con law: april 14 2010 class notes

the right to vote.

san antonio v. rodriguez.

there are two fundamental rights arguments that the court rejects:
1. education... education is a caste system in america, the slope is analogous to race in that if your district chooses who/how education happens then
2. ... uh... didn't catch this one

think in equal protection terms, but don't collapse into due process doctrine.
what's the equal protection clause issue that education should be treated as a fundamental right?
once education has been granted, it can't be taken away from people. and it is essential to the participation in democracy.

harper.
heart of the warren court, and probably it's strongest liberal moment because this is about civil rights... not a money thing, but probably more a 15th amendment racial issue: jim crow segregation embedded in a statute.

harlan says that the tax passes rational basis. but what's the problem with demanding more doctrinally?
the word equality is being thrown around a lot -- but what's the test and the standard?
why is this something that crosses the line?

crawford v. marion county
what's the test, what's the doctrinal distinction to require
why do equal numbers of voters need to be delegated to each district?

bush v. gore:
once the right to vote is set up in a state, the right has to become fundamental.
so what's the qualification? how can some people's votes count more than others'?
because "undervotes" that were counted as blank and "overvotes" that were counted twice churned through those quickly and there was not a single standard for the voting process.

what is the remand argument for the decision (equalize the process)? the process is too difficult to equalize.

access to the courts.
griffin v. illinois is the starting point.
if a state offers access, it can't be limited by for example your ability to pay the court slip, etc.
why is this an invidious wrong?

travel.
... i missed this.


speech!!!
so, what's the big deal about speech?
speech really matters, so there's no rational basis for the test.
"nonspeech" is stuff that the gov't can totally disallow if they want

then speech is
but the text says "congress shall make no law"... isn't that a flat out fallacy then, to allow congress to modify speech and its rights if C says you can't???


us v. playboy
content based: law is aimed at the subject matter, on the part of the regulator.
doesn't have to be pro or con -- just focused on the subject matter (viewpoint based)
viewpoint based regulation is always content based (but content based doesn't always have to be viewpoint based)

what does the state have to prove?
1) no alternative or less restrictive method tailored to achieve the government's purposes
2) the government's interests

so here...
1) protect people from offensive and immoral speech.
2) protect children from smut. it makes us feel virtuous.
1: as far as speech offending, the court says that you can never not offend someone with speech, so that can't be a compelling interest.
2: protecting the children -- that isn't enough of a reason for this regulation when there is more narrowly tailored/ less restrictive activity to meet these interests