Huntingdon College | Political Science | Courses | What's New?
PSC 314: Political theory and Constitutional Law

• Adverseness -- parties to a suit must actually be on opposite sides of a dispute.  Anglo-American courts do not take hypothetical cases.
• amici curiae -- Latin for "friends of the court", interest groups who supply briefs on a case.  (Allowed at Supreme Court level)
• Case Style and citation code -- plaintiff versus respondent, volume, series of case reports or codified cases, beginning at page number; e.g., Brown v. Board II, 349 U.S. 294 (1955).  The style is Brown v Board, volume 294 of the United States (federal) reports, page 294, opinion handed down in 1955 (oral argument may have been in previous year, and filing may have been one to several years before).
• certiorari -- Latin for "let it be made more certain" is a writ for review of a case.
• Civil and criminal cases -- criminal cases involve prosecution by the State for violations of the criminal laws; civil cases settle disputes between two parties, one of which may be the State.
• Common law versus code law -- the Anglo American tradition is one of common law where judges make current decisions based on traditional rights and precedents set by earlier and higher court decisions.  The continental tradition is that judges implement an organized code of law, and in criminal cases play a role in investigation of cases, not merely hearing evidence presented by an independent prosecution.
• Equal Time rule for political candidates.-- if one candidate receives free air time on a TV or radio station, rivals are entitled also.
• Established by the Radio Act of 1927 and codified by the Communications Act of 1934.
• Exceptions are for news events (including debates) and documentary films.
• Fairness Doctrine, 1949-1987
• a policy of the United States Federal Communications Commission (FCC) that required the holders of broadcast licenses to present controversial issues of public importance and to do so in a manner that was honest, equitable, and balanced.
• The United States Supreme Court upheld the Commission's general right to enforce the Fairness Doctrine where channels were limited, but the courts have generally not ruled that the FCC is obliged to do so. In 1987, the FCC abolished the Fairness Doctrine, prompting some to urge its reintroduction through either Commission policy or Congressional legislation
• It should not be confused, with the Equal Time rule for political candidates.
• Ironically, the doctrine applied to the competitive market of broadcasting (multiple channels) rather than to the local monopolies of newspapers (very few cities in the US are served by more than one newspaper).
• Jurisdiction -- court needs to have territorial control and have legal authority over the issue.  Disputes involving serious felonies and disputes over substantial sums of money cannot be heard in district courts without juries.
• Justiciability -- can the issue be taken up by the court, even if the court has jurisdiction?
• For instance, if the appeals process takes longer than a pregnancy, can a court ever rule practicably on abortion before the mother gives birth?  If after the birth, is the case moot?
• Moot  -- issue is dead, overtaken by events
• opinion of the Court -- the decision itself, delivered by one justice with concurrences and dissents
• Per se rule -- something is right or wrong "by itself", not just on a case by case basis.
• Remand -- case is sent back down to lower court for reconsideration with instructions.  A prisoner may also be remanded in custody (jail) in a criminal case.
• Ripeness -- issue may not be taken up by court if administrative appeals have not been completed
• Scrutiny -- checking actions by the standards of the constitution; may be strict or intermediate.  Strict scrutiny is applied to actions that may violate explicit constitutional rights (notably those in the bill of rights).  Intermediate scrutiny generally applies to violations of implicit rights.  Strict scrutiny, given the workload of the courts, is relatively rare.
• Standing to sue -- plaintiff needs to be adversely affected by an action, be a citizen, and so on.  Counsel needs to be admitted to the bar, and so on.
 

• Habeas Corpus
• habeas corpus- "you have the body"
•     -procedure used frequently by inmates to question the legality of their confinement
•     -by filing the writ of habeas corpus, inmates are arguing that they are being incarcerated illegally and thus should be released
• May 1992- Supreme Court limited habeas corpus
• Issues surrounding habeas corpus arise primarily in capital punishment cases, as does the issue of race discrimination
• Ex Post Facto
• The United States Constitution provides that "no bill of attainder or ex post facto law shall be passed"
• U.S. Supreme Court defines ex post facto law as one that "retroactively alters the definition of crimes or increases the punishment for criminal acts."

• "The Civil Rights Cases (1883) implied that the 14th amendment did not apply to actions taken by "individuals" that abridged other citizen's rights, only to actions by the federal or state governments. In that case, the Court had invalidated most of the Civil Rights Act of 1875, which had been an attempt by Radical Republicans in Congress to protect the civil rights of African Americans from infringement.
• "1890, Louisiana passed a law that required separate accommodations for blacks and whites on railroads, including separate railway cars. An organization was formed to protest this, and a man of 1/8 African American, 7/8 Caucasian heritage (Plessy) was asked to attempt to ride in the white section of a Louisiana train.
• "The authorities onboard the train discovered Plessy's African American makeup and promptly removed Plessy and then proceeded to arrest him
• "Plessy was represented by Albion Tourgee and Samuel L. Phillips. They went against Judge John Ferguson represented by Alexander Porter Morse. Plessy was convicted and sentenced to pay a $25 fine.

Holding: This case approved of legal segregation in public facilities, and ruled that states could prohibit the use of public facilities by African Americans.
Analysis:

• The conviction came from a 7-1 decision, with the opinion of the court delivered by Justice Henry B. Brown. Justice David J. Brewer abstained, and Justice John Marshall Harlan delivered a famous dissent.
• Plessy v. Ferguson provided legal precedent to support the segregation which had already begun in the South through the "Jim Crow" laws. This case also provided for even more widespread segregation such as the segregation of the federal government in Washington, D.C. during Woodrow Wilson's administration in the 1910's.
• The beginning of the end of segregation supported by Plessy v. Ferguson came with the Brown v. Board of Education of Topeka case which ended segregation in schools.

In 1815, Aaron Ogden obtained exclusive rights to begin operating a Steamboat line from New York to New Jersey. Soon after, Thomas Gibbons, in direct competition with Ogden, opened and operated a ferry along the same route. Aaron Ogden, in 1819, filed an injunction in New York state court against Gibbons for his ferry operations on the basis that the granting of exclusive privilege by the state of New York allows for his company to function as a legal monopoly.
The New York state court ruled in favor of Ogden, citing state laws overrule the Federal Government's Coastal Licensing Act of 1793.

The United States Supreme Court reversed the decision of New York's state court on two grounds: the monopoly was in direct conflict with a federal statute and, therefore, violated Article VI, Section 2 of the U.S. Constitution-the Supremacy Clause. Furthermore, the law violated Article 1, Section 8, Clause 3 of the United States Constitution-the Commerce Clause.

Developed under Chief Justice John Marshall in 1819 in the case of McCulloch V. Maryland
Establishes the U.S. Constitution, Federal Statutes, and U.S. Treaties as "the supreme law of the land."

Article 1, Section 8, Clause 3, of the Constitution empowers Congress "to regulate Commerce with foreign Nations, and among [the] several States, and with the Indian Tribes."
Many law scholars interpret the clause to empower the federal government with the power to regulate channels of interstate commerce, persons or things involved in interstate commerce, and things relating to or effecting interstate commerce.
A state has the inherent and reserved right to regulate its domestic commerce. However, that right must be exercised in a manner that does not interfere with, or place a burden on, interstate commerce.

Background

-Herman Marion Sweatt was a black man who applied to the University of Texas Law School, and was denied solely on the basis of his race.
-Sweatt sued the President of the Law School, Theophilus Painter, to force his admission to the Law School
-A Texas trial court ruled that his denial was not allowed, as there was no Law School in Texas that would admit blacks
-The trial court refused mandamus, however, insisting that the state build a separate facility
-While Sweatt was preparing his appeal for the Supreme Court, the “Texas State University for Negroes” was created, and he was offered admission, which he refused

-Sweatt argued that the new law school was in no way equal to the one he applied to
-The new Law School had 23 students and one Alumni, whereas the University of Texas had 850 students
-The new law school had a library of 16,500 books (many of which were not there when Sweatt was granted admission) whereas the University of Texas had a library of 65,000 books
-The new law school had 5 full-time professors compared to the University of Texas’ 16

-The Supreme Court reversed the lower court’s decision, and granted Sweatt admission
-They ruled that, while there was a separate institution, it was not equal
-They ruled that in a profession like law, access to resources such as alumni were of great practical importance, and isolation would cause an inherent inequality

The case was filed in Topeka, Kansas during the 1950's

Linda Brown was a 3rd grade African American.
She walked approx. a mile to school everyday although a "white" school was located only seven blocks from her home.
Her father, Oliver Brown, attempted to enroll her in the "white" school.
However, she was not allowed to enroll at the facility.
Her father brought his concerns to the NAACP; the NAACP took a concern in the matter and filed action against the board of education.

The court, however, ruled in favor of the board of education based on the ruling in Plessy v Ferguson.

Stated that separation. but equal was in fact legal as long as interstate commerce was not an issue.  In-state separation was legal and could in fact continue as long as equality was maintained.

The NAACP then brought the case before the Supreme Court.

The court heard the case on Dec. 9, 1952 but failed to reach a decision.
The case was reheard on Dec. 7th and 8th of 1953.
On May 17, 1954 Chief Justice Earl Warren read the decision of the unanimous court:
the court ruled in favor of Brown based on the idea that separation in a learning environment was not and could not be equal.

In 1947 Gardner Bishop and the Consolidated Parents Group, Inc. [in the Anacostia neighborhood] began a crusade to end segregated schooling in Washington, D.C.

The "black schools" in D.C. were overcrowded. Many students had to attend schools in shifts such as from 8 AM till 12 PM and the next group would attend from 12:45 PM until 5:15 PM.

Students at the all black Browne Junior High School were attending in shifts during 1947 due to an over capacity by about 700 students.

A local all white school was operating in single shifts and had app. 150 open spaces.

In 1950 Bishop attempted to get eleven young African American students admitted to the new John Philip Sousa Junior High School, an all white school.

When the students were turned down, Charles Hamilton Houston, the special counsel to the NAACP, provided legal representation for the group.  Prof. James Nabrit,Jr. [of Howard University] soon replaced Houston after Houston dealt with medical issues.

The sole issue debated was not that black schools were inferior to the white schools [as in Brownv. Board], but simply that it was segregation itself that was wrong [unconstitutional].  This point had never been argued alone.

The court dismissed the case on the basis of a recent ruling by the Court of Appeals in Carr v. Corning that segregated schools were constitutional in the District of Columbia.

The U.S. Supreme Court rendered a separate opinion on Bolling v Sharpe because the 14th Amendment to the U.S. Constitution was not applicable in the District of Columbia.

[School segregation was unconstitutional under the Due Process Clause of the Fifth Amendment to the United States Constitution. In Bolling, the Court observed that the Fifth Amendment to the United States Constitution lacked an Equal Protection Clause, as in the Fourteenth Amendment to the United States Constitution. The Court held, however, that the concepts of Equal Protection and Due Process are not mutually exclusive.]

[Critique: leading law professors have pointed out that -- no matter how morally sound -- this decision is hard to reconcile with the text of the Constitution. Alternatively, Judge Michael McConnell has argued that the Court should have ruled that segregation had never been authorized by Congress.]

• Cleveland police, being tipped that Dollree Mapp and her daughter are harboring a suspected bombing fugitive, immediately demand entry to Mapp's home.  Mapp calls her attorney, and refuses entry without a warrant.
• Several hours later, more police officers, upon her refusal, wave a piece of paper (which is not a warrant), and when she stuffs it down her shirt, retrieve it.
• Officers forcibly enter and search her entire home, finding a chest holding pornographic objects, which she claimed belonged to a friend.
• Mapp is found guilty of possession of "obscene"  material under Ohio law.
• The Ohio supreme court finds that material taken from an object (the trunk) is different from that taken forcibly from an individual, and allows the evidence in court.  Her conviction is upheld.

• [Later research shows that the case was occasioned by boxing numbers rackets, and the informant was Don King, the boxing promoter.  Dollree Mapp was the girlfriend of a champion boxer.]

May evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures", be used in criminal prosecutions in state courts, as well as federal courts?

Evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures", may not be used in criminal prosecutions in state courts, as well as federal courts.

This is known as the "exclusionary rule"

Federal precedent:

Weeks v. United States (1914) applied an exclusionary rule to the federal government only, but not the states, based on the Fourth amendment

Applied to federal only , not state, courts with Wolf v. Colorado (1949).

Majority Opinion:

Justice Clark overturned Wolf: right of privacy in Fourth amendment is already applied to states via Fourteenth amendment.  Exclusionary rule is an important part of privacy.

"it is the law that sets him [the criminal] free" and that "Nothing can destroy a government more quickly than its failure to observe its own laws."

Concurrences:

Justice Black concurred, but by combining the Fifth amendment with the Fourth, the exclusionary rule is actually required.

Dissents:

Justice Harlan's dissent: states rights issue; wrong question asked.  The real question that should have been asked was, "not with the desirability of that [exclusionary] rule, but only with the question whether states are Constitutionally free to follow it or not as they themselves determine."

-He did not have a lawyer and asked that one be appointed to him by the court.

-He was denied the right saying that under Florida state law, a lawyer was only appointed in a capital offense.

-He was sentenced to 5 yrs. in prison and he appealed to the Supreme Court and they agreed to review his case.
  -Abe Fortas was appointed to represent him.

-In 1963, the Supreme Court overturned his conviction and said that the right to counsel is guaranteed in federal trials in the sixth  amendment of the constitution.

-State failure to provide counsel for a defendant charged with a felony violated the due process clause of the Fourteenth  Amendment to the Constitution.

The Chief Justice in the case has had a very exciting life so to speak. Earl Warren has had a number of landmark rulings. Among them were, Brown v. Board of Education (1954) on desegregation in public schools, Mapp v. Ohio (1961) on search and seizure by police, and Gideon v. Wainwright (1963) on the right to counsel in criminal trials in state courts.

In this particular case we have a suspect (Ernesto Miranda) who has been identified by the victim in a kidnapping and rape case. He was then interrogated but only after he signed a confession document stating that he was “with full knowledge of my legal rights, understanding that any statement I make may be used against me.” The trial proceeded and Miranda’s confession was entered as evidence, and despite the officer’s testimony that Miranda had not been told of his right to have an attorney present during interrogation, Miranda was found guilty.
 

Facts and Circumstances:

• An antique Connecticut law (1879), rarely enforced, that prohibited the use of contraceptives, was challenged several times. Conn. Gen. Stat. §§ 53-32, 54-196 (rev. 1958).
• The law made no distinction between married and unmarried women, and did not refer to the health of the woman.
• In Poe v. Ullman (1961), although the Court had dismissed the case as not yet ripe, a challenge to the Connecticut law proscribing contraception, Justice John Marshall Harlan II's dissent became widely cited. He argued, "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."  This functioned as an invitation to further challenges.
• Plaintiffs, Griswold (Planned parenthood) and Buxton (professor, Yale University School of Medicine) soon founded a clinic offering contraceptive advice.
• They were arrested, found guilty and fined $100 each.

Analysis:

• By a vote of 7-2, Justice Douglas's opinion invalidated the law on the grounds that it violated the "right to marital privacy".
• Privacy rights are found in the ""penumbras, formed by emanations" of the Bill of Rights
• First amendment guarantees free association
• Third amendment protects the home from quartering soldiers
• Fourth amendment protects against unreasonable searches and seizures
• Fifth amendment protects against self-incrimination
• Ninth amendment reserves rights to people
• Justice Arthur Goldberg, concurring, used the Ninth Amendment.
• Justice John Marshall Harlan II, concurring, argued that privacy is protected by the due process clause of the Fourteenth Amendment.
• Justice Byron White, concurring, based on the due process clause.
• Justice Hugo Black, dissenting, argued that the right to privacy is to be found nowhere in the Constitution. He criticized the majority's interpretations of the Ninth and Fourteenth Amendments.
• Justice Potter Stewart, dissenting, called the Connecticut statute "an uncommonly silly law", but argued that it was constitutional.
• Subsequent rulings have used the substantive due process rationale rather than the ninth amendment.
• Eisenstadt v. Baird (1972) in Massachusetts, extended its holding under the Fourteenth amendment's due process clause, to unmarried couples.

[Consolidated] Two cases: Roe v Wade [Findlaw] from Texas, and Doe v Bolton [Findlaw], from Georgia.

Attorneys for Norma L. McCorvey ("Jane Roe") sought an injunction in 1970 against enforcement of a Texas state law against abortion.

McCorvey claimed her pregnancy was the result of rape, a claim later dropped.

The Texas law (unlike those in some other states) did not distinguish single from married females, nor consider the health of the mother

The district court ruled in her favor on the merits, but declined to grant an injunction.  The court cited the Ninth amendment and Arthur Goldberg's opinion in Griswold v CT (1965), upholding marital privacy against a state law banning contraception.

Harry Blackmun drafted an opinion upholding Roe on the basis of the Texas law's vagueness.

President Nixon's nominees, Rehnquist and Powell, were confirmed too late for the hearing, hence Chief Justice Burger ordered a reargument held in 1972 (Justice Douglas dissented from this order).

Doe v. Bolton followed a similar timetable and had a similar majority.  Plaintiff Sandra Cano ("Mary Doe") was nine weeks pregnant.

The Georgia law permitted abortion only in cases of rape, severe fetal deformity, or the possibility of severe or fatal injury to the mother.

Restrictions included the requirement prior approval in writing by three physicians and by committee of the hospital; non-residents of Georgia could not have an abortion at all.

The Doe opinion permitted abortion (in principle) even after viability, based on a broad definition of factors involving the mother's health.

The Supreme Court ruled 7-2 to overturn the Texas and Georgia statutes, thus overturning most abortion-banning laws in 46 states.

The three procedural conditions in 26-1202 (b) of Georgia's Criminal Code violate the Fourteenth Amendment.

Justiciability: Roe had given birth before the appellate process was exhausted.  The case was not declared moot, though, nor was Roe denied standing to assert the case for other pregnant women.  Instead, the Court found an established 1911 exception to mootness for a case "capable of repetition, yet evading review."

Burger and Douglas' concurring opinion and White's dissenting opinion were issued separately, in the companion case of Doe v. Bolton.

Abortion is a fundamental constitutional right, hence restrictions are subject to strict scrutiny.

Blackmun founded the right on the due process clause, not the Ninth amendment:

[The] "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Blackmun's opinion, Section VI, researched the history of abortion law since ancient Rome.

The opinion gave balanced recognition to the mother's right to privacy, the foetus's right to life if defined as a legal person, and the state's right to regulate:

""We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

The opinion left definition of when life begins to other disciplines, an concerned itself only with the legal right to abortion.

The balancing of rights established a system of trimesters:

the state cannot restrict a woman's right to an abortion during the first trimester

the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health"

the state can restrict or proscribe abortion during the third trimester when the fetus is viable, "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother".

 -A Texas statute made it illegal to “procure an abortion”
 -Ms. Norma McCorvey (using Roe was a pseudonym) of Texas challenged that the statute violated her right to privacy given in the Fourteenth Amendment.
[-The TX district court gave judgment for plaintiffs, and denied an injunction.]

-The three-judge panel in Texas stated that the Texas statute indeed violated her right to privacy and ruled in favor of Roe.
[A Texas law making it a crime to assist a woman to get an abortion, violated her due process rights. ]

 -Justice Blackmun’s opinion- stated that the Constitution does not see the fetus as a person as the state does. The Constitution does not make the choice to have an abortion moral, but does grant the right to choose
-The Supreme Court furthered the decision by giving states the right to regulate abortions in certain circumstances but gave all women the right to an abortion in the First Trimester.
-The court decided the states could regulate abortions according to which trimester the woman’s pregnancy was currently in.

-States could not interfere with a woman’s right to an abortion during the first three months of a pregnancy.
-In the Second Trimester, states could now regulate abortion only if it was reasonably related to the mother’s health.
-In the Third Trimester states were given the authority to regulate and absolutely ban abortions.  In the Third Trimester the fetus has reached viability (the fetus can survive outside of the mother’s body)

- Roe brought the case to the Supreme Court against the state of Texas and their laws that criminalized abortion.  Roe, a single parent, brought this case up because she wanted an abortion but she could not due to the fact that the Texas statute only allowed an abortion when it was needed to save the mother’s life.

- The supreme court came to a 7-2 decision where they overturned the Texas statute and made abortion legal through out the United States.  They overturned the statute due to the fact that it violated the right to privacy that women had over the choices they have to make with their bodies.

~ The statute clearly violates the concept of personal liberty as held by the 14th Amendment’s
due process clause and also personal life is protected by the Bill of Rights.
~ The laws are out of date and need to be updated to the 20th Century.  There were reasons in
the 19th Century for having such laws but they are no longer needed due to the great
advancement of medicine.
~ There are three reasons for these laws, one to discourage illicit sexual conduct, abortion being
very unsafe as a medical procedure in the 19th Century, the state’s interest in protecting prenatal life.
~ The Constitution does not clearly define a right of privacy but the decisions of the court does
and the statute is clearly a violation of the privacy ensured by the court.  The 9th amendment is
broad enough to encompass a woman’s right to have an abortion or not.
~ The Constitution does not see the fetus as a person as the state does and therefore abortion is legal.
~ The Constitution does not make the right to have an abortion moral but it is the right to make a
choice whether to have an abortion or not.  The practice of an abortion is legal and the
stipulations on an abortion are left up to the state after the first trimester.

~ The court has no right to place the scope of a woman’s choice under the 14th Amendment.

• The preamble to Missouri's statute stated that "the life of each human being begins at conception" and "unborn children have protectable interests in life, health, and well-being."  The statute also:

   1. required that under Missouri laws, unborn children be endowed with rights equal to those enjoyed by other persons, subject to federal limits
   2. prohibited public health doctors from aborting a fetus they believed to be viable
   3. prohibited state resources from performing abortions, except where the mother's life was in danger
   4. prohibited the use of public resources to "encourage or counsel" a woman to have an abortion, except where her life was in danger.
• US district and Appellate Courts struck down the statute, following Roe v. Wade.
• Missouri challenged to the US Supreme Court

• The Court approved a Missouri law that imposed restrictions on the use of state funds, facilities and employees in performing, assisting with, or counseling on abortions. The Supreme Court thus allowed for states to legislate in an area that had been previously been thought to be forbidden under Roe, reversing the Eighth Circuit.

The Rehnquist opinion (with White and Kennedy; plus O'Connor and Scalia except for the viability issue) modified the Roe trimester system, and upheld several restrictions, but found that none of the Missouri Act's provisions conflicted with the constitution.

• The preamble should not have been struck down, because not relied on directly in decisions restricting abortion, hence no constitutional question raised.
• Prohibitions on use of state resources also should not have been struck down, because there is no affirmative right to government aid under Roe.
• no case or controversy existed in relation to the counseling provisions of the law, therefore not struck down.
• Requirements of viability testing after 20 weeks were not unconstitutional; the state's interest could come into play before viability.
• The Court emphasized it was not revisiting the essence of the Roe v. Wade opinion.
• Concurrences:

• O'Connor's concurrence refused to reconsider Roe
• Scalia's concurrence sharply criticized the refusal to reconsider Roe
• Dissents:
• Blackmun's dissent sharply criticized the other opinions, and feared that one more vote would overturn Roe.

- Section 1008 of the Public Health and Services Act prohibits federal funding under Title X for family planning when “programs where abortion is a method of family planning.”
- In 1988, the Secretary of Health and Human Services issued stricter regulations that prohibit funds for counseling, advising, or promoting abortions.
- Family planning services argued that the regulations was not authorized by Congress, and violated their First and Fifth Amendments’ rights.

- Did the regulations violate the petitioners’ First Amendment‘s freedom of speech clause and Fifth Amendment’s due process clause.

- The Court upheld the regulations on a 5-4 vote. Chief Justice William H. Rehnquist delivered the opinion of the Court.
- Justices Blackmun, O’Connor and Stevens filed dissents with Justice Marshall joining Blackmun.

- That the regulations are permissible under Title X
• Section 1008 is ambiguous and is not directly speaking to counseling, referral, and advocacy of abortion.
• The Secretary’s office is given “substantial deference” in their interpretation because it is the agency charged with administering the statute, and it does not conflict with Congress’ “expressed intent.”
• That Section 1008 is broad enough to allow regulations.
• Regulations pass the “program integrity” standard.
- The regulations do not violate the First Amendment’s freedom of speech clause.
• Government can make a value judgment favoring childbirth over abortion, and support its judgment through allocation of funds.
• The regulations ensure that funds are not used for activities outside of the program’s scope.
• Abortion counseling where a woman’s life is in danger is not considered a “method of family planning”
• Title X does not forbid individuals from abortion advocacy, but requires that it is separate from Title X programs.
• Title X does not significantly impinge on doctor-patient relationships.
- The regulations do not violate a woman’s Fifth Amendment’s right to an abortion (due process clause)
• Government is not obligated to fund and activity because it is constitutionally protected.
• Regulations do not place obstacles upon women to get an abortion.
• Regulations do not restrict doctor-patient dialogue, so that a woman can make an informed decision.
• Does not violate an indigent woman’s right because financial constraints prohibits them from attempting an abortion not government restrictions.

Title X of the Public Health Service Act prohibited US funds from being "used in programs where abortion is a method of family planning."

In 1988, the Secretary of Health and Human Services issued new regulations that prohibited projects receiving these funds from not only providing abortions, but also counseling, advising, or promoting the idea that a woman seek an abortion. These regulations were challenged.

The district court gave summary judgment for the defendant, DHHS, and the circuit court affirmed.

• The legality and constitutionality of Department of Health and Human Services regulations on the use of funds spent by the U.S. federal government to promote family planning.
• Are such DHHS regulations permissibly within the scope of the US statute, and (for clients and for providers) do they violate the First, Fourth, and Fifth Amendments to the U.S. Constitution?

• the regulations did not violate the legislation in question or the Constitution.

• Chief Justice William Rehnquist found that the regulations
• were a permissible construction of statutory law,
• they do not violate the First Amendment free speech rights of the recipients
• that they do not violate the Fifth Amendment right of women to choose whether to terminate a pregnancy as established in Roe v. Wade.

• The intent of Congress in the enactment of Title X was found ambiguous with regard to abortion counseling.
• Consequently, the Court defered to the expertise of the administrative agency, DHHS.

• Principal Deputy Solicitor General of the United States John Roberts, was one of the US lawyers providing an amicus brief, which argued for overruling Roe v. Wade.  He later became Chief Justice.
"We continue to believe that [Roe v. Wade] was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution."

Facts and Circumstances:

• A class action suit, brought by medical professionals supplying abortion services, challenged restrictions set by a Pennsylvania statute
• The Pennsylvania legislature amended its abortion control law in 1988 and 1989.
• Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure.
• A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure).
• A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus.
• These provisions were challenged by several abortion clinics and physicians.
• A federal appeals court upheld all the provisions except for the husband notification requirement.
• The US amicus brief (as in 5 previous cases) called for overturning Roe v. Wade.

Are the following provisions of the Pennsylvania Abortion Control Act consistent with Roe v. Wade's rights?

A "informed consent" rule under the Act required doctors to provide women with information about the health risks and possible complications of having an abortion before one could be performed.

A "spousal notification" rule required women to give prior notice to their husbands.

A "parental consent" rule required minors to receive consent from a parent or guardian prior to an abortion.

A 24-hour waiting period was required before obtaining an abortion.

Reporting requirements were imposed on facilities providing abortion services.

• The Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an "undue burden" on married women seeking an abortion.
• Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations.
• Third Circuit Court of Appeals was affirmed in part and reversed in part.

The court permitted states to legislate in areas previously deemed off limits.

The unique plurality lead opinion (crafted and authored by O'Connor, Kennedy and Souter, with at least two other justices joining each part) lowered the scrutiny of restrictions on abortions, from strict scrutiny to a lesser "undue burden" standard

The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

The opinion specifically upheld the precedential value of Roe, while accepting substantial modification

By this time, Byron White, a dissenter in Roe v. Wade, was the only remaining democratic-appointed justice

Third Circuit appellate Judge Samuel Alito had dissented from the invalidation of the spousal notification

 In August of 1982 Michael Hardwick was charged with public intoxication after leaving a bar for which he was given a court date. After failing to attend court Hardwick was issued a warrant by the arresting officer. Upon issuing the warrant, the officer searched his home premises only to find Mr. Hardwick engaging in consensual, mutual oral sex with another man for which both were arrested for violating the state’s anti sodomy laws. After the sodomy case was never taken to trial Hardwick then sued Michal Bowers, Attorney General for the state of Georgia, on the basis that the law was invalid. Hardwick’s attorneys argued that as an active homosexual he was bound to be brought up on similar charges in the future.

 The issue that was mainly addressed by the court was Hardwick’s right to privacy. Justice Byron White delivered the majority opinion based around the legal question: “a fundamental right for homosexuals to engage in sodomy”. For a right to become “Fundamental” it must be “deeply rooted in U.S. history”. Justice White responded to the prompt by stating “to claim that a right to engage in such conduct is ‘deeply rooted in rooted in this nation’s history and tradition’ or implicit in the concept of ordered liberty’ is, at best, facetious”. This ruling affirmed that the Georgia law was valid because there is no constitutional right that guarantees the right to engage in homosexuality.

 In the time since the decision, many states’ sodomy laws were rarely enforced in the privacy of one’s home. The Georgia law extended not only to homosexuals but also to heterosexuals as well. However, since Justice White focused primarily on the fact that the respondent was a homosexual the case has since been cited in cases with opposition to gay rights.

 Since the ruling of the case there have been multiple sodomy related cases that have led to the repeal of many states’ anti-sodomy laws. The Georgia law that the Hardwick case affirmed was later invalidated in Powell v. State of Georgia (1998) thus overruling the opinion [that gave rise to the] the previous opinion set forth by Justice White.

• The case was about Hardwick who was being arrested for public drunkenness and was found in his home engaging in oral sex with another person of the same sex.  He was arrested because it violated the Georgia statute of sodomy, in reference to banning oral and anal sex.
• Hardwick challenged that it was unconstitutional for the state to limit consensual sex between two partners of the same sex as long as they were consenting adults.  He claimed a right to privacy and claimed that under the Fifth and Fourteenth amendments his rights were violated under the due process clause.

The court ruled 5-4 to reverse the 11th circuit court of appeals ruling, [and permit the state to enforce legislation on types of private, consensual sexual conduct]

The right to privacy was not invaded and the case has no legitimacy under the due process clause because it is not a Constitutional issue and majority belief still invalidates his claim because it is seen still by the majority as immoral.

The due process clause only protects life, liberty, and property to a person and their right to maintain and keep it.  The rights of homosexuality do not fall under these categories.

The idea of homosexuality was not provided for in the Constitution because at the time of the founding fathers there was a common law that made sodomy illegal and it was not meant to be in the Constitution’s jurisdiction.

The law, based on morality like many other laws, is Constitutional because it protects the rights of those who are not a part of it.  The basis for morality is that it keeps order and if laws that were based on morality were rejected then where would the courts be today?

Hardwick should not undermine the power of the state just because it suits his sexual preferences better.

Intrusion on a person’s privacy should not be biased according to sexual orientation.

The courts have focused too much on the fact of homosexuality and not on the fact whether the person’s rights were violated or not.

Sexual intimacy is part of life and should not be limited due to sexual orientation.

The Georgia law was stuck down later in 1997 in Powell v. State [of Georgia].

The [case] law was also [reversed] by the Supreme Court in 2003 in Lawrence v. Texas.

[sorry, slight editing needed there by Dr. L]

 Houston Police entered John Lawrence’s House responding to a weapons disturbance.  The police found Lawrence and Tyron Garner engaging in a private consensual sexual act.  This was in violation of a Texas statute that banned two persons of the same sex from engaging in sexual intercourse and sodomy.  The two men were arrested and convicted of deviate sexual Intercourse.  Lawrence and Garner challenged the Constitutionality of the statute.  The Texas State Court of appeals upheld the Statute Citing the Precedent of Bowers V. Hardwick.

Does the Texas Statute Violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment?  Should Bowers V. Hardwick be overturned?

The Court ruled 6-3 in favor of Lawrence and Declared that the Texas statute violated the Due Process Clause of the Fourteenth Amendment.  The Ruling of the Texas Court of Appeals was reversed and remanded.  Justice Kennedy delivered the Opinion that was joined by Justices:  Stevens, Souter, Ginsburg, and Breyer.  Justice O’ Connor Filed a Concurring Opinion.  The Dissenting Opinion was written by Justice Scalia and was joined by Chief Justice Rehnquist and Justice Thomas who also filed a dissent.

Justice Kennedy said that Lawrence and Garner were free adults and that their right to engage in private conduct is protected by the Due Process Clause of Amendment XIV.  According to Kennedy, the Texas Statute violated this right.  Kennedy said that Bowers V. Hardwick had wrongly allowed regulation of very private relationships.  He said that Homosexuals had the right through the 14th Amendment to enter into relationships in the privacy of the home.

Kennedy then attacked the claim made by the court in Bowers, that there had been a tradition of laws against sodomy in the U.S.   Kennedy argued that these laws were meant to go after child predators that preyed on those that couldn't consent legally.  He said that laws like the Texas statute in this case unfairly attacked homosexuals.  He said that there was no precedent for laws singling out homosexual relationships (instead, these laws singled out unmarried relationships).   Kennedy cited the precedent of Romer V. Evans that struck down laws that singled out homosexuals.  He also cited precedent from a European Court of Human Rights case involving a Law in Northern Ireland.

The principle of stare decisis was also challenged.  Kennedy, citing Payne V. Tennessee, said that stare decisis was not inexorable.   Therefore, Kennedy overturned Bowers V. Hardwick even though the case had been decided only 17 years earlier.

He challenged Bowers with two points.

1.  The fact that the governing majority of a state has viewed a particular practice as immoral is not sufficient reason to uphold a statute.

2.  Individual decisions concerning physical relationships even if not procreative are a form of liberty.

Finally, Kennedy argued that the current state of the Laws was another reason to overturn Bowers.  He said that because fewer states had sodomy laws at the time the case was decided.

Scalia said that the court had overturned Bowers too early.  He said that it was unfair that the court dismissed stare decisis in this case yet made it had made it the main reason in reaffirming Roe V. Wade.   Scalia said this created great instability with the writ of stare decisis.  He said that this would also cause instability in society.

Scalia also said that the right of homosexuals to engage in sexual practices was not fundamental because there had been no precedent protecting the right to intimate sexual relations.  He noted that Sodomy was a criminal offense in the thirteen states at the time the Bill of Rights was written.  Therefore, the Texas statute was not subject to strict scrutiny.

Scalia said that Texas had an interest in communicating to its citizens that certain sexual acts were immoral.  He says that laws against fornication, bigamy, adultery, adult incest, and obscenity serve the same purpose.  He says that morals legislation has a purpose and a deep rooted tradition in America.  He says the ruling of the court  threatens the right of states to legislate morality.

Finally, he challenges the equal protection claim.  He says that men and women and all races are equally banned from committing deviant sex acts.  He also says that the law is attacking conduct not a group of people.  He says if we had to strike down this law, we would have to strike down public nudity bans because that is discriminatory against nudist. He also cites the prevalence of marriage laws.

In Conclusion, Scalia accuses the court of signing on to the homosexual agenda that promotes removing homosexuality from the ranks of immorality.  The court had taken sides in a culture war he says.   Scalia feared that the court had departed from its role as observer and that it was forcing people to be exposed to a lifestyle that they see as immoral and that they want to protect their families from.  He said that the homosexual agenda that the court pushed was not mainstream.  He said that it was not the job of the court to decide the results of the culture war.  He said this should be settled in the process of democracy.

Revisions to the education laws in Texas (1975) withheld state funds for educating children who had not been legally admitted to the United States, and authorized local school districts to deny enrollment to such students.

Case was consolidated with Texas v. Certain Named and Unnamed Alien Children.

Do children of undocumented aliens have a right to education under equal protection of the laws, 14th Amendment?

A Texas statute denying free public education to undocumented alien children violated the Equal Protection Clause of the Fourteenth Amendment, because denial to aliens did not further a substantial state interest.

Fifth Circuit Court of Appeals (upholding plaintiffs) was affirmed.

Opinion by Brennan, joined by Marshall, Blackmun, Powell, Stevens

Where states limit the rights afforded to people based on their status as aliens, this limitation must be examined under an intermediate scrutiny standard to determine whether it furthers a substantial goal of the State.

A 5-to-4 majority of the Supreme Court found this policy in violation of the Fourteenth Amendment, as illegal immigrant children are people "in any ordinary sense of the term", and therefore had protection from discrimination unless a substantial state interest could be shown to justify it.  The US Supreme Court thereby struck down a state statute denying funding for education to children who were illegal immigrants.

The majority found that the Texas law was "directed against children, and impose[d] its discriminatory burden on the basis of a legal characteristic over which children can have little control" — namely, the fact of their having been brought illegally into the United States by their parents.

The majority also observed that denying the children in question a proper education would likely contribute to "the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime."

The majority refused to accept that any substantial state interest would be served by discrimination on this basis, and it struck down the Texas law.

Texas officials had argued that illegal immigrants were not "within the jurisdiction" of the state, and therefore did not have standing to claim protections under the Fourteenth Amendment.

The court majority rejected this claim, finding instead that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

Burger, joined by White, Rehnquist, O'Connor

The dissenting minority agreed in principle that it was unwise for illegal alien children to be denied a public education, but argued that:

the Texas law was not so objectionable as to be unconstitutional

that this issue ought to be dealt with through the legislative process

that "[t]he Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem"

the majority was overstepping its bounds by seeking "to do Congress' job for it, compensating for congressional inaction".

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