Power Point Chapter 4

CHAPTER 4CHAPTER 4

Business & the Business & the ConstitutionConstitution

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What is the U.S. Constitution?What is the U.S. Constitution?

The U.S. Constitution, The U.S. Constitution, adopted in 1789, is a written adopted in 1789, is a written document establishing the document establishing the structure and powers of structure and powers of American government, and it American government, and it is the “supreme law of the is the “supreme law of the land” (Art. VI, sec. 2)land” (Art. VI, sec. 2)

The U.S. Constitution, The U.S. Constitution, adopted in 1789, is a written adopted in 1789, is a written document establishing the document establishing the structure and powers of structure and powers of American government, and it American government, and it is the “supreme law of the is the “supreme law of the land” (Art. VI, sec. 2)land” (Art. VI, sec. 2)

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What is the U.S. Constitution?What is the U.S. Constitution?TThe federal government has a constitution and each state he federal government has a constitution and each state has its own constitution.has its own constitution.

The North Carolina Constitution can be found at: The North Carolina Constitution can be found at: http://www.ncga.state.nc.us/Legislation/constitution/http://www.ncga.state.nc.us/Legislation/constitution/

ncconstitution.htmlncconstitution.html

Many other countries have either no constitution or no Many other countries have either no constitution or no written constitution.written constitution.

When American judges/attorneys/law professors speak of When American judges/attorneys/law professors speak of “the Constitution” they are usually referring to the United “the Constitution” they are usually referring to the United States constitution.States constitution.

TThe federal government has a constitution and each state he federal government has a constitution and each state has its own constitution.has its own constitution.

The North Carolina Constitution can be found at: The North Carolina Constitution can be found at: http://www.ncga.state.nc.us/Legislation/constitution/http://www.ncga.state.nc.us/Legislation/constitution/

ncconstitution.htmlncconstitution.html

Many other countries have either no constitution or no Many other countries have either no constitution or no written constitution.written constitution.

When American judges/attorneys/law professors speak of When American judges/attorneys/law professors speak of “the Constitution” they are usually referring to the United “the Constitution” they are usually referring to the United States constitution.States constitution.

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Separation of PowersSeparation of PowersSeparation Of PowersSeparation Of Powers

Horizontal- 3 Branches Of Gov’tHorizontal- 3 Branches Of Gov’tVertical- FederalismVertical- Federalism As Justice Brandeis once said, “The doctrine of As Justice Brandeis once said, “The doctrine of

separation of powers was adopted by the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but by means of purpose was, not to avoid friction, but by means of the inevitable friction incident to the distribution of the inevitable friction incident to the distribution of the governmental powers among 3 departments, to the governmental powers among 3 departments, to save the people from autocracy.”save the people from autocracy.”

Separation Of PowersSeparation Of PowersHorizontal- 3 Branches Of Gov’tHorizontal- 3 Branches Of Gov’tVertical- FederalismVertical- Federalism As Justice Brandeis once said, “The doctrine of As Justice Brandeis once said, “The doctrine of

separation of powers was adopted by the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but by means of purpose was, not to avoid friction, but by means of the inevitable friction incident to the distribution of the inevitable friction incident to the distribution of the governmental powers among 3 departments, to the governmental powers among 3 departments, to save the people from autocracy.”save the people from autocracy.”

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The Supremacy ClauseThe Supremacy Clause Supremacy ClauseSupremacy Clause

Preemption: The U.S. Constitution is “the supreme law of the Preemption: The U.S. Constitution is “the supreme law of the land”, therefore, all laws, acts, and decisions not in land”, therefore, all laws, acts, and decisions not in conformity with it are null and void. (see chart on p.145 for conformity with it are null and void. (see chart on p.145 for examples of preemption)examples of preemption)

Savings ClauseSavings Clause GEIER v. AMERICAN HONDA MOTOR COMPANY, INC.GEIER v. AMERICAN HONDA MOTOR COMPANY, INC. 120 S.Ct. 1913 (2000)120 S.Ct. 1913 (2000)

• FACTS: Geier sued American Honda Motor Company, FACTS: Geier sued American Honda Motor Company, Inc. after she sustained injuries when her 1987 Honda Inc. after she sustained injuries when her 1987 Honda collided with a tree. Geier’s car had shoulder and lap collided with a tree. Geier’s car had shoulder and lap belts but no airbags. Geier claims that Honda should belts but no airbags. Geier claims that Honda should have equipped the car with airbags and is liable have equipped the car with airbags and is liable because it did not. Honda relies on federal statutes because it did not. Honda relies on federal statutes and regulations to absolve it from liability since the and regulations to absolve it from liability since the federal authorities did not require, but permitted, the federal authorities did not require, but permitted, the installation of airbags in 1987 model cars.installation of airbags in 1987 model cars.

Supremacy ClauseSupremacy Clause Preemption: The U.S. Constitution is “the supreme law of the Preemption: The U.S. Constitution is “the supreme law of the

land”, therefore, all laws, acts, and decisions not in land”, therefore, all laws, acts, and decisions not in conformity with it are null and void. (see chart on p.145 for conformity with it are null and void. (see chart on p.145 for examples of preemption)examples of preemption)


• FACTS: Geier sued American Honda Motor Company, FACTS: Geier sued American Honda Motor Company, Inc. after she sustained injuries when her 1987 Honda Inc. after she sustained injuries when her 1987 Honda collided with a tree. Geier’s car had shoulder and lap collided with a tree. Geier’s car had shoulder and lap belts but no airbags. Geier claims that Honda should belts but no airbags. Geier claims that Honda should have equipped the car with airbags and is liable have equipped the car with airbags and is liable because it did not. Honda relies on federal statutes because it did not. Honda relies on federal statutes and regulations to absolve it from liability since the and regulations to absolve it from liability since the federal authorities did not require, but permitted, the federal authorities did not require, but permitted, the installation of airbags in 1987 model cars.installation of airbags in 1987 model cars.

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The Supremacy ClauseThe Supremacy ClauseSupremacy ClauseSupremacy Clause


• ISSUES:ISSUES:

• 1. Does the National Traffic and Motor Vehicle Safety 1. Does the National Traffic and Motor Vehicle Safety Act of 1966 preempt Geier’s lawsuit?Act of 1966 preempt Geier’s lawsuit?

• 2. Does the 1984 version of the Federal Motor Vehicle 2. Does the 1984 version of the Federal Motor Vehicle Safety Standard (FMVSS 208) preempt Geier’s suit?Safety Standard (FMVSS 208) preempt Geier’s suit?

Supremacy ClauseSupremacy Clause Savings ClauseSavings Clause

GEIER v. AMERICAN HONDA MOTOR COMPANY, INC.GEIER v. AMERICAN HONDA MOTOR COMPANY, INC. 120 S.Ct. 1913 (2000)120 S.Ct. 1913 (2000)

• ISSUES:ISSUES:

• 1. Does the National Traffic and Motor Vehicle Safety 1. Does the National Traffic and Motor Vehicle Safety Act of 1966 preempt Geier’s lawsuit?Act of 1966 preempt Geier’s lawsuit?

• 2. Does the 1984 version of the Federal Motor Vehicle 2. Does the 1984 version of the Federal Motor Vehicle Safety Standard (FMVSS 208) preempt Geier’s suit?Safety Standard (FMVSS 208) preempt Geier’s suit?

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Savings ClauseSavings Clause GEIER v. AMERICAN HONDA MOTOR COMPANY, INC.,GEIER v. AMERICAN HONDA MOTOR COMPANY, INC.,

120 S.Ct. 1913 (2000)120 S.Ct. 1913 (2000)• DECISION:DECISION:

• 1. No. The 1966 Act does not preempt the lawsuit because it 1. No. The 1966 Act does not preempt the lawsuit because it has a savings clause that “does not exempt any person has a savings clause that “does not exempt any person from liability under common law.”from liability under common law.”

• 2. Yes. There exists a conflict between the FMVSS 208 2. Yes. There exists a conflict between the FMVSS 208 safety standard allowing manufacturers discretion whether safety standard allowing manufacturers discretion whether to install airbags in 1987 models and a lawsuit claiming the to install airbags in 1987 models and a lawsuit claiming the manufacturer is liable for failing to install airbags. The manufacturer is liable for failing to install airbags. The conflict is resolved by finding the federal safety standard conflict is resolved by finding the federal safety standard preempts the state-based lawsuit.preempts the state-based lawsuit.

Supremacy ClauseSupremacy Clause Savings ClauseSavings Clause

GEIER v. AMERICAN HONDA MOTOR COMPANY, INC.,GEIER v. AMERICAN HONDA MOTOR COMPANY, INC., 120 S.Ct. 1913 (2000)120 S.Ct. 1913 (2000)

• DECISION:DECISION:

• 1. No. The 1966 Act does not preempt the lawsuit because it 1. No. The 1966 Act does not preempt the lawsuit because it has a savings clause that “does not exempt any person has a savings clause that “does not exempt any person from liability under common law.”from liability under common law.”

• 2. Yes. There exists a conflict between the FMVSS 208 2. Yes. There exists a conflict between the FMVSS 208 safety standard allowing manufacturers discretion whether safety standard allowing manufacturers discretion whether to install airbags in 1987 models and a lawsuit claiming the to install airbags in 1987 models and a lawsuit claiming the manufacturer is liable for failing to install airbags. The manufacturer is liable for failing to install airbags. The conflict is resolved by finding the federal safety standard conflict is resolved by finding the federal safety standard preempts the state-based lawsuit.preempts the state-based lawsuit.

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• Crosby v. National Foreign Trade CouncilCrosby v. National Foreign Trade Council, p.79, p.79 The Massachusetts statute that barred the state from The Massachusetts statute that barred the state from

buying goods or services from companies that did buying goods or services from companies that did business in Burma (Myanmar) was unconstitutional. business in Burma (Myanmar) was unconstitutional. The state law was preempted by federal law. The The state law was preempted by federal law. The state statute undermined the accomplishment of the state statute undermined the accomplishment of the

full purposes of the federal.full purposes of the federal. If something is to be If something is to be done about problems like that occurring in Burma, it done about problems like that occurring in Burma, it is up to the federal government to issue the necessary is up to the federal government to issue the necessary rules.rules.

Supremacy ClauseSupremacy Clause• Crosby v. National Foreign Trade CouncilCrosby v. National Foreign Trade Council, p.79, p.79

The Massachusetts statute that barred the state from The Massachusetts statute that barred the state from buying goods or services from companies that did buying goods or services from companies that did business in Burma (Myanmar) was unconstitutional. business in Burma (Myanmar) was unconstitutional. The state law was preempted by federal law. The The state law was preempted by federal law. The state statute undermined the accomplishment of the state statute undermined the accomplishment of the

full purposes of the federal.full purposes of the federal. If something is to be If something is to be done about problems like that occurring in Burma, it done about problems like that occurring in Burma, it is up to the federal government to issue the necessary is up to the federal government to issue the necessary rules.rules.

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The Supremacy ClauseThe Supremacy Clause Supremacy ClauseSupremacy Clause

• Barnett Bank bought a Florida licensed insurance Barnett Bank bought a Florida licensed insurance agency. The State of Florida Insurance agency. The State of Florida Insurance Commissioner ordered Barnett Bank to stop selling Commissioner ordered Barnett Bank to stop selling insurance. Florida law prohibits any bank which is insurance. Florida law prohibits any bank which is affiliated with other banks from selling insurance. affiliated with other banks from selling insurance. Barnett Bank sought a declaratory judgment that the Barnett Bank sought a declaratory judgment that the federal law preempts Florida’s law. A 1916 federal federal law preempts Florida’s law. A 1916 federal law allows banks in small towns (with less than 5,000 law allows banks in small towns (with less than 5,000 in population) to sell insurance. Issue: Does the in population) to sell insurance. Issue: Does the federal law preempt the Florida law? Held: Yes. federal law preempt the Florida law? Held: Yes. There is a conflict between the meaning of the federal There is a conflict between the meaning of the federal and Florida laws. This conflict cannot be reconciled and Florida laws. This conflict cannot be reconciled by enforcing both laws. The federal law preempts the by enforcing both laws. The federal law preempts the Florida law under the Supremacy Clause. Florida law under the Supremacy Clause. Barnett Barnett Bank of Marion County, N.A. v. NelsonBank of Marion County, N.A. v. Nelson, 116 S.Ct. 1103 , 116 S.Ct. 1103 (1996).(1996).

Supremacy ClauseSupremacy Clause

• Barnett Bank bought a Florida licensed insurance Barnett Bank bought a Florida licensed insurance agency. The State of Florida Insurance agency. The State of Florida Insurance Commissioner ordered Barnett Bank to stop selling Commissioner ordered Barnett Bank to stop selling insurance. Florida law prohibits any bank which is insurance. Florida law prohibits any bank which is affiliated with other banks from selling insurance. affiliated with other banks from selling insurance. Barnett Bank sought a declaratory judgment that the Barnett Bank sought a declaratory judgment that the federal law preempts Florida’s law. A 1916 federal federal law preempts Florida’s law. A 1916 federal law allows banks in small towns (with less than 5,000 law allows banks in small towns (with less than 5,000 in population) to sell insurance. Issue: Does the in population) to sell insurance. Issue: Does the federal law preempt the Florida law? Held: Yes. federal law preempt the Florida law? Held: Yes. There is a conflict between the meaning of the federal There is a conflict between the meaning of the federal and Florida laws. This conflict cannot be reconciled and Florida laws. This conflict cannot be reconciled by enforcing both laws. The federal law preempts the by enforcing both laws. The federal law preempts the Florida law under the Supremacy Clause. Florida law under the Supremacy Clause. Barnett Barnett Bank of Marion County, N.A. v. NelsonBank of Marion County, N.A. v. Nelson, 116 S.Ct. 1103 , 116 S.Ct. 1103 (1996).(1996).

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• A New York statute requires hospitals to collect a A New York statute requires hospitals to collect a surcharge from patients covered by certain commercial surcharge from patients covered by certain commercial insurers and HMOs. Insureds under Blue Cross/Blue Shield insurers and HMOs. Insureds under Blue Cross/Blue Shield plans were not subject to the surcharge. Several insurance plans were not subject to the surcharge. Several insurance companies and HMOs brought this action contending that companies and HMOs brought this action contending that the Employee Retirement Income Security Act of 1974 the Employee Retirement Income Security Act of 1974 (ERISA) preempted the area of health insurance when such (ERISA) preempted the area of health insurance when such coverage is purchased by an employee health-care plan coverage is purchased by an employee health-care plan governed by ERISA. Issue: Are the health plans subject to governed by ERISA. Issue: Are the health plans subject to the New York law sufficiently related to employee benefit the New York law sufficiently related to employee benefit plans to fall within ERISA's preemption? Held: No. New plans to fall within ERISA's preemption? Held: No. New York's surcharges affect only indirectly the relative prices York's surcharges affect only indirectly the relative prices of insurance policies. This result is no different from many of insurance policies. This result is no different from many state laws in areas traditionally subject to local regulation. state laws in areas traditionally subject to local regulation. Congress could not possibly have intended to eliminate all Congress could not possibly have intended to eliminate all of these areas of regulation. New York Blue Cross Plans v. of these areas of regulation. New York Blue Cross Plans v. Travelers Inc.,Travelers Inc., 115 S.Ct. 1671 (1995). 115 S.Ct. 1671 (1995).


• A New York statute requires hospitals to collect a A New York statute requires hospitals to collect a surcharge from patients covered by certain commercial surcharge from patients covered by certain commercial insurers and HMOs. Insureds under Blue Cross/Blue Shield insurers and HMOs. Insureds under Blue Cross/Blue Shield plans were not subject to the surcharge. Several insurance plans were not subject to the surcharge. Several insurance companies and HMOs brought this action contending that companies and HMOs brought this action contending that the Employee Retirement Income Security Act of 1974 the Employee Retirement Income Security Act of 1974 (ERISA) preempted the area of health insurance when such (ERISA) preempted the area of health insurance when such coverage is purchased by an employee health-care plan coverage is purchased by an employee health-care plan governed by ERISA. Issue: Are the health plans subject to governed by ERISA. Issue: Are the health plans subject to the New York law sufficiently related to employee benefit the New York law sufficiently related to employee benefit plans to fall within ERISA's preemption? Held: No. New plans to fall within ERISA's preemption? Held: No. New York's surcharges affect only indirectly the relative prices York's surcharges affect only indirectly the relative prices of insurance policies. This result is no different from many of insurance policies. This result is no different from many state laws in areas traditionally subject to local regulation. state laws in areas traditionally subject to local regulation. Congress could not possibly have intended to eliminate all Congress could not possibly have intended to eliminate all of these areas of regulation. New York Blue Cross Plans v. of these areas of regulation. New York Blue Cross Plans v. Travelers Inc.,Travelers Inc., 115 S.Ct. 1671 (1995). 115 S.Ct. 1671 (1995).

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• The U.S. Labor Department sought to The U.S. Labor Department sought to enforce minimum wage and overtime pay enforce minimum wage and overtime pay standards against the mass transit system in standards against the mass transit system in San Antonio, Texas. The case sought a San Antonio, Texas. The case sought a reversal of National League of Cities. Issue: reversal of National League of Cities. Issue: Does the federal law apply to these Does the federal law apply to these employees of a local transit system? Held: employees of a local transit system? Held: Yes. Public transit authorities are required Yes. Public transit authorities are required to comply with the overtime provisions of to comply with the overtime provisions of federal law pursuant to congressional power federal law pursuant to congressional power to regulate interstate commerce. to regulate interstate commerce. Garcia v. Garcia v. San Antonio Metropolitan Transit Authority,San Antonio Metropolitan Transit Authority, 105 S.Ct. 1005 (1985). 105 S.Ct. 1005 (1985).


• The U.S. Labor Department sought to The U.S. Labor Department sought to enforce minimum wage and overtime pay enforce minimum wage and overtime pay standards against the mass transit system in standards against the mass transit system in San Antonio, Texas. The case sought a San Antonio, Texas. The case sought a reversal of National League of Cities. Issue: reversal of National League of Cities. Issue: Does the federal law apply to these Does the federal law apply to these employees of a local transit system? Held: employees of a local transit system? Held: Yes. Public transit authorities are required Yes. Public transit authorities are required to comply with the overtime provisions of to comply with the overtime provisions of federal law pursuant to congressional power federal law pursuant to congressional power to regulate interstate commerce. to regulate interstate commerce. Garcia v. Garcia v. San Antonio Metropolitan Transit Authority,San Antonio Metropolitan Transit Authority, 105 S.Ct. 1005 (1985). 105 S.Ct. 1005 (1985).

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• The FCC regulates cable television. Oklahoma prohibited The FCC regulates cable television. Oklahoma prohibited the broadcasting of advertisements for alcoholic the broadcasting of advertisements for alcoholic beverages. Issue: Does the FCC preempt state regulation beverages. Issue: Does the FCC preempt state regulation of TV advertising? Held: Yes. Under supremacy clause, of TV advertising? Held: Yes. Under supremacy clause, enforcement of state regulation may be preempted by enforcement of state regulation may be preempted by federal law in several circumstances, i.e., first, when federal law in several circumstances, i.e., first, when Congress, in enacting federal statute has expressed clear Congress, in enacting federal statute has expressed clear intent to preempt state law, second, when it is clear, despite intent to preempt state law, second, when it is clear, despite absence of explicit preemptive language, that Congress has absence of explicit preemptive language, that Congress has intended, by legislating comprehensively, to occupy entire intended, by legislating comprehensively, to occupy entire field of regulation and has thereby left no room for states to field of regulation and has thereby left no room for states to supplement federal law, and, finally, when compliance with supplement federal law, and, finally, when compliance with both state and federal law is impossible or when state law both state and federal law is impossible or when state law stands as an obstacle to accomplishment and execution of stands as an obstacle to accomplishment and execution of full purposes and objectives of Congress. full purposes and objectives of Congress. Capital Cities Capital Cities Cable, Inc. v. CrispCable, Inc. v. Crisp, 104 S.Ct. 2694 (1984). , 104 S.Ct. 2694 (1984).


• The FCC regulates cable television. Oklahoma prohibited The FCC regulates cable television. Oklahoma prohibited the broadcasting of advertisements for alcoholic the broadcasting of advertisements for alcoholic beverages. Issue: Does the FCC preempt state regulation beverages. Issue: Does the FCC preempt state regulation of TV advertising? Held: Yes. Under supremacy clause, of TV advertising? Held: Yes. Under supremacy clause, enforcement of state regulation may be preempted by enforcement of state regulation may be preempted by federal law in several circumstances, i.e., first, when federal law in several circumstances, i.e., first, when Congress, in enacting federal statute has expressed clear Congress, in enacting federal statute has expressed clear intent to preempt state law, second, when it is clear, despite intent to preempt state law, second, when it is clear, despite absence of explicit preemptive language, that Congress has absence of explicit preemptive language, that Congress has intended, by legislating comprehensively, to occupy entire intended, by legislating comprehensively, to occupy entire field of regulation and has thereby left no room for states to field of regulation and has thereby left no room for states to supplement federal law, and, finally, when compliance with supplement federal law, and, finally, when compliance with both state and federal law is impossible or when state law both state and federal law is impossible or when state law stands as an obstacle to accomplishment and execution of stands as an obstacle to accomplishment and execution of full purposes and objectives of Congress. full purposes and objectives of Congress. Capital Cities Capital Cities Cable, Inc. v. CrispCable, Inc. v. Crisp, 104 S.Ct. 2694 (1984). , 104 S.Ct. 2694 (1984).

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• Arizona had a statute which provided for the Arizona had a statute which provided for the suspension of licenses of drivers who were unable to suspension of licenses of drivers who were unable to satisfy judgments even if bankrupt. P had filed a satisfy judgments even if bankrupt. P had filed a voluntary petition in bankruptcy and had duly voluntary petition in bankruptcy and had duly scheduled a judgment debt arising out of a traffic scheduled a judgment debt arising out of a traffic accident. The court in bankruptcy discharged P. P accident. The court in bankruptcy discharged P. P filed a complaint seeking to retain a driver's license. filed a complaint seeking to retain a driver's license. Issue: Is the Arizona law in conflict with the federal Issue: Is the Arizona law in conflict with the federal bankruptcy law? Held: Yes. The Arizona statute is bankruptcy law? Held: Yes. The Arizona statute is unconstitutional. The two provisions are in direct unconstitutional. The two provisions are in direct conflict. The purpose of the Bankruptcy Act is to conflict. The purpose of the Bankruptcy Act is to give debtors new opportunity unhampered by the give debtors new opportunity unhampered by the pressure and discouragement of preexisting debt. pressure and discouragement of preexisting debt. The challenged state statute stands as an obstacle to The challenged state statute stands as an obstacle to the accomplishment and execution of the full the accomplishment and execution of the full purposes and objectives of Congress. purposes and objectives of Congress. Perez v. Perez v. Campbell,Campbell, 91 S.Ct. 1704 (1971). 91 S.Ct. 1704 (1971).


• Arizona had a statute which provided for the Arizona had a statute which provided for the suspension of licenses of drivers who were unable to suspension of licenses of drivers who were unable to satisfy judgments even if bankrupt. P had filed a satisfy judgments even if bankrupt. P had filed a voluntary petition in bankruptcy and had duly voluntary petition in bankruptcy and had duly scheduled a judgment debt arising out of a traffic scheduled a judgment debt arising out of a traffic accident. The court in bankruptcy discharged P. P accident. The court in bankruptcy discharged P. P filed a complaint seeking to retain a driver's license. filed a complaint seeking to retain a driver's license. Issue: Is the Arizona law in conflict with the federal Issue: Is the Arizona law in conflict with the federal bankruptcy law? Held: Yes. The Arizona statute is bankruptcy law? Held: Yes. The Arizona statute is unconstitutional. The two provisions are in direct unconstitutional. The two provisions are in direct conflict. The purpose of the Bankruptcy Act is to conflict. The purpose of the Bankruptcy Act is to give debtors new opportunity unhampered by the give debtors new opportunity unhampered by the pressure and discouragement of preexisting debt. pressure and discouragement of preexisting debt. The challenged state statute stands as an obstacle to The challenged state statute stands as an obstacle to the accomplishment and execution of the full the accomplishment and execution of the full purposes and objectives of Congress. purposes and objectives of Congress. Perez v. Perez v. Campbell,Campbell, 91 S.Ct. 1704 (1971). 91 S.Ct. 1704 (1971).

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• Pharmaceutical Research and Manufacturers Pharmaceutical Research and Manufacturers of America v. Walshof America v. Walsh, 123 S.Ct. 1855 (2003) , 123 S.Ct. 1855 (2003) (Maine prescription drug program does not (Maine prescription drug program does not violate commerce clause and is not violate commerce clause and is not preempted by federal Medicare program); preempted by federal Medicare program); Livadas v. BradshawLivadas v. Bradshaw, 114 S.Ct. 2068 (1994) , 114 S.Ct. 2068 (1994) (preemption by the National Labor Relations (preemption by the National Labor Relations Act) and Act) and Wisconsin Public Intervenor v. Wisconsin Public Intervenor v. MortierMortier, 111 S.Ct. 2476 (1991) (no , 111 S.Ct. 2476 (1991) (no preemption by the Federal Insecticide, preemption by the Federal Insecticide, Fungicide, and Rodenticide Act). Fungicide, and Rodenticide Act).


• Pharmaceutical Research and Manufacturers Pharmaceutical Research and Manufacturers of America v. Walshof America v. Walsh, 123 S.Ct. 1855 (2003) , 123 S.Ct. 1855 (2003) (Maine prescription drug program does not (Maine prescription drug program does not violate commerce clause and is not violate commerce clause and is not preempted by federal Medicare program); preempted by federal Medicare program); Livadas v. BradshawLivadas v. Bradshaw, 114 S.Ct. 2068 (1994) , 114 S.Ct. 2068 (1994) (preemption by the National Labor Relations (preemption by the National Labor Relations Act) and Act) and Wisconsin Public Intervenor v. Wisconsin Public Intervenor v. MortierMortier, 111 S.Ct. 2476 (1991) (no , 111 S.Ct. 2476 (1991) (no preemption by the Federal Insecticide, preemption by the Federal Insecticide, Fungicide, and Rodenticide Act). Fungicide, and Rodenticide Act).

Federal Preemption Federal Preemption

Types of Federal PreemptionTypes of Federal PreemptionState Law Is UnconstitutionalState Law Is Unconstitutional

If . . .If . . .

Express preemptionExpress preemption The federal law contains a The federal law contains a provision superceding all provision superceding all state laws.state laws.

Field preemptionField preemption It can be implied from various It can be implied from various factors, such as the scope of factors, such as the scope of the federal law, that the federal law, that Congress intended to Congress intended to preempt the field.preempt the field.

Conflict preemptionConflict preemption The federal and state laws The federal and state laws actually conflict.actually conflict.

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The Contract ClauseThe Contract ClauseContract ClauseContract Clause

““No No StateState shall … pass any law impairing shall … pass any law impairing the obligation of contracts.”the obligation of contracts.”

Note: This does not apply to the federal Note: This does not apply to the federal governmentgovernment

Under the contract clause, the threshold Under the contract clause, the threshold inquiry is whether the state law has, in fact, inquiry is whether the state law has, in fact, operated as substantial impairment of operated as substantial impairment of contractual relationship; the severity of contractual relationship; the severity of impairment is said to increase the level of impairment is said to increase the level of scrutiny to which legislation will be scrutiny to which legislation will be subjected.subjected.

Contract ClauseContract Clause““No No StateState shall … pass any law impairing shall … pass any law impairing

the obligation of contracts.”the obligation of contracts.”Note: This does not apply to the federal Note: This does not apply to the federal

governmentgovernmentUnder the contract clause, the threshold Under the contract clause, the threshold

inquiry is whether the state law has, in fact, inquiry is whether the state law has, in fact, operated as substantial impairment of operated as substantial impairment of contractual relationship; the severity of contractual relationship; the severity of impairment is said to increase the level of impairment is said to increase the level of scrutiny to which legislation will be scrutiny to which legislation will be subjected.subjected.

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• Factors that may justify a state law that Factors that may justify a state law that impairs private contract rights are:impairs private contract rights are:

• a. The law is enacted in an emergency a. The law is enacted in an emergency situation.situation.

• b. The law is broad to protect basic societal b. The law is broad to protect basic societal interests.interests.

• c. The relief is properly tailored to meet c. The relief is properly tailored to meet those interests.those interests.

• d. The conditions of the law are reasonable.d. The conditions of the law are reasonable.• e. The law is limited to the duration of an e. The law is limited to the duration of an

emergency.emergency.

Contract ClauseContract Clause• Factors that may justify a state law that Factors that may justify a state law that

impairs private contract rights are:impairs private contract rights are:• a. The law is enacted in an emergency a. The law is enacted in an emergency

situation.situation.• b. The law is broad to protect basic societal b. The law is broad to protect basic societal

interests.interests.• c. The relief is properly tailored to meet c. The relief is properly tailored to meet

those interests.those interests.• d. The conditions of the law are reasonable.d. The conditions of the law are reasonable.• e. The law is limited to the duration of an e. The law is limited to the duration of an

emergency.emergency.

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• In 1980, Congress amended ERISA to In 1980, Congress amended ERISA to require employers withdrawing from a require employers withdrawing from a multiemployer pension plan to pay a fixed multiemployer pension plan to pay a fixed amount to cover unfunded benefits. The amount to cover unfunded benefits. The law was made retroactive. Issue: Is this law was made retroactive. Issue: Is this application constitutional under the application constitutional under the contract clause? Held: Yes. The contract contract clause? Held: Yes. The contract clause does not apply, either by its own clause does not apply, either by its own terms or by convincing historical evidence, terms or by convincing historical evidence, to actions of the national government. to actions of the national government. Pension Ben. Guar. Corp. v. R.A. Gray & Pension Ben. Guar. Corp. v. R.A. Gray & Co.,Co., 104 S.Ct. 2709 (1984). 104 S.Ct. 2709 (1984).

Contract ClauseContract Clause• In 1980, Congress amended ERISA to In 1980, Congress amended ERISA to

require employers withdrawing from a require employers withdrawing from a multiemployer pension plan to pay a fixed multiemployer pension plan to pay a fixed amount to cover unfunded benefits. The amount to cover unfunded benefits. The law was made retroactive. Issue: Is this law was made retroactive. Issue: Is this application constitutional under the application constitutional under the contract clause? Held: Yes. The contract contract clause? Held: Yes. The contract clause does not apply, either by its own clause does not apply, either by its own terms or by convincing historical evidence, terms or by convincing historical evidence, to actions of the national government. to actions of the national government. Pension Ben. Guar. Corp. v. R.A. Gray & Pension Ben. Guar. Corp. v. R.A. Gray & Co.,Co., 104 S.Ct. 2709 (1984). 104 S.Ct. 2709 (1984).

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• A state regulation restricted the income of a utility. A state regulation restricted the income of a utility. Issue: Is this state regulation a violation of the Issue: Is this state regulation a violation of the contract clause? Held: No. The law does not contract clause? Held: No. The law does not necessarily constitute substantial impairment for necessarily constitute substantial impairment for purposes of the contract clause. If a substantial purposes of the contract clause. If a substantial impairment is found, the state, in justification, impairment is found, the state, in justification, must have a significant and legitimate public must have a significant and legitimate public purpose behind the regulation. Once such a purpose behind the regulation. Once such a purpose has been identified, the adjustment of the purpose has been identified, the adjustment of the contracting parties' rights and responsibilities contracting parties' rights and responsibilities must be based upon reasonable conditions and must be based upon reasonable conditions and must be of a character appropriate to the public must be of a character appropriate to the public purpose justifying the legislation's adoption. purpose justifying the legislation's adoption. Energy Reserves Group, Inc. v. Kansas Power & Energy Reserves Group, Inc. v. Kansas Power & Light CoLight Co., 103 S.Ct. 697 (1983). ., 103 S.Ct. 697 (1983).

Contract ClauseContract Clause• A state regulation restricted the income of a utility. A state regulation restricted the income of a utility.

Issue: Is this state regulation a violation of the Issue: Is this state regulation a violation of the contract clause? Held: No. The law does not contract clause? Held: No. The law does not necessarily constitute substantial impairment for necessarily constitute substantial impairment for purposes of the contract clause. If a substantial purposes of the contract clause. If a substantial impairment is found, the state, in justification, impairment is found, the state, in justification, must have a significant and legitimate public must have a significant and legitimate public purpose behind the regulation. Once such a purpose behind the regulation. Once such a purpose has been identified, the adjustment of the purpose has been identified, the adjustment of the contracting parties' rights and responsibilities contracting parties' rights and responsibilities must be based upon reasonable conditions and must be based upon reasonable conditions and must be of a character appropriate to the public must be of a character appropriate to the public purpose justifying the legislation's adoption. purpose justifying the legislation's adoption. Energy Reserves Group, Inc. v. Kansas Power & Energy Reserves Group, Inc. v. Kansas Power & Light CoLight Co., 103 S.Ct. 697 (1983). ., 103 S.Ct. 697 (1983).

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The Commerce ClauseThe Commerce Clause “ “Congress shall have Power … Congress shall have Power …

to regulate Commerce with to regulate Commerce with foreign Nations, and among foreign Nations, and among the several States, and with the several States, and with the Indian Tribes…” Article I, the Indian Tribes…” Article I, Section 8 of the United States Section 8 of the United States

Constitution.Constitution.

“ “Congress shall have Power … Congress shall have Power … to regulate Commerce with to regulate Commerce with foreign Nations, and among foreign Nations, and among the several States, and with the several States, and with the Indian Tribes…” Article I, the Indian Tribes…” Article I, Section 8 of the United States Section 8 of the United States

Constitution.Constitution.

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The Commerce ClauseThe Commerce Clause1)1) Federal RegulationFederal Regulation

a)a) Foreign CommerceForeign Commerce

b)b) Interstate CommerceInterstate Commerce

Engaged in & AffectingEngaged in & Affecting

Undue BurdenUndue Burden

Discrimination AgainstDiscrimination Against

1)1) Federal RegulationFederal Regulation

a)a) Foreign CommerceForeign Commerce

b)b) Interstate CommerceInterstate Commerce

Engaged in & AffectingEngaged in & Affecting

Undue BurdenUndue Burden

Discrimination AgainstDiscrimination Against

6-22

The Commerce ClauseThe Commerce Clause

The power to regulate interstate commerce was The power to regulate interstate commerce was first defined in first defined in Gibbons v. OgdenGibbons v. Ogden (1824). In that (1824). In that case, Ogden had a ferry license, gave him right to case, Ogden had a ferry license, gave him right to operate steam boats to and from N.Y argued operate steam boats to and from N.Y argued Gibson’s federal “coasting license” didn’t include Gibson’s federal “coasting license” didn’t include “landing rights” in New York. The Court “landing rights” in New York. The Court invalidated the New York licensing regulations invalidated the New York licensing regulations saying that federal regulation should take saying that federal regulation should take precedence under the Supremacy Clause. This precedence under the Supremacy Clause. This decision strengthened the power of the U.S to decision strengthened the power of the U.S to regulate any interstate business relationship.regulate any interstate business relationship.

The power to regulate interstate commerce was The power to regulate interstate commerce was first defined in first defined in Gibbons v. OgdenGibbons v. Ogden (1824). In that (1824). In that case, Ogden had a ferry license, gave him right to case, Ogden had a ferry license, gave him right to operate steam boats to and from N.Y argued operate steam boats to and from N.Y argued Gibson’s federal “coasting license” didn’t include Gibson’s federal “coasting license” didn’t include “landing rights” in New York. The Court “landing rights” in New York. The Court invalidated the New York licensing regulations invalidated the New York licensing regulations saying that federal regulation should take saying that federal regulation should take precedence under the Supremacy Clause. This precedence under the Supremacy Clause. This decision strengthened the power of the U.S to decision strengthened the power of the U.S to regulate any interstate business relationship.regulate any interstate business relationship.

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The Commerce ClauseThe Commerce ClauseThe expansion of the power to The expansion of the power to regulate private businesses began regulate private businesses began with with Wickard v. FillburnWickard v. Fillburn (1942) (1942) wherein the Court decided Congress wherein the Court decided Congress may regulate any activity that has a may regulate any activity that has a substantial economic effectsubstantial economic effect on on interstate commerce. In that case, the interstate commerce. In that case, the Court held that wheat production by Court held that wheat production by an individual farmer, intended wholly an individual farmer, intended wholly for consumption on his own farm was for consumption on his own farm was still subject to Federal regulation still subject to Federal regulation because the overall demand for wheat because the overall demand for wheat was reduced by the farmer’s actions. was reduced by the farmer’s actions.

The expansion of the power to The expansion of the power to regulate private businesses began regulate private businesses began with with Wickard v. FillburnWickard v. Fillburn (1942) (1942) wherein the Court decided Congress wherein the Court decided Congress may regulate any activity that has a may regulate any activity that has a substantial economic effectsubstantial economic effect on on interstate commerce. In that case, the interstate commerce. In that case, the Court held that wheat production by Court held that wheat production by an individual farmer, intended wholly an individual farmer, intended wholly for consumption on his own farm was for consumption on his own farm was still subject to Federal regulation still subject to Federal regulation because the overall demand for wheat because the overall demand for wheat was reduced by the farmer’s actions. was reduced by the farmer’s actions.

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The Commerce ClauseThe Commerce ClauseLater, in Later, in Heart of Atlanta Motel Heart of Atlanta Motel v. U.S.v. U.S. (1964), the Court held (1964), the Court held that a motel that provided that a motel that provided public accommodations to public accommodations to guests from other states was guests from other states was subject to federal civil rights subject to federal civil rights legislation.legislation.

Later, in Later, in Heart of Atlanta Motel Heart of Atlanta Motel v. U.S.v. U.S. (1964), the Court held (1964), the Court held that a motel that provided that a motel that provided public accommodations to public accommodations to guests from other states was guests from other states was subject to federal civil rights subject to federal civil rights legislation.legislation.

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The Commerce ClauseThe Commerce ClauseToday, the Commerce Today, the Commerce Clause authorizes the Clause authorizes the national government to national government to regulate virtually any regulate virtually any business enterprise, business enterprise, including internet.including internet.

Today, the Commerce Today, the Commerce Clause authorizes the Clause authorizes the national government to national government to regulate virtually any regulate virtually any business enterprise, business enterprise, including internet.including internet.

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The Commerce ClauseThe Commerce ClauseDiscrimination Against Interstate CommerceDiscrimination Against Interstate Commerce

SOUTH CENTRAL BELL TELEPHONE COMPANY v. ALABAMASOUTH CENTRAL BELL TELEPHONE COMPANY v. ALABAMA , , 119 S.Ct. 1180 (1999)119 S.Ct. 1180 (1999)

FACTS: South Central Bell files this suit claiming the FACTS: South Central Bell files this suit claiming the franchise tax imposed by the State of Alabama franchise tax imposed by the State of Alabama

is is unconstitutional under the Commerce unconstitutional under the Commerce Clause. The Clause. The company argues the tax discriminates company argues the tax discriminates against businesses against businesses that are not formed under that are not formed under Alabama law. The State of Alabama law. The State of Alabama asserts that Alabama asserts that although the formulas used to although the formulas used to determine the amount determine the amount of tax are different for in-state and of tax are different for in-state and out-of-state out-of-state companies, the result of such taxes are not companies, the result of such taxes are not discriminatory.discriminatory.

ISSUE : Is the Alabama franchise tax ISSUE : Is the Alabama franchise tax unconstitutional?unconstitutional?

Discrimination Against Interstate CommerceDiscrimination Against Interstate Commerce

SOUTH CENTRAL BELL TELEPHONE COMPANY v. ALABAMASOUTH CENTRAL BELL TELEPHONE COMPANY v. ALABAMA , , 119 S.Ct. 1180 (1999)119 S.Ct. 1180 (1999)

FACTS: South Central Bell files this suit claiming the FACTS: South Central Bell files this suit claiming the franchise tax imposed by the State of Alabama franchise tax imposed by the State of Alabama

is is unconstitutional under the Commerce unconstitutional under the Commerce Clause. The Clause. The company argues the tax discriminates company argues the tax discriminates against businesses against businesses that are not formed under that are not formed under Alabama law. The State of Alabama law. The State of Alabama asserts that Alabama asserts that although the formulas used to although the formulas used to determine the amount determine the amount of tax are different for in-state and of tax are different for in-state and out-of-state out-of-state companies, the result of such taxes are not companies, the result of such taxes are not discriminatory.discriminatory.

ISSUE : Is the Alabama franchise tax ISSUE : Is the Alabama franchise tax unconstitutional?unconstitutional?

6-27


SOUTH CENTRAL BELL TELEPHONE COMPANY v. SOUTH CENTRAL BELL TELEPHONE COMPANY v.

ALABAMAALABAMA, 119 S.Ct. 1180 (1999, 119 S.Ct. 1180 (1999))

DECISION: Yes. Under the Commerce Clause, a state DECISION: Yes. Under the Commerce Clause, a state regulation of business activity must not discriminate regulation of business activity must not discriminate against those businesses engaged in interstate against those businesses engaged in interstate commerce. The Court finds that Alabama allows in-commerce. The Court finds that Alabama allows in-state companies to determine their capitalization state companies to determine their capitalization through setting the par value of company stock. Since through setting the par value of company stock. Since the in-state businesses are taxed based on the amount the in-state businesses are taxed based on the amount of capital, these companies can avoid some or all of of capital, these companies can avoid some or all of the tax. Since out-of-state businesses don’t have this the tax. Since out-of-state businesses don’t have this same opportunity to adjust the amount of tax paid, the same opportunity to adjust the amount of tax paid, the franchise tax is discriminatory and unconstitutional.franchise tax is discriminatory and unconstitutional.


SOUTH CENTRAL BELL TELEPHONE COMPANY v. SOUTH CENTRAL BELL TELEPHONE COMPANY v.

ALABAMAALABAMA, 119 S.Ct. 1180 (1999, 119 S.Ct. 1180 (1999))

DECISION: Yes. Under the Commerce Clause, a state DECISION: Yes. Under the Commerce Clause, a state regulation of business activity must not discriminate regulation of business activity must not discriminate against those businesses engaged in interstate against those businesses engaged in interstate commerce. The Court finds that Alabama allows in-commerce. The Court finds that Alabama allows in-state companies to determine their capitalization state companies to determine their capitalization through setting the par value of company stock. Since through setting the par value of company stock. Since the in-state businesses are taxed based on the amount the in-state businesses are taxed based on the amount of capital, these companies can avoid some or all of of capital, these companies can avoid some or all of the tax. Since out-of-state businesses don’t have this the tax. Since out-of-state businesses don’t have this same opportunity to adjust the amount of tax paid, the same opportunity to adjust the amount of tax paid, the franchise tax is discriminatory and unconstitutional.franchise tax is discriminatory and unconstitutional.

6-28


An Oklahoma law required coal-fired electric power plants to An Oklahoma law required coal-fired electric power plants to use Oklahoma-mined coal for at least 10 percent of their fuel use Oklahoma-mined coal for at least 10 percent of their fuel needs. Previously, four Oklahoma utilities had purchased needs. Previously, four Oklahoma utilities had purchased almost all of their coal from Wyoming sources. Wyoming almost all of their coal from Wyoming sources. Wyoming brought suit against Oklahoma for damages contending that brought suit against Oklahoma for damages contending that the law caused it to lose coal severance taxes. Issue: Does the law caused it to lose coal severance taxes. Issue: Does Wyoming have standing to sue? Held: Yes. A state's loss of Wyoming have standing to sue? Held: Yes. A state's loss of tax receipts due to another state's economic legislation gives tax receipts due to another state's economic legislation gives it standing to mount a Commerce Clause challenge to that it standing to mount a Commerce Clause challenge to that law. law. Wyoming v. OklahomaWyoming v. Oklahoma, 112 S.Ct. 789 (1992)., 112 S.Ct. 789 (1992).


An Oklahoma law required coal-fired electric power plants to An Oklahoma law required coal-fired electric power plants to use Oklahoma-mined coal for at least 10 percent of their fuel use Oklahoma-mined coal for at least 10 percent of their fuel needs. Previously, four Oklahoma utilities had purchased needs. Previously, four Oklahoma utilities had purchased almost all of their coal from Wyoming sources. Wyoming almost all of their coal from Wyoming sources. Wyoming brought suit against Oklahoma for damages contending that brought suit against Oklahoma for damages contending that the law caused it to lose coal severance taxes. Issue: Does the law caused it to lose coal severance taxes. Issue: Does Wyoming have standing to sue? Held: Yes. A state's loss of Wyoming have standing to sue? Held: Yes. A state's loss of tax receipts due to another state's economic legislation gives tax receipts due to another state's economic legislation gives it standing to mount a Commerce Clause challenge to that it standing to mount a Commerce Clause challenge to that law. law. Wyoming v. OklahomaWyoming v. Oklahoma, 112 S.Ct. 789 (1992)., 112 S.Ct. 789 (1992).

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A state law required out-of-state beer A state law required out-of-state beer distributors to attest that the prices distributors to attest that the prices charged in the state are no higher than the charged in the state are no higher than the prices in bordering states. Issue: Is this a prices in bordering states. Issue: Is this a violation of the Commerce Clause? Held: violation of the Commerce Clause? Held: Yes. It forces the distributors to take one Yes. It forces the distributors to take one state's law into account in setting prices in state's law into account in setting prices in neighboring states. neighboring states. Healy v. Beer InstituteHealy v. Beer Institute, , 109 S.Ct. 2491 (1989). 109 S.Ct. 2491 (1989).


A state law required out-of-state beer A state law required out-of-state beer distributors to attest that the prices distributors to attest that the prices charged in the state are no higher than the charged in the state are no higher than the prices in bordering states. Issue: Is this a prices in bordering states. Issue: Is this a violation of the Commerce Clause? Held: violation of the Commerce Clause? Held: Yes. It forces the distributors to take one Yes. It forces the distributors to take one state's law into account in setting prices in state's law into account in setting prices in neighboring states. neighboring states. Healy v. Beer InstituteHealy v. Beer Institute, , 109 S.Ct. 2491 (1989). 109 S.Ct. 2491 (1989).

Supreme Court Tests For Interstate Commerce

Before the late 1930s:• Did the regulated activity have a direct rather than

indirect impact on interstate commerce?• Did the regulated activity concern something that was in

the stream of commerce?

Current tests:• Does the regulation affect a channel of interstate

commerce?• Does the regulation affect an instrumentality of interstate

commerce?• Does the regulated activity have a substantial impact on

interstate commerce?

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The Commerce ClauseThe Commerce Clause2) Limitation2) Limitation

a)a) State Police PowerState Police Power

Health, Safety, Morals & Health, Safety, Morals & General WelfareGeneral Welfare

Exception: Nationwide Exception: Nationwide Uniformity e.g. FAAUniformity e.g. FAA

2) Limitation2) Limitation

a)a) State Police PowerState Police Power

Health, Safety, Morals & Health, Safety, Morals & General WelfareGeneral Welfare

Exception: Nationwide Exception: Nationwide Uniformity e.g. FAAUniformity e.g. FAA

6-32

State Police PowerState Police Power PowerPower

• Protect PublicProtect Public• Dominant Commerce ClauseDominant Commerce Clause

Exclusively Exclusively • FederalFederal• LocalLocal

Dual RegulationDual Regulation• Federal PreemptionFederal Preemption• Regulation But No PreemptionRegulation But No Preemption

Irreconcilable ConflictsIrreconcilable ConflictsUndue BurdenUndue Burden

• No Federal RegulationNo Federal Regulation

PowerPower• Protect PublicProtect Public• Dominant Commerce ClauseDominant Commerce Clause

Exclusively Exclusively • FederalFederal• LocalLocal

Dual RegulationDual Regulation• Federal PreemptionFederal Preemption• Regulation But No PreemptionRegulation But No Preemption

Irreconcilable ConflictsIrreconcilable ConflictsUndue BurdenUndue Burden

• No Federal RegulationNo Federal Regulation

6-33

State Police PowerState Police Power

State has inherent “police powers.” State has inherent “police powers.” • Police powers include right to Police powers include right to

regulate health, safety, morals and regulate health, safety, morals and general welfare.general welfare.

• Includes licensing, building codes, Includes licensing, building codes, parking regulations and zoning parking regulations and zoning restrictions.restrictions.

State has inherent “police powers.” State has inherent “police powers.” • Police powers include right to Police powers include right to

regulate health, safety, morals and regulate health, safety, morals and general welfare.general welfare.

• Includes licensing, building codes, Includes licensing, building codes, parking regulations and zoning parking regulations and zoning restrictions.restrictions.

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The Commerce ClauseThe Commerce ClausePolice PowerPolice Power

Raich v. Ashcroft, p.82Raich v. Ashcroft, p.82• Federal legislation made it unlawful to traffic in marijuana. Federal legislation made it unlawful to traffic in marijuana.

It was applied against California residents (where state law It was applied against California residents (where state law permits marijuana use for medical purposes) who were permits marijuana use for medical purposes) who were using, or supplying the marijuana, for medical purposes. using, or supplying the marijuana, for medical purposes. The court held that application of the law against these The court held that application of the law against these people was unconstitutional because it was not an activity people was unconstitutional because it was not an activity that Congress could regulate under the Commerce Clause. that Congress could regulate under the Commerce Clause.

Police PowerPolice Power

Raich v. Ashcroft, p.82Raich v. Ashcroft, p.82• Federal legislation made it unlawful to traffic in marijuana. Federal legislation made it unlawful to traffic in marijuana.

It was applied against California residents (where state law It was applied against California residents (where state law permits marijuana use for medical purposes) who were permits marijuana use for medical purposes) who were using, or supplying the marijuana, for medical purposes. using, or supplying the marijuana, for medical purposes. The court held that application of the law against these The court held that application of the law against these people was unconstitutional because it was not an activity people was unconstitutional because it was not an activity that Congress could regulate under the Commerce Clause. that Congress could regulate under the Commerce Clause.

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The Commerce ClauseThe Commerce Clause Police Power - LimitationPolice Power - Limitation

In In United States v. Lopez,United States v. Lopez, 514 U.S. at 552 (1995), the U.S. Supreme Court struck down a 514 U.S. at 552 (1995), the U.S. Supreme Court struck down a

statute prohibiting possession of a gun at or near a school, rejecting an argument that statute prohibiting possession of a gun at or near a school, rejecting an argument that possession of firearms in school zones can be punished under the Commerce Clause possession of firearms in school zones can be punished under the Commerce Clause because it impairs the functioning of the national economy. Acceptance of this rationale, the because it impairs the functioning of the national economy. Acceptance of this rationale, the Court said, would eliminate "a[ny] distinction between what is truly national and what is truly Court said, would eliminate "a[ny] distinction between what is truly national and what is truly local," would convert Congress' commerce power into "a general police power of the sort local," would convert Congress' commerce power into "a general police power of the sort retained by the States," and would undermine the "first principle" that the Federal Government retained by the States," and would undermine the "first principle" that the Federal Government is one of enumerated and limited powers. Application of the same principle led five years later is one of enumerated and limited powers. Application of the same principle led five years later to the Court's decision in to the Court's decision in United States v. Morrison, United States v. Morrison, 529 U.S. 598 (2000),529 U.S. 598 (2000), invalidating a invalidating a provision of the Violence Against Women Act (VAWA) that created a federal cause of action provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Congress may not regulate "non-economic, violent for victims of gender-motivated violence. Congress may not regulate "non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce," the criminal conduct based solely on that conduct's aggregate effect on interstate commerce," the Court concluded. "[W]e can think of no better example of the police power, which the Court concluded. "[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims."violent crime and vindication of its victims."

Police Power - LimitationPolice Power - Limitation

In In United States v. Lopez,United States v. Lopez, 514 U.S. at 552 (1995), the U.S. Supreme Court struck down a 514 U.S. at 552 (1995), the U.S. Supreme Court struck down a

statute prohibiting possession of a gun at or near a school, rejecting an argument that statute prohibiting possession of a gun at or near a school, rejecting an argument that possession of firearms in school zones can be punished under the Commerce Clause possession of firearms in school zones can be punished under the Commerce Clause because it impairs the functioning of the national economy. Acceptance of this rationale, the because it impairs the functioning of the national economy. Acceptance of this rationale, the Court said, would eliminate "a[ny] distinction between what is truly national and what is truly Court said, would eliminate "a[ny] distinction between what is truly national and what is truly local," would convert Congress' commerce power into "a general police power of the sort local," would convert Congress' commerce power into "a general police power of the sort retained by the States," and would undermine the "first principle" that the Federal Government retained by the States," and would undermine the "first principle" that the Federal Government is one of enumerated and limited powers. Application of the same principle led five years later is one of enumerated and limited powers. Application of the same principle led five years later to the Court's decision in to the Court's decision in United States v. Morrison, United States v. Morrison, 529 U.S. 598 (2000),529 U.S. 598 (2000), invalidating a invalidating a provision of the Violence Against Women Act (VAWA) that created a federal cause of action provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Congress may not regulate "non-economic, violent for victims of gender-motivated violence. Congress may not regulate "non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce," the criminal conduct based solely on that conduct's aggregate effect on interstate commerce," the Court concluded. "[W]e can think of no better example of the police power, which the Court concluded. "[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims."violent crime and vindication of its victims."

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The Commerce ClauseThe Commerce ClauseDormant Commerce ClauseDormant Commerce Clause

Washington v. Heckel, p.80Washington v. Heckel, p.80The court held that Washington’s statute prohibiting the out-of-state The court held that Washington’s statute prohibiting the out-of-state spam from being emailed into the state did not unconstitutionally spam from being emailed into the state did not unconstitutionally burden interstate commerce. The state law had clear local benefits burden interstate commerce. The state law had clear local benefits and only burdened spammers by requiring that they be truthful in and only burdened spammers by requiring that they be truthful in their commercial communications. their commercial communications. Points for Points for The case lays out the The case lays out the analytical scheme for examining the dormant commerce clause. analytical scheme for examining the dormant commerce clause.

Note that early cases Note that early cases narrowlynarrowly interpreted the Commerce Clause, interpreted the Commerce Clause, focusing more upon its negative power over state regulation and focusing more upon its negative power over state regulation and restricting the federal government’s power to regulate business. restricting the federal government’s power to regulate business. Subsequent decisions, however, significantly broadened the federal Subsequent decisions, however, significantly broadened the federal power to regulate business by recognizing the federal government’s power to regulate business by recognizing the federal government’s power to regulate activities having a “power to regulate activities having a “substantial relationshipsubstantial relationship” to ” to interstate commerce.interstate commerce.

Dormant Commerce ClauseDormant Commerce Clause

Washington v. Heckel, p.80Washington v. Heckel, p.80The court held that Washington’s statute prohibiting the out-of-state The court held that Washington’s statute prohibiting the out-of-state spam from being emailed into the state did not unconstitutionally spam from being emailed into the state did not unconstitutionally burden interstate commerce. The state law had clear local benefits burden interstate commerce. The state law had clear local benefits and only burdened spammers by requiring that they be truthful in and only burdened spammers by requiring that they be truthful in their commercial communications. their commercial communications. Points for Points for The case lays out the The case lays out the analytical scheme for examining the dormant commerce clause. analytical scheme for examining the dormant commerce clause.

Note that early cases Note that early cases narrowlynarrowly interpreted the Commerce Clause, interpreted the Commerce Clause, focusing more upon its negative power over state regulation and focusing more upon its negative power over state regulation and restricting the federal government’s power to regulate business. restricting the federal government’s power to regulate business. Subsequent decisions, however, significantly broadened the federal Subsequent decisions, however, significantly broadened the federal power to regulate business by recognizing the federal government’s power to regulate business by recognizing the federal government’s power to regulate activities having a “power to regulate activities having a “substantial relationshipsubstantial relationship” to ” to interstate commerce.interstate commerce.

6-37

The Commerce ClauseThe Commerce ClauseDormant Commerce ClauseDormant Commerce Clause

Granholm v. HealdGranholm v. Heald, 544 U.S. ___(, 544 U.S. ___(20052005))

The Supreme Court by a 5-4 majority The Supreme Court by a 5-4 majority ruled unconstitutional laws in New York ruled unconstitutional laws in New York and Michigan that permitted in-state and Michigan that permitted in-state wineries to ship wine directly to wineries to ship wine directly to consumers, but prohibited out-of-state consumers, but prohibited out-of-state wineries from doing the same.wineries from doing the same.

Dormant Commerce ClauseDormant Commerce Clause

Granholm v. HealdGranholm v. Heald, 544 U.S. ___(, 544 U.S. ___(20052005))

The Supreme Court by a 5-4 majority The Supreme Court by a 5-4 majority ruled unconstitutional laws in New York ruled unconstitutional laws in New York and Michigan that permitted in-state and Michigan that permitted in-state wineries to ship wine directly to wineries to ship wine directly to consumers, but prohibited out-of-state consumers, but prohibited out-of-state wineries from doing the same.wineries from doing the same.

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State TaxationState TaxationForm Of RegulationForm Of Regulation

Limited By Commerce Limited By Commerce

ClauseClause

ApportionmentApportionment

Must Be Sufficient Tie- Must Be Sufficient Tie-

Nexus Or Nexus Or Taxable SitusTaxable Situs

Form Of RegulationForm Of Regulation

Limited By Commerce Limited By Commerce

ClauseClause

ApportionmentApportionment

Must Be Sufficient Tie- Must Be Sufficient Tie-

Nexus Or Nexus Or Taxable SitusTaxable Situs

6-39

Commerce ClauseCommerce Clause2) Limitation2) Limitation

b) State Taxationb) State Taxation

• HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF CALIFORNIACALIFORNIA, 120 S.Ct. 1022 (2000), 120 S.Ct. 1022 (2000)

FACTS: California attempted to apportion Hunt-Wesson’s FACTS: California attempted to apportion Hunt-Wesson’s and similarly situated companies’ income to determine what and similarly situated companies’ income to determine what part properly was subject to California’s income tax. part properly was subject to California’s income tax. California limited companies’ use of a deduction for interest California limited companies’ use of a deduction for interest payments by offsetting such payments by the amount of payments by offsetting such payments by the amount of income from non-related (nonunitary) business activities. income from non-related (nonunitary) business activities. Hunt-Wesson challenged this limitation of the interest Hunt-Wesson challenged this limitation of the interest deduction since the income from nonunitary sources were deduction since the income from nonunitary sources were unrelated to California. unrelated to California.

ISSUE: Does California’s exception to the interest deduction ISSUE: Does California’s exception to the interest deduction violate the constitutional requirements of nexus needed to violate the constitutional requirements of nexus needed to justify a state’s taxation of interstate commerce?justify a state’s taxation of interstate commerce?

2) Limitation2) Limitationb) State Taxationb) State Taxation

• HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF CALIFORNIACALIFORNIA, 120 S.Ct. 1022 (2000), 120 S.Ct. 1022 (2000)

FACTS: California attempted to apportion Hunt-Wesson’s FACTS: California attempted to apportion Hunt-Wesson’s and similarly situated companies’ income to determine what and similarly situated companies’ income to determine what part properly was subject to California’s income tax. part properly was subject to California’s income tax. California limited companies’ use of a deduction for interest California limited companies’ use of a deduction for interest payments by offsetting such payments by the amount of payments by offsetting such payments by the amount of income from non-related (nonunitary) business activities. income from non-related (nonunitary) business activities. Hunt-Wesson challenged this limitation of the interest Hunt-Wesson challenged this limitation of the interest deduction since the income from nonunitary sources were deduction since the income from nonunitary sources were unrelated to California. unrelated to California.

ISSUE: Does California’s exception to the interest deduction ISSUE: Does California’s exception to the interest deduction violate the constitutional requirements of nexus needed to violate the constitutional requirements of nexus needed to justify a state’s taxation of interstate commerce?justify a state’s taxation of interstate commerce?

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Commerce ClauseCommerce Clause2) Limitation2) Limitation


HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF

CALIFORNIACALIFORNIA, 120 S.Ct. 1022 (2000), 120 S.Ct. 1022 (2000)

DECISION: Yes. California fails to establish DECISION: Yes. California fails to establish a a reasonable nexus or connection between reasonable nexus or connection between its tax on its tax on the income earned outside the state. the income earned outside the state. Because there Because there is a lack of nexus, the California limitation is a lack of nexus, the California limitation on use of on use of the interest deduction violates the the interest deduction violates the Commerce Commerce Clause.Clause.

2) Limitation2) Limitation


HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF HUNT-WESSON, INC. V. FRANCHISE TAX BOARD OF

CALIFORNIACALIFORNIA, 120 S.Ct. 1022 (2000), 120 S.Ct. 1022 (2000)

DECISION: Yes. California fails to establish DECISION: Yes. California fails to establish a a reasonable nexus or connection between reasonable nexus or connection between its tax on its tax on the income earned outside the state. the income earned outside the state. Because there Because there is a lack of nexus, the California limitation is a lack of nexus, the California limitation on use of on use of the interest deduction violates the the interest deduction violates the Commerce Commerce Clause.Clause.

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Commerce ClauseCommerce ClauseThe Massachusetts Commissioner of Food and Agriculture implemented The Massachusetts Commissioner of Food and Agriculture implemented a system of assessments and distribution of collected funds in an a system of assessments and distribution of collected funds in an attempt to support dairy farmers. West Lynn Creamery purchases attempt to support dairy farmers. West Lynn Creamery purchases approximately 97% of the raw milk it buys from out-of-state dairy approximately 97% of the raw milk it buys from out-of-state dairy farmers. Upon being assessed a “premium payment” based on the total farmers. Upon being assessed a “premium payment” based on the total amount it handles, West Lynn and one of its customers, LeComte’s amount it handles, West Lynn and one of its customers, LeComte’s Dairy, inc., challenged the Commissioner’s plan as in violation of the Dairy, inc., challenged the Commissioner’s plan as in violation of the Commerce Clause. The Massachusetts courts found the Commerce Clause. The Massachusetts courts found the Commissioner’s program was constitutional. Issue: Does the Commissioner’s program was constitutional. Issue: Does the Massachusetts program of assessments and distribution of funds Massachusetts program of assessments and distribution of funds discriminate against out-of-state milk producers? Is this program discriminate against out-of-state milk producers? Is this program unconstitutional in violation of the Commerce Clause? Held: Yes to unconstitutional in violation of the Commerce Clause? Held: Yes to both questions. The Massachusetts pricing program imposes a “tax” both questions. The Massachusetts pricing program imposes a “tax” which makes out-of-state milk more expensive to produce. The program which makes out-of-state milk more expensive to produce. The program enables higher-cost Massachusetts dairy farmers to compete with lower-enables higher-cost Massachusetts dairy farmers to compete with lower-cost out-of-state dairy farmers. cost out-of-state dairy farmers. West Lynn Creamery, Inc. v. HealyWest Lynn Creamery, Inc. v. Healy, 114 , 114 S.Ct. 2205 (1994). S.Ct. 2205 (1994).

The Massachusetts Commissioner of Food and Agriculture implemented The Massachusetts Commissioner of Food and Agriculture implemented a system of assessments and distribution of collected funds in an a system of assessments and distribution of collected funds in an attempt to support dairy farmers. West Lynn Creamery purchases attempt to support dairy farmers. West Lynn Creamery purchases approximately 97% of the raw milk it buys from out-of-state dairy approximately 97% of the raw milk it buys from out-of-state dairy farmers. Upon being assessed a “premium payment” based on the total farmers. Upon being assessed a “premium payment” based on the total amount it handles, West Lynn and one of its customers, LeComte’s amount it handles, West Lynn and one of its customers, LeComte’s Dairy, inc., challenged the Commissioner’s plan as in violation of the Dairy, inc., challenged the Commissioner’s plan as in violation of the Commerce Clause. The Massachusetts courts found the Commerce Clause. The Massachusetts courts found the Commissioner’s program was constitutional. Issue: Does the Commissioner’s program was constitutional. Issue: Does the Massachusetts program of assessments and distribution of funds Massachusetts program of assessments and distribution of funds discriminate against out-of-state milk producers? Is this program discriminate against out-of-state milk producers? Is this program unconstitutional in violation of the Commerce Clause? Held: Yes to unconstitutional in violation of the Commerce Clause? Held: Yes to both questions. The Massachusetts pricing program imposes a “tax” both questions. The Massachusetts pricing program imposes a “tax” which makes out-of-state milk more expensive to produce. The program which makes out-of-state milk more expensive to produce. The program enables higher-cost Massachusetts dairy farmers to compete with lower-enables higher-cost Massachusetts dairy farmers to compete with lower-cost out-of-state dairy farmers. cost out-of-state dairy farmers. West Lynn Creamery, Inc. v. HealyWest Lynn Creamery, Inc. v. Healy, 114 , 114 S.Ct. 2205 (1994). S.Ct. 2205 (1994).

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Foreign CommerceForeign CommerceFederal Gov’t Has Exclusive Federal Gov’t Has Exclusive

Right To Regulate Foreign Right To Regulate Foreign CommerceCommerce

State Can Regulate State Can Regulate Commerce If Occurs Entirely Commerce If Occurs Entirely Within State BoundariesWithin State Boundaries

Federal Gov’t Has Exclusive Federal Gov’t Has Exclusive Right To Regulate Foreign Right To Regulate Foreign CommerceCommerce

State Can Regulate State Can Regulate Commerce If Occurs Entirely Commerce If Occurs Entirely Within State BoundariesWithin State Boundaries

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Takings ClauseTakings ClauseRidge Line v. United States, p.85Ridge Line v. United States, p.85

The government owned property adjacent to a privately-The government owned property adjacent to a privately-owned shopping center. After the government built a owned shopping center. After the government built a Post Office on its lot, an increase in storm water run-off Post Office on its lot, an increase in storm water run-off caused considerable damage to the shopping center. The caused considerable damage to the shopping center. The appellate court held that the trial court was incorrect in appellate court held that the trial court was incorrect in holding that no compensable taking had occurred holding that no compensable taking had occurred because the lower court wrongly found there to be no because the lower court wrongly found there to be no permanent and exclusive occupation by the government. permanent and exclusive occupation by the government. The appellate court concluded that a permanent The appellate court concluded that a permanent occupation need not exclude the property owner to be occupation need not exclude the property owner to be compensable and need not be continuous.compensable and need not be continuous.

Ridge Line v. United States, p.85Ridge Line v. United States, p.85The government owned property adjacent to a privately-The government owned property adjacent to a privately-owned shopping center. After the government built a owned shopping center. After the government built a Post Office on its lot, an increase in storm water run-off Post Office on its lot, an increase in storm water run-off caused considerable damage to the shopping center. The caused considerable damage to the shopping center. The appellate court held that the trial court was incorrect in appellate court held that the trial court was incorrect in holding that no compensable taking had occurred holding that no compensable taking had occurred because the lower court wrongly found there to be no because the lower court wrongly found there to be no permanent and exclusive occupation by the government. permanent and exclusive occupation by the government. The appellate court concluded that a permanent The appellate court concluded that a permanent occupation need not exclude the property owner to be occupation need not exclude the property owner to be compensable and need not be continuous.compensable and need not be continuous.

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Takings ClauseTakings Clause

Kelo v. New LondonKelo v. New London, 125 S.Ct. 2655 (2005), 125 S.Ct. 2655 (2005)The cThe city used eminent domain to ity used eminent domain to condemn privately owned real property condemn privately owned real property so that it could be used as part of a so that it could be used as part of a comprehensive redevelopment plan. comprehensive redevelopment plan. The Court held that "the city's The Court held that "the city's proposed disposition of this property proposed disposition of this property qualifies as a 'public use' within the qualifies as a 'public use' within the meaning of the Takings Clause of the meaning of the Takings Clause of the 55thth Amendment." Amendment."

Kelo v. New LondonKelo v. New London, 125 S.Ct. 2655 (2005), 125 S.Ct. 2655 (2005)The cThe city used eminent domain to ity used eminent domain to condemn privately owned real property condemn privately owned real property so that it could be used as part of a so that it could be used as part of a comprehensive redevelopment plan. comprehensive redevelopment plan. The Court held that "the city's The Court held that "the city's proposed disposition of this property proposed disposition of this property qualifies as a 'public use' within the qualifies as a 'public use' within the meaning of the Takings Clause of the meaning of the Takings Clause of the 55thth Amendment." Amendment."

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Bill of RightsBill of Rights The “Bill of Rights”, or first 10 amendments The “Bill of Rights”, or first 10 amendments

to the Constitution, drafted in 1789, states to the Constitution, drafted in 1789, states in its preamble, as its fundamental purpose:in its preamble, as its fundamental purpose:

““THE Conventions of a number of the THE Conventions of a number of the States, having at the time of their adopting States, having at the time of their adopting the Constitution, expressed a desire, the Constitution, expressed a desire, in in order to prevent misconstruction or abuse order to prevent misconstruction or abuse of itsof its powers, that further declaratory and powers, that further declaratory and restrictive clauses should be addedrestrictive clauses should be added:: And as And as extending the ground of public confidence extending the ground of public confidence in the Government, will best ensure the in the Government, will best ensure the beneficent ends of its institution.”beneficent ends of its institution.”

The “Bill of Rights”, or first 10 amendments The “Bill of Rights”, or first 10 amendments to the Constitution, drafted in 1789, states to the Constitution, drafted in 1789, states in its preamble, as its fundamental purpose:in its preamble, as its fundamental purpose:

““THE Conventions of a number of the THE Conventions of a number of the States, having at the time of their adopting States, having at the time of their adopting the Constitution, expressed a desire, the Constitution, expressed a desire, in in order to prevent misconstruction or abuse order to prevent misconstruction or abuse of itsof its powers, that further declaratory and powers, that further declaratory and restrictive clauses should be addedrestrictive clauses should be added:: And as And as extending the ground of public confidence extending the ground of public confidence in the Government, will best ensure the in the Government, will best ensure the beneficent ends of its institution.”beneficent ends of its institution.”

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Bill of RightsBill of Rights In addition, the 10th In addition, the 10th

amendment states:amendment states:• ““The enumeration in the The enumeration in the

Constitution, of certain rights, Constitution, of certain rights, shall not be construed to denyshall not be construed to deny or or disparage others retained by the disparage others retained by the peoplepeople.”.”

In addition, the 10th In addition, the 10th amendment states:amendment states:• ““The enumeration in the The enumeration in the

Constitution, of certain rights, Constitution, of certain rights, shall not be construed to denyshall not be construed to deny or or disparage others retained by the disparage others retained by the peoplepeople.”.”

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Bill of RightsBill of RightsThe “Plain Language” of the The “Plain Language” of the

preamble to the U.S. Constitution preamble to the U.S. Constitution and the first 10 Amendments and the first 10 Amendments appear to suggest that the appear to suggest that the limitations contained therein were limitations contained therein were intended to be limitations upon the intended to be limitations upon the actions of the federal government, actions of the federal government, not upon actions of state not upon actions of state governments, and clearly not upon governments, and clearly not upon the actions of individual citizens.the actions of individual citizens.

The “Plain Language” of the The “Plain Language” of the preamble to the U.S. Constitution preamble to the U.S. Constitution and the first 10 Amendments and the first 10 Amendments appear to suggest that the appear to suggest that the limitations contained therein were limitations contained therein were intended to be limitations upon the intended to be limitations upon the actions of the federal government, actions of the federal government, not upon actions of state not upon actions of state governments, and clearly not upon governments, and clearly not upon the actions of individual citizens.the actions of individual citizens.

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First AmendmentFirst AmendmentFreedoms:Freedoms:

• ReligionReligion

• PressPress

• SpeechSpeech

• AssemblyAssembly

Right To Petition For RedressRight To Petition For Redress

Freedoms:Freedoms:

• ReligionReligion

• PressPress

• SpeechSpeech

• AssemblyAssembly

Right To Petition For RedressRight To Petition For Redress

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Freedom Of ReligionFreedom Of ReligionThe first amendments states:The first amendments states:Congress shall make no law Congress shall make no law

respecting an establishment of respecting an establishment of religion, or prohibiting the free religion, or prohibiting the free exercise thereof;exercise thereof; or abridging the or abridging the freedom of speech, or of the freedom of speech, or of the press; or the right of the people press; or the right of the people peaceably to assemble, and to peaceably to assemble, and to petition the Government for a petition the Government for a redress of grievances.redress of grievances.

The first amendments states:The first amendments states:Congress shall make no law Congress shall make no law

respecting an establishment of respecting an establishment of religion, or prohibiting the free religion, or prohibiting the free exercise thereof;exercise thereof; or abridging the or abridging the freedom of speech, or of the freedom of speech, or of the press; or the right of the people press; or the right of the people peaceably to assemble, and to peaceably to assemble, and to petition the Government for a petition the Government for a redress of grievances.redress of grievances.

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Freedom Of ReligionFreedom Of Religion In In Barron v. BaltimoreBarron v. Baltimore, 32 U.S. (7 , 32 U.S. (7

Pet.) 243 (1833) and Pet.) 243 (1833) and Permoli v. Permoli v. NewNew OrleansOrleans, 44 U.S. (3 How.) , 44 U.S. (3 How.) 589 (1845), the U.S. Supreme 589 (1845), the U.S. Supreme Court specifically held that the Court specifically held that the Free Exercise clause of the First Free Exercise clause of the First Amendment was inapplicable to Amendment was inapplicable to the states.the states.

In In Barron v. BaltimoreBarron v. Baltimore, 32 U.S. (7 , 32 U.S. (7 Pet.) 243 (1833) and Pet.) 243 (1833) and Permoli v. Permoli v. NewNew OrleansOrleans, 44 U.S. (3 How.) , 44 U.S. (3 How.) 589 (1845), the U.S. Supreme 589 (1845), the U.S. Supreme Court specifically held that the Court specifically held that the Free Exercise clause of the First Free Exercise clause of the First Amendment was inapplicable to Amendment was inapplicable to the states.the states.

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Fourteenth AmendmentFourteenth Amendment Section 1 of Fourteenth Amendment, Section 1 of Fourteenth Amendment,

passed by Congress following the passed by Congress following the American Civil War on, June 13, 1866 American Civil War on, June 13, 1866 and ratified July 9, 1868 states:and ratified July 9, 1868 states:• ““All persons born or naturalized in the All persons born or naturalized in the

United States, and subject to the jurisdiction United States, and subject to the jurisdiction thereof, are citizens of the United States thereof, are citizens of the United States and of the State wherein they reside. and of the State wherein they reside. No No State shall make or enforce any law which State shall make or enforce any law which shall abridge the privileges or immunities of shall abridge the privileges or immunities of citizens of the United States; nor shall any citizens of the United States; nor shall any State deprive any person of life, liberty, or State deprive any person of life, liberty, or property, without due process of law; nor property, without due process of law; nor deny to any person within its jurisdiction thedeny to any person within its jurisdiction the equal protection of the laws.”equal protection of the laws.”

Section 1 of Fourteenth Amendment, Section 1 of Fourteenth Amendment, passed by Congress following the passed by Congress following the American Civil War on, June 13, 1866 American Civil War on, June 13, 1866 and ratified July 9, 1868 states:and ratified July 9, 1868 states:• ““All persons born or naturalized in the All persons born or naturalized in the

United States, and subject to the jurisdiction United States, and subject to the jurisdiction thereof, are citizens of the United States thereof, are citizens of the United States and of the State wherein they reside. and of the State wherein they reside. No No State shall make or enforce any law which State shall make or enforce any law which shall abridge the privileges or immunities of shall abridge the privileges or immunities of citizens of the United States; nor shall any citizens of the United States; nor shall any State deprive any person of life, liberty, or State deprive any person of life, liberty, or property, without due process of law; nor property, without due process of law; nor deny to any person within its jurisdiction thedeny to any person within its jurisdiction the equal protection of the laws.”equal protection of the laws.”

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Fourteenth AmendmentFourteenth Amendment

Section 5 of Fourteenth Section 5 of Fourteenth Amendment, adds that:Amendment, adds that:

““The Congress shall have The Congress shall have power to enforce, by power to enforce, by appropriate legislation, the appropriate legislation, the provisions of this article.”provisions of this article.”

Section 5 of Fourteenth Section 5 of Fourteenth Amendment, adds that:Amendment, adds that:

““The Congress shall have The Congress shall have power to enforce, by power to enforce, by appropriate legislation, the appropriate legislation, the provisions of this article.”provisions of this article.”

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Fourteenth AmendmentFourteenth Amendment

The The “Privileges and Immunities”, “Due “Privileges and Immunities”, “Due Process” and “Equal Protection”Process” and “Equal Protection” clauses clauses of this section have all been used in of this section have all been used in varying contexts to support the varying contexts to support the argument that some or all of the argument that some or all of the limitations placed upon the federal limitations placed upon the federal government by the Bill of Rights should government by the Bill of Rights should also be extended to state governments. also be extended to state governments. This is commonly known as the This is commonly known as the doctrine doctrine of “incorporation”.of “incorporation”.

The The “Privileges and Immunities”, “Due “Privileges and Immunities”, “Due Process” and “Equal Protection”Process” and “Equal Protection” clauses clauses of this section have all been used in of this section have all been used in varying contexts to support the varying contexts to support the argument that some or all of the argument that some or all of the limitations placed upon the federal limitations placed upon the federal government by the Bill of Rights should government by the Bill of Rights should also be extended to state governments. also be extended to state governments. This is commonly known as the This is commonly known as the doctrine doctrine of “incorporation”.of “incorporation”.

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Privileges and ImmunitiesPrivileges and Immunities

Privileges & ImmunitiesPrivileges & Immunities: Art. IV, Sec. 2, : Art. IV, Sec. 2, Clause 1 states that the “citizens of Clause 1 states that the “citizens of each state shall be entitled to all each state shall be entitled to all privileges and immunities of citizens in privileges and immunities of citizens in the several states.”the several states.”• Therefore, each state must offer same Therefore, each state must offer same

privileges to a person from another state privileges to a person from another state as it would to its citizensas it would to its citizens

• For business, that essentially means that For business, that essentially means that rights established under deeds and rights established under deeds and contracts and court orders in one state will contracts and court orders in one state will be honored by other statesbe honored by other states

Privileges & ImmunitiesPrivileges & Immunities: Art. IV, Sec. 2, : Art. IV, Sec. 2, Clause 1 states that the “citizens of Clause 1 states that the “citizens of each state shall be entitled to all each state shall be entitled to all privileges and immunities of citizens in privileges and immunities of citizens in the several states.”the several states.”• Therefore, each state must offer same Therefore, each state must offer same

privileges to a person from another state privileges to a person from another state as it would to its citizensas it would to its citizens

• For business, that essentially means that For business, that essentially means that rights established under deeds and rights established under deeds and contracts and court orders in one state will contracts and court orders in one state will be honored by other statesbe honored by other states

18331833

18571857

The Bill of Rights did not apply to state and local governments.The Bill of Rights did not apply to state and local governments.

Slaves were not citizens and not entitled to any constitutional protection.Slaves were not citizens and not entitled to any constitutional protection.

18681868 States were prohibited from denying their citizens due process, equal protection, States were prohibited from denying their citizens due process, equal protection, or privileges and immunities.or privileges and immunities.

18721872 The Privileges and Immunities Clause of the Fourteenth Amendment did not The Privileges and Immunities Clause of the Fourteenth Amendment did not incorporate any of the Bill of Rights. incorporate any of the Bill of Rights.

18641864 In holding that due process did not require a grand jury hearing, the Supreme In holding that due process did not require a grand jury hearing, the Supreme Court did not rule out the possibility that some of the Bill of Rights might be Court did not rule out the possibility that some of the Bill of Rights might be included in the concept of due process.included in the concept of due process.

19081908 Rights that are a fundamental principle of liberty and justice, which inhere in the Rights that are a fundamental principle of liberty and justice, which inhere in the very idea of free government, and are the inalienable rights of a citizen of such a very idea of free government, and are the inalienable rights of a citizen of such a government are protected by due process. (Here, due process did not apply to government are protected by due process. (Here, due process did not apply to self-incrimination, although this was later changed.)self-incrimination, although this was later changed.)

Current Current ViewView

The Fourteenth Amendment Due Process Clause extends most of the Bill of The Fourteenth Amendment Due Process Clause extends most of the Bill of Rights protections against action by State (the Incorporation Doctrine).Rights protections against action by State (the Incorporation Doctrine).

Incorporation Doctrine—Timeline

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Incorporation DoctrineIncorporation Doctrine

The first time the incorporation doctrine was The first time the incorporation doctrine was utilized to make the restrictions of the First utilized to make the restrictions of the First Amendment applicable to state and local Amendment applicable to state and local governments was in the 1940 case of governments was in the 1940 case of Cantwell Cantwell v. Connecticutv. Connecticut. In . In CantwellCantwell, a Jehovah's , a Jehovah's Witness was arrested in the course of Witness was arrested in the course of proselytizing on the streets of New Haven, and proselytizing on the streets of New Haven, and was convicted for inciting a breach of the was convicted for inciting a breach of the peace. The Supreme Court reversed the peace. The Supreme Court reversed the conviction and found that Cantwell's behavior conviction and found that Cantwell's behavior did not breach the peace. The Court went on to did not breach the peace. The Court went on to state that the statute he was convicted under state that the statute he was convicted under was sweeping and included a great variety of was sweeping and included a great variety of constitutionally protected conduct, including constitutionally protected conduct, including Cantwell's free exercise of religion.Cantwell's free exercise of religion.

The first time the incorporation doctrine was The first time the incorporation doctrine was utilized to make the restrictions of the First utilized to make the restrictions of the First Amendment applicable to state and local Amendment applicable to state and local governments was in the 1940 case of governments was in the 1940 case of Cantwell Cantwell v. Connecticutv. Connecticut. In . In CantwellCantwell, a Jehovah's , a Jehovah's Witness was arrested in the course of Witness was arrested in the course of proselytizing on the streets of New Haven, and proselytizing on the streets of New Haven, and was convicted for inciting a breach of the was convicted for inciting a breach of the peace. The Supreme Court reversed the peace. The Supreme Court reversed the conviction and found that Cantwell's behavior conviction and found that Cantwell's behavior did not breach the peace. The Court went on to did not breach the peace. The Court went on to state that the statute he was convicted under state that the statute he was convicted under was sweeping and included a great variety of was sweeping and included a great variety of constitutionally protected conduct, including constitutionally protected conduct, including Cantwell's free exercise of religion.Cantwell's free exercise of religion.

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Incorporation DoctrineIncorporation Doctrine

Later in Later in Everson v. Board of Ed.,Everson v. Board of Ed., 330 U.S. 1 (1947), the U.S. 330 U.S. 1 (1947), the U.S. Supreme Court, citing Supreme Court, citing CantwellCantwell and and other Free Exercise and Free other Free Exercise and Free Speech cases, held that the Speech cases, held that the Establishment Clause was Establishment Clause was incorporated and made applicable incorporated and made applicable to the States via the Due Process to the States via the Due Process clause of the 14th Amendment.clause of the 14th Amendment.

Later in Later in Everson v. Board of Ed.,Everson v. Board of Ed., 330 U.S. 1 (1947), the U.S. 330 U.S. 1 (1947), the U.S. Supreme Court, citing Supreme Court, citing CantwellCantwell and and other Free Exercise and Free other Free Exercise and Free Speech cases, held that the Speech cases, held that the Establishment Clause was Establishment Clause was incorporated and made applicable incorporated and made applicable to the States via the Due Process to the States via the Due Process clause of the 14th Amendment.clause of the 14th Amendment.

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Freedom of ReligionFreedom of Religion Frazee refused a temporary position offered to him by Kelly Frazee refused a temporary position offered to him by Kelly

Services because the job would have required him to work on Services because the job would have required him to work on Sunday. He was denied unemployment compensation benefits Sunday. He was denied unemployment compensation benefits since he was not a member of an established religious sect or since he was not a member of an established religious sect or church and did not claim that his refusal to work resulted from a church and did not claim that his refusal to work resulted from a tenet, belief, or teaching of an established religious body. tenet, belief, or teaching of an established religious body. Issue: Does the denial of compensation constitute a violation Issue: Does the denial of compensation constitute a violation of the Free Exercise Clause? Held: Yes. While membership in of the Free Exercise Clause? Held: Yes. While membership in a sect would simplify the problem of identifying sincerely held a sect would simplify the problem of identifying sincerely held beliefs, the notion that one must be responding to the beliefs, the notion that one must be responding to the commands of a particular religious organization to claim the commands of a particular religious organization to claim the protection of the Free Exercise Clause is rejected. The fact that protection of the Free Exercise Clause is rejected. The fact that Sunday work has become a way of life does not constitute a Sunday work has become a way of life does not constitute a state interest sufficiently compelling to override a legitimate state interest sufficiently compelling to override a legitimate free exercise claim, since there is no evidence that there will be free exercise claim, since there is no evidence that there will be a mass movement away from Sunday employment if appellant a mass movement away from Sunday employment if appellant succeeds on his claim. succeeds on his claim. Frazee v. Illinois Department of Frazee v. Illinois Department of Employment Security,Employment Security, 109 S.Ct. 1514 (1989). 109 S.Ct. 1514 (1989).

Frazee refused a temporary position offered to him by Kelly Frazee refused a temporary position offered to him by Kelly Services because the job would have required him to work on Services because the job would have required him to work on Sunday. He was denied unemployment compensation benefits Sunday. He was denied unemployment compensation benefits since he was not a member of an established religious sect or since he was not a member of an established religious sect or church and did not claim that his refusal to work resulted from a church and did not claim that his refusal to work resulted from a tenet, belief, or teaching of an established religious body. tenet, belief, or teaching of an established religious body. Issue: Does the denial of compensation constitute a violation Issue: Does the denial of compensation constitute a violation of the Free Exercise Clause? Held: Yes. While membership in of the Free Exercise Clause? Held: Yes. While membership in a sect would simplify the problem of identifying sincerely held a sect would simplify the problem of identifying sincerely held beliefs, the notion that one must be responding to the beliefs, the notion that one must be responding to the commands of a particular religious organization to claim the commands of a particular religious organization to claim the protection of the Free Exercise Clause is rejected. The fact that protection of the Free Exercise Clause is rejected. The fact that Sunday work has become a way of life does not constitute a Sunday work has become a way of life does not constitute a state interest sufficiently compelling to override a legitimate state interest sufficiently compelling to override a legitimate free exercise claim, since there is no evidence that there will be free exercise claim, since there is no evidence that there will be a mass movement away from Sunday employment if appellant a mass movement away from Sunday employment if appellant succeeds on his claim. succeeds on his claim. Frazee v. Illinois Department of Frazee v. Illinois Department of Employment Security,Employment Security, 109 S.Ct. 1514 (1989). 109 S.Ct. 1514 (1989).

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Freedom of ReligionFreedom of Religion

Plaintiff, a Jehovah witness, was initially hired to work in his employer's roll Plaintiff, a Jehovah witness, was initially hired to work in his employer's roll foundry, but when the foundry was closed, he was transferred to a foundry, but when the foundry was closed, he was transferred to a department that fabricated turrets for military tanks. Plaintiff asserted that department that fabricated turrets for military tanks. Plaintiff asserted that his religious beliefs prevented him from participating in the production of his religious beliefs prevented him from participating in the production of weapons. His employer offered no other non-war production jobs. Plaintiff weapons. His employer offered no other non-war production jobs. Plaintiff requested to be laid off, but when his request was denied, he quit. Plaintiff requested to be laid off, but when his request was denied, he quit. Plaintiff subsequently applied for but was denied unemployment compensation. subsequently applied for but was denied unemployment compensation. Indiana state law requires applicants for unemployment compensation to Indiana state law requires applicants for unemployment compensation to show that they left work for a good cause in connection with the work. show that they left work for a good cause in connection with the work. Issue: Is the denial a violation of the First Amendment? Held: Yes. When Issue: Is the denial a violation of the First Amendment? Held: Yes. When the state conditions receipt of an important benefit upon conduct the state conditions receipt of an important benefit upon conduct proscribed by a religious belief, thereby putting substantial pressure on an proscribed by a religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. The state may justify an inroad on religious liberty by religion exists. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling showing that it is the least restrictive means of achieving some compelling state interest. However, only those interests of the highest order can state interest. However, only those interests of the highest order can overbalance legitimate claims to the free exercise of religion. The interests overbalance legitimate claims to the free exercise of religion. The interests advanced by the state to avoid widespread unemployment and to avoid a advanced by the state to avoid widespread unemployment and to avoid a detailed probing by employers into job applicants' religious beliefs do not detailed probing by employers into job applicants' religious beliefs do not justify the burden placed on free exercise of religion. justify the burden placed on free exercise of religion. Thomas v. Review Bd. Thomas v. Review Bd. of Indiana Employment Secof Indiana Employment Sec., 100 S.Ct. 1425 (1981). ., 100 S.Ct. 1425 (1981).

Plaintiff, a Jehovah witness, was initially hired to work in his employer's roll Plaintiff, a Jehovah witness, was initially hired to work in his employer's roll foundry, but when the foundry was closed, he was transferred to a foundry, but when the foundry was closed, he was transferred to a department that fabricated turrets for military tanks. Plaintiff asserted that department that fabricated turrets for military tanks. Plaintiff asserted that his religious beliefs prevented him from participating in the production of his religious beliefs prevented him from participating in the production of weapons. His employer offered no other non-war production jobs. Plaintiff weapons. His employer offered no other non-war production jobs. Plaintiff requested to be laid off, but when his request was denied, he quit. Plaintiff requested to be laid off, but when his request was denied, he quit. Plaintiff subsequently applied for but was denied unemployment compensation. subsequently applied for but was denied unemployment compensation. Indiana state law requires applicants for unemployment compensation to Indiana state law requires applicants for unemployment compensation to show that they left work for a good cause in connection with the work. show that they left work for a good cause in connection with the work. Issue: Is the denial a violation of the First Amendment? Held: Yes. When Issue: Is the denial a violation of the First Amendment? Held: Yes. When the state conditions receipt of an important benefit upon conduct the state conditions receipt of an important benefit upon conduct proscribed by a religious belief, thereby putting substantial pressure on an proscribed by a religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. The state may justify an inroad on religious liberty by religion exists. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling showing that it is the least restrictive means of achieving some compelling state interest. However, only those interests of the highest order can state interest. However, only those interests of the highest order can overbalance legitimate claims to the free exercise of religion. The interests overbalance legitimate claims to the free exercise of religion. The interests advanced by the state to avoid widespread unemployment and to avoid a advanced by the state to avoid widespread unemployment and to avoid a detailed probing by employers into job applicants' religious beliefs do not detailed probing by employers into job applicants' religious beliefs do not justify the burden placed on free exercise of religion. justify the burden placed on free exercise of religion. Thomas v. Review Bd. Thomas v. Review Bd. of Indiana Employment Secof Indiana Employment Sec., 100 S.Ct. 1425 (1981). ., 100 S.Ct. 1425 (1981).

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California's imposition of its general 6 percent California's imposition of its general 6 percent sales and use taxes on religious merchandise sales and use taxes on religious merchandise sold in the state by religious organizations does sold in the state by religious organizations does not violate the First Amendment. A generally not violate the First Amendment. A generally applicable sales and use tax, which is not a flat applicable sales and use tax, which is not a flat license tax, which constitutes only a small part license tax, which constitutes only a small part of the sale price, and which is applied neutrally of the sale price, and which is applied neutrally without regard to the nature of the seller or without regard to the nature of the seller or purchaser, does not place an onerous burden on purchaser, does not place an onerous burden on religious activity. religious activity. Jimmy Swaggart Industries v. Jimmy Swaggart Industries v. Board of Equalization of CaliforniaBoard of Equalization of California, 110 S.Ct. 688 , 110 S.Ct. 688 (1990).(1990).

California's imposition of its general 6 percent California's imposition of its general 6 percent sales and use taxes on religious merchandise sales and use taxes on religious merchandise sold in the state by religious organizations does sold in the state by religious organizations does not violate the First Amendment. A generally not violate the First Amendment. A generally applicable sales and use tax, which is not a flat applicable sales and use tax, which is not a flat license tax, which constitutes only a small part license tax, which constitutes only a small part of the sale price, and which is applied neutrally of the sale price, and which is applied neutrally without regard to the nature of the seller or without regard to the nature of the seller or purchaser, does not place an onerous burden on purchaser, does not place an onerous burden on religious activity. religious activity. Jimmy Swaggart Industries v. Jimmy Swaggart Industries v. Board of Equalization of CaliforniaBoard of Equalization of California, 110 S.Ct. 688 , 110 S.Ct. 688 (1990).(1990).

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When a state denies the receipt of a benefit because of When a state denies the receipt of a benefit because of conduct mandated by religious belief, a burden on the conduct mandated by religious belief, a burden on the exercise of religion exists. Not only is it apparent that exercise of religion exists. Not only is it apparent that Hobbie's declared ineligibility for benefits derived solely Hobbie's declared ineligibility for benefits derived solely from the practice of religion, but also the pressure on her from the practice of religion, but also the pressure on her to forego that practice (not working on her Sabbath) is to forego that practice (not working on her Sabbath) is unmistakable. The First Amendment protects the free unmistakable. The First Amendment protects the free exercise rights of employees who adopt religious beliefs exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. or convert from one faith to another after they are hired. The timing of Hobbie's conversation is immaterial to our The timing of Hobbie's conversation is immaterial to our determination that her free exercise rights have been determination that her free exercise rights have been burdened. burdened. Hobbie v. Unemployment Appeals of FloridaHobbie v. Unemployment Appeals of Florida, , 107 S.Ct. 1046 (1987).107 S.Ct. 1046 (1987).

When a state denies the receipt of a benefit because of When a state denies the receipt of a benefit because of conduct mandated by religious belief, a burden on the conduct mandated by religious belief, a burden on the exercise of religion exists. Not only is it apparent that exercise of religion exists. Not only is it apparent that Hobbie's declared ineligibility for benefits derived solely Hobbie's declared ineligibility for benefits derived solely from the practice of religion, but also the pressure on her from the practice of religion, but also the pressure on her to forego that practice (not working on her Sabbath) is to forego that practice (not working on her Sabbath) is unmistakable. The First Amendment protects the free unmistakable. The First Amendment protects the free exercise rights of employees who adopt religious beliefs exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. or convert from one faith to another after they are hired. The timing of Hobbie's conversation is immaterial to our The timing of Hobbie's conversation is immaterial to our determination that her free exercise rights have been determination that her free exercise rights have been burdened. burdened. Hobbie v. Unemployment Appeals of FloridaHobbie v. Unemployment Appeals of Florida, , 107 S.Ct. 1046 (1987).107 S.Ct. 1046 (1987).

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A Connecticut statute which provided A Connecticut statute which provided Sabbath observers with absolute and Sabbath observers with absolute and unqualified right not to work on their unqualified right not to work on their Sabbath, violated the establishment Sabbath, violated the establishment clause. It imposed on employers and clause. It imposed on employers and employees an absolute duty to conform employees an absolute duty to conform their business practices to a particular their business practices to a particular religious practice of the employee by religious practice of the employee by enforcing observances of the Sabbath the enforcing observances of the Sabbath the employee unilaterally designated. employee unilaterally designated. Thornton v. CaldorThornton v. Caldor, 105 S.Ct. 2914 (1985). , 105 S.Ct. 2914 (1985).

A Connecticut statute which provided A Connecticut statute which provided Sabbath observers with absolute and Sabbath observers with absolute and unqualified right not to work on their unqualified right not to work on their Sabbath, violated the establishment Sabbath, violated the establishment clause. It imposed on employers and clause. It imposed on employers and employees an absolute duty to conform employees an absolute duty to conform their business practices to a particular their business practices to a particular religious practice of the employee by religious practice of the employee by enforcing observances of the Sabbath the enforcing observances of the Sabbath the employee unilaterally designated. employee unilaterally designated. Thornton v. CaldorThornton v. Caldor, 105 S.Ct. 2914 (1985). , 105 S.Ct. 2914 (1985).

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Freedom Of PressFreedom Of PressGenerally, No Prior Generally, No Prior

Restraints (Censorship)Restraints (Censorship)

Not AbsoluteNot Absolute• (e.g. Obscenity, Defamation, (e.g. Obscenity, Defamation,

National Security)National Security)

Generally, No Prior Generally, No Prior Restraints (Censorship)Restraints (Censorship)

Not AbsoluteNot Absolute• (e.g. Obscenity, Defamation, (e.g. Obscenity, Defamation,

National Security)National Security)

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Freedom Of SpeechFreedom Of Speech Covers both verbal & written communicationsCovers both verbal & written communications

Symbolic SpeechSymbolic Speech

• (e.g. Picketing, Flag Burning)(e.g. Picketing, Flag Burning)

Commercial SpeechCommercial Speech

• Historically Less Protected, but more protections Historically Less Protected, but more protections since the 1970’ssince the 1970’s

• Protects CorporationsProtects Corporations

• Protects Listener & SpeakerProtects Listener & Speaker

• Includes Freedom Of Information (FOIA)Includes Freedom Of Information (FOIA)

Covers both verbal & written communicationsCovers both verbal & written communications

Symbolic SpeechSymbolic Speech

• (e.g. Picketing, Flag Burning)(e.g. Picketing, Flag Burning)


• Historically Less Protected, but more protections Historically Less Protected, but more protections since the 1970’ssince the 1970’s

• Protects CorporationsProtects Corporations

• Protects Listener & SpeakerProtects Listener & Speaker

• Includes Freedom Of Information (FOIA)Includes Freedom Of Information (FOIA)

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Freedom Of SpeechFreedom Of Speech• A local ordinance in Forsyth County, Ga., A local ordinance in Forsyth County, Ga.,

required permit applicants to pay fees of as required permit applicants to pay fees of as much as $1,000, based on the estimated police much as $1,000, based on the estimated police and administrative costs associated with their and administrative costs associated with their protests or marches. The Forsyth County protests or marches. The Forsyth County ordinance violated the First Amendment ordinance violated the First Amendment because it gave officials considerable because it gave officials considerable discretion to set permit fees based on how discretion to set permit fees based on how much opposition a demonstration is expected much opposition a demonstration is expected to stir up. to stir up. Forsyth County v. Nationalist Forsyth County v. Nationalist Movement,Movement, 112 S.Ct. 2395 (1992). 112 S.Ct. 2395 (1992).

• A local ordinance in Forsyth County, Ga., A local ordinance in Forsyth County, Ga., required permit applicants to pay fees of as required permit applicants to pay fees of as much as $1,000, based on the estimated police much as $1,000, based on the estimated police and administrative costs associated with their and administrative costs associated with their protests or marches. The Forsyth County protests or marches. The Forsyth County ordinance violated the First Amendment ordinance violated the First Amendment because it gave officials considerable because it gave officials considerable discretion to set permit fees based on how discretion to set permit fees based on how much opposition a demonstration is expected much opposition a demonstration is expected to stir up. to stir up. Forsyth County v. Nationalist Forsyth County v. Nationalist Movement,Movement, 112 S.Ct. 2395 (1992). 112 S.Ct. 2395 (1992).

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Freedom Of SpeechFreedom Of Speech• A St. Paul ordinance made it a crime to burn a A St. Paul ordinance made it a crime to burn a

cross or do other acts that can arouse "anger, cross or do other acts that can arouse "anger, alarm or resentment" on the basis of race, alarm or resentment" on the basis of race, religion or gender. The law wrongly singled religion or gender. The law wrongly singled out for censorship the expression of particular out for censorship the expression of particular ideas. However objectionable those ideas ideas. However objectionable those ideas might be, "The First Amendment does not might be, "The First Amendment does not permit St. Paul to impose special prohibitions permit St. Paul to impose special prohibitions on those speakers who express views on on those speakers who express views on disfavored subjects." disfavored subjects." R.A.V. v. St. PaulR.A.V. v. St. Paul, 112 , 112 S.Ct. 2538 (1992).S.Ct. 2538 (1992).

• A St. Paul ordinance made it a crime to burn a A St. Paul ordinance made it a crime to burn a cross or do other acts that can arouse "anger, cross or do other acts that can arouse "anger, alarm or resentment" on the basis of race, alarm or resentment" on the basis of race, religion or gender. The law wrongly singled religion or gender. The law wrongly singled out for censorship the expression of particular out for censorship the expression of particular ideas. However objectionable those ideas ideas. However objectionable those ideas might be, "The First Amendment does not might be, "The First Amendment does not permit St. Paul to impose special prohibitions permit St. Paul to impose special prohibitions on those speakers who express views on on those speakers who express views on disfavored subjects." disfavored subjects." R.A.V. v. St. PaulR.A.V. v. St. Paul, 112 , 112 S.Ct. 2538 (1992).S.Ct. 2538 (1992).

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Freedom Of SpeechFreedom Of Speech Overbreadth DoctrineOverbreadth Doctrine

• Overly broad restrictions usually prohibitedOverly broad restrictions usually prohibited• A Missouri statute that prohibits the display, rental, or sale to minors A Missouri statute that prohibits the display, rental, or sale to minors

of video cassettes that appeal to a "morbid interest in violence," or of video cassettes that appeal to a "morbid interest in violence," or that depict violence in a manner that is "patently offensive" by that depict violence in a manner that is "patently offensive" by "contemporary adult community standards." ("contemporary adult community standards." (Video Software Video Software Dealers Association v. WebsterDealers Association v. Webster, 773 F.Supp. 1275 (W.D. Mo. 1991). , 773 F.Supp. 1275 (W.D. Mo. 1991). Unlike obscenity, violent expression is protected by the First Unlike obscenity, violent expression is protected by the First Amendment. Therefore, any regulation must be justified by a Amendment. Therefore, any regulation must be justified by a compelling interest and narrowly tailored to achieve that interest. compelling interest and narrowly tailored to achieve that interest. The legislature's failure to articulate precisely the type of violence it The legislature's failure to articulate precisely the type of violence it considers to be detrimental to minors makes it virtually impossible considers to be detrimental to minors makes it virtually impossible to determine if the statute is narrowly drawn to regulate only that to determine if the statute is narrowly drawn to regulate only that expression. The words "morbid interest in violence" and expression. The words "morbid interest in violence" and "contemporaneous adult standards" do not express with clarity what "contemporaneous adult standards" do not express with clarity what the legislature was attempting to regulate.the legislature was attempting to regulate.

Overbreadth DoctrineOverbreadth Doctrine

• Overly broad restrictions usually prohibitedOverly broad restrictions usually prohibited• A Missouri statute that prohibits the display, rental, or sale to minors A Missouri statute that prohibits the display, rental, or sale to minors

of video cassettes that appeal to a "morbid interest in violence," or of video cassettes that appeal to a "morbid interest in violence," or that depict violence in a manner that is "patently offensive" by that depict violence in a manner that is "patently offensive" by "contemporary adult community standards." ("contemporary adult community standards." (Video Software Video Software Dealers Association v. WebsterDealers Association v. Webster, 773 F.Supp. 1275 (W.D. Mo. 1991). , 773 F.Supp. 1275 (W.D. Mo. 1991). Unlike obscenity, violent expression is protected by the First Unlike obscenity, violent expression is protected by the First Amendment. Therefore, any regulation must be justified by a Amendment. Therefore, any regulation must be justified by a compelling interest and narrowly tailored to achieve that interest. compelling interest and narrowly tailored to achieve that interest. The legislature's failure to articulate precisely the type of violence it The legislature's failure to articulate precisely the type of violence it considers to be detrimental to minors makes it virtually impossible considers to be detrimental to minors makes it virtually impossible to determine if the statute is narrowly drawn to regulate only that to determine if the statute is narrowly drawn to regulate only that expression. The words "morbid interest in violence" and expression. The words "morbid interest in violence" and "contemporaneous adult standards" do not express with clarity what "contemporaneous adult standards" do not express with clarity what the legislature was attempting to regulate.the legislature was attempting to regulate.

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• Overly broad restrictions usually prohibitedOverly broad restrictions usually prohibited• The University of Wisconsin's student conduct code calls for The University of Wisconsin's student conduct code calls for

disciplining students who engage in discriminatory speech or other disciplining students who engage in discriminatory speech or other expressive conduct. The rule seeks to eliminate "racist or expressive conduct. The rule seeks to eliminate "racist or discriminatory comments, epithets or other expressive behavior discriminatory comments, epithets or other expressive behavior directed at an individual" if such comments "demean" the race, sex, directed at an individual" if such comments "demean" the race, sex, religion, or other attribute of an individual and create an religion, or other attribute of an individual and create an "intimidating, hostile or demeaning environment." Speech can be "intimidating, hostile or demeaning environment." Speech can be regulated only if it threatens to incite an immediate breach of the regulated only if it threatens to incite an immediate breach of the peace. The trouble with the challenged rule is that it applies to many peace. The trouble with the challenged rule is that it applies to many situations where a breach of the peace is unlikely to occur. Speech situations where a breach of the peace is unlikely to occur. Speech that creates an "intimidating" or "hostile" environment may tend to that creates an "intimidating" or "hostile" environment may tend to stifle rather than provoke immediate reaction. The stifle rather than provoke immediate reaction. The UWM Post Inc. v. UWM Post Inc. v. Board of Regents of the University of Wisconsin SystemBoard of Regents of the University of Wisconsin System, 774 , 774 F.Supp. 1163 (E.D. Wis. 1991). F.Supp. 1163 (E.D. Wis. 1991).


• Overly broad restrictions usually prohibitedOverly broad restrictions usually prohibited• The University of Wisconsin's student conduct code calls for The University of Wisconsin's student conduct code calls for

disciplining students who engage in discriminatory speech or other disciplining students who engage in discriminatory speech or other expressive conduct. The rule seeks to eliminate "racist or expressive conduct. The rule seeks to eliminate "racist or discriminatory comments, epithets or other expressive behavior discriminatory comments, epithets or other expressive behavior directed at an individual" if such comments "demean" the race, sex, directed at an individual" if such comments "demean" the race, sex, religion, or other attribute of an individual and create an religion, or other attribute of an individual and create an "intimidating, hostile or demeaning environment." Speech can be "intimidating, hostile or demeaning environment." Speech can be regulated only if it threatens to incite an immediate breach of the regulated only if it threatens to incite an immediate breach of the peace. The trouble with the challenged rule is that it applies to many peace. The trouble with the challenged rule is that it applies to many situations where a breach of the peace is unlikely to occur. Speech situations where a breach of the peace is unlikely to occur. Speech that creates an "intimidating" or "hostile" environment may tend to that creates an "intimidating" or "hostile" environment may tend to stifle rather than provoke immediate reaction. The stifle rather than provoke immediate reaction. The UWM Post Inc. v. UWM Post Inc. v. Board of Regents of the University of Wisconsin SystemBoard of Regents of the University of Wisconsin System, 774 , 774 F.Supp. 1163 (E.D. Wis. 1991). F.Supp. 1163 (E.D. Wis. 1991).

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• Overly broad restrictions usually prohibitedOverly broad restrictions usually prohibited

• The Los Angeles International Airport The Los Angeles International Airport commissioners banned all "First Amendment commissioners banned all "First Amendment activities" within the "central terminal area." The activities" within the "central terminal area." The resolution was facially unconstitutional under First resolution was facially unconstitutional under First Amendment overbreadth doctrine, regardless of Amendment overbreadth doctrine, regardless of whether airport was considered a nonpublic forum, whether airport was considered a nonpublic forum, because no conceivable governmental interest because no conceivable governmental interest could justify such an absolute prohibition of could justify such an absolute prohibition of speech. speech. Airport Com'rs of Los Angeles v. Jews for Airport Com'rs of Los Angeles v. Jews for JesusJesus, 107 S.Ct. 2568 (1987)., 107 S.Ct. 2568 (1987).


• Overly broad restrictions usually prohibitedOverly broad restrictions usually prohibited

• The Los Angeles International Airport The Los Angeles International Airport commissioners banned all "First Amendment commissioners banned all "First Amendment activities" within the "central terminal area." The activities" within the "central terminal area." The resolution was facially unconstitutional under First resolution was facially unconstitutional under First Amendment overbreadth doctrine, regardless of Amendment overbreadth doctrine, regardless of whether airport was considered a nonpublic forum, whether airport was considered a nonpublic forum, because no conceivable governmental interest because no conceivable governmental interest could justify such an absolute prohibition of could justify such an absolute prohibition of speech. speech. Airport Com'rs of Los Angeles v. Jews for Airport Com'rs of Los Angeles v. Jews for JesusJesus, 107 S.Ct. 2568 (1987)., 107 S.Ct. 2568 (1987).

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Commercial SpeechCommercial Speech• SECRETARY OF HEALTH AND HUMAN SERVICES v. SECRETARY OF HEALTH AND HUMAN SERVICES v.

WESTERN MEDICAL CENTERWESTERN MEDICAL CENTER, 122 S.Ct. 1497 (2002), 122 S.Ct. 1497 (2002)

• FACTS: The Food and Drug Administration Modernization Act FACTS: The Food and Drug Administration Modernization Act (FDAMA) of 1997 allows drug compounding and allows the (FDAMA) of 1997 allows drug compounding and allows the advertisement of such services. However, this law prohibits the advertisement of such services. However, this law prohibits the advertising or any other promotional announcement that a specific advertising or any other promotional announcement that a specific compounded drug is available. Pharmacists, fearing their compounded drug is available. Pharmacists, fearing their promotional materials related to drug compounds might be found to promotional materials related to drug compounds might be found to violate the FDAMA, sought a declaratory judgment that this law’s violate the FDAMA, sought a declaratory judgment that this law’s prohibition on advertising specific compounded drugs was prohibition on advertising specific compounded drugs was unconstitutional.unconstitutional.

• ISSUE:ISSUE: Does the FDAMA unconstitutionally infringe upon Does the FDAMA unconstitutionally infringe upon the pharmacists’ right to engage in commercial speech?the pharmacists’ right to engage in commercial speech?

• SECRETARY OF HEALTH AND HUMAN SERVICES v. SECRETARY OF HEALTH AND HUMAN SERVICES v. WESTERN MEDICAL CENTERWESTERN MEDICAL CENTER, 122 S.Ct. 1497 (2002), 122 S.Ct. 1497 (2002)

• FACTS: The Food and Drug Administration Modernization Act FACTS: The Food and Drug Administration Modernization Act (FDAMA) of 1997 allows drug compounding and allows the (FDAMA) of 1997 allows drug compounding and allows the advertisement of such services. However, this law prohibits the advertisement of such services. However, this law prohibits the advertising or any other promotional announcement that a specific advertising or any other promotional announcement that a specific compounded drug is available. Pharmacists, fearing their compounded drug is available. Pharmacists, fearing their promotional materials related to drug compounds might be found to promotional materials related to drug compounds might be found to violate the FDAMA, sought a declaratory judgment that this law’s violate the FDAMA, sought a declaratory judgment that this law’s prohibition on advertising specific compounded drugs was prohibition on advertising specific compounded drugs was unconstitutional.unconstitutional.

• ISSUE:ISSUE: Does the FDAMA unconstitutionally infringe upon Does the FDAMA unconstitutionally infringe upon the pharmacists’ right to engage in commercial speech?the pharmacists’ right to engage in commercial speech?

6-71

Commercial SpeechCommercial Speech• SECRETARY OF HEALTH AND HUMAN SERVICES v. SECRETARY OF HEALTH AND HUMAN SERVICES v.

WESTERN MEDICAL CENTERWESTERN MEDICAL CENTER, 122 S.Ct. 1497 (2002), 122 S.Ct. 1497 (2002)

• DECISION: Yes. The Supreme Court reviews the four tests DECISION: Yes. The Supreme Court reviews the four tests established in established in Central HudsonCentral Hudson. The compounding of drugs, as . The compounding of drugs, as practiced by the pharmacists involved in this case, is a lawful practiced by the pharmacists involved in this case, is a lawful activity. The government’s interests in limiting the availability of activity. The government’s interests in limiting the availability of compound drugs, which are not thoroughly tested by the FDA, are compound drugs, which are not thoroughly tested by the FDA, are significant and substantial. The ban on advertisement of specific significant and substantial. The ban on advertisement of specific compound drugs does directly relate to the government’s interest compound drugs does directly relate to the government’s interest stated above. However, the Court discusses numerous examples stated above. However, the Court discusses numerous examples how the FDA could meet its interest without resorting to a restriction how the FDA could meet its interest without resorting to a restriction on commercial advertisement. Since the FDA didn’t show why these on commercial advertisement. Since the FDA didn’t show why these less restrictive examples weren’t feasible, the Court affirms the lower less restrictive examples weren’t feasible, the Court affirms the lower courts’ decisions that the FDAMA violates the First Amendment’s courts’ decisions that the FDAMA violates the First Amendment’s Free Speech clause.Free Speech clause.

• SECRETARY OF HEALTH AND HUMAN SERVICES v. SECRETARY OF HEALTH AND HUMAN SERVICES v. WESTERN MEDICAL CENTERWESTERN MEDICAL CENTER, 122 S.Ct. 1497 (2002), 122 S.Ct. 1497 (2002)

• DECISION: Yes. The Supreme Court reviews the four tests DECISION: Yes. The Supreme Court reviews the four tests established in established in Central HudsonCentral Hudson. The compounding of drugs, as . The compounding of drugs, as practiced by the pharmacists involved in this case, is a lawful practiced by the pharmacists involved in this case, is a lawful activity. The government’s interests in limiting the availability of activity. The government’s interests in limiting the availability of compound drugs, which are not thoroughly tested by the FDA, are compound drugs, which are not thoroughly tested by the FDA, are significant and substantial. The ban on advertisement of specific significant and substantial. The ban on advertisement of specific compound drugs does directly relate to the government’s interest compound drugs does directly relate to the government’s interest stated above. However, the Court discusses numerous examples stated above. However, the Court discusses numerous examples how the FDA could meet its interest without resorting to a restriction how the FDA could meet its interest without resorting to a restriction on commercial advertisement. Since the FDA didn’t show why these on commercial advertisement. Since the FDA didn’t show why these less restrictive examples weren’t feasible, the Court affirms the lower less restrictive examples weren’t feasible, the Court affirms the lower courts’ decisions that the FDAMA violates the First Amendment’s courts’ decisions that the FDAMA violates the First Amendment’s Free Speech clause.Free Speech clause.

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Commercial SpeechCommercial Speech• The Federal Communications Commission (FCC) seeks to The Federal Communications Commission (FCC) seeks to

prohibit the advertising of lotteries by radio and television prohibit the advertising of lotteries by radio and television stations in Louisiana since these ads may be heard or seen in stations in Louisiana since these ads may be heard or seen in neighboring Texas and Arkansas where lotteries are illegal. The neighboring Texas and Arkansas where lotteries are illegal. The Greater New Orleans Broadcasting Association seeks to have Greater New Orleans Broadcasting Association seeks to have the FCC restrictions declared in violation of the First the FCC restrictions declared in violation of the First Amendment’s protection of commercial speech. Issue: Are the Amendment’s protection of commercial speech. Issue: Are the FCC restrictions sufficiently narrow in scope to meet FCC restrictions sufficiently narrow in scope to meet constitutional requirements? Held: No. The Supreme Court constitutional requirements? Held: No. The Supreme Court reaffirms the four-step analysis announced in reaffirms the four-step analysis announced in Central HudsonCentral Hudson. . The Court rejects the FCC’s argument that its restrictions on The Court rejects the FCC’s argument that its restrictions on lottery advertising are sufficiently narrow. The advertiser and lottery advertising are sufficiently narrow. The advertiser and the listening/viewing public, not the government, should be the listening/viewing public, not the government, should be allowed to assess the value of accurate and nonmisleading allowed to assess the value of accurate and nonmisleading information about lawful conduct. information about lawful conduct. Greater New Orleans Greater New Orleans Broadcasting Association, Inc. v. United StatesBroadcasting Association, Inc. v. United States, 119 S.Ct. 1923 , 119 S.Ct. 1923 (1999). (1999).

• The Federal Communications Commission (FCC) seeks to The Federal Communications Commission (FCC) seeks to prohibit the advertising of lotteries by radio and television prohibit the advertising of lotteries by radio and television stations in Louisiana since these ads may be heard or seen in stations in Louisiana since these ads may be heard or seen in neighboring Texas and Arkansas where lotteries are illegal. The neighboring Texas and Arkansas where lotteries are illegal. The Greater New Orleans Broadcasting Association seeks to have Greater New Orleans Broadcasting Association seeks to have the FCC restrictions declared in violation of the First the FCC restrictions declared in violation of the First Amendment’s protection of commercial speech. Issue: Are the Amendment’s protection of commercial speech. Issue: Are the FCC restrictions sufficiently narrow in scope to meet FCC restrictions sufficiently narrow in scope to meet constitutional requirements? Held: No. The Supreme Court constitutional requirements? Held: No. The Supreme Court reaffirms the four-step analysis announced in reaffirms the four-step analysis announced in Central HudsonCentral Hudson. . The Court rejects the FCC’s argument that its restrictions on The Court rejects the FCC’s argument that its restrictions on lottery advertising are sufficiently narrow. The advertiser and lottery advertising are sufficiently narrow. The advertiser and the listening/viewing public, not the government, should be the listening/viewing public, not the government, should be allowed to assess the value of accurate and nonmisleading allowed to assess the value of accurate and nonmisleading information about lawful conduct. information about lawful conduct. Greater New Orleans Greater New Orleans Broadcasting Association, Inc. v. United StatesBroadcasting Association, Inc. v. United States, 119 S.Ct. 1923 , 119 S.Ct. 1923 (1999). (1999).

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• The State of Rhode Island allows advertising of alcoholic beverages The State of Rhode Island allows advertising of alcoholic beverages prices only in the stores where the alcohol is sold. State law bans such prices only in the stores where the alcohol is sold. State law bans such advertising “outside the licensed premises.” 44 Liquormart, Inc., a advertising “outside the licensed premises.” 44 Liquormart, Inc., a licensed retailer, ran a newspaper ad stating the low prices at which licensed retailer, ran a newspaper ad stating the low prices at which peanuts, potato chips, and Schweppes mixers were being offered, peanuts, potato chips, and Schweppes mixers were being offered, identifying various brands of packaged liquor, and including the word identifying various brands of packaged liquor, and including the word “WOW” in large letters next to pictures of vodka and rum bottles. As a “WOW” in large letters next to pictures of vodka and rum bottles. As a result of this ad, the Rhode Island Liquor Control Administrator result of this ad, the Rhode Island Liquor Control Administrator assessed 44 Liquormart a fine of $400. Liquormart paid the fine and assessed 44 Liquormart a fine of $400. Liquormart paid the fine and sought a declaratory judgment in Federal District Court that the Rhode sought a declaratory judgment in Federal District Court that the Rhode Island law prohibiting off-premise advertising was in violation of the Island law prohibiting off-premise advertising was in violation of the First Amendment’s free speech protection. Issue: Is the Rhode Island First Amendment’s free speech protection. Issue: Is the Rhode Island limitation on alcohol pricing advertisements unconstitutional? Held: limitation on alcohol pricing advertisements unconstitutional? Held: Yes. Rhode Island failed to produce credible evidence that its Yes. Rhode Island failed to produce credible evidence that its restriction on advertising of alcohol prices reduced consumption of restriction on advertising of alcohol prices reduced consumption of alcohol. There are other, perhaps more effective, methods of regulating alcohol. There are other, perhaps more effective, methods of regulating the use of alcohol. A ban on truthful, nonmisleading commercial the use of alcohol. A ban on truthful, nonmisleading commercial speech is not supported under these facts. speech is not supported under these facts. 44 Liquormart, Inc. v. 44 Liquormart, Inc. v. Rhode IslandRhode Island, 116 S.Ct. 1495 (1996)., 116 S.Ct. 1495 (1996).

• The State of Rhode Island allows advertising of alcoholic beverages The State of Rhode Island allows advertising of alcoholic beverages prices only in the stores where the alcohol is sold. State law bans such prices only in the stores where the alcohol is sold. State law bans such advertising “outside the licensed premises.” 44 Liquormart, Inc., a advertising “outside the licensed premises.” 44 Liquormart, Inc., a licensed retailer, ran a newspaper ad stating the low prices at which licensed retailer, ran a newspaper ad stating the low prices at which peanuts, potato chips, and Schweppes mixers were being offered, peanuts, potato chips, and Schweppes mixers were being offered, identifying various brands of packaged liquor, and including the word identifying various brands of packaged liquor, and including the word “WOW” in large letters next to pictures of vodka and rum bottles. As a “WOW” in large letters next to pictures of vodka and rum bottles. As a result of this ad, the Rhode Island Liquor Control Administrator result of this ad, the Rhode Island Liquor Control Administrator assessed 44 Liquormart a fine of $400. Liquormart paid the fine and assessed 44 Liquormart a fine of $400. Liquormart paid the fine and sought a declaratory judgment in Federal District Court that the Rhode sought a declaratory judgment in Federal District Court that the Rhode Island law prohibiting off-premise advertising was in violation of the Island law prohibiting off-premise advertising was in violation of the First Amendment’s free speech protection. Issue: Is the Rhode Island First Amendment’s free speech protection. Issue: Is the Rhode Island limitation on alcohol pricing advertisements unconstitutional? Held: limitation on alcohol pricing advertisements unconstitutional? Held: Yes. Rhode Island failed to produce credible evidence that its Yes. Rhode Island failed to produce credible evidence that its restriction on advertising of alcohol prices reduced consumption of restriction on advertising of alcohol prices reduced consumption of alcohol. There are other, perhaps more effective, methods of regulating alcohol. There are other, perhaps more effective, methods of regulating the use of alcohol. A ban on truthful, nonmisleading commercial the use of alcohol. A ban on truthful, nonmisleading commercial speech is not supported under these facts. speech is not supported under these facts. 44 Liquormart, Inc. v. 44 Liquormart, Inc. v. Rhode IslandRhode Island, 116 S.Ct. 1495 (1996)., 116 S.Ct. 1495 (1996).

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• The Federal Alcohol Administration Act prohibits beer labels The Federal Alcohol Administration Act prohibits beer labels from displaying the alcohol content. Coors proposed to include from displaying the alcohol content. Coors proposed to include such content on its label, and the Bureau of Alcohol, Tobacco such content on its label, and the Bureau of Alcohol, Tobacco and Firearms refused to grant Coors's application for this label. and Firearms refused to grant Coors's application for this label. Issue: Is this restriction a violation of Coors's First Amendment Issue: Is this restriction a violation of Coors's First Amendment rights? Held: Yes. To regulate commercial speech that is rights? Held: Yes. To regulate commercial speech that is truthful and not misleading, the government's interest must be truthful and not misleading, the government's interest must be substantial and directly related to the interest being sought. substantial and directly related to the interest being sought. Here, the government's concern to limit "strength wars" Here, the government's concern to limit "strength wars" between breweries is substantial; however, restricting the between breweries is substantial; however, restricting the contents of the labels on beer cans will do little good when the contents of the labels on beer cans will do little good when the breweries are allowed to advertise the alcohol content of their breweries are allowed to advertise the alcohol content of their beer in other ways. Thus the label restrictions are in violation of beer in other ways. Thus the label restrictions are in violation of the First Amendment. the First Amendment. Rubin v. Coors Brewing CoRubin v. Coors Brewing Co., 63 U.S.L.W. ., 63 U.S.L.W. 4319 (1995).4319 (1995).

• The Federal Alcohol Administration Act prohibits beer labels The Federal Alcohol Administration Act prohibits beer labels from displaying the alcohol content. Coors proposed to include from displaying the alcohol content. Coors proposed to include such content on its label, and the Bureau of Alcohol, Tobacco such content on its label, and the Bureau of Alcohol, Tobacco and Firearms refused to grant Coors's application for this label. and Firearms refused to grant Coors's application for this label. Issue: Is this restriction a violation of Coors's First Amendment Issue: Is this restriction a violation of Coors's First Amendment rights? Held: Yes. To regulate commercial speech that is rights? Held: Yes. To regulate commercial speech that is truthful and not misleading, the government's interest must be truthful and not misleading, the government's interest must be substantial and directly related to the interest being sought. substantial and directly related to the interest being sought. Here, the government's concern to limit "strength wars" Here, the government's concern to limit "strength wars" between breweries is substantial; however, restricting the between breweries is substantial; however, restricting the contents of the labels on beer cans will do little good when the contents of the labels on beer cans will do little good when the breweries are allowed to advertise the alcohol content of their breweries are allowed to advertise the alcohol content of their beer in other ways. Thus the label restrictions are in violation of beer in other ways. Thus the label restrictions are in violation of the First Amendment. the First Amendment. Rubin v. Coors Brewing CoRubin v. Coors Brewing Co., 63 U.S.L.W. ., 63 U.S.L.W. 4319 (1995).4319 (1995).

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Due ProcessDue ProcessDue ProcessDue Process

• Procedural- Proper Notice Procedural- Proper Notice & Hearing& Hearing

• Substantive- Substantive- Property/Rights Affected Property/Rights Affected By Gov’t ActionBy Gov’t Action

• 55thth Amendment- Federal Amendment- Federal• 1414thth Amendment- Extended Amendment- Extended

to State Localto State Local

Due ProcessDue Process• Procedural- Proper Notice Procedural- Proper Notice

& Hearing& Hearing• Substantive- Substantive-

Property/Rights Affected Property/Rights Affected By Gov’t ActionBy Gov’t Action

• 55thth Amendment- Federal Amendment- Federal• 1414thth Amendment- Extended Amendment- Extended

to State Localto State Local

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Due ProcessDue Process

55thth Amendment “no person Amendment “no person shall be deprived of life, liberty shall be deprived of life, liberty or property without due or property without due process of law.”process of law.”

Due Process includes both Due Process includes both Procedural and Substantive Procedural and Substantive issues.issues.

55thth Amendment “no person Amendment “no person shall be deprived of life, liberty shall be deprived of life, liberty or property without due or property without due process of law.”process of law.”

Due Process includes both Due Process includes both Procedural and Substantive Procedural and Substantive issues.issues.

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Procedural Due ProcessProcedural Due Process• Procedures depriving an Procedures depriving an

individual of her rights must individual of her rights must be fair and equitable.be fair and equitable.

• Constitution requires adequate Constitution requires adequate notice and a fair and impartial notice and a fair and impartial hearing before a disinterested hearing before a disinterested magistrate.magistrate.

Procedural Due ProcessProcedural Due Process• Procedures depriving an Procedures depriving an

individual of her rights must individual of her rights must be fair and equitable.be fair and equitable.

• Constitution requires adequate Constitution requires adequate notice and a fair and impartial notice and a fair and impartial hearing before a disinterested hearing before a disinterested magistrate.magistrate.

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Due ProcessDue Process Procedural Due ProcessProcedural Due Process

• National Council of Resistance of Iran v. Albright, National Council of Resistance of Iran v. Albright, p.86p.86 The U.S. policy for determining if a foreign entity is a The U.S. policy for determining if a foreign entity is a

foreign terrorist organization violates procedural due foreign terrorist organization violates procedural due process of law. The U.S. did not provide the court with process of law. The U.S. did not provide the court with any interests that would support failure to provide notice any interests that would support failure to provide notice and a hearing before designating an entity as a terrorist and a hearing before designating an entity as a terrorist organization. In the wake of the September 11th terrorist organization. In the wake of the September 11th terrorist attacks, this case has taken on added importance.attacks, this case has taken on added importance.

Procedural Due ProcessProcedural Due Process• National Council of Resistance of Iran v. Albright, National Council of Resistance of Iran v. Albright,

p.86p.86 The U.S. policy for determining if a foreign entity is a The U.S. policy for determining if a foreign entity is a

foreign terrorist organization violates procedural due foreign terrorist organization violates procedural due process of law. The U.S. did not provide the court with process of law. The U.S. did not provide the court with any interests that would support failure to provide notice any interests that would support failure to provide notice and a hearing before designating an entity as a terrorist and a hearing before designating an entity as a terrorist organization. In the wake of the September 11th terrorist organization. In the wake of the September 11th terrorist attacks, this case has taken on added importance.attacks, this case has taken on added importance.

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Substantive Due ProcessSubstantive Due Process• Focuses on the content or substance Focuses on the content or substance

of legislation.of legislation.• e.g. Laws limiting e.g. Laws limiting fundamentalfundamental rights rights

(speech, privacy, religion) must have a (speech, privacy, religion) must have a “compelling state interest.”“compelling state interest.”

• e.g. Laws limiting non-fundamental e.g. Laws limiting non-fundamental rights require only a “rational basis”.rights require only a “rational basis”.

Substantive Due ProcessSubstantive Due Process• Focuses on the content or substance Focuses on the content or substance

of legislation.of legislation.• e.g. Laws limiting e.g. Laws limiting fundamentalfundamental rights rights

(speech, privacy, religion) must have a (speech, privacy, religion) must have a “compelling state interest.”“compelling state interest.”

• e.g. Laws limiting non-fundamental e.g. Laws limiting non-fundamental rights require only a “rational basis”.rights require only a “rational basis”.

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Due Process requires that criminal Due Process requires that criminal statutes be clearly worded (so that they statutes be clearly worded (so that they put an ordinary person on notice).put an ordinary person on notice).• Chicago v. MoralesChicago v. Morales, 527 U.S. 41, 1999., 527 U.S. 41, 1999.

The Court finds The Court finds Chicago’s The Court finds The Court finds Chicago’s Gang Congregation (Anti-loitering) Ordinance Gang Congregation (Anti-loitering) Ordinance which was passed to help control street-gang which was passed to help control street-gang activity and thereby decrease the murder activity and thereby decrease the murder rate, unconstitutionally vague and gives the rate, unconstitutionally vague and gives the police officer too much discretion.police officer too much discretion.

Note: In Chicago v. Youkhana The Court Note: In Chicago v. Youkhana The Court found that the freedom to loiter for innocent found that the freedom to loiter for innocent purposes is part of the constitutionally purposes is part of the constitutionally protected liberty interest.protected liberty interest.

Due Process requires that criminal Due Process requires that criminal statutes be clearly worded (so that they statutes be clearly worded (so that they put an ordinary person on notice).put an ordinary person on notice).• Chicago v. MoralesChicago v. Morales, 527 U.S. 41, 1999., 527 U.S. 41, 1999.

The Court finds The Court finds Chicago’s The Court finds The Court finds Chicago’s Gang Congregation (Anti-loitering) Ordinance Gang Congregation (Anti-loitering) Ordinance which was passed to help control street-gang which was passed to help control street-gang activity and thereby decrease the murder activity and thereby decrease the murder rate, unconstitutionally vague and gives the rate, unconstitutionally vague and gives the police officer too much discretion.police officer too much discretion.

Note: In Chicago v. Youkhana The Court Note: In Chicago v. Youkhana The Court found that the freedom to loiter for innocent found that the freedom to loiter for innocent purposes is part of the constitutionally purposes is part of the constitutionally protected liberty interest.protected liberty interest.

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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CAMPBELL,v. CAMPBELL, 123 S.Ct. 1513 (2003)123 S.Ct. 1513 (2003)

FACTS: The Campbells had their car insured with State Farm. The FACTS: The Campbells had their car insured with State Farm. The Campbells were involved in a car accident and were sued. A State Campbells were involved in a car accident and were sued. A State Farm representative told the Campbells that their insurance would Farm representative told the Campbells that their insurance would protect them and that they did not need their own lawyer. The protect them and that they did not need their own lawyer. The Campbells were found liable for an amount greater than their Campbells were found liable for an amount greater than their insurance coverage. The Campbells then sued State Farm claiming insurance coverage. The Campbells then sued State Farm claiming the company’s bad faith misrepresentations resulted in the the company’s bad faith misrepresentations resulted in the Campbells’ damages. Using evidence that State Farm had been Campbells’ damages. Using evidence that State Farm had been involved in similar claims throughout the United States, the involved in similar claims throughout the United States, the Campbells won a jury verdict of $2.6 million in compensatory Campbells won a jury verdict of $2.6 million in compensatory damages and $145 million in punitive damages. The trial judge damages and $145 million in punitive damages. The trial judge reduced the compensatory damages to $1 million and the punitive reduced the compensatory damages to $1 million and the punitive damages to $25 million. Following appeals, the Utah Supreme Court damages to $25 million. Following appeals, the Utah Supreme Court reinstated the $145 million in punitive damages. State Farm asked reinstated the $145 million in punitive damages. State Farm asked the U.S. Supreme Court to declare that these punitive damages the U.S. Supreme Court to declare that these punitive damages violated the Due Process Clause of the Fourteenth Amendment.violated the Due Process Clause of the Fourteenth Amendment.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CAMPBELL,v. CAMPBELL, 123 S.Ct. 1513 (2003)123 S.Ct. 1513 (2003)

FACTS: The Campbells had their car insured with State Farm. The FACTS: The Campbells had their car insured with State Farm. The Campbells were involved in a car accident and were sued. A State Campbells were involved in a car accident and were sued. A State Farm representative told the Campbells that their insurance would Farm representative told the Campbells that their insurance would protect them and that they did not need their own lawyer. The protect them and that they did not need their own lawyer. The Campbells were found liable for an amount greater than their Campbells were found liable for an amount greater than their insurance coverage. The Campbells then sued State Farm claiming insurance coverage. The Campbells then sued State Farm claiming the company’s bad faith misrepresentations resulted in the the company’s bad faith misrepresentations resulted in the Campbells’ damages. Using evidence that State Farm had been Campbells’ damages. Using evidence that State Farm had been involved in similar claims throughout the United States, the involved in similar claims throughout the United States, the Campbells won a jury verdict of $2.6 million in compensatory Campbells won a jury verdict of $2.6 million in compensatory damages and $145 million in punitive damages. The trial judge damages and $145 million in punitive damages. The trial judge reduced the compensatory damages to $1 million and the punitive reduced the compensatory damages to $1 million and the punitive damages to $25 million. Following appeals, the Utah Supreme Court damages to $25 million. Following appeals, the Utah Supreme Court reinstated the $145 million in punitive damages. State Farm asked reinstated the $145 million in punitive damages. State Farm asked the U.S. Supreme Court to declare that these punitive damages the U.S. Supreme Court to declare that these punitive damages violated the Due Process Clause of the Fourteenth Amendment.violated the Due Process Clause of the Fourteenth Amendment.

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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CAMPBELL,v. CAMPBELL, 123 S.Ct. 1513 (2003), p.164123 S.Ct. 1513 (2003), p.164

ISSUE:ISSUE: In this factual situation, does the Due Process In this factual situation, does the Due Process clause prohibit this level of punitive damages?clause prohibit this level of punitive damages?

DECISION: Yes. The U.S. Supreme Court reviews the DECISION: Yes. The U.S. Supreme Court reviews the principles established in principles established in BMW of North America, Inc. v. GoreBMW of North America, Inc. v. Gore. The . The Court expresses concern that the degree of reprehensibility of State Court expresses concern that the degree of reprehensibility of State Farm’s bad faith is unreasonably increased by the evidence from Farm’s bad faith is unreasonably increased by the evidence from cases outside of Utah. In addressing a proper ratio of punitive cases outside of Utah. In addressing a proper ratio of punitive damages to compensatory damages, the Court seems to want to limit damages to compensatory damages, the Court seems to want to limit such ratio to a single digit. In light of Utah’s civil sanction for State such ratio to a single digit. In light of Utah’s civil sanction for State Farm’s bad faith being limited to $10,000, the Court finds the $145 Farm’s bad faith being limited to $10,000, the Court finds the $145 million in punitive damages is unreasonable, arbitrary, and million in punitive damages is unreasonable, arbitrary, and unconstitutional under the Fourteenth Amendment’s Due Process unconstitutional under the Fourteenth Amendment’s Due Process Clause.Clause.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CAMPBELL,v. CAMPBELL, 123 S.Ct. 1513 (2003), p.164123 S.Ct. 1513 (2003), p.164

ISSUE:ISSUE: In this factual situation, does the Due Process In this factual situation, does the Due Process clause prohibit this level of punitive damages?clause prohibit this level of punitive damages?

DECISION: Yes. The U.S. Supreme Court reviews the DECISION: Yes. The U.S. Supreme Court reviews the principles established in principles established in BMW of North America, Inc. v. GoreBMW of North America, Inc. v. Gore. The . The Court expresses concern that the degree of reprehensibility of State Court expresses concern that the degree of reprehensibility of State Farm’s bad faith is unreasonably increased by the evidence from Farm’s bad faith is unreasonably increased by the evidence from cases outside of Utah. In addressing a proper ratio of punitive cases outside of Utah. In addressing a proper ratio of punitive damages to compensatory damages, the Court seems to want to limit damages to compensatory damages, the Court seems to want to limit such ratio to a single digit. In light of Utah’s civil sanction for State such ratio to a single digit. In light of Utah’s civil sanction for State Farm’s bad faith being limited to $10,000, the Court finds the $145 Farm’s bad faith being limited to $10,000, the Court finds the $145 million in punitive damages is unreasonable, arbitrary, and million in punitive damages is unreasonable, arbitrary, and unconstitutional under the Fourteenth Amendment’s Due Process unconstitutional under the Fourteenth Amendment’s Due Process Clause.Clause.

6-83

Due ProcessDue Process ..

Dr. Ira Gore purchased in Birmingham, Alabama, a new BMW automobile for Dr. Ira Gore purchased in Birmingham, Alabama, a new BMW automobile for $40,750.88. After nine months, Dr. Gore noticed that the paint was flawed. He $40,750.88. After nine months, Dr. Gore noticed that the paint was flawed. He was told by the proprietor of “Slick Finish” that his car had been repainted. Upon was told by the proprietor of “Slick Finish” that his car had been repainted. Upon inquiring at the BMW dealership where he purchased the car, Dr. Gore was told inquiring at the BMW dealership where he purchased the car, Dr. Gore was told that his car had been repainted prior to its sale. BMW acknowledged that it had a that his car had been repainted prior to its sale. BMW acknowledged that it had a nationwide policy that if the cost of repairing damages done during nationwide policy that if the cost of repairing damages done during manufacturing or transportation did not exceed 3% of the retail value, the car was manufacturing or transportation did not exceed 3% of the retail value, the car was sold as new. If such repairs exceeded the 3% figure, the car was used by the sold as new. If such repairs exceeded the 3% figure, the car was used by the company for a period of time and then sold as a used vehicle. The actual cost of company for a period of time and then sold as a used vehicle. The actual cost of repairs to Dr. Gore’s car was $601.37. Since this was well below the 3% stated in repairs to Dr. Gore’s car was $601.37. Since this was well below the 3% stated in BMW’s policy, the car was sold as new, and Dr. Gore was not informed of the BMW’s policy, the car was sold as new, and Dr. Gore was not informed of the repairs. Feeling that he had been defrauded, Dr. Gore filed a lawsuit against repairs. Feeling that he had been defrauded, Dr. Gore filed a lawsuit against BMW. A jury awarded Dr. Gore $4,000 in compensatory damages and $4 million BMW. A jury awarded Dr. Gore $4,000 in compensatory damages and $4 million in punitive damages. BMW appealed the award of punitive damages and argued in punitive damages. BMW appealed the award of punitive damages and argued that this amount was constitutionally excessive. The Alabama Supreme Court that this amount was constitutionally excessive. The Alabama Supreme Court reduced the punitive damages by half but upheld an award of $2,000,000. Issue: reduced the punitive damages by half but upheld an award of $2,000,000. Issue: Is this award of punitive damages unconstitutional? Held: Yes, this award Is this award of punitive damages unconstitutional? Held: Yes, this award violates the due process clause. There are three standards that apply to ensure violates the due process clause. There are three standards that apply to ensure that a defendant is properly notified of the magnitude of a possible sanction. that a defendant is properly notified of the magnitude of a possible sanction. These standards include (a) a reasonable relationship between the potential These standards include (a) a reasonable relationship between the potential punitive damages and the degree of reprehensibility of the defendant’s action; (b) punitive damages and the degree of reprehensibility of the defendant’s action; (b) an appropriate ratio between the punitive damages and the actual harm caused an appropriate ratio between the punitive damages and the actual harm caused by the defendant; and (c) a reasonable comparison among the punitive damages by the defendant; and (c) a reasonable comparison among the punitive damages awarded and comparable sanctions in similar cases. Under these standards, the awarded and comparable sanctions in similar cases. Under these standards, the Alabama courts’ award is unconstitutionally excessive. Alabama courts’ award is unconstitutionally excessive. BMW of North America, BMW of North America, Inc. v. GoreInc. v. Gore, 116 S.Ct. 1589 (1996)., 116 S.Ct. 1589 (1996).

..

Dr. Ira Gore purchased in Birmingham, Alabama, a new BMW automobile for Dr. Ira Gore purchased in Birmingham, Alabama, a new BMW automobile for $40,750.88. After nine months, Dr. Gore noticed that the paint was flawed. He $40,750.88. After nine months, Dr. Gore noticed that the paint was flawed. He was told by the proprietor of “Slick Finish” that his car had been repainted. Upon was told by the proprietor of “Slick Finish” that his car had been repainted. Upon inquiring at the BMW dealership where he purchased the car, Dr. Gore was told inquiring at the BMW dealership where he purchased the car, Dr. Gore was told that his car had been repainted prior to its sale. BMW acknowledged that it had a that his car had been repainted prior to its sale. BMW acknowledged that it had a nationwide policy that if the cost of repairing damages done during nationwide policy that if the cost of repairing damages done during manufacturing or transportation did not exceed 3% of the retail value, the car was manufacturing or transportation did not exceed 3% of the retail value, the car was sold as new. If such repairs exceeded the 3% figure, the car was used by the sold as new. If such repairs exceeded the 3% figure, the car was used by the company for a period of time and then sold as a used vehicle. The actual cost of company for a period of time and then sold as a used vehicle. The actual cost of repairs to Dr. Gore’s car was $601.37. Since this was well below the 3% stated in repairs to Dr. Gore’s car was $601.37. Since this was well below the 3% stated in BMW’s policy, the car was sold as new, and Dr. Gore was not informed of the BMW’s policy, the car was sold as new, and Dr. Gore was not informed of the repairs. Feeling that he had been defrauded, Dr. Gore filed a lawsuit against repairs. Feeling that he had been defrauded, Dr. Gore filed a lawsuit against BMW. A jury awarded Dr. Gore $4,000 in compensatory damages and $4 million BMW. A jury awarded Dr. Gore $4,000 in compensatory damages and $4 million in punitive damages. BMW appealed the award of punitive damages and argued in punitive damages. BMW appealed the award of punitive damages and argued that this amount was constitutionally excessive. The Alabama Supreme Court that this amount was constitutionally excessive. The Alabama Supreme Court reduced the punitive damages by half but upheld an award of $2,000,000. Issue: reduced the punitive damages by half but upheld an award of $2,000,000. Issue: Is this award of punitive damages unconstitutional? Held: Yes, this award Is this award of punitive damages unconstitutional? Held: Yes, this award violates the due process clause. There are three standards that apply to ensure violates the due process clause. There are three standards that apply to ensure that a defendant is properly notified of the magnitude of a possible sanction. that a defendant is properly notified of the magnitude of a possible sanction. These standards include (a) a reasonable relationship between the potential These standards include (a) a reasonable relationship between the potential punitive damages and the degree of reprehensibility of the defendant’s action; (b) punitive damages and the degree of reprehensibility of the defendant’s action; (b) an appropriate ratio between the punitive damages and the actual harm caused an appropriate ratio between the punitive damages and the actual harm caused by the defendant; and (c) a reasonable comparison among the punitive damages by the defendant; and (c) a reasonable comparison among the punitive damages awarded and comparable sanctions in similar cases. Under these standards, the awarded and comparable sanctions in similar cases. Under these standards, the Alabama courts’ award is unconstitutionally excessive. Alabama courts’ award is unconstitutionally excessive. BMW of North America, BMW of North America, Inc. v. GoreInc. v. Gore, 116 S.Ct. 1589 (1996)., 116 S.Ct. 1589 (1996).

6-84


An Oklahoma law required contract creditors An Oklahoma law required contract creditors of deceased persons to file claims within 2 of deceased persons to file claims within 2 months of the publication of a notice advising months of the publication of a notice advising creditors of probate proceedings. Issue: Is creditors of probate proceedings. Issue: Is this State action a denial of due process? this State action a denial of due process? Held: Yes. Creditors who are either known to Held: Yes. Creditors who are either known to the estate or whose identities are reasonably the estate or whose identities are reasonably ascertainable are entitled by the Due Process ascertainable are entitled by the Due Process Clause to receive notice by mail or other Clause to receive notice by mail or other means certain to assure actual notice. The means certain to assure actual notice. The claim is a property interest and the probate claim is a property interest and the probate procedures are state action. procedures are state action. Tulsa Tulsa Professional Collection Services v. PopeProfessional Collection Services v. Pope, 108 , 108 S.Ct. 1340 (1988).S.Ct. 1340 (1988).

An Oklahoma law required contract creditors An Oklahoma law required contract creditors of deceased persons to file claims within 2 of deceased persons to file claims within 2 months of the publication of a notice advising months of the publication of a notice advising creditors of probate proceedings. Issue: Is creditors of probate proceedings. Issue: Is this State action a denial of due process? this State action a denial of due process? Held: Yes. Creditors who are either known to Held: Yes. Creditors who are either known to the estate or whose identities are reasonably the estate or whose identities are reasonably ascertainable are entitled by the Due Process ascertainable are entitled by the Due Process Clause to receive notice by mail or other Clause to receive notice by mail or other means certain to assure actual notice. The means certain to assure actual notice. The claim is a property interest and the probate claim is a property interest and the probate procedures are state action. procedures are state action. Tulsa Tulsa Professional Collection Services v. PopeProfessional Collection Services v. Pope, 108 , 108 S.Ct. 1340 (1988).S.Ct. 1340 (1988).

6-85

Equal ProtectionEqual Protection Prohibits Arbitrary DiscriminationProhibits Arbitrary Discrimination

TestsTests

• Minimum Rationality TestMinimum Rationality Test – Rational connection to a – Rational connection to a permissible state purposepermissible state purpose

• Strict Scrutiny TestStrict Scrutiny Test- Compelling State Purpose. Applies where - Compelling State Purpose. Applies where a suspect class or fundamental right is involved. Generally a suspect class or fundamental right is involved. Generally applied in cases involving race, voting, etc.applied in cases involving race, voting, etc.

• Quasi-Strict Scrutiny TestQuasi-Strict Scrutiny Test –Substantially related to an –Substantially related to an important state purpose. Often applied in “gender” cases.important state purpose. Often applied in “gender” cases.

• Note: Which test the court chooses to apply often determines Note: Which test the court chooses to apply often determines the outcome of the casethe outcome of the case

Prohibits Arbitrary DiscriminationProhibits Arbitrary Discrimination

TestsTests

• Minimum Rationality TestMinimum Rationality Test – Rational connection to a – Rational connection to a permissible state purposepermissible state purpose

• Strict Scrutiny TestStrict Scrutiny Test- Compelling State Purpose. Applies where - Compelling State Purpose. Applies where a suspect class or fundamental right is involved. Generally a suspect class or fundamental right is involved. Generally applied in cases involving race, voting, etc.applied in cases involving race, voting, etc.

• Quasi-Strict Scrutiny TestQuasi-Strict Scrutiny Test –Substantially related to an –Substantially related to an important state purpose. Often applied in “gender” cases.important state purpose. Often applied in “gender” cases.

• Note: Which test the court chooses to apply often determines Note: Which test the court chooses to apply often determines the outcome of the casethe outcome of the case

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Equal ProtectionEqual Protection Ashcroft v. American Civil Liberties Union, p. 91Ashcroft v. American Civil Liberties Union, p. 91

• The Supreme Court enjoined enforcement of the Child Online Protection The Supreme Court enjoined enforcement of the Child Online Protection Act. The statute, which was designed to shield minors from harmful Act. The statute, which was designed to shield minors from harmful speech, could not pass the strict scrutiny test. Specifically, the Court speech, could not pass the strict scrutiny test. Specifically, the Court believed there to be less restrictive alternatives to the statute. Strict believed there to be less restrictive alternatives to the statute. Strict scrutiny places the burden on the government to demonstrate that its scrutiny places the burden on the government to demonstrate that its actions are furthering a compelling interest in a manner that intrudes on actions are furthering a compelling interest in a manner that intrudes on protected rights no more than is absolutely necessary. Compelling protected rights no more than is absolutely necessary. Compelling interests are objectives that are just as important as the fundamental interests are objectives that are just as important as the fundamental rights that are abridged by a statute. First amendment rights are rights that are abridged by a statute. First amendment rights are considered one of our most fundamental constitutional rights and are, considered one of our most fundamental constitutional rights and are, therefore, accorded strict scrutiny.therefore, accorded strict scrutiny.

Ashcroft v. American Civil Liberties Union, p. 91Ashcroft v. American Civil Liberties Union, p. 91• The Supreme Court enjoined enforcement of the Child Online Protection The Supreme Court enjoined enforcement of the Child Online Protection

Act. The statute, which was designed to shield minors from harmful Act. The statute, which was designed to shield minors from harmful speech, could not pass the strict scrutiny test. Specifically, the Court speech, could not pass the strict scrutiny test. Specifically, the Court believed there to be less restrictive alternatives to the statute. Strict believed there to be less restrictive alternatives to the statute. Strict scrutiny places the burden on the government to demonstrate that its scrutiny places the burden on the government to demonstrate that its actions are furthering a compelling interest in a manner that intrudes on actions are furthering a compelling interest in a manner that intrudes on protected rights no more than is absolutely necessary. Compelling protected rights no more than is absolutely necessary. Compelling interests are objectives that are just as important as the fundamental interests are objectives that are just as important as the fundamental rights that are abridged by a statute. First amendment rights are rights that are abridged by a statute. First amendment rights are considered one of our most fundamental constitutional rights and are, considered one of our most fundamental constitutional rights and are, therefore, accorded strict scrutiny.therefore, accorded strict scrutiny.

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Equal ProtectionEqual Protection Mainstream Marketing Services v. Federal Trade Mainstream Marketing Services v. Federal Trade

Commission, p.93Commission, p.93• Congress enacted a do-not-call registry that created a list of Congress enacted a do-not-call registry that created a list of

telephone numbers of people who do not wish to receive telephone numbers of people who do not wish to receive unsolicited calls from commercial telemarketers. The court unsolicited calls from commercial telemarketers. The court upheld the registry, concluding that its restrictions on upheld the registry, concluding that its restrictions on commercial speech passed the intermediate scrutiny test. commercial speech passed the intermediate scrutiny test. Not only does the registry protect the privacy rights of Not only does the registry protect the privacy rights of individuals and protect against fraudulent and abusive calls, individuals and protect against fraudulent and abusive calls, but it does not suppress and excessive amount of speech. but it does not suppress and excessive amount of speech. Commercial speech is less protected than noncommercial Commercial speech is less protected than noncommercial speech. Talk them through the four-step test and contrast it speech. Talk them through the four-step test and contrast it with the strict scrutiny test used for restrictions on with the strict scrutiny test used for restrictions on noncommercial speech.noncommercial speech.

Mainstream Marketing Services v. Federal Trade Mainstream Marketing Services v. Federal Trade Commission, p.93Commission, p.93• Congress enacted a do-not-call registry that created a list of Congress enacted a do-not-call registry that created a list of

telephone numbers of people who do not wish to receive telephone numbers of people who do not wish to receive unsolicited calls from commercial telemarketers. The court unsolicited calls from commercial telemarketers. The court upheld the registry, concluding that its restrictions on upheld the registry, concluding that its restrictions on commercial speech passed the intermediate scrutiny test. commercial speech passed the intermediate scrutiny test. Not only does the registry protect the privacy rights of Not only does the registry protect the privacy rights of individuals and protect against fraudulent and abusive calls, individuals and protect against fraudulent and abusive calls, but it does not suppress and excessive amount of speech. but it does not suppress and excessive amount of speech. Commercial speech is less protected than noncommercial Commercial speech is less protected than noncommercial speech. Talk them through the four-step test and contrast it speech. Talk them through the four-step test and contrast it with the strict scrutiny test used for restrictions on with the strict scrutiny test used for restrictions on noncommercial speech.noncommercial speech.

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Equal ProtectionEqual Protection• ADARAND CONSTRUCTORS, INC. v. PENAADARAND CONSTRUCTORS, INC. v. PENA, 115 S.Ct. 2097 (1995), 115 S.Ct. 2097 (1995)

• FACTS: Mountain Gravel & Construction Company was awarded the prime FACTS: Mountain Gravel & Construction Company was awarded the prime contract for a highway construction project in Colorado. Mountain Gravel contract for a highway construction project in Colorado. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction specializing in guardrail work, submitted the low bid. Gonzales Construction Company also submitted a bid. Mountain Gravel awarded the subcontract to Company also submitted a bid. Mountain Gravel awarded the subcontract to Gonzales since Gonzales qualified as a minority contractor and Adarand did Gonzales since Gonzales qualified as a minority contractor and Adarand did not. The prime contract’s terms provide that Mountain Gravel would receive not. The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small additional compensation if it hired subcontractors certified as small businesses controlled by “socially and economically disadvantaged businesses controlled by “socially and economically disadvantaged individuals.” After losing the guardrail subcontract to Gonzales, Adarand individuals.” After losing the guardrail subcontract to Gonzales, Adarand filed suit claiming that the race-based presumptions involved in the use of filed suit claiming that the race-based presumptions involved in the use of subcontracting compensation clauses violate Adarand’s right to equal subcontracting compensation clauses violate Adarand’s right to equal protection. The District Court granted the Government’s motion for summary protection. The District Court granted the Government’s motion for summary judgment. The Court of Appeals for the Tenth Circuit affirmed.judgment. The Court of Appeals for the Tenth Circuit affirmed.

• ISSUE:ISSUE: What is the standard review when considering race-based What is the standard review when considering race-based actions by governmental units?actions by governmental units?

•

• ADARAND CONSTRUCTORS, INC. v. PENAADARAND CONSTRUCTORS, INC. v. PENA, 115 S.Ct. 2097 (1995), 115 S.Ct. 2097 (1995)

• FACTS: Mountain Gravel & Construction Company was awarded the prime FACTS: Mountain Gravel & Construction Company was awarded the prime contract for a highway construction project in Colorado. Mountain Gravel contract for a highway construction project in Colorado. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction specializing in guardrail work, submitted the low bid. Gonzales Construction Company also submitted a bid. Mountain Gravel awarded the subcontract to Company also submitted a bid. Mountain Gravel awarded the subcontract to Gonzales since Gonzales qualified as a minority contractor and Adarand did Gonzales since Gonzales qualified as a minority contractor and Adarand did not. The prime contract’s terms provide that Mountain Gravel would receive not. The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small additional compensation if it hired subcontractors certified as small businesses controlled by “socially and economically disadvantaged businesses controlled by “socially and economically disadvantaged individuals.” After losing the guardrail subcontract to Gonzales, Adarand individuals.” After losing the guardrail subcontract to Gonzales, Adarand filed suit claiming that the race-based presumptions involved in the use of filed suit claiming that the race-based presumptions involved in the use of subcontracting compensation clauses violate Adarand’s right to equal subcontracting compensation clauses violate Adarand’s right to equal protection. The District Court granted the Government’s motion for summary protection. The District Court granted the Government’s motion for summary judgment. The Court of Appeals for the Tenth Circuit affirmed.judgment. The Court of Appeals for the Tenth Circuit affirmed.

• ISSUE:ISSUE: What is the standard review when considering race-based What is the standard review when considering race-based actions by governmental units?actions by governmental units?

•

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Equal ProtectionEqual Protection• ADARAND CONSTRUCTORS, INC. v. PENAADARAND CONSTRUCTORS, INC. v. PENA, ,

115 S.Ct. 2097 (1995)115 S.Ct. 2097 (1995)

• DECISION: Applies Strict scrutiny. The DECISION: Applies Strict scrutiny. The Court examined its various decisions Court examined its various decisions addressing this issue, including addressing this issue, including BakkeBakke (1978), (1978), FulliloveFullilove (1980), (1980), WygantWygant (1986), (1986), CrosonCroson (1989), and (1989), and Metro BroadcastingMetro Broadcasting (1990). To clarify the various holdings, this (1990). To clarify the various holdings, this Court reached a majority opinion that all Court reached a majority opinion that all racial classifications, imposed by any level racial classifications, imposed by any level of government, must be analyzed by a of government, must be analyzed by a reviewing court under strict scrutiny.reviewing court under strict scrutiny.

• ADARAND CONSTRUCTORS, INC. v. PENAADARAND CONSTRUCTORS, INC. v. PENA, , 115 S.Ct. 2097 (1995)115 S.Ct. 2097 (1995)

• DECISION: Applies Strict scrutiny. The DECISION: Applies Strict scrutiny. The Court examined its various decisions Court examined its various decisions addressing this issue, including addressing this issue, including BakkeBakke (1978), (1978), FulliloveFullilove (1980), (1980), WygantWygant (1986), (1986), CrosonCroson (1989), and (1989), and Metro BroadcastingMetro Broadcasting (1990). To clarify the various holdings, this (1990). To clarify the various holdings, this Court reached a majority opinion that all Court reached a majority opinion that all racial classifications, imposed by any level racial classifications, imposed by any level of government, must be analyzed by a of government, must be analyzed by a reviewing court under strict scrutiny.reviewing court under strict scrutiny.

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Equal ProtectionEqual Protection• The State of Iowa passed a law allowing slot machines to be The State of Iowa passed a law allowing slot machines to be

placed on riverboats. The proceeds from these machines placed on riverboats. The proceeds from these machines were taxed at the rate of 20%. Subsequently, Iowa permitted were taxed at the rate of 20%. Subsequently, Iowa permitted slot machines to be placed at race tracks. The proceeds slot machines to be placed at race tracks. The proceeds from these machines were taxed at a rate as high as 36%. from these machines were taxed at a rate as high as 36%. The race tracks owners filed suit arguing that the higher tax The race tracks owners filed suit arguing that the higher tax rate on their slot machines denied them the equal protection rate on their slot machines denied them the equal protection of laws. Issue: Does the existence of two tax rates on of laws. Issue: Does the existence of two tax rates on similar slot machines violate the Equal Protection Clause of similar slot machines violate the Equal Protection Clause of the Fourteenth Amendment? Held: No. The Supreme Court the Fourteenth Amendment? Held: No. The Supreme Court holds that Iowa is regulating economic activities in this case. holds that Iowa is regulating economic activities in this case. Therefore, the test of equal protection is based on minimal Therefore, the test of equal protection is based on minimal scrutiny. Since a rational basis can be found (such as not scrutiny. Since a rational basis can be found (such as not wanting to encourage as many slot machines at race tracks wanting to encourage as many slot machines at race tracks as on riverboats), the two tax rates are upheld. as on riverboats), the two tax rates are upheld. Fitzgerald v. Fitzgerald v. Racing Association of Central IowaRacing Association of Central Iowa, 123 S.Ct. 2156 (2003)., 123 S.Ct. 2156 (2003).

• The State of Iowa passed a law allowing slot machines to be The State of Iowa passed a law allowing slot machines to be placed on riverboats. The proceeds from these machines placed on riverboats. The proceeds from these machines were taxed at the rate of 20%. Subsequently, Iowa permitted were taxed at the rate of 20%. Subsequently, Iowa permitted slot machines to be placed at race tracks. The proceeds slot machines to be placed at race tracks. The proceeds from these machines were taxed at a rate as high as 36%. from these machines were taxed at a rate as high as 36%. The race tracks owners filed suit arguing that the higher tax The race tracks owners filed suit arguing that the higher tax rate on their slot machines denied them the equal protection rate on their slot machines denied them the equal protection of laws. Issue: Does the existence of two tax rates on of laws. Issue: Does the existence of two tax rates on similar slot machines violate the Equal Protection Clause of similar slot machines violate the Equal Protection Clause of the Fourteenth Amendment? Held: No. The Supreme Court the Fourteenth Amendment? Held: No. The Supreme Court holds that Iowa is regulating economic activities in this case. holds that Iowa is regulating economic activities in this case. Therefore, the test of equal protection is based on minimal Therefore, the test of equal protection is based on minimal scrutiny. Since a rational basis can be found (such as not scrutiny. Since a rational basis can be found (such as not wanting to encourage as many slot machines at race tracks wanting to encourage as many slot machines at race tracks as on riverboats), the two tax rates are upheld. as on riverboats), the two tax rates are upheld. Fitzgerald v. Fitzgerald v. Racing Association of Central IowaRacing Association of Central Iowa, 123 S.Ct. 2156 (2003)., 123 S.Ct. 2156 (2003).

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Equal ProtectionEqual Protection City of Cleburne v. Cleburne Living Ctr., City of Cleburne v. Cleburne Living Ctr.,

Inc. Inc. 473 U.S. 432 (1985)473 U.S. 432 (1985)

Facts: Respondent Cleburne Living Center, Inc. (CLC), which anticipated Facts: Respondent Cleburne Living Center, Inc. (CLC), which anticipated leasing a certain building for the operation of a group home for the leasing a certain building for the operation of a group home for the mentally retarded, was informed by petitioner city that a special use permit mentally retarded, was informed by petitioner city that a special use permit would be required, the city having concluded that the proposed group would be required, the city having concluded that the proposed group home should be classified as a “hospital for the feebleminded” under the home should be classified as a “hospital for the feebleminded” under the zoning ordinance covering the area in which the proposed home would be zoning ordinance covering the area in which the proposed home would be located. Accordingly, CLC applied for a special use permit, but the City located. Accordingly, CLC applied for a special use permit, but the City Council, after a public hearing, denied the permit. CLC and others (also Council, after a public hearing, denied the permit. CLC and others (also respondents here) then filed suit against the city and a number of its respondents here) then filed suit against the city and a number of its officials, alleging that the zoning ordinance, on its face and as applied, officials, alleging that the zoning ordinance, on its face and as applied, violated the equal protection rights of CLC and its potential residents.violated the equal protection rights of CLC and its potential residents.

City of Cleburne v. Cleburne Living Ctr., City of Cleburne v. Cleburne Living Ctr., Inc. Inc. 473 U.S. 432 (1985)473 U.S. 432 (1985)

Facts: Respondent Cleburne Living Center, Inc. (CLC), which anticipated Facts: Respondent Cleburne Living Center, Inc. (CLC), which anticipated leasing a certain building for the operation of a group home for the leasing a certain building for the operation of a group home for the mentally retarded, was informed by petitioner city that a special use permit mentally retarded, was informed by petitioner city that a special use permit would be required, the city having concluded that the proposed group would be required, the city having concluded that the proposed group home should be classified as a “hospital for the feebleminded” under the home should be classified as a “hospital for the feebleminded” under the zoning ordinance covering the area in which the proposed home would be zoning ordinance covering the area in which the proposed home would be located. Accordingly, CLC applied for a special use permit, but the City located. Accordingly, CLC applied for a special use permit, but the City Council, after a public hearing, denied the permit. CLC and others (also Council, after a public hearing, denied the permit. CLC and others (also respondents here) then filed suit against the city and a number of its respondents here) then filed suit against the city and a number of its officials, alleging that the zoning ordinance, on its face and as applied, officials, alleging that the zoning ordinance, on its face and as applied, violated the equal protection rights of CLC and its potential residents.violated the equal protection rights of CLC and its potential residents.

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Equal ProtectionEqual Protection City of Cleburne v. Cleburne Living Ctr., City of Cleburne v. Cleburne Living Ctr.,

Inc. Inc. 473 U.S. 432 (1985)473 U.S. 432 (1985)

Procedural History: The District Court held the ordinance and its Procedural History: The District Court held the ordinance and its application constitutional. The Court of Appeals reversed, holding that application constitutional. The Court of Appeals reversed, holding that mental retardation is a “quasi-suspect” classification; that, under the mental retardation is a “quasi-suspect” classification; that, under the applicable “heightened-scrutiny” equal protection test, the ordinance was applicable “heightened-scrutiny” equal protection test, the ordinance was facially invalid because it did not substantially further an important facially invalid because it did not substantially further an important governmental purpose; and that the ordinance was also invalid as applied.governmental purpose; and that the ordinance was also invalid as applied.

HoldingHolding: : 1. The Court of Appeals erred in holding mental retardation a 1. The Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.review than is normally accorded economic and social legislation.

2. Requiring a special use permit for the proposed group home here 2. Requiring a special use permit for the proposed group home here deprives respondents of the equal protection of the laws, and thus it is deprives respondents of the equal protection of the laws, and thus it is unnecessary to decide whether the ordinance’s permit requirement is unnecessary to decide whether the ordinance’s permit requirement is facially invalid where the mentally retarded are involvedfacially invalid where the mentally retarded are involved.

City of Cleburne v. Cleburne Living Ctr., City of Cleburne v. Cleburne Living Ctr., Inc. Inc. 473 U.S. 432 (1985)473 U.S. 432 (1985)

Procedural History: The District Court held the ordinance and its Procedural History: The District Court held the ordinance and its application constitutional. The Court of Appeals reversed, holding that application constitutional. The Court of Appeals reversed, holding that mental retardation is a “quasi-suspect” classification; that, under the mental retardation is a “quasi-suspect” classification; that, under the applicable “heightened-scrutiny” equal protection test, the ordinance was applicable “heightened-scrutiny” equal protection test, the ordinance was facially invalid because it did not substantially further an important facially invalid because it did not substantially further an important governmental purpose; and that the ordinance was also invalid as applied.governmental purpose; and that the ordinance was also invalid as applied.

HoldingHolding: : 1. The Court of Appeals erred in holding mental retardation a 1. The Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.review than is normally accorded economic and social legislation.

2. Requiring a special use permit for the proposed group home here 2. Requiring a special use permit for the proposed group home here deprives respondents of the equal protection of the laws, and thus it is deprives respondents of the equal protection of the laws, and thus it is unnecessary to decide whether the ordinance’s permit requirement is unnecessary to decide whether the ordinance’s permit requirement is facially invalid where the mentally retarded are involvedfacially invalid where the mentally retarded are involved.

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Some Equal Protection IssuesSome Equal Protection Issues1.1. Legislative Legislative

ApportionmentApportionment2.2. Real Estate- Real Estate-

Racial Racial SegregationSegregation

3.3. Rights Of Rights Of Legitimates & Legitimates & IllegitimatesIllegitimates

4.4. Jury MakeupJury Makeup

1.1. Legislative Legislative ApportionmentApportionment

2.2. Real Estate- Real Estate- Racial Racial SegregationSegregation

3.3. Rights Of Rights Of Legitimates & Legitimates & IllegitimatesIllegitimates

4.4. Jury MakeupJury Makeup

5.5. Voting Voting RequirementsRequirements

6.6. Welfare Welfare ResidencyResidency

7.7. Rights Of Rights Of AliensAliens

8.8. Property Tax Property Tax To Finance To Finance SchoolsSchools

5.5. Voting Voting RequirementsRequirements

6.6. Welfare Welfare ResidencyResidency

7.7. Rights Of Rights Of AliensAliens

8.8. Property Tax Property Tax To Finance To Finance SchoolsSchools

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Constitutional InterpretationConstitutional Interpretation

Should the Constitution be Should the Constitution be interpreted according to its interpreted according to its “plain meaning” or is the “plain meaning” or is the Constitution a “living” or Constitution a “living” or “evolving” document whose “evolving” document whose meaning changes according to meaning changes according to the times?the times?

Should the Constitution be Should the Constitution be interpreted according to its interpreted according to its “plain meaning” or is the “plain meaning” or is the Constitution a “living” or Constitution a “living” or “evolving” document whose “evolving” document whose meaning changes according to meaning changes according to the times?the times?

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Constitutional InterpretationConstitutional Interpretation Its primary architect, James Its primary architect, James

Madison, said that “(If) the Madison, said that “(If) the sense in which the sense in which the Constitution was accepted Constitution was accepted and ratified by the Nation … and ratified by the Nation … be not the guide in be not the guide in expounding it, there can be expounding it, there can be no security for a faithful no security for a faithful exercise of its powers.” exercise of its powers.” ((The Writings of James The Writings of James MadisonMadison, ed. G. Hunt, , ed. G. Hunt, p.191)p.191)

Its primary architect, James Its primary architect, James Madison, said that “(If) the Madison, said that “(If) the sense in which the sense in which the Constitution was accepted Constitution was accepted and ratified by the Nation … and ratified by the Nation … be not the guide in be not the guide in expounding it, there can be expounding it, there can be no security for a faithful no security for a faithful exercise of its powers.” exercise of its powers.” ((The Writings of James The Writings of James MadisonMadison, ed. G. Hunt, , ed. G. Hunt, p.191)p.191)

6-96

Constitutional InterpretationConstitutional Interpretation Former Harvard Law Former Harvard Law

Professor and Supreme Professor and Supreme Court Justice Joseph Story Court Justice Joseph Story said, “A constitution of said, “A constitution of government is addressed to government is addressed to the common sense of the the common sense of the people, and never was people, and never was designed for trials of logical designed for trials of logical skill, or visionary skill, or visionary speculation.” (Commentaries speculation.” (Commentaries on the Constitution of the on the Constitution of the United States, 3United States, 3rdrd ed. ed. (Boston, 1858))(Boston, 1858))

Former Harvard Law Former Harvard Law Professor and Supreme Professor and Supreme Court Justice Joseph Story Court Justice Joseph Story said, “A constitution of said, “A constitution of government is addressed to government is addressed to the common sense of the the common sense of the people, and never was people, and never was designed for trials of logical designed for trials of logical skill, or visionary skill, or visionary speculation.” (Commentaries speculation.” (Commentaries on the Constitution of the on the Constitution of the United States, 3United States, 3rdrd ed. ed. (Boston, 1858))(Boston, 1858))

Documents

Power Point Chapter 4