E.2d 765 (1981), certiorari denied 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982). See also, 54 N.Y.2d at 241, 445 N.Y.S.2d at 93, 429 N.E.2d at 771 (Gabrielli, J., dissenting), citing Treatise.
- ...” test normally used. 454 U.S. at 93, 102 S.Ct. at 173. See, e.g., Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 1812, 60 L.Ed.2d 323 (1979), on remand 588 S.W.2d 569 (Tex.1979) (clear and convincing standard in civil commitment); Rosenbloom v. Metromedia, 403 U.S. 29, 52, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296 (1971) (clear and convincing standard in libel cases) (opinion of Brennan, J.); Woodby v. INS, 385 U.S. 276, 285–86, 87 S.Ct. 483, 487–88, 17 L.Ed.2d 362 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149–50, 5 L.Ed.2d 120 (1960) (deportation); Schneiderman v. United States, 320 U.S. 118, 159, 63 S.Ct. 1333, 1353, 87 L.Ed. 1796 (1943) (denaturalization). But see Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980), rehearing denied 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980), on remand 494 F.Supp. 1017 (N.D.Ill.1980), judgment affirmed 653 F.2d 285 (7th Cir.1981) (constitutional for Congress to...
- Open Chapter
Index 84 results (showing 5 best matches)
- Constitutional convention, effect on, § 1.4(c). Duty to avoid constitutional issues, § 2.11(g). Federalist papers and, § 1.4(b).
- Duty to avoid constitutional issues, § 2.12(h).
- Constitutional limitations of taxes on goods shipped in interstate commerce, § 8.11(b).
- Foreign commerce, the states, and constitutional limitations of goods shipped in foreign commerce, § 8.11(b).
- Witnesses, constitutional rights of, § 7.6.
- Open Chapter
Chapter 11. Substantive Due Process Part 3 6 results (showing 5 best matches)
- The government is not entirely free to take a person’s property whenever it is willing to compensate him. The individual may not wish to part with his property, and, under both the Fifth and Fourteenth Amendments, property may not be taken by the government, even upon payment of just compensation, unless the property is taken for a public use. Like the requirement that a landowner be compensated when his property is taken by the state, the “public use” limitation also has its roots in natural as well as constitutional law.
- The Fifth and Fourteenth Amendments require that a person receive “just compensation” for property that has been taken by the state or federal government. The Supreme Court has said that the constitutional guarantee of just compensation is not a limitation on the power of eminent domain, but only a condition of its exercise.
- decision is overruled, we can assume that the federal judiciary will not impose significant constitutional restrictions on the taking of property by federal, state or local governments so long as just compensation is paid to the property owners. Such government actions have a presumption of constitutionality; these government actions will be upheld so long as they are rationally related to a conceivably legitimate public purpose. Nevertheless, as Justice Kennedy pointed out, there may be rare instances in which a property owner can demonstrate that an attempt to take property could not conceivably relate to a legitimate public purpose.
- issue of what may be taken and what must be paid for is a matter of federal law. As with the basic determination of value, this “test” combines traditional property law interests and equitable principles of fairness.
- Justice Breyer dissented because he believed that the takings issue was not ripe for adjudication. Nevertheless, Justice Breyer stated that he “would agree with Justice O’Connor that the simple fact that a piece of property has changed hands (for example, by inheritance) does not always and automatically bar a takings claim. Here, for example, without suggesting that Palazolo has any valid takings claim, I believe that his post-regulatory acquisition of the property (through automatic operation of law) by itself should not prove dispositive.”
- Open Chapter
Appendix A. The Constitution of the United States 40 results (showing 5 best matches)
- This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
- No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
- In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
- All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to the House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall...
- Open Chapter
Copyright Page 1 result
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Open Chapter
- Publication Date: November 5th, 2009
- ISBN: 9780314195999
- Subject: Constitutional Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This treatise provides a detailed, up-to-date, and comprehensive analysis of American constitutional law. It examines the issues that are studied and litigated today and discusses the origins of judicial review and federal jurisdiction, the sources of national authority, the growth of federal commerce and fiscal powers, and the limits on state laws that burden interstate commerce. It analyzes individual liberties and due process, including freedom of speech and religion, federal powers to enforce the Bill of Rights, and limitations on the jurisdiction of federal courts. Finally, it examines the separation of powers, including the restrictions on the foreign affairs power.