http://meloukhia.net/2009/07/hipster_racism.html

questions chapter 6

1) Do threats to the U.S such as 9/11 justify getting into the privacy citizens? (Patriot Act)
2) Which is more influential: the media, parents, or school?
3) What are other factors that can affect your political stance?
4) What political/social impact would it have if our country has a minority majority?
5. What are the different issues specific to different ethnicities?

identify figures of speech

Introduction To Poetry

I ask them to take a poem and hold it up to the light like a color slide or press an ear against its hive. I say drop a mouse into a poem and watch him probe his way out, or walk inside the poem's room and feel the walls for a light switch. I want them to waterski across the surface of a poem waving at the author's name on the shore. But all they want to do is tie the poem to a chair with rope and torture a confession out of it. They begin beating it with a hose to find out what it really means.

Abortion is indubitably a very controversial issue. When this topic is brought up, many jump to the conclusion that abortion is synonymous with murder therefore rendering it to be unjust and unethical. I'll tell you what's unethical: disregarding the rights of women to their own reproductive system is unethical. Believing that government institutions or the law should interfere with the personal lives and decisions of women is unethical. Jumping to conclusions and assuming that women who choose to get an abortion is merely irresponsible,, or heartless is a faulty logic that should be taken into further examination. I stand here before you today, to offer you a different perspective, my perspective, in hopes that you will understand or try to understand why women carry out carry out abortions, instead of solely arriving at assumptions.
  Abortion is one of the safest surgical procedures for women in the United States. Fewer than 0.5% of women obtaining abortions experience a complication, and the risk of death associated with abortion is about one-tenth that associated with childbirth. Access to a safe, legal abortion procedure is an option that all women should have. Many people tend to believe that abortion is equivalent to killing a life. In this point of view when looking at the value of a life, some may not consider the life of a women. If a woman already suffers from a chronic condition that requires medication, that medication may not be compatible with pregnancy, which means you’re asking a woman to sacrifice her own health. Demanding that women — primarily young, underprivileged women — go through pregnancy and birth is risking her life. When the value of a life comes into play, there is nothing wrong with women valuing their own lives over that of a fetus. A fetus is not living, breathing, sentient being. It is a possibility of a living thing.
And what about the women who didn't even choose to be pregnant? Women who are raped or victims of incest should not be forced to carry out a pregnancy. Odds are that 1 in 3 women will be victims of sexual violence in her lifetime. My aunt falls under the 1, in 3. As a young woman, she was a victim of rape during the atrocities of the Vietnam War had gotten an abortion. Her circumstances at the time were unfit for a child to be in. It is not fair to bring a child into a world when you lack the necessities such as money, and a safe environment for the child to have a good life.
Adoption is a popular alternative that is brought up in regards to abortion. I would like to inform you that adoption is actually not a direct alternative to abortion. It’s an alternative to parenthood. Abortion, at the most simple definition, is a form of birth control. By performing it, you prevent birth. Having an abortion in the first trimester (where 88% of them take place according to the guttmacher institute) [http://www.guttmacher.org/pubs/fb_induced_abortion.html]  is VERY different from continuing the pregnancy and giving the baby up for adoption. People who don't see this” are completely ignoring the physical, financial and mental tolls of pregnancy. It is NOT easy. If you work a minimum wage job, or don’t have sick days, you probably can’t afford to take time off because of morning sickness. If you don’t have healthcare, you can’t afford nine months of prenatal appointments. If your job doesn’t have paid maternity leave, you can’t afford to take time off to recover from the birth. If you have complications and are required to go on bed rest… how would most young people afford that? How would you pay rent and bills and buy groceries if you had to stay off your feet for three months or longer? Furthermore, the mental toll of giving up a child for adoption is immense. Not only do you have to go through the physical distress of labor, you don’t get to take home a baby afterward. And you have to explain your decision to family members and friends for the rest of your life. On the other hand, abortion is a private decision that has a relatively low chance of mental health complications. It shouldn't be an issue, because the personal lives of women and what they choose to do with their own bodies, as long as it's with no intent to inflict harm, should be respected. We all have women in our lives that we respect, so why not respect their right to their own bodies?

http://www.mcelroytutoring.com/blog-post.php?id=281
http://www.erikthered.com/tutor/facts-and-formulas-0.pdf
http://www.freevocabulary.com/SATmath.pdf
http://www.erikthered.com/tutor/
http://www.syvum.com/sat/index.htm#s1
http://www.studybeans.com/sat/math_equations.html
http://www.apluspublishing.com/aplus4.html

Question 11.

Xin Phong

Period 8

Besides the fact that Nora and Helmer's marriage is traditional, with the wife being the domestic figure, and the husband going to work, it is also filled with secrets and conflict like a typical marriage. Nora keeps secrets such as borrowing money, and even trivial secrets like eating macaroons, in order to avoid conflict in her marriage with her husband. This in itself is an inner-conflict with Nora herself. Helmer's attitude toward Nora is typical of men who believe they are superior to women. Helmer describes Nora as a "helpless creature" (1225), underestimating her abilities as an individual. Another aspect that makes their marriage typical is the accommodation of one spouse to another. It is typical in marriages that one spouse often accommodates to the other and in this case, Nora is the one who accommodates to Helmer. She does this by dancing the tarantella at the party like he asks her to, and accepting the burden of borrowing money for his sickness. In their dysfunctional marriage, Nora gives up her own happiness for her husband by putting up a facade. Their marriage is also typical in the sense that it looks fine on the outside. They are well-off with parents who appear to be good parents, and a maid. It is a facade that is put up, like many marriages. 

Name:  xin

Date:  10/19/11

Class:  

Comments:  

---

Current Working Draft: 

  D.H. Lawrence's "The Rocking Horse Winner" explores a mother's material greed that results in her son's madness. The son, Paul experiences a lack of love and attention - necessities for a healthy childhood development. He notices his mother's strong appetite for money, when she condemns his father's bad luck. According to his mother, luck is what brings in money. However, Paul seeks luck, not to gain money, but as an attempt to compel his mother's attention.
His search causes him to take no heed of other people, riding his rocking horse, "charging madly into space, with a frenzy that made the little girls peer at him uneasily." (304). He grows an obsession toward riding his rocking horse because he believes it helps him win money from horse racing bets. Because this is his only source of luck, his habits deludes him, as he rides to the "end of his mad little journey" (305). His toy rocking horse is an object of of his delusion. It represents Paul's abnormal psychological growth and obsession. Before his obsession with gaining his mother's attention, he uses the rocking-horse solely as a toy. In his search for luck, the horse becomes a drug for Paul that he develops an addiction towards. The horse is the source of his luck, allowing him a quick fix of hope: hope that his mother will show more care and affection. The mother's obsession with material objects creates Paul's obsession with money as a quest to gain her love.
       Paul's delusional behavior highlights the gravity of his mother's problem. Along with his lack of strong maternal care, are whispers in his home demanding that "there must be more money!" (303). That statement signifies the materialistic mindset of the mother. Paul interprets these demands in a literal sense and decides to fix the problem by bringing in more money. As he begins to get a taste of luck, he becomes acquainted with a large amount of money. He gathers up five thousand pounds and asks Uncle Oscar to secretly give the money to his mother. This first attempt to solve his dilemma fails when his mother gives a stoic reaction, "with her voice cold, and absent" (311). The whispering suddenly becomes stentorian, going "mad, like a chorus of frogs on a spring evening" (311). This urges Paul to further try to win even more money. His behavior is a reasonable consequence of his mother's absent love, even after he attempts to solve her problem with being unlucky. Paul focuses primarily on winning more money, to satisfy his mother. He does not realize that she will never be content with the money she has. Her need for material objects increases, no matter how much wealth she gains. The incessant whispering represent her mindset and problem of an increasing addictio. As her hunger for money increases, the volume of the voices also increase. This is a deep-rooted problem which Paul himself cannot alleviate. This causes him to carry out his last act of madness, taking his last ride on his rocking horse, resulting in illness. Even in sickness, Paul is preoccupied with money, sacrificing his well-being for his mother. Before he dies, he says "Mother, did I ever tell you? I'm lucky." His mother replies, "No, you never did." This brings light to the mother's negligence toward her son, because Paul has previously told his mother that he was "a lucky person" (304). Her response conveys that she does not care about Paul, since she does not make the effort to hear what he has to say.
        Paul's  madness induced illness ends in death, demonstrating how dire the problem of materialism in his family has become. He loses his life from trying to combat the negligent results of being over-excessively money-oriented. Paul's unhealthily eccentric behavior is a symbol of the impact materialism can have on one's environment.

---

http://www.marxists.org/subject/education/index.htm

Free Response Question

In the time span of the last 50 years, one thing that women have gained are reproductive rights. The supreme court case, Roe vs. Wade extends to a woman's decision to have an abortion.Another gain made by women in the past 50 years is protection in gender discrimination. The court takes a closer look at gender discrimination in cases such as Reed vs. Reed, and ruled that any arbitrary gender-based classification violated the equal protection clause of the Fourteenth Amendment. The case, Craig v. Boren established a ''medium scrutiny'' standard where gender discrimination would be presumed to be neither valid or invalid. 

These gains have made it more easier and acceptable for women to go out in the work force instead of being the traditional home-maker. It has an impact on politics because women are now holding more powerful positions than before, therefore allowing them to make more choices on things that go on. 

http://www.webster.edu/~corbetre/philosophy/education/freire/freire-2.html
http://www.webster.edu/~corbetre/philosophy/education/freire/freire-1.html

lab report

Xin Phong

Period 3

Lab 3 Report

The purpose of this lab was to observe objects moving at a constant speed and objects moving with changing speed. In moving at a constant speed, the movement of the car and the amount of time it takes to travel from one position to another is observed. For part one, from watching the car move, we and recording the data from our observations, we find out whether the car picks up or slows down in speed. In our case, the car speeds up initially and then slows down at a constant speed. This is done on a leveled floor, that way it adds to the constant speed of the car as it begins to move forward. In the second part of our lab, our purpose was to observe the ball moving at an increasing speed. Because it was elevated a certain way, we can infer that gravity play a role in the speed of the ball as it rolls downward.

I learned that things that roll down on anything that’s tilted pick up in speed. I also learned that when something travels on a flat surface, it’s speed becomes constant a second or two after starting. In doing this lab, I also learned to better record data by doing things such as marking the time on the tape, and making sure there are no obstacles that will get in the way of the object that’s moving. Another thing I learned to do was that, the degree of the angled surface plays a role in how quickly the ball will travel. The steeper it is, the more quickly the ball will travel, and vice-versa. Some possible errors in part one of lab three could have been that the surface the car traveled on was bumpy, or if a group member speculated the wrong area that the car was supposed to stop at a certain time. Possible errors that might have occurred in lab two was if the track was tilted up to high, or if the ball might have been pushed a little when released. Another error could have been that the mark in the position of the ball at certain times were inaccurate.

2001

          D.H. Lawrence's "The Rocking Horse Winner" explores Paul's madness which stems from his mother's material greed. Her material obsession creates a lack of love and attention - necessities for a healthy childhood development. Paul takes notice of his mother's strong appetite for money. According to his mother, money comes from having luck. This causes Paul to seek luck as an attempt to compel his mother's attention. His search for luck results in delusional behavior where he takes no heed of other people, and gets into the habit of riding his rocking horse, "charging madly into space, with a frenzy that made the little girls peer at him uneasily." (304). He grows an obsession toward riding his rocking horse because he believes it helps him win horse racing bets.  Since this is the only way for Paul to get lucky, he continues riding to the "end of his mad little journey" despite his sisters' unease, and his nurse's disapproval. His toy rocking horse is an object of of his delusion. It represents Paul's abnormal psychological growth and obsession. Before his search for luck, the rocking horse was used solely as a toy. As he begins to search for luck, the horse becomes a drug for Paul that he develops an addiction towards. The horse is the source of his luck, allowing him a quick fix of hope: hope that his mother will show more care and affection. The mother's obsession with money creates Paul's obsession with money as a quest to gain her love.
       Paul's delusional behavior highlights the gravity of his mother's problem. Along with his lack of strong maternal care, are whispers in his home demanding that "there must be more money!" (303). That statement signifies the materialistic mindset of the mother. Paul interprets these demands in a literal sense and decided to fix the problem by bringing in more money. As he begins to get a taste of luck, and becomes acquainted with a considerable amount of money, he gathers up five thousand pounds and asks Uncle Oscar to secretly give the money to his mother. This first attempt to solve his dilemma fails when his mother gives a stoic reaction, "with her voice cold, and absent" (311). The whispers in the house then becomes stentorian, going "mad, like a chorus of frogs on a spring evening" (311). This urges Paul to further try to win even more money. His behavior is a reasonable consequence of his mother's absent love, even after he attempts to solve her problem with being unlucky. Paul focuses primarily on winning more money, so his mother can be satisfied. What he doesn't realize, is that she will never be happy with the money she has. Her need for material objects increases, no matter how much wealth she gains. The whispers in the house represent her mindset because as her hunger for money increases, the volume of the voices also increase. This is a deep-rooted problem that Paul himself cannot alleviate. This causes him to carry out his last act of madness, taking his last ride on his rocking horse, resulting in illness. In his illness, Paul is still preoccupied with winning money, a sacrifice in his well-being for his mother. In the last piece of dialogue with his mother before his death, he says "Mother, did I ever tell you? I'm lucky." His mother replies, "No, you never did." This brings light to the mother's negligence toward her son, because Paul has told his mother before that he was "a lucky person" (304). Her response puts emphasis on the fact that she does not care about Paul, since she does not make the effort to hear the things he has to say.
        Paul's  madness induced illness that ends in death, demonstrates how dire the problem of materialism in his family has become. A life was lost from trying to combat the negligent results of being over-excessively money-oriented. Paul's unhealthily eccentric behavior is a symbol of the impact that materialism can have on one's environment.

outline

Intro:
Attention Getter: Most of us agree that murder is wrong. Many of us believe that abortion is synonymous to murder. However this is a faulty logic and requires careful examination.

Bond: We all have women in our lives that we care about whether it be our mothers, friends, or significant others. We should really consider protecting their rights as a women.

Credentials: I read. A lot.


Destination/Objective Sentence: My goal is to convince you that women should have the right to abortion. I expect to have you convinced that this is the right view to have. What a women chooses to do with her personal life and her own body is solely up to her, and the government should not play a role in her reproductive rights.

Speech Preview:
Consider how access to having an abortion is a right all women should have. A woman should not feel guilty or threatened for making the choice to have an abortion. Women should be able to have the option to undergo a safe abortion.



1. Main Point #1.
Laws against abortion do not stop abortion; they simply make it less safe.
The number of women who get abortions does not change when it goes from being legal to illegal, or vice versa. The only thing that changes is more women die. Every year, 78,000 women die from unsafe abortions.


Main Point # 2. 

Women who are raped or victims of incest should not be forced to carry out a pregnancy. Odds are that 1 in 3 women will be victims of sexual violence in her lifetime. Does this mean that 33% of all women should be forced to carry out a pregnancy from this violation? Considering how many people are killed during childbirth (see #2), should we allow this further risk to endured on top of what has already been done?

Many would argue that these women could endure the pregnancy, spending nearly a year of her life simply re-living the rape and its effects over and over again, to give up a baby at the end of it for adoption. However, we all are aware of the fact that there are millions of unwanted children awaiting adoption as we speak who remain unclaimed; in fact, UNICEF estimates that there are 210 million orphans in the world right now. If they have no one willing to be their parent or guardian, why would another baby have a better chance?

My theory is that people who spend so much time, energy, and money on anti-abortion campaigns should instead spend it on the precious children they say need saving so much—the ones who are alive and parentless. Imagine if all the funds spent on all those billboards and flyers and campaigns were instead either spent adopting or donating to places that are overrun with orphaned children… perhaps some actual credibility would be given to these people who claim to love children so much.

Also, there is the fact of the matter of the more than one million homeless youth in America alone. The number one factor for a child being homeless is physical or sexual abuse at home. Perhaps these “child-lovers” should step in and care for these already-born children as well.

Main Point #3

1. Doctors, not governments, should always be the people to make medical recommendations and opinions. Would you allow the government to tell you if you could have a kidney transplant or a blood transfusion? Of course not. The fact that we evenconsider, let alone allow, governments to regulate a medical procedure is both illogical and foolish.

http://www.universityofcalifornia.edu/admissions/counselors/files/ApplyOnline_12-13_Freshman.pdf

Supreme Court Cases for AP Government

 Abrams v. United States, (1919)

2. Facts: ∆’s produced and distributed leaflets that were pro-revolution in Russia, and urged the U.S. factory workers to strike, so that arms and munitions being produced for WWII would not be used against the revolutionaries in Russia.

3. Procedural Posture: The ∆s were charged with violation of a section of the Espionage Act which prohibited advocating the “curtailment of production of ordnance and ammunition, necessary to the production of the war.”

4. Issue: Whether the government may criminalize the speech presented here.

5. Holding: Yes.

6. Majority Reasoning: Based on Schenk, this speech is clearly prohibitable. Even though their primary purpose was pro-Russian, it had an anti-American effect by urging strikes.

7. Dissent Reasoning: [Holmes] The ∆s did not intend to interfere with the war against Germany. There was not clear and present danger present because the leaflet was silly and posed no immediate danger to the U.S. government. Free speech is necessary because it is the “marketplace of ideas” that generates what the truth really is. The suppression of free speech should only be permitted when necessary to immediately save the country.

 Adamson v. California, (1947)

2. Facts: Adamson was convicted of murder. During the trial, the state had commented to the jury on his failure to take the stand.

3. Procedural Posture: Adamson claimed that the conviction violated the 14th amendment because the state’s comment amounted to a violation of the 5th amendment’s self-incrimination privilege in a federal proceeding.

4. Issue: Whether a state’s comment at a state criminal trial on the failure of a defendant to take the stand at trial is a violation of the defendant’s 5th amendment privilege against self-incrimination.

5. Holding: No.

6. ∏ Argument: The 14th amendment incorporates the 5th amendment’s privilege against self-incrimination and applies it to the states in the same way that the 5th amendment applies directly to the federal government.

7. Majority Reasoning: Although the 14th amendment’s due process clause guarantees a right to a “fair trial” in a state criminal trial, there is no ground under Palko to make the self-incrimination privilege one of the “fundamental” rights that is incorporated in the 14th amendment and applied to the states.

8. Dissent Reasoning: [Black] felt that the full incorporation of the bill of rights into the 14th amendment was the “original purpose” of the 14th amendment and the intent of the amendment’s framers. The history demonstrates that both those in favor of and against the amendment thought that it was powerful to forbid the states from depriving a citizen of the protections afforded by the bill of rights. The process of Twining to expand or contract the applicability of the bill of rights through the 14th amendment as needed by “natural law” was more power than the court was granted by the constitution. Also, the “selective application” process of Palko was inconsistent with the historical purpose.

9. Concurrence Reasoning: [Frankfurter] argued that the 14th amendment’s due process clause has “independent potency” apart from the bill of rights. It does not represent shorthand for the first 8 amendments. However, in determining which clauses in the first eight amendments are incorporated and which are not, the judicial interpretation of which are “fundamental” is too subjective. The relevant question is whether the ciminal proceedings deprived the accused of the due process of law.

 Adarand Constructors, Inc. v. Peña, (1995)

2. Facts: Adarand is a highway construction firm that submitted the lowest bid on a subcontract. A minority-owned construction firm also bid, and won the contract because the general contractor was given bonus money under federal statutes for awarding the subcontract to a firm controlled by “economically ans socially disadvantaged” persons.

3. Procedural Posture: Adarand lost by summary judgment in both the District Court and the Court of Appeals. Both courts felt that the recent Supreme Court rulings in Fullilove and Metro Broadacasting, which applied a level of “intermediate scrutiny” to federal affirmative action (benign racial classifications), were controlling.

4. Issue: What is the proper standard of review for federal racial classifications.

5. Holding: Strict scrutiny. There are three general propositions with respect to governmental racial classifications, 1) skepticism (racial classifications are inherently suspect, invoking strict scrutiny), 2) consistency (the standard of review does not depend on which race is benefitted and which is discriminated against), and 3) congruence (equal protection under the 5th amendment is the same as that under the 14th amendment).

6. Majority Reasoning: The history of equal protection jurisprudence must be traced to determine the proper course. In Bolling v. Sharpe, the court stated that the phrase: “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” carries no less force in the federal context. Secondly, in Croson, the court announced that the strict scrutiny standard applied to any racial classification under the 14th amendment. Although some other cases have been more split (i.e. Bakke, and Wygant), the same themes are echoed there. Metro Broadcasting, which used intermediate scrutiny for the federal government, was a departure from stare decisis, and is therefore overruled to the extent that it is inconsistent with this opinion. All racial classifications require strict scrutiny in order to determine whether the supposedly “benign” purpose is valid, otherwise we risk making the same mistake as in Korematsu.

7. Concurrence Reasoning: [Scalia] felt that a racial classification could never serve a “compelling interest” [and thus never pass strict scrutiny] because that only fosters racial hatred, even when done for the most beneficial reasons. The Constitution protects individuals, not groups, and there are no debtor and creditor races. [Thomas] wrote separately to disagree with the dissent’s premise that there is “a racial paternalism exception to the principle of equal protection.”

8. Dissent Reasoning: [Stevens] Remedial-based race classifications are distinguishable from race discrimination and should be afforded a more intermediate standard of review consistent with Fullilove and Metro Broadcasting. It is wrong to have “consistency” between the standard of review for discriminatory and benign racial classifications because the first is a “No Trespassing” sign, where the second is a welcome mat. Furthermore, there is solid justification for treating the 5th and 14th amendments as affording different levels of protection, namely that Congressional deliberations about a matter should be accorded far greater deference than those of a State or municipality. Lastly, the stigma of affirmative action is surely less than that of discrimination.

Bailey v. Drexel Furniture, (1922)

2. Facts: After the Court held that regulation of child labor was unconstitutional if its basis was the Commerce Power (Hammer v. Dagenhart), Congress passed the Child Labor Tax Law of 1919 which imposed a federal excise tax of 10% of the annual net profits of any employer who exceeded the age or working hours limitations provided. It was almost identical to the Act declared unconstitutional in Hammer, but it rested on the taxing power instead.

3. Procedural Posture: Drexel brought this action for refund in the District Court after paying $6,000 under the tax, and won. The IRS appealed.

4. Issue: Whether Congress may impose a tax on industries as a means of regulating child labor, under the pretext of the taxing power.

5. Holding: No.

6. ∏ Argument: The Act is a regulation of the employment of child labor internal to the states, which is an exclusively state function under the 10th amendment.

7. ∆ Argument: The Act is a mere excise tax levied by the Congress under its broad power of taxation under the Constitution. The court has already gone so far un upholding taxing statutes that it is bound by precedent to uphold this one as well.

8. Majority Reasoning: The Act, on its face, appears to be a penalty enacted under the pretext of a tax. It provides a heavy burden for departure from a detailed and specific course of conduct. It is imposed without regard to the severity or proportion of the violation of the child labor provisions. It also requires a mens rea in that the violator knowingly depart from the standards. Thus, it clearly looks like a penalty. To allow it merely because it has the magic word “tax” would be to break down all constitutional limitations on Congress’ power to interfere with state activities, because then any subject of federal concern could be regulated by the taxing power. Even though some taxes have an incidental penalty-like action, this one is primarily a penalty. This case is the same as Hammer. Also, the previous authority relied upon by the government is distinguishable because it involved taxes that were not enacted under a pretext.

 Barron v. Mayor & City Council of Baltimore, (1833)

2. Facts: Barron was a wharf owner. The city of Baltimore, in an effort to construct some streets, diverted part of the flow of some streams feeding the Baltimore harbor. This caused sandbars to form around Barron’s wharf, making it too shallow for most ships to do business there.

3. Procedural Posture: Barron sued the city for taking his property “for public use, without just compensation” under the 5th Amendment. The trial court awarded him damages, but the court of appeals reversed.

4. Issue: Whether the guarantee in the 5th Amendment that private property shall not be taken “for public use, without just compensation” is applicable to state governments as well as the federal government.

5. Holding: No.

6. Majority Reasoning: Marshall felt the answer was easy. The historical context of the framing of the constitution implied that the general guarantees in the Bill of Rights only applied to the federal government and not state governments. The purpose of the constitution was to ordain and establish a federal government, not state governments. Thus, any limitations on that power should be construed as applying to the federal government, since states have their own constitutions. The structure of the constitution shows that there was a plain line drawn between the powers and limitations of the federal and state governments, and so if the framers meant for these limitations to apply to states, they could have made such intent clear. The bill of rights itself was a guarantee against the encroachment of federal government. That is where the fear resided. There was no need for security against local governments, and so none was asked for.

Bernal v. Fainter, (1984)

2. Facts: Texas had a state law barring aliens from becoming notaries public.

3. Issue: Whether the bar was a violation of equal protection.

4. Holding: Yes.

5. Reasoning: Generally, alienage is a suspect classification, which can only pass strict scrutiny if there are compelling state interests and the classification is the least restrictive means available. The only narrow exception was the Dougall case, where the exclusion is from the state’s “governmental function” or “political function.” To determine this exception, a two-part test is used. First, the classification must not be too under- or over-inclusive. Second, the exclusion must only apply to “persons holding state elective or important nonelective executive, legislative and judicial positions,” i.e. those that “participate directly in the formulation, execution, or review of broad public policy.” This is a very narrow exception. Notaries public do not fall within the “political function” exception, because their duties are “clerical and ministerial” rather than the exercise of broad discretion or policy.

6. Notes: Federal restrictions on aliens were addressed in Hampton v. Mow Sun Wong(invalidating a federal bar on aliens holding competitive civil service positions), and Mathews v. Diaz, (upholding a restriction on alien eligibility for federal Medicare conditioned on (a) admission for permanent residence, and (b) continuous residence in the U.S. for five years.)

 Board of Education of Oklahoma City Public Schools v. Dowell, (1991)

2. Facts: Oklahoma City had been ordered to desegregate its schools, and in 1972, the court ordered mandatory busing to integrate the schools. The busing plan was successful in integrating the schools, and so in 1977, the court entered an order terminating its jurisdiction to enforce remedies. In 1984, the school board voted to institute a neighborhood (non-bussed) school system for K-4 students.

3. Procedural Posture: A motion was made to “re-open” the case, and the district court denied it. The court of appeals reversed, and the Supreme Court reversed the court of appeals.

4. Issue: Whether a federal court has the power to terminate its jurisdiction over enforcing remedies after a reasonable time has passed in which the school district has complied with the remedies.

5. Holding: Yes.

6. Majority Reasoning: The federal court must give way to the concern for the autonomy of the local control of the school board after the remedy has been given effect. This does not mean that the court must take for face value that the board promises not to return to segregative practices. However, the court must recognize that the composition and motives of the school board change over time, and must determine whether there will be a good faith effort to continue the desegregation in the future, unsupervised. Even if the court is wrong, the equal protection clause still exists, and a new action may be brought if the school board violates it.

7. Dissent Reasoning: [Marshall] felt that 13 years of compliance after 65 years of forced segregation was not enough. The remedy should be in effect until the effects of the prior segregation are fully eliminated.

 Board of Regents v. Roth, (1972)

2. Facts: Roth was a non-tenured college professor hired to teach for one year at a state university. During that year he made comments against the university officials. He was not rehired for the next year, and no reason was given. State law provided that no reason need be given. Most teachers would be rehired.

3. Procedural Posture: Roth brought an action for violation of his first amendment rights (being fired for making criticisms) and for a violation of his 14th amendment procedural due process guarantee (for being fired from a position of status without a hearing or a reason). The District Court granted summary judgment for Roth on the procedural due process claim, and the court of appeals affirmed.

4. Issue: Whether Roth had a constitutional right to a statement of reasons and a hearing.

5. Holding: No.

6. Majority Reasoning: The 14th amendment protections apply only to “liberty” and “property.” Although Roth’s employment was important, it does not fall under the nature of “liberty” or “property.” The failure to rehire Roth was only one employment prospect for one year, and it did not damage his reputation (or it may have been found to be protected “liberty” under Wisconsin v. Constantineau). He was still free to seek other work. Roth has not shown that his failure to be rehired was based on his critcisms. It is also not a property interest because Roth, by his employment contract, does not have any legitimate entitlement to the employment.

7. Dissent Reasoning: [Marshall] There are cases holding that the state governments are restrained by the constitution from acting arbitrarily with respect to government employment. Every citizen who applies for a government job is entitled to it unless the government can establish a reason for denying the employment. Otherwise, the people’s faith in the government is undermined by apparently arbitrary decisions.

8. Notes: Contrast Perry v. Sindermann, in which the court held that the plaintiff was entitled to a full trial court hearing on the first amendment issue (government can not deny rehire for criticism). Also, even if the teacher did not have formal tenure, if there was an unwritten practice among the administration to rehire, there still could be a deprivation of property. InPaul v. Davis, the court [Rehnquist] held that mere defamation is not a violation of “liberty” (reputation is not a liberty interest per se), unless it is accompanied by some more tangible interest such as employment. Thus, a person labeled a “shoplifter” by local police did not have any constitutional protection from the defamation, only a remedy in tort law. However, in Vitek v. Jones, a state prisoner was found to have a liberty interest in not being involuntarily transferred to a mental institution if his condition could be adequately treated in the prison. An “objective expectation” based on the state law and normal official practice was created, and it could not be violated without a hearing. The liberty interest can arise not only from the 14th amendment due process clause, but also from state law itself. In determining what sort of a hearing is required to satisfy due process, the court [Powell] held in Mathews v. Eldridge, that “due process is flexible and calls for such procedural protections as the particular situation demands.” The balancing approach was taken which considered 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of such interest throught the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and 3) the government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Bowers v. Hard

2. Facts: The Gramm-Rudman-Hollings Act established maximum annual permissible deficits designed to reduce the federal deficit to zero by 1991. If needed to keep the deficit within the maximum, the Act required the OMB and the CBO to make recommendations to the Comptroller General as to the budget reductions necessary in each program. The Comptroller General office was created by the budget and accounting office, in an act that required nomination by the President, but removal [for cause] by a Congressional resolution, subject to presidential veto.

3. Procedural Posture: The act establishing the Comptroller General office was challenged as being a violation of the separation of powers because it gave Congress the power to remove an official having executive powers.

4. Issue: Whether the act establishin the Comptroller General’s office is unconstitutional as a violation of separation of powers.

5. Holding: Yes.

6. Majority Reasoning: Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. To permit an officer controlled by congress to execute the laws would be, in essence, to permit a congressional veto of the kind struck down in Chadha. The Comptroller is an executive officer because of his duties. The scope of the reasons allowable for his removal are broader than that allowed for impeachment, which is only for “treason, bribery, or other high crimes and misdemeanors.” Even though it may be a small chance of removal in practice, the Comptroller is not sufficiently free from congressional influence. Thus, the fallback provisions of the Act, wherein Congress itself makes the ultimate budget decisions by joint resolution, must be activated.

7. Dissent Reasoning: [White] The removal by Congress of the Comptroller is of such minimal practical significance that it presents no threat to the scheme of separation of powers. It requires 2/3 approval by both houses to override a presidential veto of the Comptroller’s removal.

Bowsher v. Synar, (1986)

2. Facts: The Gramm-Rudman-Hollings Act established maximum annual permissible deficits designed to reduce the federal deficit to zero by 1991. If needed to keep the deficit within the maximum, the Act required the OMB and the CBO to make recommendations to the Comptroller General as to the budget reductions necessary in each program. The Comptroller General office was created by the budget and accounting office, in an act that required nomination by the President, but removal [for cause] by a Congressional resolution, subject to presidential veto.

3. Procedural Posture: The act establishing the Comptroller General office was challenged as being a violation of the separation of powers because it gave Congress the power to remove an official having executive powers.

4. Issue: Whether the act establishin the Comptroller General’s office is unconstitutional as a violation of separation of powers.

5. Holding: Yes.

6. Majority Reasoning: Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. To permit an officer controlled by congress to execute the laws would be, in essence, to permit a congressional veto of the kind struck down in Chadha. The Comptroller is an executive officer because of his duties. The scope of the reasons allowable for his removal are broader than that allowed for impeachment, which is only for “treason, bribery, or other high crimes and misdemeanors.” Even though it may be a small chance of removal in practice, the Comptroller is not sufficiently free from congressional influence. Thus, the fallback provisions of the Act, wherein Congress itself makes the ultimate budget decisions by joint resolution, must be activated.

7. Dissent Reasoning: [White] The removal by Congress of the Comptroller is of such minimal practical significance that it presents no threat to the scheme of separation of powers. It requires 2/3 approval by both houses to override a presidential veto of the Comptroller’s removal.

Bowers v. Hardwick, (1986)

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.

7. Dissent Reasoning: This is not a case about a fundamental right to sodomy. It is a case about the right to be left alone. The right of an individual to conduct intimate relationships in the intimacy of his or her own home is at the heart of the Constitution’s protection of privacy.

 Brown v. Board of Education (Brown I), (1954)

2. Facts: Brown was a black child who was denied admission to public schools in her community because of her race. She was not denied access to schools for blacks set up under the “separate but equal” doctrine of Plessey.

3. Procedural Posture: Class action brought on the behalf of all black students in the U.S..

4. Issue: Whether the racial classifications in public school admissions are a violation of equal protection, notwithstanding the “separate but equal” doctrine of Plessey.

5. Holding: Yes.

6. Reasoning: There is no conclusive evidence that the framers of the 14th amendment had any idea, or desire, one way or the other to prevent blacks from attending public schools alongside whites. Regardless of whether two separate schools may be called “equal” with respect to the “tangible” factors of buildings, curricula, qualifications of teachers, etc, by definition they can not be equal with respect to the intangible factors of the ability to take advantage of the environment of the school. In practice, separation of the races promotes the idea of inferiority of the minority race. It generates a feeling of inferiority among the minority race which affects their motivation and eagerness to learn. In public education, separate but equal has no place, and is a denial of equal protection.

7. Notes: On the same day that Brown was decided under the 14th amendment, Bolling v. Sharpe was decided under the 5th amendment with respect to the District of Columbia (federal schools). Although there is no “equal protection” clause in the 5th amendment, the due process clause of the 5th amendment affords similar protection with regard to classifications based on race. “Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on [Black] children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of due process.”

Burton v. Wilmington Parking Authority, (1961)

2. Facts: A state-operated parking building had a restaurant facility which it leased to a privately-owned business. The restaurant had a policy of discriminating against blacks, and refused to serve Burton solely because he was black.

3. Procedural Posture: Burton brought an action against the owner of the restaurant and the state for violation of equal protection. The state supreme court held that the restaurant was acting in a purely private capacity under the lease, and that its action was not that of the lessor, and therefore not state action.

4. Issue: Whether a private restaurant that is leased as a part of a state-owned public facility may discriminate on the basis of race if there is a sufficient conncetion or nexus between the tenant restaurant and the state owned public facility.

5. Holding: No.

6. Reasoning: The restaurant and the parking garage are inseparably interdependent. The restaurant relies on the presence of parking for its customers, and the parking garage relies on the rent from the restaurant for operating costs. Thus, the state has made itself a party to the discrimination by failing to exercise its power to stop it by writing such terms into the lease. The nexus here is so close that the discrimination can not be considered to be purely private in nature, but rather the state is involved “to some significant extent” with the discrimination.

7. Notes: In Moose Lodge v. Irvis, the Court refused to extend Burton to the case of state licensing, rejecting a state action challenge to a private club’s discrimination, solely on the ground that the private club held a state liquor license. Also, in CBS v. Democratic National Comm., the Court refused to find that refusal of editorial advertisments was state action, solely on the ground that CBS was granted a broadcast license.

CTS Corp. v. Dynamics Corp. of Am., (1987)

2. Facts: Indiana passed a corporate takeover law which stated that should any party acquire a controlling interest in the number of shares he held, he could only acquire voting rights on those shares to the extent approved by a majority vote of the prior disinterested stockholders.

3. Procedural Posture: The lower court held that the law was unconsitutional as being a hindrance to tender offers, and thus an interstate commerce burden.

4. Issue: Whether the Indiana law is unconstitutional as being in conflict with the dormant Commerce Clause.

5. Holding: No.

6. ∆ Argument: Tender offers should generally be favored because they represent a shifting of property rights to their highest value use. Also, the state of Indiana has no interest in protecting non-resident shareholders.

7. Majority Reasoning: A state has the fundamental right ot pass laws concerning the regulation of corporations it establishes. They are only unconsitutional if they discriminate against interstate commerce. Since this law has the same effect on interstate commerce as well as intrastate commerce, meaning that all shareholders and tender offers are treated the same regardless of locality, then it does not discriminate. The state regulation of corporations necessarily has some effect on interstate commerce, since the shares are traded internationally. However, there is stability in knowing that the corporation is subject to one set of regulations - that of its home state.

8. Concurrence Reasoning: [Scalia] stated that there was no consitutional basis for any balancing test when determining whether a local interest outweighs a federal interest. Whether the burden on commerce imposed by a statute is excessive in relation to its benefit is a question for the legislature, not the judiciary.

Calder v. Bull, (1798)

2. Facts: There was a dispute over a will. A probate court decree had refused to approve a will. The persons who were the beneficiaries of that will had the judgment set aside and a new hearing was granted, at which the will was approved. There was a Connecticut law that allowed the probate court to be set aside.

3. Procedural Posture: The persons who would have inherited the property if the will was void brought an action to declare the law setting aside their initial favorable judgment as violating the ex-post facto clause.

4. Issue: Whether the Connecticut law was valid.

5. Holding: Yes.

6. Reasoning: [Chase] reasoned that there were fundamental liberty reasons why the law was sound. The purposes for which the constitution was written was to give effect to a “social compact” wherein the government was established to protect the natural and preexisting rights of the citizens. The nature of these rights determines the limits of the legislative power to infrnge on these rights. The government can not have the power to enact leglislation that violates the natural laws of civilized society that it was established to protect, even if such natural right is not explicitly mentioned in the constitution. An example is this case, the government can not violate the right of an antecedent lawful private contract or the right of private property.

7. Dissent Reasoning: [Iredell] stated that the citizens had framed their constitution to define the precise boundaries of the leglislative power. Thus, if the legislature violates this power, its act is certainly void. However, if the legislature passes a law within its consitutional boundaries, the judiciary does not have the power to use subjective determinations of what is “contrary to natural law” to strike it down.

Chaplinski v. New Hampshire, (1942)

2. Facts: ∆ was a jehovah’s witness, who upon being escorted away from a public disturbance that he had created, told an officer that he was “damned facist” and a “damned racketeer.”

3. Procedural Posture: ∆ was convicted under a statute which prohibited speech that were “likely to cause an average addressee to fight.”

4. Issue: Whether words “plainly likely to cause a breach of the peace by the addressee” are protected by the First Amendment.

5. Holding: No.

6. Reasoning: The right of free speech is not absolute at all times. These are “fighting words” which by their very nature tend to inflict injury or tend to incite an immediate breach of the peace. They are not an essential part of the expositionof ideas that were meant to be protected by the First amendment. Also, lewd, obscene, profane, and libelous words are not protected.

7. Notes: The lewd, obscene, profane, and libelous speech has been protected to some degree since Chaplinski. However, “fighting words” survives to a limited extent as an exception to free speech. However, in Gooding v. Wilson, (1972), the court held 4-3 that a statute that was so broadly written that it covered speech “not plainly likely to cause a breach of the peace by the addressee” was unconstitutional on its face. Thus, the court is not likely to broaden the scope of the Chaplinski holding.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993)

2. Facts: Members of the church practice the Santeria religion which practices animal sacrifices for various occasions. Sometimes the animal is then eaten, sometimes it is not. Outrage in the community over the animal sacrifices led the city council to ban all animal sacrifices which were not for the purpose of food.

3. Procedural Posture: The district court found for the city, and the court of appeals affirmed.

4. Issue: Whether a city may enact laws specifically prohibiting the practice of certain religious rituals when such laws are directed against a particular religion.

5. Holding: No.

6. Reasoning: A law which is specifically directed at regulating the practice of a specific religion will be subjected to “the most rigorous of scrutiny,” unless it is both neutral and generally applicable (Smith). The law here is very underinclusive, because the city’s stated purpose of promoting public health would be better served if they also regulated disposal of animals killed by hunters, as well as disposal of restaurant food, and the killing of pests. Since the city failed to enact such other laws, its purpose could not be compelling.

Cleburne v. Cleburne Living Center, Inc., (1985)

2. Facts: A texas city denied a special use permit to a person who intended to build a 200-person home for the mentally retarded. A city ordinance gave the city the power to require a special use permit for homes for mentally retarded persons, but not for other classifications, such as boarding houses, sanitariums, nursing homes, etc. The city’s rationale was that the neighboring property owners did not want it, a junior high school was across the street, it was located on a 500 year flood plain, and there would be a lot of people living there.

3. Procedural Posture: The lower court struck it down under the “intermediate” level of review, stating that it did not “substantially” furhter an “important governmental interest.”

4. Issue: Whether the ordinance requiring a special use permit hearing for establishment of mentally retarded care homes violates equal protection, and under what standard.

5. Holding: Yes. Rational basis.

6. Majority Reasoning: [White] The general rule for equal protection is rational basis. The mentally retarded are not a class that require heightened scrutiny because they are 1. not a homogenous group, 2. they are specially protected in many ways by the legislature, and 3. most laws concerning the mentally retarded are likely to be beneficial and not based on prejudice. However, here the law appears to be motivated only by prejudice. The negative attitudes of the surrounding property owners are not a valid basis for discrimination. Also, there are no other distinguishing characteristics that are inherent to the retarded people that would require that they be treated differently with regard to the location of the home, or its size. Clearly, if other homes, such as those for the insane, or convalescent, are allowed in the same area, the law is not even rationally related to the city’s objectives because it is substantially underinclusive.

7. Concurrence Reasoning: [Stevens] felt that putting a name on the standard of review to be used was inappropriate because there is just a single continuum of standards. In some cases, certain characteristics are relevant, and in others, they are not. The court merely needs to ask what the purpose of the law is, and what the characteristics of the group are that justify the disparate treatment. [Marshall] felt that the standard should have been a heightened level of review, because of the tradition of discrimination, and the characteristic of mental retardation is often used as a proxy for reduced capacity. The majority should have admitted that it was using heightened scrutiny because this law would probably pass the extremely deferential rational basis standard of Lee Optical (i.e. “reform may take one step at a time” allows the city to require the special use permits for mentally retarded persons but not for other similar classes).

8. Notes: In James v. Valtierra, Justice Black’s majority opinion rejected an equal protection challenge to a California constitutional requirement that “no low rent housing project shall hereafter be developed by any state public body” without prior approval in local referendum. Even though the law had the practical effect of disadvantaging low-income persons, the law passed the rational basis standard. Marshall vigorously dissented stating that the law was on its face invidious discrimination against the poor, as suspect class which demanded exacting scrutiny.

 Cooley v. Board of Wardens of The Port of Philadelphia, (1851)

2. Facts: A Pennsylvania law of 1803 required ships entering or leaving Philadelphia harbor to hire a local pilot. For failure to comply, Cooley was fined. The proceeds from the fines went to a fund used to support retired pilots and their dependents. Also, a 1789 congressional statute stated that all previous piloting laws were expressly adopted, and the states had the right to enact further similar laws until Congress saw fit to enact laws in this area.

3. Procedural Posture: Cooley sued for the penalty, claiming that the law was unconsitutional as being in conflict with the dormant Commerce power.

4. Issue: Whether the law was unconsitutional as being in conflict with the dormant Commerce power.

5. Holding: No.

6. Majority Reasoning: The regulation of pilots is regulation of navigation, and thus regulation of commerce. The 1789 Act, although it expressly adopts existing piloting laws, can not grant any more power to the states than does the constitution. Thus, if the commerce power is exclusive in this area, the Act is inoperative and the local law is unconstitutional. However, since the field of commerce is so diverse, it requires laws of varying scope. Some facets of interstate commerce require uniform national laws by their very nature. Others require purely local legislation to meet diverse needs. Those that require uniform national laws must be said to be exclusively regulated by Congress, thus barring any state action in that area even when the commerce power is dormant. However, in this case, there is a manifested intent of congress to leave this area of commerce to local regulation. Thus, this is an example where the commerce power can coexist between the state and federal government if the federal government has not actuall passed a law in that area. The determinative factor of whether a state law is repugnant to the constitution in the face of the dormant commerce power is the “subject” of the regulation, not the “purpose” behind it.

Craig v. Boren, (1976)

2. Facts: A Oklahoma statute provides for a minimum age to purchase 3.5% beer differently for males than for females. For females, the age is 18, but for males, the age is 21. The state has statistics that, if valid, tend to show that more males in the 18-20 range than females in the 18-20 range are arrested for drunk driving. Thus, their rationale for the rule is that it is a necessary protection of public safety.

3. Procedural Posture: Unknown.

4. Issue: Whether the law violates the equal protection clause, i.e. whether the difference between males and females with respect to the purchase of 3.2% beer does not justify the differential treatment by the Oklahoma statute.

5. Holding: Yes.

6. Majority Reasoning: Reed and Fornteiro stand for the proposition that classification by gender must serve “important governmental objectives” and must be “substantially related” to the achievement of those objectives. The purpose of increasing traffic safety is certainly “important” and valid. However, there relationship between the classification and the objective is not sufficiently “substantial.” The statistical evidence presented is statistically invalid because it rests on too many assumptions which have not been proven. Also, even given their correctness, they do not justify differential treatment because of their close results. There is an inherent difficulty (i.e. too many uncontrollable variables) in using statistical evidence to make broad social classifications.

7. Concurrence Reasoning: [Powell] felt that the announcement of the new intermediate standard was not necessary because the case was easily decidable on the “fair and substantial” relation standard of Reed. [Stevens] objected to the classification because it was based on an “accident of birth,” and because it is easily circumvented (i.e. the female can buy the alcohol). It also punishes the 100% of the male population between 18-20 when the statistics only show that 2% need punishment.

8. Dissent Reasoning: [Rehnquist] felt that the new standard was without authority, and also that the previous cases were not on point because they involved women seeking relief (as the discriminated party), rather than men. The justification for Reed was that women were a discrete and insular class. Men have no such problem. Thus, this should only be given the “rational basis” test. The legislature has not been irrational or arbitrary in their actions because they were acting on the best statistical information they had.

Cruzan v. Director, MO. Dept. of Health, (1990)

2. Facts: Cruzan was rendered a vegetable by a car accident in 1983. She was kept alive by life support equipment that gave her nourishment through a tube. Her parents sought to have her removed from the life support equipment. A Missouri statute allowed a responsible party to pull the plug only if there was “clear and convincing evidence” of the patient’s intent. The only evidence of Cruzan’s intent was statements to former roomates that she would not want to live if she were a “vegetable.”

3. Procedural Posture: The trial court found that Cruzan’s intent was “clear and convincing” and ordered the hospital to remove the life support equipment. The state supreme court reversed.

4. Issue: Whether the state statute requiring the high evidentiary standard of “clear and convincing evidence” in a right to die case is constitutional under the 14th amendment substantive due process “liberty” interest.

5. Holding: Yes.

6. Majority Resaoning: There exists a right to refuse medical treatment under the liberty interest. This right does extend to an incompetent person who is in a vegetative state. However, the person’s constitutional rights must be determined by balancing his liberty interest against the relevant state interests. The state has a strong and unqualified interest in the preservation of human life. The evidentiary standard of “clear and convincing evidence” is not unconstitutional because it puts the burden of error on those who seek termination of life. If the state is wrong, then the person continues to live, awaiting changes in the law or in medical science which may change the error. If the party is wrong, the error can not be corrected. This statute is similar to the standard required for regular wills.

7. Concurrence Reasoning: [O’Connor] reasoned that the court only decided whether the standard of “clear and convincing” evidence was constitutional under these facts. The court has not yet made the more challenging decision of crafting appropriate procedures for determining when the surrogate should be allowed to make decisions for the incompetent. That question will be left for now to the “laboratory” of the states. [Scalia] felt that the court had no business in this field at all. There was no constitutional basis for the right to die, and the court was no better able to determine the correct balance of state and individual interests than was the state citizenry. The safeguard against violation of individual constitutional rights is the Equal Protection Clause which requires that the same laws apply to the democratic majority as are applied to any individual.

8. Dissent Reasoning: [Brennan] felt that the evidentiary burden of “clear and convincing” evidence was an impermissible burden on the individual’s right to refuse medical treatment. Since a fundamental right was at issue, the proper standard should have been a form of strict scrutiny. The state statute could only be upheld if it is closely tailored to effectuate only those interests which are legitimate. Here, the state interest could not outweigh that of the individual. [Stevens} felt likewise that the state interest could never outweigh that of the individual.

Dennis v. United States, (1951)

2. Facts: ∆s were members of the Communist Party, and generated pro-revolution materials in violation of the Smith Act. The communist party was believed to pose a significant danger because it advocated violent overthrow o the government.

3. Procedural Posture: ∆’s were convicted of conspiring to advocate the overthrow of the government based on their writings.

4. Issue: Whether the government may criminalize speech which poses a clear and present danger to the government.

5. Holding: Yes.

6. Majority Reasoning: The “clear and present danger” test does not require that the government wait until overthrow is imminent. It only need determine that there are persons advocating the overthrow of the government by force and violence. It does not matter that the government not actually be in any danger of overthrow due to its size and strength, the gov’t still has a substantial interest in putting down dangerous threats. Judge Learned Hand’s test is proper: “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Also, it is not a question of fact for the jury, the existence of sufficient danger is a question of law for the judge.

7. Concurrence Reasoning: [Frankfurter] The clear and present danger test is vague dogma. A better approach is to balance the interests of the government against the interests of free speech and the individual. It is not for the courts to determine the proper balance, Congress has already done so by passing the act.

 Dolan v. City of Tigard, (1994)

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.

Duncan v. Louisiana, (1968)

2. Facts: Duncan was convicted of simple battery, which in Louisiana was a misdemeanor punishable by 2 years imprisonment and a $300 fine.

3. Procedural Posture: Duncan sought trial by jury, but the Louisiana constitution grants jury trials only in capital punishment or hard labor cases, so the trial judge denied the request.

4. Issue: Whether the federal constitution guarantees the right to a trial by jury under the 6th amendment, through the 14th amendment in a state criminal trial where a sentence as long as 2 years may be imposed.

5. Holding: Yes. The 14th amendment guarantees a right of jury trial in all criminal cases which, were they to be tried in a federal court, would come within the 6th amendment’s guarantee.

6. ∏ Argument: The 14th amendment makes the jury trial guarantee of the 6th amendment applicable to the states in cases where a sentence as long as 2 years may be imposed.

7. ∆ Argument: The constitution imposes no duty on a state to guarantee a trial by jury in a state criminal trial, regardless of the severity of the punishment available. If the trial by jury is guaranteed in state criminal cases, it will cast doubt on the integrity of every trial conducted without a jury. Also, if due process is deemed to include trial by jury, then all past interpretations of the 6th amendment in the federal courts (such as a 12-man jury) would then become applicable to states, infringing on their ability to experiment.

8. Majority Reasoning: The test for whether a bill of rights right is incorporated to the states by the 14th amendment is whether that right is a “fundamental” right. Although there were prior cases stating in dicta that a right to a trial by jury was not fundamental to a fair trial, those cases are rejected as being wrong. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Although there are other countries that have fair criminal justice systems, but use no juries, ours is not one of them. The supporting framework of our criminal justice system relies upon juries for fairness. It is true that there are some criminal cases that may be tried without a jury, however, this is not one of them.

9. Concurrence Reasoning: [Black] expressed that he is glad that selective incorporation has worked since Adamson to incorporate most of the Bill of Rights guarantees. He goes on to restate his arguments in support of total incorporation. Namely that the “privileges and immunities” clause of the 14th amendment serves to totally incorporate the Bill of Rights because “what more precious privilege can there be that the privilege to claim the protections of our great Bill of Rights.” He criticizes Harlan’s dissent as being too subjective a definition of due process.

10. Dissent Reasoning: [Harlan] stated that the due process clause of the 14th amendment requires that state procedures be “fundamentally fair” in all respects, but it does not require jury trials in criminal cases. The historical evidence demonstrates that the framers of the 14th amendment did not think that they were “incorporating” the bill of rights. The proper analysis should be a “gradual process of judicial inclusion and exclusion” to ascertain those “immutable principles of free government.” It is improper for the majority to simply incorporate the jury trial clause “jot-for-jot” with all of its associated baggage of federal judicial interpretation. Each case must be analyzed to see whether it was a fair one.

11. Notes: In Benton v. Maryland, the court held that the “double jeopardy” clause was a “fundamental” ideal and is applicable to the states. Since then, as a result of selective incorporation, almost all criminal process guarantees are applicable to the states. In Wolf v. Colorado the court incorporated only the “core” of the 4th amendment, but not the case law interpreting it in federal courts. However, later in Mapp v. Ohio, the court changed its mind, and incorporation thereafter meant not only incorporating the “core” of the bill of rights guarantee, but applying every detail of the contours of the guarantee as delineated in judicial interpretations (the baggage). In Williams v. Florida, the court held that a 12 man jury was not necessary, because the function of the jury was fairness, and less than 12 men could still be fair. In Apodaca v. Oregon, the court stated that the verdict did not have to be unanimous, for the same reasons. Lastly, in Burch v. Louisiana, the court stated that a 6 man non-unanimous jury was unconsitutional, thus putting a limit on the relaxations of Williams and Apodaca.