Constitutional Law
Authors:
Nowak, John E. / Rotunda, Ronald D.
Edition:
8th
Copyright Date:
2010
58 chapters
have results for first amendment
Chapter 14. Equal Protection Part 9 60 results (showing 5 best matches)
- When the Supreme Court examines a classification that relates to First Amendment rights, it is possible that the Court will engage in only First Amendment, rather than equal protection, analysis. If the Court examines the classification under the First Amendment and finds that the classification does not violate any First Amendment right, the Court is unlikely to invalidate that classification under equal protection principles. When the Court is willing to directly examine a government classification regarding speech, assembly, or association under First Amendment principles, it has no need to engage in independent equal protection analysis. Thus, if the Supreme Court finds that a classification regarding speech or associational rights does not infringe First Amendment freedoms, it is likely to find that the classification does not violate equal protection because it has determined that the law does not constitute the improper allocation of a fundamental right. Such an equal...
- Although the analysis of First Amendment classification under the equal protection guarantee is not common, it is important to remember that it is always permissible to review such laws under the guarantee. The First Amendment rights have been held to be fundamental and, therefore, the classifications in terms of the ability to exercise those rights are subject to strict judicial scrutiny.
- Each of the guarantees of the First Amendment has been held to be a fundamental right and made applicable to the states through the due process clause of the Fourteenth Amendment. Thus whenever a state burdens the freedom of religion, the law must be analyzed under the strict scrutiny required by the First Amendment as well as the general guarantees of the due process and equal protection provisions. The right of freedom of association is not mentioned in the First Amendment but is implied by its provisions and analyzed in the same manner as those specific guarantees.
- For example, a law which requires public employees to refrain from partisan political activities creates a classification in terms of First Amendment rights. But the Court has decided that this restriction promotes an overriding governmental interest and is valid under the First Amendment. Therefore it is a permissible classification in terms of the equal protection guarantee. Similarly if a law favors or burdens a religious group it will undergo strict scrutiny under the establishment and free exercise clauses of the First Amendment, so that we do not tend to see such laws analyzed as equal protection issues.
- Justices Stevens, Souter, Ginsburg and Breyer continued to maintain the position that judges can review a political gerrymandering claim, although they did not agree on a standard for determining how much consideration of political advantage in the consideration of a legislative districting map would be considered to violate the First Amendment or equal protection.
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Chapter 16. Freedom of Speech 127 results (showing 5 best matches)
- Understanding the policies that support free speech also avoids the error of using history to impose a narrow view of the First Amendment and to ignore the dynamic nature of its provisions. The fact that the framers intended the First Amendment to protect speech and press did not mean that they intended to exclude movies, digital recordings, or the electronic highway. We know that the policies behind the First Amendment support coverage. If the framers had foreseen modern methods of communication, there is no reason to believe that they would have excluded them from the First Amendment, because that would not promote its policies.
- The Court has used the Fourteenth Amendment to incorporate all of the First Amendment freedoms to be applicable to states and local governments. Thus, the scope of First Amendment freedoms protect individuals from actions by local and state governments, as well as from actions by the federal government.
- government restrictions. The fact that the Court has allowed the government to punish certain categories of speech does not mean that the Court will allow the government to punish individuals because they hold points of view that differ from those of the government. All of the clauses of the First Amendment are tied together by the concept of freedom of belief. Although the freedom of belief, or freedom of thought, is not explicitly mentioned in the First Amendment, it is the core value of all of the clauses of the First Amendment.
- When the Court determines whether a law is invalid on its face, it looks at not only the statutory language but also the way the courts and enforcement authorities have interpreted the language. The Court will strike a law on its face if it is vague (a concept that may meld due process and First Amendment concerns) or substantially overbroad (because the law punishes speech that cannot be punished consistently with the First Amendment, even though the law make criminal some speech that could be punished consistently with the First Amendment).
- Thus, if speech is deemed to be commercial speech, then the overbreadth analysis is probably inapplicable. “Because of the special character of commercial speech and the relative novelty of First Amendment protection for such speech, we act with caution in confronting First Amendment challenges to economic legislation that serves legitimate regulatory interests.”
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Chapter 10. Individual Liberties—An Overview 106 results (showing 5 best matches)
- Under this concept only those provisions of the Bill of Rights that the Court considers fundamental to the American system of law are applied to the states through the due process clause of the Fourteenth Amendment. Therefore, the states cannot violate the first ten amendments directly. They are only capable of violating those amendments insofar as those provisions are incorporated into the Fourteenth Amendment and applied to the states. Thus, if a state were to abridge the freedom of speech, it would be abridging the First Amendment as applied to it through the Fourteenth Amendment. It would be technically incorrect to refer to the state as violating the First Amendment without noting its application to the state through the Fourteenth Amendment.
- The first ten amendments to the Constitution are often called the Bill of Rights. These amendments were submitted to the States by the first Congress in response to expressions of concern for guarantees of individual liberty that had been raised during the debates on the ratification of the Constitution. The Ninth and Tenth Amendments, however, usually are not considered as specific guarantees of individual liberties.first eight amendments are referred to as the Bill of Rights.
- A government owned television station is subject to First Amendment limitations. Thus, in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), the Supreme Court accepted the rulings of lower courts that a state owned public television broadcasting television station was subject to First and Fourteenth Amendment limitations. Nevertheless, the Court, in , ruled that the government owned station did not violate the First Amendment when it excluded a candidate from a televised debate.
- After the passage of the Fourteenth Amendment, the argument was made that this amendment, through both its privileges and immunities clause and its due process clause, made the guarantees of the first ten amendments applicable to the states. The Supreme Court, however, continually rejected this theory of total incorporation of the Bill of Rights into the Fourteenth Amendment. The Court, instead, adopted a theory of selective incorporation.
- the Court took its first step towards clarifying the meaning of the Second Amendment, although it did not make any ruling concerning whether the Amendment would be incorporated into the Fourteenth Amendment and applied to the states. The law challenged in was a District of Columbia law, which is a Federal law. For that reason, the Court had no occasion to address the question of whether the Second Amendment applied to state and local governments.
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Chapter 17. Freedom of Religion Part 2 65 results (showing 5 best matches)
- The First Amendment provides, in part, that Congress shall make no law “prohibiting the free exercise” of religion. The free exercise clause, like all of the guarantees of the First Amendment, applies to state and local governments through the Fourteenth Amendment.
- Prior to 1963, the Court had found that the First Amendment required an exemption to be granted from certain types of laws for persons who wanted to engage in First Amendment activity such as speech or assembly (regardless of whether the First Amendment activity involved religion). For example, the Court prohibited the government from punishing children who refused to pledge allegiance to the United States Flag at the start of the school day regardless of whether the child’s refusal was based upon a religious belief or a nonreligious opposition to the Pledge of Allegiance. Similarly, the Court exempted both religious and nonreligious speakers from certain types of licensing systems that would have been validly applied to business that did not involve First Amendment activity.
- the Supreme Court, by a six to three vote, invalidated the Religious Freedom Restoration Act. The majority opinion, written by Justice Kennedy, ruled that Section 5 of the Fourteenth Amendment did not give Congress the power to expand the civil liberties that had been established through judicial interpretation of Section 1 of that Amendment. Thus, Congress had no power under the Fourteenth Amendment to expand the scope of rights created by the free exercise clause of the First Amendment, which applies to the states through Section 1 of the Fourteenth Amendment. Of the six Justices in the majority in
- , the Justices unanimously ruled that the school board regulation, as applied in this case, violated the free speech clause of the First Amendment. Justice White wrote for seven members of the Court in finding that the board’s action constituted viewpoint discrimination because the school board would have allowed groups to use the school property for discussions about childrearing and family values that were not connected to the views of a religious organization. Such viewpoint discrimination violates the First Amendment freedom of speech even when the government is allocating access to a nonpublic forum.
- , it appears that the Supreme Court will not require the government to grant tax exemptions to religious organizations or persons who refuse to pay a generally applicable, religiously neutral tax that does not operate as a prior restraint on activity protected by the First Amendment.
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Chapter 16. Freedom of Speech Part 7 81 results (showing 5 best matches)
- 448 U.S. at 600, 100 S.Ct. at 2840 (footnote omitted). Justice Stewart, concurring in the judgment, also relied on a First Amendment right of access. Justice Blackmun, concurring in the judgment, relied principally on the Sixth Amendment, but also acknowledged the secondary role of the First Amendment as a source of this right to access.
- The Application of the Twenty–First Amendment
- Sixth Amendment Right to Public Trial
- See §§ 16.2–16.4 (the background and drafting of the First Amendment). The text of the Constitution and all ratified Amendments appear in the appendix.
- First, the provisions of the CDC prohibiting transmission of obscene or indecent communications by means of a telecommunications to persons under the age of 18, or sending patently offensive communications to persons under the age of 18, were content-based restrictions on speech, not time, place or manner regulations. Because they were content-based, they were overbroad on their face in violation of the First Amendment.
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Chapter 16. Freedom of Speech Part 2 131 results (showing 5 best matches)
- Justices Black and Douglas argued that no system of prior restraint was ever justified. A holding that the publication of news may sometimes be enjoined, according to Justice Black, would “make a shambles of the First Amendment,” and the operation of the injunctions was a “flagrant, indefensible, and continuing violation of the First Amendment.”
- the Court held that the FCC, consistent with the First Amendment, may enact a rule prospectively barring the common ownership of a radio or television station and a daily newspaper located in the same community, and retroactively requiring divestiture of such co-located newspaper-broadcast combinations in the “most egregious” cases. Such regulations further both antitrust and First Amendment goals and do not violate the First Amendment rights of newspapers because—given the physical limitations of the broadcast spectrum—there is no unabridgeable First Amendment right to broadcast comparable to the right of persons to speak, write, or publish.
- If a political candidate is selling himself, the First Amendment applies in full force; yet if he sells peanuts, First Amendment protection. Rationalizing these results is more than a little difficult. Certainly
- The broadcasters challenged the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds. Their argument was based on the contention that the First Amendment protected their desire to use their allotted frequency continuously to broadcast whatever they choose, and to exclude whomever they choose from using that frequency; if no man could be prevented from publishing or saying what he thinks, or from refusing in his speech to give equal weight to the views of his opponents, then broadcasters must have a similar First Amendment right, it was argued.
- Commercial speech, such as advertising, has always been subject to substantial governmental regulation. Until relatively recently, the Court simply excluded all commercial speech, even truthful advertising, from the coverage of the First Amendment. Now commercial speech has extensive First Amendment protection. However, commercial speech still does not have the full First Amendment protection of political speech. The state can issue reasonable time, place, or manner regulations of commercial speech. In addition, the state has a broader power to regulate misleading commercial speech than its power to regulate misleading or libelous speech about public officials or public figures.
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Chapter 12. State Action 106 results (showing 5 best matches)
- Government owned broadcast stations would be subject to First Amendment principles. On the other hand, privately owned broadcast stations do not have sufficient state action to be subject to First Amendment limitations on their actions, based solely on the fact that they are licensed and regulated by the federal government.
- In Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) the Court reviewed the decision of a publicly owned television station to exclude a candidate from a pre-election debate under First Amendment principles. In all nine Justices accepted the finding of the lower court that a state owned public television broadcaster was subject to First and Fourteenth Amendment principles that might restrict its actions. A majority of the Justices in ruled that the exclusion of a candidate from a televised political debate would not violate the First Amendment so long as the decision of the government owned station was “a reasonable viewpoint-neutral exercise of journalistic discretion.” 523 U.S. at 683, 118 S.Ct. at 1644. The dissenting Justices in believed that the First Amendment placed significant restrictions on a government owned and operated broadcast station’s ability to choose which candidates it would include in a debate...
- . First, that the guarantees of civil liberties contained in the Fourteenth Amendment applied only to governmental or “state” actions. Second, that the Congress was only empowered by the Fourteenth Amendment to regulate the activities which the Court independently would find to be a violation of section 1 of the Amendment. Third, that the Court would independently review congressional legislation under the Thirteenth Amendment to insure that it was designed to eliminate clear vestiges of slavery.
- excludes another person from the group because of the person’s race, religion, sex, or sexual orientation the group will not have violated the First or Fourteenth Amendments unless that association has state action. Local, state, or federal statutes might prohibit private associations from excluding persons because of characteristics such as race, religion, sex, or sexual orientation. An association of persons that is subject to such statutes (and forced to admit or accommodate persons that they did not want to accept) may challenge the application of the anti-discrimination law to their association on the basis of the First and Fourteenth Amendments. The statute making discrimination unlawful is an action of the government, and, therefore, constitutes state action. Thus, there will be no state action issue when a court examines the application of an anti-discrimination law to a private organization; the Court will have to determine whether the statute violates First or Fourteenth
- This case involved a “company town” which was a privately owned area encompassing both residential and commercial districts. The Gulf Shipbuilding Corporation owned and governed this area but it had no formal ties to any state agency or authority. Agents of the corporation had ordered a Jehovah Witness to leave the privately owned business district and to refrain from distributing religious leaflets within the boundaries of the company town. If the order were valid it would have subjected the leafleter to conviction under state trespass laws for her refusal to leave the area or stop distributing literature. Unquestionably this town would have violated the First Amendment if it were an agency of the state attempting to suppress the distribution of the literature. Thus, the only issue in the case was the applicability of the First and Fourteenth Amendments to the conduct of the corporation that owned the town. A majority of the Justices, in an opinion by Justice Black, held that the...
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Chapter 16. Freedom of Speech Part 8 49 results (showing 5 best matches)
- For an historical study of symbolic speech in the late 1700s and early 1800s, see, Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment, 97 Georgetown L. J. 1057 (2009). The article concludes that, as a matter of original meaning, the First Amendment protects both symbolic expression and verbal expression.
- Farber and Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 Va.L.Rev. 1219 (1984); Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482 (1975).
- See Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 924 (1963): “[I]t can hardly be urged that maintenance of peace requires a criminal prosecution for private defamation.”
- Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L.Rev. 747, 748 (1984). Professor Anderson concludes that “compensating individuals for actual harm to reputation is the only legitimate purpose of defamation law today…. By actual harm, I mean provable injury to reputation. Nonpecuniary reputational losses would qualify, but mental anguish alone would not.” Id. at 749. Cf. Van Alstyne, First Amendment Limitations on Recovery from the Press—An Extended Comment on “The Anderson Solution,” 25 Wm. & Mary L.Rev. 793 (1984); LeBel, Defamation and the First Amendment: The End of the Affair, 25 Wm. & Mary L.Rev. 779 (1984).
- Schnapper v. Foley, 667 F.2d 102, 114 (D.C.Cir.1981), cert. denied 455 U.S. 948, 102 S.Ct. 1448, 71 L.Ed.2d 661 (1982) (the First Amendment interests are based on “the author’s freedom to speak or remain silent as an end in itself.”).
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Chapter 14. Equal Protection Part 8 90 results (showing 5 best matches)
- Challenges to laws restricting a would-be candidate’s ability to be on an election ballot involve First Amendment issues and the right to vote issues. The First Amendment implied right of association is the primary issue in most of these cases. For that reason, many of these cases are examined in Chapter 16. It may often be difficult to separate First Amendment and equal protection issues when a would-be candidate in challenges a law by asserting that the law creates an unconstitutional barrier to a person’s ability to become a candidate for government office.
- A state statute that restricts the ability of an individual to vote in a party primary election may impair First Amendment interests of the members of the political party. The First Amendment protects the freedom of association; this implied First Amendment right, as all First Amendment rights, applies to the states through the Fourteenth Amendment. When a political party’s internal regulations enable an individual to vote in the party’s primary and a state law denies that individual the right to vote in the primary, the state has prohibited the members of the party from being able to define the nature of their political association. This restriction of the right to vote and the freedom of association should only be upheld if the voting regulation is narrowly tailored to promote a clearly legitimate state interest, such as the interest in running efficient and honest elections. The Supreme Court sometimes has indicated that such laws must be narrowly tailored to promote a “...
- No single provision of the Constitution or its Amendments establishes a right of individuals to vote, except for Article I, § 2, which gives the people of each state the right to vote for members of the House of Representatives, and Amendment Seventeen, which transferred the election of Senators from state legislatures to individual voters. Nevertheless, it has been easy for the Court to rule that, once a state creates a system whereby individuals can vote in elections, the courts must treat the right to vote as a fundamental right whose abridgement requires close judicial scrutiny. Several amendments support the position that this type of “right to vote” has been a fundamental aspect of our constitutional history and tradition. Amendment Fifteen prohibits allocating the right to vote on the basis of race; the Nineteenth Amendment prohibits allocating the vote on the basis of sex. The Twenty-Fourth Amendment prohibits denying the vote in federal elections to those persons who refuse...
- The Supreme Court uses a type of modified balancing test in voting and ballot access cases. A law deemed by the Court to be a severe impairment of voter’s freedom of choice, or a severe impairment of First Amendment rights, must be supported by a compelling interest. A state regulation of voting and election systems that does not involve restriction of First Amendment rights, and does not constitute a severe impairment of the ability of a voter to exercise the franchise in a meaningful way, will be upheld so long as any incidental regulation of voting freedom is outweighed by a significant or important state interest.
- A government regulation restricting the ability of citizens to nominate or vote for the candidate of their choice restricts their First Amendment right of political association and also raises equal protection problems concerning any classifications contained in, or created by, the regulation. Voting regulations regarding the ability of an individual voter to participate in an election most often are examined under the equal protection guarantee because a regulation of this type usually involves a classification that separates persons who may or may not vote in an election or that dilutes the voting power of a particular class of persons. Although the First Amendment right of political association might be raised in most, if not all, voting rights cases, the right of political association tends to be the primary focus of the Supreme Court in cases involving the ability of independent candidates or minor political parties to gain a place on a general ballot or the ability of a...
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Chapter 16. Freedom of Speech Part 3 65 results (showing 5 best matches)
- If the Government says “buy more beef,” the Government has not violated the First Amendment. It is simply speaking. However, if the Government says “Professors Nowak and Rotunda want you to eat more beef,” there is a First Amendment claim that the government is, in effect, forcing them to speak and to adopt a particular message.
- The Court reasoned that a state must safeguard freedom of speech and press in its libel laws as required by the First Amendment as applied to the states through the Fourteenth Amendment. This First Amendment protection exists against the background of “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Neither erroneous statement nor injury to official reputation forfeits the First Amendment protection, which should provide “breathing space” for freedom of expression.
- of school or playground violated the First Amendment; (3) regulations prohibiting indoor, point-of-sale advertising of smokeless tobacco and cigars lower than 5 feet from floor of retail establishment located within 1,000 feet of school or playground violated the First Amendment; but (4) regulations requiring retailers to place tobacco products behind counters and requiring customers to have contact with salesperson before they are able to handle such products did not violate First Amendment.
- viewed the beef marketing advertisements as true government speech. Although private persons designed the beef advertising campaign, the Secretary of Agriculture appointed those persons to a board; then, the Secretary maintained control over which messages would be funded with the proceeds from the assessment. Because the advertisements are government speech, the Court will not subject them to First Amendment scrutiny. The fact that the Government funded this government speech through a targeted assessment on a certain group of taxpayers was irrelevant for First Amendment analysis.
- indicated that commercial speech is speech connected to the selling of a product or service. Such speech has more limited First Amendment protection than does non-commercial speech. Justice Powell noted that principles relating to “more traditional First Amendment problems” are not to be applied automatically to commercial speech regulations in a “yet uncharted area.”
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Chapter 16. Freedom of Speech Part 5 109 results (showing 5 best matches)
- The Court likewise rejected the contention that an action with a clearly noncommunicative aspect is outside any First Amendment consideration. Rather, the Court presumed that O’Brien’s action had a “communicative element” sufficient to bring the First Amendment into play. However, this presumption does not mean that the conduct automatically receives full First Amendment protection. The government may prohibit such conduct in certain circumstances: When “speech” and “non-speech” elements are combined in the same course of conduct, “a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”
- Although First Amendment rights must be interpreted in light of the special characteristics of the school environment, the school library is a special locus of First Amendment freedoms. And, in a in a far cry from
- . Campaign contributions and expenditures are speech or are so intrinsically related to speech that any regulation of campaign funding must comply with the First Amendment. recognizes that, under the First Amendment, “money talks,”
- The Twenty–First Amendment has long been used to grant the states extensive authority over liquor, and to some extent immunize state regulation from commerce clause challenge. However, the Twenty–First Amendment has never been read to immunize state regulation over liquor from the civil liberties guarantees of the Constitution.
- The Court has long accepted the premise that certain “expressive” acts are entitled to First Amendment protection, but not all activity with an expressive component has full First Amendment protection. The Court began to set boundaries for the extent of First Amendment protection afforded to symbolic speech in 1968, in
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Chapter 14. Equal Protection Part 13 48 results (showing 5 best matches)
- Regulations of candidates and political parties access to ballot positions inherently involve First Amendment as well as equal protection issues. These cases are examined in § 14.32(g) of this Treatise. The voting rights cases that most clearly involve First Amendment issues are those in which political gerrymandering is alleged; that subject is examined in § 14.36(e) of this Treatise.
- See, e.g., Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (statute prohibiting certain congregations within 500 feet of an embassy in the District of Columbia is consistent with the First Amendment freedom of assembly and does not violate the equal protection component of the Fifth Amendment due process clause); Lyng v. International Union, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (amendment to Food Stamp Act that restricted eligibility of a household for food stamps when a member of the household became unemployed due to a labor strike does not violate either the First Amendment right of association or the equal protection component of the Fifth Amendment due process clause); New York State Club Association, Inc. v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (statute prohibiting discrimination of various types by clubs that provide certain benefits to business entities and members does not violate the freedom of association...
- See also, Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (the Supreme Court, without majority opinion, finds that a restriction on political party expenditures that are not coordinated with a candidate for office violated the First Amendment). First Amendment limitations on political party activities and expenditures are examined in Chapter 16.
- stated that “taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas.” Justice O’Connor found that differential taxation of First Amendment speakers is constitutionally suspect only when it “threatens to suppress the expression of particular ideas or viewpoints.” In earlier cases, the Supreme Court had invalidated special taxes on the press on the basis of the equal protection clause or the First Amendment; the was not subject to strict judicial scrutiny. A law that subjects the press, or a subcategory of the press, to special taxation should be subject to analysis under both First Amendment and equal protection principles, even though some of these taxes will be valid. See Chapter 16.
- See also California Medical Ass’n v. Federal Election Com’n, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (holding that limitations on contributions to multi-candidate political committees which differed from the limitation placed on union and corporate contributions do not violate either the First Amendment or the equal protection component of the Fifth Amendment).
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Chapter 5. Federal Fiscal Powers 30 results (showing 5 best matches)
- Brennan dissented because he believed that the Twenty-first Amendment limited the spending power. O’Connor, the only other dissenter, believed that the federal law “is not a condition on spending reasonably related to the expenditure of federal funds and cannot be justified on that ground,” but is an attempt to regulate the sale of liquor reserved to the states by section 2 of the Twenty-first Amendment.
- The Court held that Congress (using its powers over the military) may directly impose the Solomon Amendment’s access requirement. Congress could instead use its spending powers and give schools a choice whether to accept the funds or deny access. The First Amendment was no obstacle because students and faculty remained free to voice their disapproval of the military’s message. Hence, the statute placed no unconstitutional condition on receiving federal funds.
- The Court concluded that the Twenty-first Amendment, like the Tenth Amendment, is not an
- The Twenty–First Amendment & the
- One would think that the most natural reading of the language of the second section of Twenty-first Amendment is that the section gives the states broad powers to The Court, however, did not decide that issue. Its opinion was more narrow as regards the Twenty–First Amendment. The real significance of this case is that it laid out a four-part test that applies in all spending clause cases when the party challenges the constitutionality of the legislation.
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Chapter 11. Substantive Due Process 89 results (showing 5 best matches)
- The Supreme Court’s reluctance to give an expansive reading to the Constitution was exemplified dramatically in its first major attempt to interpret and apply the provisions of the new Fourteenth Amendment. The language of section one of the Amendment was broad and sweeping. The Amendment prevented any state from making and enforcing any measure that “shall abridge the privileges or immunities of citizens of the United States ….” Moreover, the Amendment adopted the due process language of the Fifth Amendment and made that language applicable to the states. Finally, the Amendment mandated that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Although the Amendment’s language was capable of a broad and expansive reading, the intent of the Congress that approved the Amendment was at best vague and ambiguous. Consequently, the Court was free to exercise discretion when it interpreted the language of the Fourteenth Amendment. At first the...
- However, it was not long after the passage of the Fourteenth Amendment before individuals claimed that the guarantees of individual rights contained in those amendments were made applicable to the states by the Fourteenth Amendment. The Supreme Court rejected such contentions at first but the reasons for so doing may be found in decisions on other constitutional issues.
- Thus when the Court, under the general concept of due process, invalidated a state law which prohibited private religious schools, there was no need to resort to the religion clauses of the First Amendment. Similarly, the Court struck down a state law prohibiting the teaching of foreign languages in private as well as public schools without relying on either the First Amendment or what today is known as the fundamental right of privacy. Because of this approach, there was no clear focusing on whether specific provisions of the Bill of Rights were “incorporated” into the due process clause of the Fourteenth Amendment.
- As we near the close of the era of substantive due process, we find that the Court begins to concentrate its attention on whether specific guarantees of the Bill of Rights are made directly applicable to the states by the Fourteenth Amendment. These isolated decisions before 1937 seem to be the result of growing problems with the general concept of substantive due process; in addition, some particular cases were easier to analyze under the terms of one of the first ten amendments. Thus, in 1925 we find the Court assuming that the free speech clause of the First Amendment was made applicable to the states by the due process clause in deciding a particular case. In 1932 when the Supreme Court intervened to grant the defendants some protection in the now famous “Scottsboro Boys” case, the Justices found that at least some elements of the right to counsel under the Sixth Amendment were made applicable to local governments by the Fourteenth.
- First, the Court had given a restrictive meaning to the privileges and immunities clause of the Fourteenth Amendment in one of its first decisions on the meaning of that amendment.
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Chapter 15. Congressional Enforcement of Civil Rights 116 results (showing 5 best matches)
- This Chapter focuses on the interpretations of the various civil rights statutes to the extent that these interpretations significantly illuminate congressional power under the Thirteenth, Fourteenth, and Fifteenth Amendments. Rather than discussing these Amendments in the order in which they became part of the Constitution, the development of the case law makes it easier to discuss, first, Congress’ power under section 5 of the Fourteenth Amendment. Then we shall turn to the scope of Congress’ power under the Thirteenth Amendment, and under the Fifteenth Amendment.
- involved racial animus. The application of section 1985(3) is different if the purpose of the alleged conspiracy is to infringe First Amendment rights. “[A]n alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is proved that the state is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the state.” involved rights protected by the Thirteenth Amendment and the right to travel.
- The Thirteenth Amendment is fairly unique in two respects. First, it contains an absolute bar to the existence of slavery or involuntary servitude; there is no requirement of “state action.” Thus, it is applicable to individuals as well as states. “By its own unaided force and effect it abolished slavery, and established universal freedom.” Secondly, like the Fourteenth and Fifteenth Amendments, it contains an enforcement clause, enabling Congress to pass all necessary legislation.
- specifically left open the question whether section 1981 would apply to a school that discriminated on the basis of race for religious reasons. Unlike pure racial discrimination, which has no constitutional protection, religiously based discrimination may possibly find some protection in the First Amendment.
- The Court ruled it did not and that the Thirteenth Amendment did not authorize Congress to enact such a law. The purpose of the Thirteenth Amendment is to vindicate “those fundamental rights which appertain to the essence of citizenship” The Court held that the Thirteenth Amendment did not justify the first two sections of the Civil Rights Act of 1875 (because they did not involve the badges of slavery), and the Fourteenth Amendment did not justify them either (because they did not involve state action).
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Chapter 14. Equal Protection Part 7 51 results (showing 5 best matches)
- The Court quickly dispensed with the claim that the Hyde Amendment violated the religion clauses of the First Amendment. The fact that the Hyde Amendment coincided with the doctrines of certain religious sects did not provide a basis for its invalidation because the amendment could be seen as having a secular purpose in encouraging childbirth. To use the establishment clause to prohibit laws which have an ethical basis in some religion would be to deprive the government of an ability to act in many areas traditionally recognized as being within the police power of the state. No plaintiff attacking the validity of the Hyde Amendment in these cases had standing to claim that the law violated the free exercise clause of the First Amendment as, not unexpectedly, none were able to demonstrate that they must procure an abortion under compulsion of their religious beliefs.
- makes plain the fact that, in the context of a criminal investigation, privacy interests endangered by government actions will be tested and protected almost exclusively under the Fourth Amendment. The majority opinion, however, did emphasize that where “the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with scrupulous exactitude.”
- a majority of the Court found that a search pursuant to a valid warrant is constitutionally sound even when the owner or possessor of the premises searched is not suspected of any crime. The Court then went on to hold that the First and Fourth Amendments permit searches of press offices pursuant to warrant and do not require use of the less intrusive subpoena where practicable. The Court reasoned that the reasonableness, specificity, and probable cause requirements of the warrant procedure provided sufficient protection to First Amendment interests, and noted that, where such requirements were properly applied, there would be no occasion for police to “rummage at large in newspaper files.”
- In considering the extent to which the right to privacy may limit the government collection and use of data concerning private individuals, it is important to remember that the Supreme Court has held that the press could not be prohibited, consistently with the First Amendment, from reporting information which was lawfully obtained from public records. members of the press or public under the First Amendment.
- For many years it had been the law held that the Fourth Amendment allowed searches only for instrumentalities or fruits of a crime, or other contraband items. However, in the Court ruled that a search for evidence of a crime based upon probable cause and, in most instances, a procedurally proper warrant would comply with the Fourth Amendment. This ruling opened two new privacy issues: (1) whether government agents could search for a defendant’s records or other written evidence of his criminal activity, and (2) whether searches for “mere evidence” of a crime believed to be possessed by persons not suspected of criminal activity required special justification. In the Court resolved the first issue by finding that the police could search for records of criminal activity even though the records were “testimonial” in nature. In
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Chapter 17. Freedom of Religion 57 results (showing 5 best matches)
- There are two clauses of the First Amendment that deal with the subject of religion. The Amendment mandates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” The first clause is referred to as the establishment clause; the second is the free exercise clause. The Supreme Court has held that both of these clauses are made applicable to the states by the due process clause of the Fourteenth Amendment.
- The religion clauses were among the first portions of the Bill of Rights incorporated into the Fourteenth Amendment and made applicable to the states by the Supreme Court. Although the original understanding of the drafters of the First and Fourteenth Amendments may be unclear, a majority of the Justices on the Supreme Court during the past 50 years consistently have held that the values protected by the religion clauses are fundamental aspects of liberty in our society and must be protected from both state and federal interference.
- Justice O’Connor wrote to restate her view that any government action that endorsed religious beliefs violated a First Amendment religious neutrality principle. She disputed dissenters’ reliance on the history of the First Amendment. Justice O’Connor noted that the country was now much more religiously diverse than it was in the eighteenth century. Although the framers of the First Amendment could not have predicted that diversity, they did attempt to prohibit “line-drawing between religions,” according to Justice O’Connor. In her view, a governmental endorsement of particular religious beliefs would result in “crowding out private observance and distorting the natural interplay between competing beliefs” so as to result in eventual “suppression of rival beliefs.”
- he refers to opinions of individual Justices in earlier cases, rather than to evidence regarding the drafting or ratification of the First Amendment. The first two paragraphs of the Breyer concurrence point towards the use of a neutrality principle. In the third paragraph of his opinion, Justice Breyer found that a neutrality test would not be useful in deciding religious display cases. Justice Breyer concluded that the Texas display, properly analyzed, “might satisfy this Court’s more formal establishment clause test [citing ].” Nevertheless, Justice Breyer refused to rely on any of those tests, and rested his decision on “the basic purposes of the First Amendment’s religion clauses themselves.”
- the Court, in an opinion by Chief Justice Burger, upheld a legislature’s practice of employing a religious chaplain whose primary duty was to open each legislative day with a prayer. The Court based its finding that there was no establishment clause violation on the “unambiguous and unbroken history of more than two hundred years” of legislative prayer, although the majority opinion also stated that history “could not justify contemporary violations” of the First Amendment. In the majority’s view, legislative prayer was a recognition of a belief widely held among the people of the country; its history demonstrated that such activity did not constitute the type of religious purpose, religious effect, or entanglement between government and religion that threatened the First Amendment value of religious neutrality on the part of government.
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- In a series of cases the Supreme Court has held that the First Amendment freedom of association prohibits states from denying individuals the right to employ an attorney to represent their group interests. These cases do not establish a First Amendment right of individuals to have access to the courts for the resolution of all grievances against the government or anyone else. The ability of an individual to have access to a judicial process should be determined by due process analysis, although the First Amendment should bar some governmental limitations on the ability of individuals to advance their common good through collective action. The question of whether an individual or group is receiving fair treatment from administrative or judicial entities is one that will be best focused on by courts if they employ due process analysis. In ...a trial-type hearing. After upholding the limitation on due process grounds, the majority opinion summarily rejected the veterans’ separate First...
- the Supreme Court ruled that Title II of the Americans with Disabilities Act, which prohibits the exclusion of disabled persons from public services or programs, was a valid exercise of Congress’s Fourteenth Amendment powers, at least insofar as it prohibits state practices that prevent persons from exercising their “fundamental right of access to courts.” Mr. Lane, a paraplegic, was denied physical access to a state court, as those terms were defined by the federal law, to defend against criminal charges. Mr. Lane had crawled up courthouse stairs for an initial hearing in his case; thereafter, he refused to crawl or be carried to the courtroom. He was then arrested for failure to appear in court. Mr. Lane’s claim under the Americans with Disabilities Act for monetary damages against the state was upheld by the Supreme Court. The Court ruled that the federal statute, as applied to these facts, was a proper use of Congress’s Fourteenth Amendment power that would override any...
- The Court has ruled that neither due process nor equal protection requires the government to appoint counsel for convicted defendants after their first appeal. Thus, states do not have to appoint counsel for truly discretionary review (which would follow the first appeal opportunity for the defendant), or collateral attack proceedings. A majority of the Justices believed that the grant of counsel through the first appeal of right provided the defendant with sufficient opportunity for meaningful review of his conviction. However, this holding does not allow the government to deny the indigent access to the courts for
- The government is also required to provide counsel for indigent defendants in their first appeal as they would be denied equal protection of the law by a system which provided meaningful review only for those who could afford to retain an attorney.
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Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures 68 results (showing 5 best matches)
- The Supreme Court has not created specific rules regarding the nature of procedural safeguards that should be given to a governmental employee when the government discharges the employee for speech related activities. This problem area involves an intersection of First Amendment and procedural due process principles. In its First Amendment rulings, the Supreme Court has allowed the government to fire employees for speech so long as the firing is not totally arbitrary. The Court employs a balancing test to determine if the government may discharge an employee for speech that relates to an issue of public concern. The government will be allowed to discharge an employee for speech relating to public issues only when the government’s interest as an employer outweighs the First Amendment values that would be promoted by allowing the employee’s speech.
- When a government employee claims that he was fired for engaging in speech that was protected by the First Amendment and the government agency which made the employment decision claims that the employee’s speech related activities did not form any part of the decision to fire the employee, procedural due process principles may require the government to conduct a hearing to determine whether the employee’s First Amendment activities were used as a basis for his discharge or whether the employee was discharged for reasons totally unrelated to his speech activities. Supreme Court rulings indicate that a government employee must be able to establish a prima facie case that he was discharged for engaging in activity that was protected by the First Amendment in order to have a due process right to a proceeding to determine the basis for the firing.
- There may be instances in which the government and the discharged employee agree that the employee’s speech at a given time and place was the basis for the employee’s discharge, but the employee and government disagree as to what the employee said at that time and place. In the typical situation, the government agency that discharged the employee will assert that the employee engaged in speech that was not protected by the First Amendment. The employee will claim that the government decision maker made a factual error concerning the nature of the employee’s speech and that the speech activities engaged in by the employee, in fact, were activities for which the employee could not be fired consistently with the First Amendment.
- Both the Fifth and Fourteenth Amendments prohibit governmental actions which would deprive “any person of life, liberty or property without due process of law.” But due process has several quite distinct meanings. In Chapter Eleven we examined the ways in which substantive due process may protect certain fundamental rights or void arbitrary limitations of individual freedom of action. Part of the substantive impact of the due process clause of the Fourteenth Amendment is the “incorporation” of certain guarantees in the Bill of Rights. Thus state legislatures cannot pass legislation which denies freedom of speech, for to do so would violate due process in that the liberty it protects includes the freedom of speech guaranteed by the First Amendment.
- focused only on the nature of the First Amendment protections that should be given to government employees. However, Justice O’Connor’s discussion of the First Amendment issue in
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Chapter 11. Substantive Due Process Part 4 53 results (showing 5 best matches)
- On this basis all of the first Eight Amendments except for the Second, Third, and Seventh Amendments, and the grand jury clause of the Fifth, have been applied to the states. See § 11.6, infra.
- The Ninth Amendment. Although the Ninth Amendment has not been used as the basis for defining rights of individuals and invalidating either federal or state laws, it has been mentioned as a possible basis for justifying judicial protection of rights not explicitly listed in the Constitution or other amendments. References to the amendment in the Supreme Court appear to be only in dicta or in opinions of individual Justices. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 579–80 n. 15, 100 S.Ct. 2814, 2828–29 n. 15, 65 L.Ed.2d 973 (1980) (plurality opinion by Burger, C.J.) justifying a judicial role in defining “fundamental rights not expressly guaranteed” and stating: “Madison’s efforts, culminating in the Ninth Amendment, served to allay the fears of these who were concerned that expressing certain guarantees could be read as excluding others.” The decision, in the view of the plurality, ultimately was based on an implicit First Amendment right of the public to...
- United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). Consider United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) (where a similar statute making it unlawful for any member of a Communist action organization to be employed in a defense facility was held unconstitutional under the First Amendment with no mention made of the bill of attainder provisions).
- See, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573–74, 69 L.Ed. 1070 (1925) (private education); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626–27, 67 L.Ed. 1042 (1923); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), rehearing denied 321 U.S. 804, 64 S.Ct. 784, 88 L.Ed. 1090 (1944). Today these particular decisions might be viewed as relating to certain First Amendment rights, but the Court cites them as showing a fundamental right.
- . the Supreme Court held that Congress did not violate the due process clause of the Fifth Amendment by requiring that private railroads reimburse Amtrak, a corporation established by federal legislation, for rail travel privileges that Amtrak provides to the railroads’ employees and former employees even though Amtrak had for some years not imposed such costs on the private railroads. The Court first found that there was no contract between the United States and the railroads to grant free or reduced rate transportation privileges to railroad employees. The Court then found that there was no impairment of a private contractual right between the railroads and Amtrak that violated the due process clause.
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Chapter 14. Equal Protection Part 12 52 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.
- Voting restrictions based on political party affiliation are examined in § 14.31(g). Restrictions on distribution or publication of information regarding elections may be analyzed under the First Amendment, which applies to the states through the Fourteenth Amendment due process clause. See, e.g., Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (restrictions on persons who can circulate petitions for ballot initiatives, including requirements that the circulators be registered voters and wear identifying name tags, violate the First Amendment); Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (Statute prohibiting the payment of persons to circulate petitions for ballot initiatives violates First Amendment). Restrictions on anonymous speech are examined in Chapter 16.
- that the First Amendment did not impose limits on the government acquisition of data, the Court held in New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986), that a warrant application for authorizing seizure of materials presumptively protected by the First Amendment (in this case, materials that might be obscene and that resulted in a violation of obscenity statute) should be evaluated solely under Fourth Amendment probable cause standards.
- See also, Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (the Supreme Court, without majority opinion, finds that a restriction on political party expenditures that are not coordinated with a candidate for office violated the First Amendment). First Amendment limitations on political party activities and expenditures are examined in Chapter 16.
- The Supreme Court has found that the application of anti-discrimination laws to some private groups violates the freedom of association when such application would impair the First Amendment freedom of association without being narrowly tailored to a compelling interest. See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In none of these cases did the Court find that application of the law prohibiting racial discrimination violated the First Amendment freedom of association. For a discussion of these cases see Chapter 16. For examination of the state action principle see Chapter 12.
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Chapter 6. International Affairs 46 results (showing 5 best matches)
- concluded that the Fourth Amendment was not applicable. First, the phrase “the people” (also used in the First and Second Amendments, and to whom powers are reserved in the Ninth and Tenth Amendments) refers to a class of persons who are part of a national community. Second, the history of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures by the United States occurring in domestic matters, not to restrain the federal government in any actions it might take against aliens outside of the United States. And, of course, if the United States had obtained a search warrant from a U.S. magistrate, that warrant would mean nothing in Mexico, where the search actually took place.
- distinguished the Fourth Amendment from the Fifth Amendment. The Fifth Amendment privilege against self-incrimination is a fundamental right of all criminal defendants. A Fifth Amendment violation occurs at trial if evidence is admitted in violation of the privilege against self-incrimination. In contrast, the Fourth Amendment prohibits “unreasonable searches and seizures” even if the evidence is not used at the trial; the violation of the Fourth Amendment is “fully accomplished” at the time of the unreasonable government intrusion. Fourth Amendment violation, it occurred only in Mexico, where the U.S. Constitution does not apply.
- , that First Amendment protections reach beyond our national boundaries,….”).
- Missouri claimed that the treaty and new statutes interfered with its Tenth Amendment reserved rights and were therefore void. Justice Holmes, writing for the Court, concluded that the treaty and statutes did not interfere with rights reserved by states. The Tenth Amendment does not limit the treaty power because—
- held that Congress’ implicit determinations and long experience establish that the Fourth Amendment restrictions on search and seizure apply to Puerto Rico. The Court did not decide whether the Fourth Amendment applied directly or by operation of the Fourteenth Amendment.
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Chapter 17. Freedom of Religion Part 3 37 results (showing 5 best matches)
- The district court upheld the government prescribed prayer and all three of the statutes on the theory that the Supreme Court rulings regarding religious activities were not binding precedent on the states because, according to the district court, the First Amendment religion clauses should never have been made applicable to the states. This ruling of the district court had been reversed by the court of appeals. The Supreme Court, in fact, had earlier summarily affirmed the Court of Appeals ruling overturning the district court. Jaffree v. Board of School Commissioners, 554 F.Supp. 1104 (S.D.Ala.1983) (summary affirmance and notation of probable jurisdiction as to one question in the case), reversed Jaffree v. Wallace, 705 F.2d 1526, 1535 (11th Cir.1983), court of appeals affirmed Wallace v. Jaffree, 466 U.S. 924, 104 S.Ct. 1704, 80 L.Ed.2d 178 (1984). The Supreme Court now took time to explain why it should reverse what the majority opinion kindly referred to only as the “...
- 472 U.S. at 68, 105 S.Ct. at 2496, and the dissenting opinions of Chief Justice Burger, 472 U.S. at 86, 105 S.Ct. at 2505, and Justice White, 472 U.S. at 91, 105 S.Ct. at 2508 questioned the strictness of the court’s ruling. These separate opinions were based in part on Justices’ desire to reassess some earlier decisions of the Court, and in part on a belief that the history of the First and Fourteenth Amendments did not justify judicial exclusion of all religious activity or aid to religion from state school systems. However, Justice Rehnquist was alone in voting to approve the district court’s ruling based on his reexamination of the history of the First Amendment. This reexamination led Justice Rehnquist to believe that the First Amendment had limited applicability to state and local governmental activities which have an incidental effect of advancing religion through what he described as a “generalized endorsement of prayer.” Wallace v. Jaffree, 472 U.S. 38, 91, 105 S.Ct. 2479,...
- Lee v. Weisman, 505 U.S. 577, 588, 112 S.Ct. 2649, 2656, 120 L.Ed.2d 467 (1992): “The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the state.”
- The First Amendment problems involved with “government inquiries into religious frauds” are examined in § 17.11.
- The First Amendment problems that arise from “state involvement in ecclesiastical disputes” are examined in § 17.12.
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Chapter 4. The Federal Commerce Power Part 2 74 results (showing 5 best matches)
- The Twenty–First Amendment
- The Supreme Court unanimously upheld the reporting requirement; it upheld the labeling requirement by a five to four vote. This case did not establish any new principles regarding the Twenty-First Amendment or intergovernmental immunity, but it involved significant disagreement between the Justices regarding the application of intergovernmental immunity principles established in previous cases.
- The Court also held that the condition did not violate the Twenty-First Amendment, which reserved some authority to the states regarding the regulation of the sale or use of alcoholic beverages within the state.
- held that the Tenth Amendment limited the Commerce Clause, that case also said that the Tenth Amendment did not limit the Spending Clause. The Court did not explain but only announced this result. The Tenth Amendment also did not limit section 5 of the Fourteenth Amendment. That result is easier to understand because the Fourteenth Amendment came into being after the Tenth Amendment, and the whole purpose of the Fourteenth Amendment was to impose new obligations on the states.
- (5 to 4) held that the Eleventh Amendment barred a suit for damages and Congress could not use its powers under section five of the Fourteenth Amendment to abrogate the states’ immunity under the Eleventh Amendment.
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Chapter 14. Equal Protection Part 10 62 results (showing 5 best matches)
- … Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth clauses in the Ninth Section of the first Article.
- 4. There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth
- Minors have the right to exercise some, but not all, fundamental rights in the same manner as do adults. See, e.g., Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (invalidating law prohibiting sale of contraceptives to persons under age of 16). That case indicated that minors did not have a right to engage in sexual activity. See § 14.28. The ability of a minor to receive abortion services without the consent of, or notification to, her parent or parents is considered in § 14.29(b)(3) of this Treatise. The government and family interests in the protection of minors may also serve as a basis for limiting the First Amendment rights of minors. See Chapter 16 regarding the subject of obscenity and children. See Chapter 17. regarding health and medical regulations, the treatment of children, and the free exercise clause of the First Amendment.
- An excellent history of the times in terms of conflicting political theories is J. tenBroek, Equal Under Law (1965) (first published as “The Antislavery Origins of the Fourteenth Amendment”).
- The Supreme Court has found that the application of anti-discrimination laws to some private groups violates the freedom of association when such application would impair the First Amendment freedom of association without being narrowly tailored to a compelling interest. See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In none of these cases did the Court find that application of the law prohibiting racial discrimination violated the First Amendment freedom of association. For an examination of these cases see Chapter 16. For examination of the state action principle see Chapter 12.
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Chapter 2. Federal Jurisdiction Part 4 9 results (showing 5 best matches)
- The Twenty–Seventh Amendment
- Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994 (1921) (18th Amendment). See also Rhode Island v. Palmer (National Prohibition Cases), 253 U.S. 350, 386–388, 40 S.Ct. 486, 488–489, 64 L.Ed. 946 (1920) (18th Amendment case, holding, inter alia, that the two-thirds vote in each House of Congress required in proposing an Amendment is a vote of two-thirds of the members present, assuming a quorum, and not a two-thirds vote of the entire membership, present and absent); Hawke v. Smith, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871 (1920) (18th Amendment case, holding that provision of state constitution requiring submission of ratification to referendum is unconstitutional under Article V of the Constitution); Hawke v. Smith, No. 2, 253 U.S. 231, 40 S.Ct. 498, 64 L.Ed. 877 (1920) (19th Amendment case, holding same as in Hawke v. Smith, No. 1); United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) (18th Amendment; Tenth Amendment does not limit power of Congress...
- Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (1900). See 178 U.S. at 581, 20 S.Ct. at 902 (Brewer & Brown, JJ., dissenting on 19th Amendment grounds), 178 U.S. at 585, 20 S.Ct. at 903 (Harlan, J., dissenting on 14th Amendment grounds).
- The public strongly supported the Amendment and these congressional leaders did not try to stop it. The question of its dormancy may well be a political question. On May 19, 1992, the Archivist of the United States, after he received official notice of Michigan’s ratification, declared the Amendment part of the Constitution, pursuant to his authority under 1 U.S.C.A. § 106b. Cf. Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922). The Court upheld the constitutionality of the 19th Amendment, announcing that: “official notice to the Secretary [of State], duly authenticated, that [a state legislature] had [ratified a proposed Amendment] was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.” 258 U.S. at 137, 42 S.Ct. at 218.
- In Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922) the Court upheld the constitutionality of the 19th Amendment, announcing that: “official notice to the Secretary [of State], duly authenticated, that [a state legislature] had [ratified a proposed Amendment] was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.” 258 U.S. at 137, 42 S.Ct. at 218.
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Chapter 2. Federal Jurisdiction 88 results (showing 5 best matches)
- First, one must determine if the plaintiff is subject to the jurisdictional bar. By its own terms the Amendment bars suits by citizens of other states or foreign nationals. that the Amendment, by implication, also bars suits by citizens of a state suing their own state. Thus all private plaintiffs are subject to the Amendment.
- For example, a law providing that federal courts have no jurisdiction in diversity cases where Catholics are plaintiffs should violate the First Amendment’s free exercise clause. No one would seriously contend that a federal law that discriminated on religious belief should be exempt from the First Amendment simply because the law is found in title 28 of the United States Code (dealing with the jurisdiction of federal courts) rather than in another title. Congress also may not limit federal jurisdiction in a way that unconstitutionally suspends the writ of habeas corpus.
- The Court reached this conclusion in this case, even though there was “an admission by the Government that the alleged First Amendment activity was the basis for selecting the individuals for adverse action.”
- The Court has held that federal statutes, based upon the congressional power to enforce the Fourteenth Amendment are not subject to Eleventh Amendment jurisdictional rules. The Fourteenth Amendment, in short, limits the earlier-enacted Eleventh Amendment.
- The Eleventh Amendment raises extremely important and complex issues. Court interpretations of the Amendment have involved both expansions and restrictions of the literal application of its wording. An in-depth consideration of this jurisdictional point may be found elsewhere. Here we present a brief sketch of the import of the Amendment as a part an understanding of federal jurisdiction.
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Chapter 7. The President and Congress 45 results (showing 5 best matches)
- In considering the First Amendment defense (the witness explicitly refused to rely on the Fifth Amendment), the Court argued that where “First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake….”
- the Supreme Court held (five to four) that the First Amendment affords newsmen no privilege, absolute or qualified, against appearing and testifying before a . Justice Powell, who supplied the crucial fifth vote, filed a brief concurring opinion suggesting that, on other facts, a First Amendment reporter’s privilege might be appropriate: “[T]he courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”
- First, Fourth, and Fifth Amendment Rights of Congressional Witnesses
- First Amendment.
- Prosecutors and, at times, Congress have used the subpoena power to compel testimony and appearances by journalists. The press has responded by challenging the subpoenas, arguing that the First Amendment guarantee of freedom of the press should protect reporters from being compelled to disclose confidential sources of information.
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Chapter 16. Freedom of Speech Part 4 88 results (showing 5 best matches)
- is illustrated in a footnote. The Court said that the First Amendment “protects state employees not only from patronage dismissals but ‘even an act of retaliation as trivial as failing to hold a birthday party for a public employee … when intended to punish her for exercising her free speech rights.’ ” In short, it violates the First Amendment for the government to determine promotions, transfers, recalls after layoffs, or birthday parties, based on the political affiliation of low-level the government employees.
- did not rest on the First Amendment, which was not applicable to the states at that time, the modern cases make it clear that the statute would be invalid under present First Amendment theory.
- I fear that the creation of “tests” by which speech is left unprotected under certain circumstances is a standing invitation to abridge it…. The Court suggests that a “literal reading of the First Amendment” would be totally unreasonable because it would invalidate many widely accepted laws … it certainly would invalidate all laws that abridge the right of the people to discuss matters of religious or public interest, in the broadest meaning of those terms, for it is clear that a desire to protect this right was the primary purpose of the First Amendment.
- Whether the Court states its test in terms of a general principle or a three-part test, when the Court reviews time, place, or manner restrictions, it really is engaging in a two-step form of analysis. First, it determines whether the regulation is in fact an attempt to suppress speech because of its message. A content-based restriction of is valid only if it fits within a category of speech that the First Amendment does not protect, for example, obscenity. If the First Amendment protects the category of speech, then the state may enforce a content-based restriction on speech only if its regulation is necessary to serve a compelling state interest and is narrowly tailored to achieve that goal.
- In other words, if the employee does speak as a citizen in a matter of public concern, she has no first amendment rights. If she does speak as a citizen on a matter of public concern, the employer can still dismiss or discipline the employee if it has an adequate justification for treating the employee differently from members of the general public.
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Chapter 16. Freedom of Speech Part 6 8 results (showing 5 best matches)
- For years the Court intimated that the First Amendment might protect nonobscene, public nude dancing as expressive conduct. It never elaborated on the degree of First Amendment protection that exists until
- the cable operator to prohibit patently offensive or indecent programming on public access channels violated the First Amendment. “P
- Justice Kennedy’s separate opinion concurring in the judgment would have invalidated all of the provisions of the law. Kennedy criticized the narrowness of the Breyer plurality. “When confronted with a threat to free speech in the context of an emerging technology, we ought to have the discipline to analyze the case by reference to existing elaborations of constant First Amendment principles.”
- Justice Scalia concurred in the judgment on the grounds that the statute was a general law regulating conduct and thus was entitled to no First Amendment scrutiny. It was not specifically directed against expression and did not target nude expression. Instead, it targeted public nudity and would apply to nude beaches as well as nude dancing. He also objected to the dissent’s argument that the Indiana law cannot be applied to consenting adults. “The purpose of Indiana’s nudity law would be violated, I think, if 60,000 consenting adults crowded into the Hoosier Dome to display their genitals to one another, even it there were not an offended innocent in the crowd.”
- While the court noted that the state has a strong interest in prohibiting sex discrimination and in protecting the physical and psychological well-being of women, this interest was not compelling enough to override the First Amendment.
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Chapter 8. The Commerce Clause and Restrictions on State Regulatory Powers 24 results (showing 5 best matches)
- Commerce and the Twenty–First Amendment
- The Twenty–First Amendment does not repeal the commerce clause as to state regulation of the importation or transportation of liquor, but it certainly affects it, and serves to give the state “wide latitude.” although in the absence of the Twenty–First Amendment the dormant commerce clause would have forbade such an import fee.
- The state power over liquor does not insulate state regulations from the limitations of the Fourteenth Amendment. purpose of the Twenty–First Amendment to limit the Bill of Rights. Also, notwithstanding the state’s power to control the importation, sale, and distribution of liquor, Congress has the commerce clause power to prohibit resale price maintenance in violation of the Sherman Act.
- illustrates an important limitation on state power under the Twenty–First Amendment. States can waive their Twenty–First Amendment powers, and thus they may accept federal grants on the condition that they exercise a waiver.
- . Other clauses of the Constitution also limit the taxing power. For example, we discuss elsewhere the First Amendment limits on taxes that discriminate against newspapers.
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Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures Part 3 60 results (showing 5 best matches)
- Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (finding that the First Amendment prohibited the firing of a teacher who objected to racially discriminatory school policies in private conversations); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (finding that the First Amendment prohibited the firing of a government teacher on the basis of a letter written to a local newspaper and published therein).
- First Amendment limitations on government policies restricting the speech and associational activities of government employees are examined in Chapter 16.
- In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ruled that the police did not violate Fourth Amendment when a police vehicle to hit the car of a fleeing suspect, in order to arrest the suspect and prevent further danger to the public. is the first decision in which the Supreme Court appended a video (of the car chase involved in the decision) to the electronic version of its opinion. The
- Only Justices Stevens and Blackmun (who was serving his last term on the Court) believed that the Court of Appeals had been correct in finding that a jury’s ultimate determination of the facts should determine whether the speech engaged in by the employee could or could not serve as a basis for the employee’s discharge under First Amendment and due process principles. 511 U.S. at 694, 114 S.Ct. at 1898 (Stevens, J., joined by Blackmun, J., dissenting).
- When a statute regulates fundamental constitutional rights the degree of notice provided to all individuals must be greater than for general economic and social welfare regulations so that individuals will not be afraid to exercise such rights. The clarity of such laws will be subject to close judicial scrutiny. See, e.g., Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (holding void-for-vagueness a state regulation of doctor’s ability to perform abortions); Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (invalidating a state law requiring persons who loiter on streets to provide “credible and reliable” identification and noting that the most important elements of the void-for-vagueness doctrine are designed to impose guidelines which prohibit selective enforcement of laws on a constitutionally suspect basis or the restriction of fundamental constitutional rights). For an analysis of the void-for-vagueness doctrine and First Amendment...
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Chapter 16. Freedom of Speech Part 9 10 results (showing 5 best matches)
- , withdrawing its implication” that the First Amendment requires special judicial review rules in cases involving licensing of adult book stores. “In our view, Colorado’s ordinary judicial review procedures suffice as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly.” Courts should normally use a case-by-case determination rather than a facial challenge. 541 U.S. at 781–82, 124 S.Ct. at 2224.
- 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), rehearing denied 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887 (1968). See Ronald D. Rotunda, Media Accountabilty In Light of the First Amendment, 21 Social Philosophy & Policy 269 (Cambridge University Press, No. 2, 2004).
- , opened an adult book store in a place not zoned for adult businesses. He did not apply for a license but instead attacked the city’s adult business licensing ordinance as unconstitutional on its face, seeking declaratory and injunctive relief, attorney fees and damages. The Court rejected the challenge. This ordinance allowed for prompt judicial review after the administrative determination. Colorado’s normal process of judicial review was sufficient to provide this prompt determination if the courts remained sensitive to the First Amendment needs.
- See, e.g., State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38 (1936) (California may impose $500 fee for privilege of importing into that state beer from a sister state even though such a fee would have violated the commerce clause prior to the Twenty–First Amendment).
- was “an emphatically narrow holding.” Ronald D. Rotunda, Current Proposals for Media Accountability in Light of the First Amendment, 21 Social Philosophy & Policy 269 (Cambridge University Press, No. 2, 2004).
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Chapter 3. Sources of National Authority 42 results (showing 5 best matches)
- During the ratification process, there was a popular concern about the absence of a bill of rights for individual citizens, so supporters of the Constitution promised that the first Congress would propose such a bill. Following ratification and the establishment of the federal government, the first Congress drafted a series of Amendments that were submitted to the states in September 1789. Ten of these Amendments were accepted and ratified by December 15, 1791. These ten, or sometimes, the first eight, are now known as the Bill of Rights.
- The states had offered approximately 124 Amendments. The first Congress, led by Madison, drafted the specific proposals. The House of Representatives passed seventeen Amendments. The Senate rejected two of these and combined the remaining into twelve proposed Amendments. Congressional Research Service, the Constitution of the United States of America—Analysis and Interpretation at 898–900 (92d Congress, 2d sess., Senate Doc. No. 92–82) (1972); H. Ames, The Proposed Amendments to the Constitution at 14, 184–85 (1896).
- The first eight establish certain rights of individuals against infringement by the federal government. The Ninth Amendment recognizes that certain individual rights are retained by the people even though those rights were not listed in the Constitution. The Tenth Amendment indicates that the states and individual citizens retained powers that were not specifically granted to the new federal government. The Ninth and Tenth Amendments, while hardly specific, seem to imply that the actions of the federal government are subject to limitations in the exercise of its powers, and they also acknowledge the existence of certain individual rights.
- These laws are examined in connection with the First Amendment’s guarantee of free speech in § 16.5.
- Consequently, Stevens, at the end of his opinion, did not simply invalidate the Arkansas law. First, he had to show that it was really a term limit law. Stevens said that the law was unconstitutional because it was “intended” to be a qualification. “[W]e hold that a state amendment is unconstitutional when it has the likely effect of handicapping a class of candidates and has the
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Chapter 4. The Federal Commerce Power 79 results (showing 5 best matches)
- commerce, it acted within its powers. It could regulate activities of the greatest local importance because all such activities were still subject to sovereignty of the federal as well as the state government. However, the opinion argued that the commerce power was limited not only by the specific guarantees and limitations of the Bill of Rights but also by the Tenth Amendment. The majority found no reason to distinguish the Tenth Amendment from the other Amendments and held that it should serve as a specific limitation upon the exercise of the commerce power just as might the First or Fifth Amendments.
- were few restraints on federal power. In the first cases during this period, the distinction became stronger as the Court edged toward a concept of “dual federalism.” This concept involved the use of the Tenth Amendment to initially define and to limit the powers of Congress. Under this theory the Tenth Amendment reserved the regulation of some activities for the states and federal power could only apply to other activities.
- In evaluating Holmes’ theory, one must remember that he was not addressing a situation where the congressional prohibition of transport infringed a more specific guarantee of the Bill of Rights, such as the First Amendment. There is no indication that Holmes would have exempted the commerce power from more specific constitutional restraints. Rather, Holmes did not recognize the Tenth Amendment as a general limitation on the exercise of congressional control of commerce.
- ruled (5 to 4) that the provision of the Brady Act violated the principles of federalism and the Tenth Amendment because it imposed administrative duties on state and local law enforcement officials to administer federal law. Justice Scalia’s majority opinion rested ’s ruling on three principles that the majority found to exist. First, the history of the Constitution, and its Amendments, provided no evidence that Congress had been given authority to control the activities of state legislatures or executive legislative officials. Second, the federal system that the Constitution of 1787 created did not give the federal government the power to control state or local legislative or executive officers merely for the purpose of implementing federal law. Third, earlier decisions of the Court, including
- No longer would the Court use substantive due process and equal protection to overturn laws that interfered with traditional views of economic freedom. The Court was willing to follow Chief Justice Marshall’s advice and interpret the commerce clause as a plenary power without first considering what subject matters the Justices would wish reserved for state authority under the Tenth Amendment. While the full impact of the majority’s change of position could not be appreciated for several years, it was immediately apparent that the Court would no longer threaten economic reforms.
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Chapter 2. Federal Jurisdiction Part 2 38 results (showing 5 best matches)
- Finally, the petitioners argued that the proposed Amendment has been spent, was no longer viable, had lost its force, and could not be ratified because of the length of time—thirteen years—between its proposal and the Kansas ratification. Previously, the Supreme Court had held that Congress may fix a reasonable time for ratification. But Congress had not—and still has not—enacted any general statutory provisions governing the length of time. In the past, various proposed Amendments provided that they must be ratified within seven years. But the proposed Child Labor Amendment did not include a time limit. At the time of , the average time to ratify an Amendment, excluding the first ten, had been three years, six months, and 25 days.
- Third Party Standing and the First Amendment.
- , the third party can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal…. Within the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing. Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged.
- In the First Amendment area, prudential barriers are not quite as high.
- the precise nature of the constitutional infringement alleged. The Court reached this conclusion after it examined the history behind the establishment clause of the First Amendment and concluded that one of the “specific evils feared” was that the taxing and spending power would be used to favor one religion over another.
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Appendix A. The Constitution of the United States 75 results (showing 5 best matches)
- The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
- All of the Amendments except the 13th, 14th, 15th, and 16th, were not specifically assigned a number in the resolution proposing the Amendment. Brackets enclose the number for such Amendments. The 13th, 14th, 15th, and 16th Amendments were ratified by number and thus no brackets enclose such Amendment numbers.
- This Amendment was proposed to the legislatures of the several States by the Eighth Congress, on the 12th of December, 1803, in lieu of the original third paragraph of the first section of the second article, and was declared in a proclamation of the Secretary of State, dated the 25th of September, 1804, to have been ratified
- This Amendment was proposed to the legislatures of the several states by the Sixty–First Congress, on the 31st of July, 1909, and was declared, in a proclamation by the Secretary of State, dated the 25th of February, 1913, to have been ratified by the legislatures of the states of Alabama, Kentucky, South Carolina, Illinois, Mississippi, Oklahoma, Maryland, Georgia, Texas, Ohio, Idaho, Oregon, Washington, California, Montana, Indiana, Nevada, North Carolina, Nebraska, Kansas, Colorado, North Dakota, Michigan, Iowa, Missouri, Maine, Tennessee, Arkansas, Wisconsin, New York, South Dakota, Arizona, Minnesota, Louisiana, Delaware, and Wyoming, in all, thirty-six. The legislatures of New Jersey and New Mexico also passed resolutions ratifying the said proposed Amendment
- The first ten Amendments to the Constitution of the United States were proposed to the legislatures of the several States by the First Congress, on the 25th of September 1789. They were ratified by the following States, and the notifications of ratification by the governors thereof were successively communicated by the President to Congress: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode Island, June 15, 1790; Vermont, November 3, 1791, and Virginia, December 15, 1791. The legislatures of Connecticut, Georgia, and Massachusetts ratified them on April 19, 1939, March 24, 1939, and March 2, 1939, respectively.
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Chapter 14. Equal Protection Part 2 98 results (showing 5 best matches)
- The Thirteenth Amendment, proposed by Congress and ratified by the states in 1865, consists of two sections. The first section prohibits “slavery” and “involuntary servitude” throughout the United States or its territories. This prohibition applies to all persons subject to the jurisdiction of the United States and is not dependent on the existence of government action. It proscribes such practices even where they are imposed by individuals with no connection to any governmental entity. The only exception is that made by section one for the punishment of properly convicted criminals. Section two of the amendment grants Congress the power to make laws to enforce the amendment.
- 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.
- A variety of persons challenged congressional districts created by the 2003 action of the Texas legislature. In 2006, when the case came to the Supreme Court, there were several distinct issues that the Court needed to address. First, if the primary purpose or sole purpose of the legislators creating the 2003 map was to permanently entrench the power of the Republican political party, did this political gerrymandering violate the First and Fourteenth Amendments? Second, did the diminution of the number of Latino voters in Congressional District 23 violate § 2 of the Voting Rights Act and the equal protection clause of the Fourteenth Amendment, or was that legislative action offset by the fact that the new Congressional District 25 would be controlled by Latino voters? Third, did the changing of some district lines in the Dallas area violate the equal protection clause, or § 2 of the Voting Rights Act, because the new district map diminished the voting power of African-American voters.
- The Supreme Court has examined a number of racial discrimination issues which are analyzed in other sections of this text. First, while legal segregation was declared invalid in the 1950’s, the problem of remedying official segregation, especially in schools, remains. This issue is the focus of the next section. Second, during the 1960’s the Supreme Court protected those persons publicly protesting racial discrimination by enforcing their First Amendment rights in a variety of settings. These cases are examined in our Chapter on Freedom of Speech. Fourth, the Court has resolved some specific issues concerning the Thirteenth and Fifteenth Amendments. Since virtually all of these cases had to do with the application of federal laws prohibiting racial discrimination, they are dealt with in our section on congressional power to enforce the Civil War Amendments.
- Section 2 of the Fourteenth Amendment altered the regulation of the electoral franchise in two ways. First, blacks were counted as full citizens for purposes of representation in the Congress by replacing the provisions of Article I Section 2 which counted only three-fifths of “all other persons” (meaning slaves—a term the Constitution’s drafters avoided). Second, representation in the federal Congress would be reduced for those states which denied any adult male citizen the right to vote except for “participation in rebellion, or other crime ….” In these ways the drafters of the Amendment hoped to encourage the states to grant universal male suffrage without direct federal action.
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Chapter 14. Equal Protection Part 3 30 results (showing 5 best matches)
- It may be that the religion clauses of the First Amendment require the government to tolerate the existence of such schools while the equal protection clause of the Fourteenth Amendment requires the government to refrain from giving them any aid. Yet if these schools have any significant impact on the desegregation of other schools, it may be that the Civil War amendments will authorize the
- In California voters adopted a state constitutional amendment providing that state courts cannot order mandatory student assignment or transportation unless a federal court would do so to remedy a violation of the equal protection clause of the Fourteenth Amendment. In the Supreme Court upheld the amendment, rejecting the argument that the mere repeal of race related legislation embodies a presumptively invalid racial classification. The Court refused to see the amendment as allocating governmental or judicial power on the basis of a discriminatory principle. Having gone beyond the requirements of the Fourteenth Amendment, California was free to return to the standard of the federal Constitution. The Court saw the amendment as removing simply one means of achieving integrated schools because under California law, the local school districts still retain the obligation to alleviate segregation regardless of cause and they remain
- Private schools which segregate on the basis of race do not violate the Constitution unless they have sufficient contacts with the state or the federal government to allow description of their acts as “state action,” because the equal protection clause of the Fourteenth Amendment applies only to the states and the due process clause of the Fifth Amendment applies only to the federal government. Thus, private segregated schools present a classic “state action” issue and under traditional analysis, they are not subject to constitutional restraint absent further contacts with the government.
- Crucial distinctions, however, underlie the two holdings. The Washington statute embodied an explicit racial classification in that it reallocated decision-making authority in such a way as to make it more difficult for minority groups than other community members to obtain legislation in their interest. By singling out minorities for particularly disadvantageous treatment within the political process, the statute did more than the California constitutional amendment, which merely repealed the right to invoke a state judicial busing remedy heretofore available. Though the California amendment, like the Washington statute, may make it more difficult to achieve school integration, it does not do so by altering the political process in such a way as to burden minority interests.
- To define that obligation in terms of the principles of the Fourteenth Amendment does not violate that Amendment.
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Chapter 8. The Commerce Clause and Restrictions on State Regulatory Powers Part 2 13 results (showing 5 best matches)
- See Chapter 16. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (special use tax on cost of paper and ink in the production of periodic publications, but not on other business activity, violates First Amendment as applied to states through the Fourteenth Amendment), on remand 332 N.W.2d 914 (Minn.1983).
- South Dakota argued that section 2 of the Twenty–First Amendment gave it complete power to regulate the control, sale, or importation of alcohol. However, the most natural reading of section 2 says nothing about the power of the states to allow the importation of liquor that Congress prohibits. Rather, it seems only to grant the states broader power to prohibit the importation or sale of liquor within their boundaries.
- 73 U.S. (6 Wall.) 35, 18 L.Ed. 745 (1867). Shapiro v. Thompson, 394 U.S. 618, 630 and n. 8, 89 S.Ct. 1322, 1329 and n. 8, 22 L.Ed.2d 600 (1969) noted it had “no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision” but that past cases have grounded it on the commerce clause; the privileges and immunities clause of Art. IV, § 2, cl. 1, the privileges or immunities clause of the Fourteenth Amendment; and the due process clause of the Fifth Amendment.
- led ultimately to the adoption of the Sixteenth Amendment. Subsequently, the Court specifically overruled
- See generally, Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) (noting that a state law would have violated the commerce clause by discriminating against out of state insurance companies but for Congressional approval of state insurance authority; court rules that the state law violates the equal protection clause of the 14th Amendment).
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Chapter 14. Equal Protection Part 4 60 results (showing 5 best matches)
- Justice Powell found that the attainment of a diverse student body related to “academic freedom,” which in turn was related to the guarantees of the First Amendment.
- For the first half of the 1990s, it appeared that the Supreme Court would not subject federal racial affirmative action laws to strict judicial scrutiny. Then, in 1995, the Supreme Court ruled that any federal law employing a racial classification would violate the implied equal protection guarantee of the Fifth Amendment due process clause unless the government could demonstrate that the racial classification was narrowly tailored to promote a compelling interest.
- The Chief Justice also focused on the power of Congress under section 5 of the Fourteenth Amendment “to regulate procurement practices of state and local grantees of federal funds.” The Chief Justice’s opinion was unclear on this issue. At some points in the opinion he seemed to conclude that Congress has the power under the Fourteenth Amendment to take affirmative steps to aid members of racial or ethnic minorities to achieve social or economic equality. At other points he appeared only willing to rule that Congress could, and had, determined that minority owned businesses had been subject to unconstitutional and illegal discrimination in federal procurement programs in the past and that affirmative steps needed to be taken to remedy such prior discrimination. If the Chief Justice was indicating agreement with the first position one might expect him to vote to uphold a wide variety of affirmative action programs, at least if they were enacted by the Congress. If he was only...
- The implied equal protection guarantee of the Fifth Amendment due process clause is independent from the equal protection guarantee of the Fourteenth Amendment’s equal protection clause. However, since 1954, the Supreme Court had consistently ruled that the equal protection component of the Fifth Amendment due process clause established restrictions on the federal classifications that were virtually identical to the restrictions that the equal protection clause of the Fourteenth Amendment placed upon state or local governments.
- First, the Court in held that the equal protection component of the Fifth Amendment due process clause required the Court to use the same standards when reviewing federal racial classifications that it used to review state or local classifications under the equal protection clause of the Fourteenth Amendment. Second, the
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Chapter 7. The President and Congress Part 2 11 results (showing 5 best matches)
- 435 U.S. at 608–11, 98 S.Ct. at 1317–19, 55 L.Ed.2d at 586–88. The Administrator, under that Act, was free to design procedures for public access to the tape recordings. The Court also found inapplicable any First or Sixth Amendment rights of access.
- 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). Previously, several lower court cases had held that HUAC, the House Committee on Un–American Activities, was not violating the First Amendment in asking witnesses about Communist Party associations. Barsky v. United States, 167 F.2d 241 (D.C.Cir.1948), certiorari denied 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767 (1948), rehearing denied 339 U.S. 971, 70 S.Ct. 1001, 94 L.Ed. 1379 (1950); United States v. Josephson, 165 F.2d 82 (2d Cir.1947), certiorari denied 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122 (1948), rehearing denied 333 U.S. 858, 68 S.Ct. 731, 92 L.Ed. 1138 (1948).
- January 26, 1996, was the first time in history that a First Lady (Hillary Rodham Clinton) was forced to testify before a criminal grand jury. Subsequently, also in 1996, President Clinton became the first President in history who was forced to testify involuntarily—pursuant to court-ordered subpoena—in two criminal trials. In both cases the President testified for the defense, and in both cases the testimony was videotaped. In the first case the jury found all of the defendants guilty; in the second case the jury was hung on some counts and acquitted on others. There was no retrial.
- 457 U.S. at 818–19, 817–18, 102 S.Ct. at 2739, 2738 (footnotes omitted) (emphasis added). E.g., Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). An arrestee brought § 1983 action alleging that police officers violated his Fourth Amendment rights by entering his home without a warrant. The unanimous Court dismissed the case based on qualified immunity, because it was not clearly established at the time of the search that the conduct of the police officers was unconstitutional. In discussing the procedure to use, the Court explained that court must determine: (1) whether facts alleged or shown by plaintiff make out violation of constitutional right, and (2) if so, whether that right was clearly established at time of defendant’s alleged misconduct. Courts may exercise their sound discretion in deciding which of the two prongs should be addressed first in light of the circumstances in the particular case at hand.
- On August 17, 1998 President Clinton became the first sitting President in history to testify before a grand jury as a target. He was informed, prior to his testimony, that he was a target. The grand jury was investigating various matters, including perjury involving Monica Lewinsky, a former White House intern. When the grand jury subpoenaed the President, he initially resisted but then agreed to testify if the subpoena was withdrawn, if he could testify in the White House (with the grand jury linked by video), and if his lawyers could be present. The Independent Counsel agreed with these conditions. Later, the House of Representatives, which used a videotape of the Presidential grand jury testimony, voted to impeach President Clinton; there were an insufficient number of Senators voting to remove him from office. This was the first time that an elected President was impeached. President Andrew Johnson was the first non-elected President to be impeached. The Senate also did not...
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Appendix B. Researching Constitutional Law on Westlaw® 15 results (showing 5 best matches)
Chapter 2. Federal Jurisdiction Part 3 50 results (showing 5 best matches)
- In fact, the Norris–LaGuardia Act serves to implement the First Amendment right to peaceful, noncoercive picketing. Cf. Thornhill v. Alabama, 310 U.S. 88, 102–03, 60 S.Ct. 736, 744–45, 84 L.Ed. 1093 (1940) (labor dispute is within area of free discussion protected by the Constitution).
- In earlier decisions, the Court had said that the Eleventh Amendment is inapplicable in state courts. E.g., Maine v. Thiboutot, 448 U.S. 1, 9, n. 7, 100 S.Ct. 2502, 2507, n. 7, 65 L.Ed.2d 555 (1980): “No Eleventh Amendment question is present, of course, where an action is brought in a state court since the Amendment, by its terms, restrains only ‘[t]he Judicial power of the United States.’ ”
- As a general rule, the Court presumes that any entity created pursuant to the Compact Clause, U.S. Const., Art. I, § 10, cl. 3., does not qualify for Eleventh Amendment immunity. In order for Eleventh Amendment immunity to attach, there must be “good reason” for the Court to believe that the states organized the entity so that it would have the states’ Eleventh Amendment immunity, and that Congress concurred with that purpose. While there were indications that the states intended the Port Authority to have such immunity (in particular, the states had control over the powers and acts of the commissions of the Port Authority), other indications pointed the opposite way (in particular, the states lacked financial responsibility for the Port Authority).
- . If a case is filed in state court and can be removed to federal court, the fact that some of the claims may be barred by the Eleventh Amendment does not prohibit removal. While the federal court cannot hear the barred claim (unless the state waives the Eleventh Amendment), it may proceed to hear the nonbarred claims. Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998).
- . Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) held that the Eleventh Amendment did not bar federal court jurisdiction over a state government when the federal court ordered the state to notify specific persons that the state might have illegally withheld welfare payments owed to them and that they had a right to apply to a state agency for retroactive benefits. This type of “notice relief” is not prohibited by the Eleventh Amendment.
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Index 78 results (showing 5 best matches)
Table of Contents 40 results (showing 5 best matches)
Chapter 14. Equal Protection Part 11 30 results (showing 5 best matches)
- The Supreme Court has found that the application of antidiscrimination laws to some private groups violates the freedom of association when such application would impair the First Amendment freedom of association without being narrowly tailored to a compelling interest. See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In none of these cases did the Court find that application of the law prohibiting racial discrimination violated the First Amendment freedom of association. For a discussion of these cases see Chapter 16. For examination of the state action principle see Chapter 12.
- There is some suggestion in the opinion of Justice Powell that Bakke was perhaps denied admission in 1974 because he had previously criticized Davis’s affirmative action program. See 438 U.S. at 278–79, 98 S.Ct. at 2742–43 (opinion of Powell, J.). The extent to which this submerged First Amendment issue may have influenced the opinion of Justice Powell remains unclear. In 1973 Davis allowed special consideration to these “economically and/or culturally disadvantaged,” while in 1974 the special program was altered to consider only “minority groups.” It appears however, that even in 1973 whites were effectively denied consideration under the special program. See 438 U.S. at 278–79, 98 S.Ct. at 2742–43 (opinion of Powell, J.).
- 438 U.S. at 301, 98 S.Ct. at 2754. Justice Powell’s comments indicate that he would have been favorably disposed toward approving most, if not all, types of race conscious remedies for employment discrimination that are ordered by an executive agency or federal legislation relating to problems of identifiable race discrimination which Congress seeks to remedy by using its powers under section 2 of the Thirteenth Amendment or section 5 of the Fourteenth Amendment. 438 U.S. at 302 n. 41, 98 S.Ct. at 2754 n. 41 (Powell, J.).
- See Chapter 15 regarding Congress’ power to enforce civil rights under § 5 of the Fourteenth Amendment and other provisions of the Constitution.
- The Supreme Court had previously held that if an admissions policy violated the Fourteenth Amendment equal protection clause it would also violate Title VI of the Civil Rights Statutes and 42 U.S.C.A. § 1981. The majority opinion in thus concluded: “We conclude, therefore [for the reasons set out in the majority opinion], that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents [the University] asserted compelling interest in diversity, the admissions policy violates the equal protection clause of the Fourteenth Amendment. We further find that the admissions policy also violates Title VI and 42 U.S.C.A. § 1981.” 539 U.S. at 330, 123 S.Ct. at 2340.
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Chapter 11. Substantive Due Process Part 5 13 results (showing 5 best matches)
- Justice Kennedy, in a dissent that was not joined by any other Justice, also believed that the use of the funds created by the pooling of small accounts for litigation supporting the views of low-income clients might constitute a First Amendment freedom of association problem. 538 U.S. at 252, 123 S.Ct. at 1428 (Kennedy, J. dissenting).
- First English
- Brown v. Legal Foundation of Washington, 538 U.S. 216, 231, 123 S.Ct. 1406, 1417, 155 L.Ed.2d 376 (2003): “… dramatic success of these programs in serving the compelling interests in providing legal services … certainly qualifies [the program] as a ‘public use’ within the meaning of the Fifth Amendment.”
- referred to Michigan as being a state that had a state constitution which was interpreted to put greater restrictions on the eminent domain power than those restrictions that derive from the Fifth Amendment taking of property clause which applies to the states through the Fourteenth Amendment. See notes 18, 19, supra.
- Note, Valuation of Conrail Under the Fifth Amendment, 90 Harv.L.Rev. 596, 598 (1977).
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Chapter 14. Equal Protection Part 6 43 results (showing 5 best matches)
- evidenced special values in the liberty to make personal decisions free of governmental restrictions. Indeed, the entire freedom of association was implied from the express guarantees of the First Amendment. This Amendment included a right to privacy, as the government could force disclosure of association or speech only in the most limited circumstances. The Fourth and Fifth Amendments also reflected sources for individual privacy and freedom from government demands for information. Thus the opinion found that a right to privacy existed within the bases for these express rights.
- meanings in terms of constitutional analysis. The oldest constitutional right to privacy is that protected by the Fourth Amendment’s restriction on governmental searches and seizures. The First Amendment has been held to protect some rights to privacy in speech or association.
- While these decisions might today be grounded on the First Amendment, their existence is important to the growth of the right to privacy. If nothing else, they show a historical recognition of a right to private decision making regarding family matters as inherent in the concept of liberty.
- Separate concurring opinions brought forward reasons for judicial protection of these privacy values against legislative or executive actions. Justice Goldberg took the position that it was the function of the Court to defend certain fundamental rights under the due process clause even though these rights were not expressed in the first eight Amendments. Goldberg was of the opinion that the Ninth Amendment evidenced the historic belief that certain fundamental rights could not be restricted by the government even though it did not create specific rights. The Court should look to the “tradition and [collective] conscience of our people”
- During the first part of this century the Supreme Court held that the liberty protected by the due process clause included the freedom to make decisions which did not adversely affect legitimate state interests. In a statute which required students to attend public rather than private schools was found repugnant to the due process clause of the Fourteenth Amendment. In each case the majority found that the law restricted individual freedom without any relation to a valid public interest. Freedom of choice regarding an individual’s personal life was recognized as constitutionally protected.
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Chapter 11. Substantive Due Process Part 2 56 results (showing 5 best matches)
- the Court ruled that the Eighth Amendment excessive fines clause applied to civil forfeiture proceedings that were brought pursuant to the Comprehensive Drug Abuse Prevention and Control Act. The majority opinion by Justice Blackmun found that the Eighth Amendment excessive fines clause applied to both civil and criminal forfeiture proceedings if the forfeiture could be described as being, even in part, a “punishment.” Justice Blackmun’s opinion extensively reviewed the earlier Supreme Court cases upholding the validity of forfeitures and the relationship of United States forfeiture proceedings to those under English law. But the majority did not believe that this case was the proper vehicle for establishing any standards limiting forfeitures under the excessive fines clause of the Eighth Amendment. The Supreme Court left it to the lower courts, in the first instance, to determine whether the forfeiture was excessive.
- As we saw in the previous section of the Treatise, the Fourteenth Amendment has made the Fifth Amendment takings clause applicable to state and local government actions. The question of whether the government has the power to take an action is separate from, and precedes, an inquiry into whether the government must pay just compensation to a property owner due to the resulting effect of the government action on that individual’s For example, if an individual challenged a state anti-pollution law that restricted emissions from his business, and made his business unprofitable, the Court would first have to determine whether state law was totally invalid. Only after the Court determined that the state law was constitutionally valid would the Court inquire as to whether the effect of that state act on the regulated business was such that the government must pay just compensation to the business owner.
- Forfeiture actions might present problems under the Eighth Amendment prohibition against excessive fines, due process clauses of the Fifth and Fourteenth Amendments, or the principles established by the taking of property clause of the Fifth Amendment. To the extent that the forfeiture is a punishment for a crime, the Eighth Amendment prohibition against excessive fines might provide the easiest basis for such analysis. Analysis of forfeiture problems under procedural due process principles would focus on the “fairness” of the procedures provided to the owner of the property. Analysis of forfeiture issues under the takings clause of the Fifth Amendment, which applies to state and local actions through the Fourteenth Amendment, would focus on whether the government action was so unfair and unjust as to require the payment of compensation to the property owner.
- First English Evangelical Lutheran Church of Glendale v. County of Los Angeles
- , created a three-step framework for courts analyzing forfeitures under the Eighth Amendment excessive fines clause. First, a court must determine whether the forfeiture constitutes punishment for a criminal offense.
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Chapter 1. The Origins of Judicial Review 29 results (showing 5 best matches)
- In a very real sense this entire treatise is an elaboration of the subject of this chapter, judicial review. Later chapters discuss the establishment and proper scope of judicial review in connection with a wide variety of subjects, ranging from the commerce clause to due process and the First Amendment. Here, we set out the early decisions establishing judicial review, coupled with an analysis of the historical debate and academic commentary.
- See e.g., PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), which upheld a state court decision interpreting the state constitution to protect the distribution of pamphlets and petitions at a private shopping center. Although the Supreme Court held that the First and Fourteenth Amendments did not prevent a private shopping center owner from prohibiting such activities on his property, the expansion of the rights of speech and association could be accomplished by interpretation of the state constitution.
- Thus, if a state court rules that the death penalty is absolutely barred by the Eighth Amendment, the U.S. Supreme Court can overturn its ruling as contrary to Court interpretation of federal law. But, if the state court based its decision on the state constitution, it cannot be overturned, for the Eighth Amendment only allows the states to execute people under certain circumstances—it does not require it. Thus, individual state courts, relying on their state constitutions, have taken actions that are not required by the Supreme Court, such as declaring sex classifications to be “suspect,”
- John Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 Colum.L.Rev. 1413, 1460–64 (1975).
- seeks to establish the first two of these principles and only implies the existence of the third. The first two principles are, in fact, both historically and logically easier to prove than the third.
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Chapter 9. Federal Regulation and State Authority 15 results (showing 5 best matches)
- 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.
- Enacting such a statute was one of the first orders of business when the nation was young: in 1793 Congress first enacted such a statute.
- Fugitive Slave Clause. Clause 3 of the Section governs fugitives from labor, i.e., runaway slaves. The Civil War Amendments abolishing slavery have made this section obsolete.
- Residency or citizenship requirements that adversely affect competition from out-of-state business entities may still be challenged as violations of the commerce clause and the Fourteenth Amendment. The commerce clause is of particular importance in limiting barriers to out-of-state economic competition.
- The privileges and immunities clause of Article IV protects the right of nonresidents to have access to the courts in each state. This clause also protects all rights deemed to be “fundamental” because they are expressly protected by the United States Constitution or any of its Amendments. And the clause protects all rights held to be fundamental rights for the purposes of due process and equal protection analysis.
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Chapter 11. Substantive Due Process Part 3 9 results (showing 5 best matches)
- held property within the redevelopment area upon which a department store was located. The appellants argued that their property could not constitutionally be taken for the project, first, because the property was commercial and not residential or slum housing, and second, because, by condemning the property for sale to a private agency for redevelopment, the land was being redeveloped for a private and not a public use as required by the Fifth Amendment. The Supreme Court, in an opinion by Justice Douglas,
- the city’s actions violated the Fifth Amendment takings clause, which applies to state and local governments through the Fourteenth Amendment, because the city’s plan to transfer their land to private businesses demonstrated that the taking of property was not for a “public use.”
- 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.
- 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.
- opinion is that it confirms that the public use limitation of the Fifth and Fourteenth Amendment is as expansive as a due process police power test.
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Chapter 14. Equal Protection 19 results (showing 5 best matches)
- In more than a few cases decided during the past three decades, the Supreme Court has ruled that a law violated the due process clauses of the Fifth and Fourteenth Amendments or the equal protection clause of the Fourteenth Amendment because the law, or the classification established by the law, could not conceivably have any rational relationship to any legitimate interest of government. For example, the Court found that a city law that, as applied, would have prevented a group of mentally retarded people from living together violated The Court also ruled that an amendment to a state constitution that prohibited local legislative bodies from considering the enactment of laws that would protect persons against discrimination on the basis of their sexual orientation could not conceivably relate to any legitimate interest of government. ..., nonviolent sexual activity by two adults in private violated the due process clause of the Fourteenth Amendment because the prohibition did not...
- It is possible that the Supreme Court is using a balancing test in fundamental rights cases that cannot be easily described in terms of one of the formal standards of review (the compelling interest test, the intermediate test, or the rationality test). If the Supreme Court were using a balancing approach in fundamental rights cases, it would first determine whether the right was fundamental by examining the concept of “liberty,” which is a part of the due process clauses of the Fifth and Fourteenth Amendments. If the right regulated by the state was deemed to be a fundamental aspect of liberty and, therefore, a fundamental right, the Court would balance the degree to which that right was impaired by the government regulation or classification in the case against the societal interests that were promoted by the government action. In other words, if a classification made it difficult for some group of people to exercise a fundamental right, the Court would weigh the burden on that...
- The equal protection guarantee may be the single most important concept in the Constitution for the protection of individual rights. As we have seen, substantive due process analysis was disclaimed after 1937 and the Justices today are not willing to restrict the legislative ability to deal with a subject under that analysis. And the privileges or immunities clause of the Fourteenth Amendment has never been a meaningful vehicle for the judicial review of state actions, although it may have been intended to be a primary safeguard of natural law rights by the drafters of the amendment.
- The equal protection guarantee applies to both the state and federal governments although the restrictions have two totally distinct bases. The equal protection clause of the Fourteenth Amendment by its own terms applies only to state and local governments. There is no equal protection clause that governs the actions of the federal government, and the Court has not attempted to make the clause itself applicable to federal acts. However, if the federal government classifies individuals in a way which would violate the equal protection clause, it will be held to contravene the due process clause of the Fifth Amendment. As we shall see in the following sections, the standards for validity under the due process and equal protection clauses are almost identical.
- Due to the Justices’ views of the history and purpose of the Fourteenth Amendment, laws that classify persons on the basis of either their status as a member of a racial minority or on the basis of their national origin will be deemed suspect and subject to this strict standard of review. The Supreme Court has ruled that the use of racial origin classifications by the federal government will be subject to the strict scrutiny standard of review under the implied equal protection guarantee of the Fifth Amendment due process clause.
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Chapter 14. Equal Protection Part 5 47 results (showing 5 best matches)
- the Court upheld the requirement for children born abroad with only one parent of United States citizenship that they later spend five continuous years in the United States between the ages of 14 and 28 in order to retain United States citizenship. Since these persons were not born in the United States or finally naturalized there, they were not granted citizenship by the first sentence of section one of the Fourteenth Amendment. Congress could grant the conditional citizenship just as it could have refused to make any grant of citizenship until they fulfilled the residence requirement.
- It should be noted that, while the equal protection clause does not apply to the federal government, the Fifth Amendment’s due process clause guarantees equal protection in the application of federal law. State classifications which treat aliens differently on the basis of that status are reviewed under the equal protection clause of the Fourteenth Amendment while federal acts are subject to the due process clause of the Fifth Amendment.
- the Justices, by a five to four vote, for the first time extended the scope of the equal protection clause of the Fourteenth Amendment to give
- in 1873, was the first case in which the constitutionality of different treatment for men and women was challenged. Relying upon the privileges and immunities clause of the Fourteenth Amendment, Bradwell challenged the refusal of the Illinois Supreme Court to grant her a license to practice law solely because she was a woman. The applicable statute required only that a person desiring a license obtain a certificate of good moral character from a local court. Bradwell, in compliance with the statute, submitted such a certificate with her application for a license but, in an oral opinion, was denied the license because as a married woman she “would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client.”
- State and local laws that classify persons are subject to analysis under the equal protection clause of the Fourteenth Amendment; federal classifications are examined in terms of the implied equal protection guarantee of the Fifth Amendment due process clause. The Supreme Court appears to have employed the intermediate standard of review when examining classifications based on gender or legitimacy and both state and federal laws with one possible exception: federal immigration and naturalization laws.
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Chapter 13. Procedural Due Process—The Requirement of Fair Adjudicative Procedures Part 4 8 results (showing 5 best matches)
- Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). See Chapter 2, regarding the Eleventh Amendment, and Chapter 15, regarding congressional power under the Fourteenth Amendment.
- The state must appoint counsel for all indigent defendants for their first appeal, regardless of whether state law describes the first appeal to an appeal of right or discretionary appeal. Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). See § 18.41.
- The Sixth Amendment right to counsel requires that the counsel appointed to represent an indigent defendant at trial and pre-trial proceedings must be minimally competent to insure fair treatment of the individual in those proceedings.
- See also, Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (the Supreme Court decides, without majority opinion, that neither the Eighth Amendment nor the due process clause requires states to appoint counsel for indigent death row inmate seeking state post-conviction relief; the concurring Justices believe that the state has met due process requirements by providing institutional lawyers to assist inmates who seek to bring post-conviction collateral attacks on their convictions or sentences).
- and Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) for the proposition that prisoners retain a right of access to courts: the due process clause of the Fourteenth Amendment does not require a predeprivation hearing where a state employee intentionally or negligently destroyed the property of a prison inmate, but due process is satisfied if a “meaningful postdeprivation remedy for the loss is available.”
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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.
- text. Such a list would include not only all those persons mentioned in the preface to our first edition but also professors from across the country who have given us their reactions to the first seven editions and suggestions for this edition. We are also grateful to the thousands of judges who have written to us, commented upon, or cited our work. We also thank our students and staff who have contributed their efforts to this edition, particularly our research assistants Andrew Dualan, J.D., 2009, Jeffrey Valladolid, J.D., 2010, and our faculty assistants, Maria Sanchez and Christine Nemes.
- 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.
- Professor Nowak recently went through the “first round” of cancer treatment. He would like to thank all those who provided their support during this time, especially Thomas Mandler, Judy Nowak, and, most of all, Ronald Rotunda. If he did not have grandchildren, Professor Nowak would dedicate the book to them.
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- 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.