1. Marbury v. Madison



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9. Dissent Reasoning: [Stevens] The court has unwisely departed from the precedent of Mahon which required a look at the individual facts in each case. The question of a taking is one of degree, and so requiring the dimunition in value of the land to be total is too rigid and too narrow. The generation of a general proposition that “total regulatory takings must be compensated” as a categorical rule is an unwise approach to takings cases.

1. Dolan v. City of Tigard, (1994); pg. 133, briefed 11/5/95
2. Facts: Dolan owned a hardware store set on an upaved lot downtown in the City of Tigard. Adjacent to her property was a stream which flooded often, causing damage to the downtown area. Dolan wished to get a permit to enlarge her store and pave the lot for parking. A city planning commission had developed regulations for managing the heavy traffic and flooding in the downtown area by requiring local business owners to donate a portion of their land adjacent to the stream as an unimproved greenbelt and a paved section along their land as a bicycle/pedestrian route if they wished to get improvement permits. The local legislature had justified the regulations based on findings that more paving would cause more run-off (thus requiring the greenbelt), and more development would cause more traffic (thus requiring the bicycle/pedestrian path).
3. Procedural Posture: Dolan brought an action against the city claiming that the conditional grant of a portion of her land in return for approval of her building permit was an unconstitutional taking. The lower courts found that the city’s dedication requirements were “reasonably related” to the public interest in water and traffic management, and so the cost should be borne by Dolan for the management of the increased water flow and traffic that her development would bring.
4. Issue: Whether the local dedication requirement is sufficiently connected to the purpose for the taking, i.e. water and traffic managment.
5. Holding: No.
6. Majority Reasoning: One of the principle purposes of the takings clause is to bar the government from forcing individuals to bear public burdens which, in all fairness, should be borne by the public as a whole. Thus, under the doctrine of “unconstitutional conditions” the city may not require an individual to give up her 5th amendment right of just compensation in exchange for a government granted benefit where the property sought has little or no relationship to the benefit. Although there is a nexus between preventing flooding and limiting development along the sides of the creek, it is not a sufficiently close nexus to justify an uncompensated taking. There must be a “reasonable relationship” or a “rough proportionality” between the flooding and the city’s taking of the land. The required dedication must be related both in nature and extent to the impact of the proposed development. Although there is a need to have an adjacent greenway, it is not necessary that the city own the property itself. Also, the bicycle/pedestrian walkway is not sufficiently justified by statistics shown by the city, who has the burden of proof here.
7. Dissent Reasoning: [Stevens] The burden of proof should not lie with the city. A statute should be given the presumption of constitutionality, putting the burden on the challenger to show that it is not constitutional. Furthermore, the taking must be viewed from the entirety of the value of the property. A commercial developer views these exactions as a business regulation, and a cost of doing business. They should not be invalidated unless they are sufficient to deter the owner from proceeding with his planned development.

1. Griswold v. Connecticut, (1965); pg. 493, briefed 11/15/95
2. Facts: Griswold was the executive director of planned parenthood. He was convicted under a Connecticut statute that made it a crime to assist our counsel someone for the purpose of preventing conception.
3. Procedural Posture: The state appellate courts affirmed.
4. Issue: Whether the Connecticut law is a constitutional exercise of the state’s police power in view of the substantive due process of the 14th amendment.
5. Holding: No.
6. Majority Reasoning: The court distanced itself from Lochner, stating that they do not sit as a “super-legislature” to determine the wisdom and need of laws that touch economic or social conditions. However, this law operates directly on the intimate relationship between husband and wife. Although there are rights that are not specifically mentioned in the Bill of Rights, the court has held that they nevertheless are constitutionally protected. For instance the right to choice in education (Pierce v. Society of Sisters, Meyer v. Nebraska). These rights were derived from the 1st amendment right of free speech, which was held to include the freedom of thought and to teach. Without those peripheral rights, the express rights would be less secure. Thus, the 1st amendment has a “penumbra” (shadow) where “privacy is protected from governmental intrusion.” Likewise, the 3rd amendment prohibition against quartering of soldiers, and the 4th amendment prohibition of search and seizure, and the 5th amendment self-incrimination clause, all have a penumbra of privacy. The 9th amendment guarantees that the bill of rights is not to be construed as exclusive of other rights retained byt he people. This present case lies within the zone of privacy created by these guarantees.
7. Concurrence Reasoning: [Goldberg] The due process clause of the 14th amendment does not incorporate all of the Bill of Rights, but it does protect “liberty,” which is those personal rights which are fundamental, such as marital privacy. The 9th amendment itself, although it is not an independent source of rights incorporated by the 14th amendment, lends strong support. The entire fabric of the Constitution and the traditions it represents demonstrate that the marital right of privacy is of the same fundamental importance as the rights specifically enumerated. Where there is such a fundamental right being infringed, the state must show a “compelling” interest, not merely “rational relation.” The law here is an extremely bad means-ends fit because the state interest in preventing extra-marital relationships is not furthered by criminalizing contraception. [Harlan] felt that the proper analysis was whether this statute infringed on the due process clause of the 14th amendment because it violated basic values “implicit in the concept of ordered liberty” like Palko. The liberty here is so fundamental that it must be subjected to “strict scrutiny.”
8. Dissent Reasoning: [Black] felt that the word “privacy” was being substituted for “liberty”, thus he was afraid that the specific guarantees of the bill of rights were being too broadened. The government has a right to invade privacy unless prohibited by some constitutional provision. Broadening these guarantees has the danger of diluting them because the concept of “privacy” can be easily narrowed or broadened according to judicial subjectiveness. The court’s analysis here is too much like Lochner in its attempt to find a “natural law” basis for constitutional protections not found in the bill of rights.
9. Notes: 1. Although Justice Douglas disavows Lochner as a guide and instead relies on “penumbras” of the enumerated constitutional rights, Lochner’s “liberty of contract” could possible also be found in a “penumbra” of the contracts clause, thus there is not a significant distinction. 2. It is also unclear as to what the scope of the Griswold right of privacy is. It is probably narrower than a private “autonomy” of choice. In Eisenstadt v. Baird, the court took a further step in overturning a statute that prohibited the distribution of contraceptives (not just the “use”, as was the case in Griswold), even by unmarried couples (not just “married” couples as was the case in Griswold), thus broadening the scope of the right of privacy to include the right of an individual to be free from governmental regulation of birth choices. 3. Griswold does not reveal at what point a liberty becomes so fundamental as to deserve “strict scrutiny” rather than just “rational relation.”

1. Roe v. Wade, (1973); pg. 506, briefed 11/15/95
2. Facts: Roe was a single pregant woman representing a class action suit against a Texas abortion law that made it a crime to “procure an abortion” except “by medical advice for the purpose of saving the life of the mother.”
3. Procedural Posture: The district court held the law unconstitutional under the 9th amendment.
4. Issue: Whether the Texas anti-abortion law is constitutional.
5. Holding: No.
6. ∏ Argument: The woman’s right to end her pregnancy is absolute based on the considerable pyschological, physical and economic impact that it has on her to bear an unwanted child. This absolute right bars any state imposition of criminal penalties for that choice.
7. ∆ Argument: The state’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest which overrides any right of privacy of the mother. The fetus is a “person” within the meaning of the 14th amendment, and is thereby protected directly by the constitution.
8. Majority Reasoning: Although the constitution does not explicitly mention the right of privacy, the court has held that it exists. (Griswold, Meyer). This right is limited to personal rights that are “fundamental.” The right of privacy is broad enough to cover a woman’s decision to terminate her pregnancy. This right is fundamental but this right is not absolute. Although the fetus is not a “person” under the 14th amendment, a state has an interest in safeguarding health of the mother and in the protection of “potential life.” Where there is an attempted regulation of a fundamental right, the state interest must be “compelling.” With respect to the interest in the health of the mother, the state’s interest becomes “compelling” at the end of the first trimester because it becomes significantly more unsafe to perform an abortion after the first trimester. With respect to the interest in the potential life, the “compelling” point is at the viability of the fetus; when it becomes capable of meaningful life outside the mother’s womb - about 7 months. Measured against these standards, the Texas law sweeps too broadly into areas that it does not yet have a “compelling” interest, thus it is an unconstitutional invasion of privacy. Thus, the abortion is left to the woman’s discretion during the first trimester, it may be regulated in ways that are reasonably related to maternal health after the first trimester and before viability, and may be prohibited after viability.
9. Concurrence Reasoning: [Stewart] The “liberty” protected by the due process clause of the 14th amendment covers more than just the freedoms named in the bill of rights. It is a source of protection of “fundamental” substantive rights that can only be infringed upon by a state law that passes the “strict scrutiny” test. The state interests in this case are not compelling enough to support the broad anti-abortion law. [Douglas] gave three meanings of the word “liberty” as used in the 14th amendment. 1) “autonomous control over the development and expression of one’s intellect, interests, tastes, and personality (absolute rights protected by the 1st amendment); 2) “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children (“fundamental” rights subject to some control by the state), and 3) “freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll or loaf.” (“fundamental”, but subject to regulation on a showing of a “compelling state interest”).
10. Dissent Reasoning: [White] The constitution does not guarantee that the mother’s right to abortion is absolute before viability. The constitution does not balance the “whim” of the mother who does not have a compelling reason for abortion, over the life of the fetus. The majority’s opinion announces this new constitutional right too broadly, removing the state’s legislature’s power to weigh the impacts of abortion on both sides. [Rehnquist] There is not a right of “privacy” involved in this case. The right of abortion is not “so rooted in the traditions and conscious of our people as to be ranked fundamental.”There is only “liberty” guaranteed by the 14th amendment, which is subject to infringment with due process. The standard should be basic “rational relation.” Again, the court goes too far in judging the wisdom of the statute as was the case in Lochner. Breaking the term up into stages and outlining possible regulations that the state may impose on each is usurping the legislative role, not interpreting the 14th amendment.
11. Notes: 2. Blackmun states that he need not resolve when life begins, yet he still draws a line for when the potentiality of human life is “compelling.” The existence of the disagreement as to when life begins does not support the Court drawing an arbitrary line, in fact it substitutes the arbitrary line of the court for the arbitrary line of the state legislature. 3. Roe is perhaps more subjective than Lochner. In Lochner, the invalidations rested either on an illegitimate purpose, or a bad means-ends fit. In contrast, Roe simply states that the state interest is not important (“compelling”) enough. 8. Justice O’Connor’s dissent in Akron advocated a substantial change in the Court’s approach to abortion cases. She felt that the “stages” of pregnancy were too arbitrary and subject to differing interpretation based on the differing medical technology available at the time. Rather than the strict scrutiny/trimester approach of Roe, she advocated that an abortion regulation “is not unconsitutional unless it unduly burdens the right to seek an abortion.” If the law is “unduly brudensome” then it should be subjected to strict scrutiny, but not before. In Thornburgh, the same “undue burden” theme was raised by the O’Connor. Also, Justice White felt that the Roe decision and its progeny went too far by legislating requirements that were not fairly read into the Consitution, usurping the power of the people from overruling through corrective legislation. In Akron II, the court struck down a statute requiring the provision of information to the aborting mother, such as alternatives available and the probable date of viability of the fetus, as being a significant obstacle to the woman’s ability to get an abortion, and not related to the state’s interest in protecting the health of the mother and potential life of the baby.

1. Planned Parenthood of S.W. Penn. v. Casey, (1992); pg. 167 Supp., briefed 11/18/95
2. Facts: A Penn. statute had five questioned requirements regarding an abortion: 1) informed consent of the woman, 2) 24 hour waiting period after receiving information, 3) informed consent of one parent for minors, 4) notification of the husband, and 5) reporting requirements for abortion facilities.
3. Procedural Posture: An action for declaratory and injunctive relief prior to the statute taking effect. The District Court held all provisions as unconstitutional on their face, and entered a permanent injunction. The Court of Appeals affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement.
4. Issue: What is the appropriate standard to use in determining whether a statute regulating abortion is unconstitutional.
5. Holding: “Unduly burdensome.” “An undue burden exists, and therefore a provision of the law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
6. Majority Reasoning: [O’Connor] First, the essential holding in Roe is reaffirmed. The essential holding is 1) a woman has a constitutional right to choose to have an abortion before viability without undue interference from the state, 2) the state has a power to restrict abortions after viability, and 3) the state has legitimate interests in both the health of the mother and the life of the fetus from conception. The constitutional protection comes from the “liberty” of the due process clause of the 14th amendment, which is a source of substantive rights beyond the Bill of Rights. It is not time to overrule Roe. Stare Decisis requires reaffirmation. Roe is not “unworkable”, society relies on it, it is not outdated, it is not entirely based on improper factual assumptions, and to overrule it would undermine the principled legitimacy of the Court in the eyes of the people. However, the trimester framework adopted by Roe is rejected as being unnecessary to adequately protect the woman’s right to choose. It misconceives the nature of the woman’s interest, and it undervalues the State’s interest in potential life. Only where state regulation imposes an “undue burden” on a woman’s ability to choose before viability is the statute unconsitutional. The informed consent requirement is constitutional (partially overruling Akron I, and Thornburgh), because it furthers the states legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating consequences, that her decision was not fully informed. The doctor should be required to provide information as in other medical procedures. The 24 hour waiting period, although burdensome, is not an undue burden. Informed consent of minor’s parents is not an undue burden because the minors will benefit from the consultation with their parents. However, the spousal notification is an undue burden because a significant number of women will be deterred from abortion for fear of their safety as surely as if the state had prohibited it altogether. The reporting requirement, although not related to the state’s interest in informed consent, does relate to health and is a vital element of medical research and health regulation.
7. Concurrence/Dissent Reasoning: [Stevens] felt that serious question arose with respect to the state’s attempt to pursuade the woman to choose childbirth over abortion. The provision of pro-life information at the critical point of decision is an unconsitutional invasion of the woman’s right to choose. Also, the 24 hour waiting period, in practice, serves to wear down a woman’s ability to get an abortion, without a showing that it is necessary or helpful. The waiting period appears to rest on the assumption that a woman is incapable of making a rational decision in less than 24 hours.
8. Concurrence/Dissent Reasoning: [Blackmun] still fully supported all of the implications of Roe. He was concerned that there was only 1 vote necessary to overrule Roe, and that he wsa getting old and stepping down soon. The Roe framework is more administrable and far less manipulable thatn the “undue burden” standard. The strictest of scrutiny should be applied to this case, and under that view, each of the provisions should be struck down. Also, the fundamental rights protected by Roe are too precious to be left to an election.
9. Concurrence/Dissent Reasoning: [Rehnquist] believed that Roe was incorrectly decided, and should be overruled. Overruling Roe would be entirely consistent with stare decisis because it misinterpreted the cases it purported to be based on. The majority’s arguments on stare decisis are conculsory and unconvincing. The majority’s new “undue burden” standard is a new standard which represents an unjustified compromise. The correct standard here should be whether the statute rationally furthers any legitimate state interest. In each provision, it does and so should be entirely upheld.
10. Concurrence/Dissent Reasoning: [Scalia] felt that the right of a woman to choose an abortion finds no protection by the constitution. The matter is one for the people and the legislature to decide. The proper issue is not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense, it is whether it is a liberty protected by the constitution. It is not. The constitution says absolutely nothing about it and the longstanding traditions of American society have permitted it to be legally proscribed. Roe was “plainly wrong.” The courts should “get out of this area, where we have no right to be.”

1. Zablocki v. Redhail, (1978); pg. 557, briefed 11/18/95
2. Facts: A Wisconsin law required that a person who had a child who he was required to pay child support on must gain the permission of the court before remarrying. Redhail, a deadbeat dad with an illegitimate daughter, applied for a marriage license but was denied because he did not ask the court for permission.
3. Procedural Posture: Redhail brought a class action suit to invalidate the statute.
4. Issue: Whether the Wisconsin law is consitutional.
5. Holding: No.
6. Majority Reasoning: [Marshall] stated that the right to marry is of fundamental importance and since the statute significantly interferes with that right, “critical examination” of the state interests is required. Reasonable regulations that do not significantly interfere with decisions to marry may be legitimately imposed, however, this law did “directly and substantially” interfere. A “critical examination” means that the law “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Although the interests were legitimate, there was a bad means-ends fit. The statute did not provide for counseling (as was one of the asserted interests). Also, there were less intrusive means for “exacting compliance with support obligations,” such as civil and criminal penalties. The net result of preventing marriage is more illegitimate children.
7. Concurrence Reasoning: [Powell] felt that the majority opinion was too broad because it required too strict of scrutiny in an area that was traditionally subject to state regulation. Particularly, that a sphere of privacy exists between married couples does not require that the same level of scrutiny be applied to regulations of entry into marriage. [Stevens] found that the constitution allowed “direct and substantial” regulation of marriage, but rested his concurrence on equal protection grounds - this statute discriminated against the poor. [Stewart] rested his concurrence entirely on substantive due process grounds, feeling that the equal protection standards proposed by other opinions were “no more than due process by another name.”

1. Bowers v. Hardwick, (1986); pg. 565, briefed 11/18/95
2. Facts: Respondent was charged with violating a Georgia sodomy law by having homsexual relations with another adult man in his own bedroom.
3. Procedural Posture: Respondent seeks to challenge the constitutionality of the sodomy statute. The Court of Appeals held that the law violated the mans fundamental rights because his homosexuality is a private and intimate association that is beyond the reach of state regulation.
4. Issue: Whether the statute is consitutional under the due process clause of the 14th amendment.
5. Holding: Yes.
6. Majority Reasoning: There is no constitutional right to protection from state proscription of all private sexual conduct between consenting adults. According to the Palko standard, in order for a non-Bill of Rights individual right to be constitionally protected, it must be one that is “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” A similar standard is those that are “deeply rooted in this Nation’s history and tradition.” Sodomy meets neither of these standards. The court refuses to expand substantive due process in this area, and defers to the states.


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