Introduction and American Constitutionalism in Historical Perspective Introduction



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Three?-Pronged Test:

  • Has the state expressly discriminated between residents and non-residents?

  • Does the discrimination abridge a fundamental right?

  • Is there a legitimate justification for the discrimination?

  • Camden (1984): right to make a living

    • local-hiring statute

    • extends discrimination question to reach discrimination between municipalities

    • it is discrimination affecting a fundamental right

    • remands to NJ Court to make decision on justification issue

  • Toomer v. Witsell (1948): right to make a living

    • invalidated under Art. IV South Carolina’s discriminatory license fee on non-residents trawling for shrimp

  • Baldwin v. Montana Fish and Game Comm’n (1978)

    • discriminatory fee for hunting upheld because hunting not a fundamental right

  • Edwards v. California (1941) (Okie Case)

    • Justices all agreed that not allowing indigents into California unconstitutional, but on different grounds:

      • Art. IV §2: fundamental right to travel

      • negative commerce clause

      • unconstitutional under 14th amendment privileges and immunities

      • rights flowing from the structure of the Constitution itself

  • Modern Dormant Commerce Clause

    • Transportation Cases (in the book: under Pike balancing and facially neutral laws)

    (Congress has now pre-empted state legislation in this area)

        • Test:

          • is it formally discriminatory?  if yes, then invalid (???)

          • is there burden on interstate commerce?  if yes, then:

            • is it a legitimate exercise of a police power, and

            • is there a rational relationship between means and ends

            • then the burden is not undue.

        • South Carolina v. Barnwell (1938): highly deferential approach

          • SC imposed regs on trucks that would have eliminated 85-90% of the nation’s trucks on its roads

          • it is not facially discriminatory and while it imposes a burden, it is a legitimate state purpose (safety) pursued in a reasonable manner (rational basis)

        • Southern Pacific v. Arizona (1945)

          • Arizona restriction on length of trains

          • it is found to be formally non-discriminatory, but nonetheless an undue burden on interstate commerce

          • safety is a legitimate state purpose, but here it is slight and problematical and not reasonably pursued

          • also, question of whether this is topic best left to uniform national regulation

          • Douglas and Black argue for deference

        • Bibb v. Navajo (1959)

          • held invalid Illinois law requiring contoured mudguards when 45 states allowed non-contoured

          • here Douglas changes mind and also court shows willingness to intervene in trucking

        • Kassel v. Consolidated Freightways

          • Iowa regulations on truck length but exemptions for many Iowa trucks

          • this disproportionate, discriminatory effect means do not have to show as much deference

          • Powell applies full test in majority

          • Brennan says it is clearly discriminatory, no balancing necessary

          • Rehnquist: should simply apply rational basis

      • Import Restriction Cases (Products) (in book, these are both under facially discriminatory category)

        • Test:

          • Legitimate state purpose

          • Least restrictive alternative

        • Philadelphia v. New Jersey

          • invalidation of NJ ban on importation of waste

          • court applies a stricter test because it is a ban and not a regulation (I would say because it is facially discriminatory):

            • it is a legitimate state purpose (health and safety), but not the least restrictive alternative

        • Dean Milk Co. v. Madison:(first use of term “least restrictive alternative”)

          • invalidation of equirement that milk be pasteurized within five miles of Madison

          • purpose is health, but it is not least restrictive alternative (they suggest other possibilities

      • Import Restriction Cases (Price) (book has these under facially neutral laws that are protectionist)

        • Baldwin v. Seelig (1935)

          • invalidated regulation requiring minimum price to be paid to milk producers by New York dealers as applied to out of state producers

          • if you have a competitive advantage, you get to exercise it

        • Henneford v. Silas (1937)

          • distinguished Baldwin: this is a tax advantage and not a price advantage

      • Export Restriction Cases (in book these are under facially neutral laws that are in fact protectionist) (I see no evidence of this test, and why does he distinguish these from import restriction cases)

        • Test:

          • legitimate state purpose

          • least restrictive alternative

        • Hood v. DuMond (1949) (Justice Jackson)

          • denial of a permit for facilities to acquire and ship milk to Mass. in order to protect local economic interests

          • protectionism is not a valid state interest

          • this case is inverse of Baldwin v. Seelig

        • Hughes v. Oklahoma (1979) (Brennan)

          • overrules Geer v. Connecticut (1896)

          • conservation is a legitimate state purpose, but must be pursued by the least restrictive means possible (Brennan suggests law might simply have been invalid because discriminates on its face)

          • invalidated state law preventing out-of-state shipment if minnows




    • Preemption and Congressional Consent

      • Preemption (Art. VI): when do we ascribe to Congress an intent to preempt state legislation?

        • Pacific Gas v. State Energy (1983) (Justice White)

          • sustained a CA moratorium on nuclear energy plants until means of disposal found

          • arguably preempted by Federal Atomic Energy Act

          • factors to consider: 1) scheme of federal regulation is pervasive, 2) fed. interest dominant, 3) or the obligations conflict

          • while safety regulation could be preempted, CA regulation based on economic concerns and thus is not preempted

        • other preemption cases???

    • Congressional Consent

      • Why do we allow Congress to consent?

      • Where does power to consent come from?

        • statutory interpretation

          • Congress always has power to overrule a statutory interpretation

          • (but isn’t this Constitutional interpretation???)

        • Constitutional common law

          • when Congress is silent, Court make constitutional common law, which can be overruled by Congress

        • Core constitutional issues: should not allow congressional consent in Marbury core of individual human rights

          • see Metropolitan Life, where they used equal protection because of problem of Congressional consent

            • Congress has consented to AL law taxing out-of-state insurers more severely

            • invalidated under equal protection despite the Congressional consent in the McCarran Act

      • Leisy v. Hardin (1890) (Fuller) and Wilkerson v. Rahrer (1891)

      • Webb-Kenyon Act

      • Prudential Insurance Co. v. Benjamin (1946) (Rutledge)

      • Metropolitan Life Ins. Co. v. Ward (1985)



    III. Separation of Powers



    1. The Rule of Law and Control of Executive Power (Impeachment Art. II §4)

    • History of Executive

      • Articles of Confederation did not have Executive

      • Major issue at convention of whether to have executive: chose to have executive but limit it through frequent elections and impeachment power

    • Purposes of Separation of Powers

      • Interlocking accountability harnesses politics in a way that makes the people secure (Locke)

      • Rule of Law requires that every official be accountable in some way:

        • presidents and judges can be impeached

        • legislators can be removed

      • checks and balances reduce the possibility of faction (Madison)

    • Impeachment Power

      • Grounds for Impeachment

        • Nixon Impeachment

          • Committee Report:

            • British History

            • Constitutional Convention

              • impeachment needed because Pres. has war power

              • treason or bribery: rejected as too limiting

              • maladministration: rejected as too broad—would allow essentially a vote of confidence

            • Post-Convention

              • Hamilton, Federalist No. 65: offenses must be of political character

        • St. Clair (pp. 232-234)

          • standard for presidents should be actual crimes of a political character because they do not have lifetime tenure

        • Clinton Impeachment

          • do all criminal wrongs rise to level of impeachable offenses?

    • Justiciable Issues v. Political Questions

      • Three Bases for finding a Political Question

        • textual commitment to another branch (impeachment is very clear)

        • standards are of a sort that judiciary is incapable of adjudicating

        • intrabranch v. interbranch

          • judiciary more likely to intervene in intrabranch disputes

          • See Powell v. McCormick: Court resolved dispute when Congress excluded black legislator because textual commitment not strong and an intrabranch dispute




    IV. The System of Free Expression (equal respect for moral independence)


    1. Political Speech and Subversive Advocacy

    • Sources of the Free Speech Guarantee

      • Text: “Congress shall make no law abridging the freedom of speech, or of the press.”

      • History

        • Religious Free Exercise: for founders very linked to religious freedom

        • Licensing/Prior Restraint: licensing of printers had been used by England to restrain speech

          • Milton, Aeropagitica: free speech at a minimum meant no prior restraint

        • Alien and Sedition Act of 1798

          • early political consensus that Act criminalizing criticism of political leaders was unconstitutional (adopted this in Times v. Sullivan)

        • Abolitionist Dissent

          • necessary to protect conscientious speech to ensure that there will be effective advocacy for human rights

          • Congress aware of this when passing 14th amendment

      • Theories of Free Speech

        • Political Process (Meiklejohn)

          • free speech on issues affecting government must be fully protected because politicians have an incentive to repress speech critical of them and because necessary to integrity of democratic process

          • this view privileges political speech

        • Utilitarianism (Truth) (Holmes, Mill)

          • Mill, On Liberty: can only get to truth if allow all ideas to be aired in the marketplace

            • even false ideas can lead to a better understanding of truth because we will become more mature in out moral faculties by confronting them

        • Equal Autonomy View (Rawls, Dworkin, Brandeis)

          • equal liberty of conscience”???

          • speech intrinsically valuable and necessary to individual liberty, autonomy, and self-fulfillment

          • Brandeis’ concurrence in Whitney

          • important to American dissenting traditions like abolitionists (wouldn’t the first view, and, for that matter, the second embrace this too???)




      • Free Speech Jurisprudence




    protected v. unprotected speech

    time, place, and manner regs

    clear and present danger

    absolutists (Black)

    no unprotected speech

    skeptical, but not forbidden

    hostile to this test

    balancers (Holmes, Frankfurter)

    create unprotected speech categories (libel, obscenity, commercial speech)

    tpm regs enhance free speech values

    sympathetic to this test

    modern approach

    practically no more unprotected speech

    acceptable as long as content neutral

    clear and present danger now extremely demanding (Brandenburg)




    • World War I Cases: Section 3 of Title I of 1917 Espionage Act

      • Schenck v. United States (1919) (Holmes) (Clear and Present Danger)

        • charged with violation of Espionage Act for distributing circulars claiming conscription violates 13th amendment

        • test: are words used in a way that creates a clear and present danger of bringing about the evils Congress seeks to prevent?

        • he finds yes and analogizes to fire in a crowded theater and to accessorial liability

          • bad analogy: this is public speech at the core of free speech

          • he seems to apply tendency test: if you have an intent to obstruct a government program and your speech tends to do that

      • Frohwerk v. United States (1919) (Holmes)

        • German-American newspaper publishes articles that implicitly support resistance to the draft

        • upholds conviction: seems to suggest that it matters who you are—if you are an important and influential person and speak to a receptive audience, more entitled to restrict your speech

      • Debs v. United States (1919) (Holmes)

        • socialist politician gives a speech that indirectly suggests support of draft resistance

        • Holmes finds that you can infer an intent to obstruct the draft from extrinsic evidence

        • tendency test again: there is intent and a tendency to obstruct the war effort

      • Abrams v. United States (1919) (Clarke, dissent by Holmes)

        • Russian immigrants give out leaflets urging strike; charged under 1918 amendments to Act

        • Majority applies Schenck: there is intent to curtail war effort and tendency to so curtail

        • Holmes’ dissent:

          • political theory: utilitarian view that must winnow truth from falsehood

          • history: Sedition Act of 1798

          • text: “no law”

          • new, stronger version of clear and present danger: “immediate check required to save the country”

          • but also seems to suggest that “important people” deserve less protection

      • Masses Publishing Co. v. Patten (1917) (Hand): character of speech v. outcomes

        • convicted for publishing a satirical journal against the war

        • Hand overturns, his test:

          • is it a sincere opinion? (not knowingly false), and

          • is it legitimate agitation? (does not suggest a duty to disobey the law)

          • then it is allowed regardless of risk of harm

        • Holmes’ criticism: what about if improper in form, but no risk of harm?

    • Red Scare Cases” (Criminal Syndicalism and Smith Act Cases)

      • Gitlow v. New York (1925) (Sanford, Holmes’ dissent)

        • convicted under NY law prohibiting criminal anarchy (teaching or advocating the overthrow of government)

        • ***this is the incorporation case for free speech***

        • Majority: clear and present danger analysis only applies where statute is aimed at speech because it has a tendency to cause some undesirable result

          • where statute aimed at speech and state has determined that that speech is dangerous, must defer to that determination

        • Holmes’ dissent: “every idea is an incitement”

          • incitement is irrelevant, question is the likelihood of danger

      • Whitney v. California (1927) (Sanford, Brandeis’ concurrence)

        • convicted under Criminal Syndicalism Act of California (was a member of radical party, though had more moderate views herself)

        • majority defers as in Gitlow

        • Brandeis’ concurrence:

          • modern test: any government prohibition aimed at subversive content is unconstitutional unless there is clear and present danger

            • high probability of grave harm

            • not rebuttable in normal course of deliberative debate

          • theory: the equal autonomy theory of free speech—free speech as both an end and a means

          • he concurs in the judgment because she did not challenge the facts

          • conspiracy: in order for it to reach speech there must be contemplation of immediate action on the doctrine

      • Fiske (1927)

        • threw out Kansas syndicalism case based on preamble to IWW const.

        • likely based on due process: lack of minimum factual finding

      • DeJonge (1937)

        • Oregon’s criminal syndicalism statute: conviction for attending a meeting of Communist party overturned as violating right to assemble

        • first serious as-applied analysis???

      • Herndon (1937)

        • overturned conviction of black activist under statute forbidding resistance to lawful authority of the state “manifested by violence”

        • no evidence he advocated violence, and relied on vagueness doctrine as well

    • Dennis and Aggressive Development of As-Applied Analysis

      • Dennis v. United States (1951) (Vinson)

        • leaders of Communist Party charged under Smith Act

        • Dennis was a facial, not an as-applied case

        • Vinson majority: overrules Gitlow and applies clear and present danger test

          • translates clear and present danger test into Hand’s utilitarian calculus (probability multiplied by the harm; even very small probability enough where harm is huge)

        • Frankfurter: he would defer to the judgment of the legislature

        • Jackson: we should not apply clear and present danger to a conspiracy case

        • Criticisms of Dennis:

          • should have been an as applied case

          • misreads precedents: misuse of conspiracy

      • As-Applied Analysis

        • First: construe the statute to be constitutional:

          • can only be applied to unprotected speech or speech that causes a clear and present danger

        • Second: determine whether statute so construed applies to the facts

      • Yates v. United States (1957) (Harlan)

        • lower court failed properly to distinguish between advocacy of abstract doctrine and advocacy of action

        • construed the statute only to apply to advocacy of action so as to make it constitutional

      • Scales v. United States (1961) (Harlan)

        • construed membership clause of Smith Act to require “specific intent” and “active” membership but upheld the conviction

      • Noto v. United States (1961) (Harlan)

        • insufficient evidence of advocacy; insufficient evidence of advocacy of action

    • Brandenburg and The Modern Test

      • Watts v. United States (1969)

        • overruled conviction for threatening president for saying “first person I want to kill is LBJ” at anti-draft protest

      • Brandenburg v. Ohio (1969)

        • strikes down Ohio criminal syndicalism statute in case against KKK because it did not distinguish between mere advocacy and actual incitement to imminent lawless action coupled with a likelihood that the action will take place

        • overrules Whitney

      • Hess v. Indiana (1973)

        • “we’ll take the fucking street later”: court overturned conviction because at worst statement only advocated illegal action at some indefinite future time


    2. Overbreadth and Vagueness

    • Weaknesses of As-Applied Analysis:

      • requires judicial narrowing of statute that Congress hasn’t assented to

      • requires court to review facts de novo

      • doesn’t address the chilling effect of Dennis

    • Overbreadth Doctrine

      • within the reasonable scope of the statute, are there any substantial applications aimed at protected speech absent a clear and present danger?

        • if yes, statute unconstitutional on its face

        • two major exceptions to usual constitutional doctrine:

          • facial invalidation

          • exemption from standing requirements (jus tertii)

        • also, addresses the flaws of as-applied: gets rid of chilling effect
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