Con Law Outline – Kreimer – Spring 2015

Constitutional Interpretation
The Inevitable Need for Interpretation
 Because the constitution is just an outline, a blueprint for government, it does not address the myriad of
questions that courts must face.
 Even where there are constitutional provisions, much of the Constitution is written in open-textured
language. Thus, need to put meaning to vague phrases.
 Courts must faces the question of what, if any, government justifications are sufficient to permit the
government to interfere with a fundamental right or to discriminate.

The Debate between Originalism and Nonoriginalism

 Originalism is the view that judges deciding constitutional issues should confine themselves to enforcing
norms that are stated or clearly implicit in the written Constitution.
o Court should find a right to exist in the Constitution only if it is expressly stated in the text or was
clearly intended by its framers.
o If the Constitution is silent, it is for the legislature to decide the law.
o Meaning of a constitutional provision was set when it was adopted and can only be changed by
amendment.
 Nonoriginalism is the contrary view that courts should go beyond that set of references and enforce norms
that cannot be discovered within the four corners of the document.
o Court can interpret the Constitution to protect rights that are not expressly stated or clearly
intended.
o Constitution’s meaning can evolve by amendment and interpretation.

Different Sects of Originalism

 Strict originalists believe that the Court must follow the literal text and specific intent of the drafters.
 Moderate originalists are more concerned with the adopters’ general purposes than with their intentions in a
very precise sense.

Sects of Nonoriginalism
 Some believe that tradition should be the guide in interpreting the Constitution.
 Others emphasize the Court’s role in implementing the process of government.
 Still others believe that the Court may decide cases based on contemporary values, but only when it is
dealing with issues concerning the process of government, such as ensuring fair representation and
adjudication.

Arguments for Originalism

 The nature of interpreting a document requires that its meaning be limited to its specific text and its
framers’ intentions.
 Constrains the power of unelected judges in a democratic society.

Arguments for Nonoriginalism

 Desirable to have the Constitution evolve by interpretation and not only amendment, since amendment
process is cumbersome.

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  No unambiguous, knowable framers’ intent that can be found to resolve constitutional questions. Instead,
the process of determining the framers’ intent invariably is a process of interpretation that is affected by
contemporary values; in other words, it is indistinguishable from nonoriginalism.
 The preferable method of interpretation because it is the approach intended by the framers.

Marbury v. Madison
Background
 Marbury appointed as justice of the peace just before Adams left the Presidency.
o Adams signed and sealed his commission (along with Marshall as Sec. of State), but failed to
deliver it before leaving office.
 Jefferson refused to deliver it.
 Marbury sought a writ of mandamus to compel Madison to deliver the commission.
 The Court had jurisdiction because it was a federal question and not yet congressional act authorizing lower
federal courts to hear federal question cases.
 Looking to the 1789 Judiciary Act, Marbury argued that the Court has original jurisdiction in some cases
and appellate in others. Said the Court could issue writs of mandamus to persons holding offices under the
authority of the United States.
 Madison didn’t say shit (cause he’s a boss). Basically told the Court: “I’m a representative of the duly
elected President of the United States of goddamn America, plebs. Fuck off.”
 One view of the ultimate decision of the Court is that it was simply an incidental byproduct of the ordinary
judicial function in deciding lawsuits: to look to the governing law, to consider the Constitution as one
relevant source of law, and, in cases of conflicting legal statements, to give priority to the Constitution and
to refuse enforcement of any contravening legal norm.
 Another view is that the decision reads the Constitution as endowing the Court with the power to police the
other branches, acting as the central guardian of constitutional principles and the special enforcer of
constitutional norms.

Marbury v. Madison (SCOTUS, 1803):

 Does Marbury have a right to the commission? Yes.

 Marbury has the right to the commission because appointment is made when it is signed by the
President and when the seal of the United States has been affixed by the Secretary of State.
 Does the law afford Marbury a remedy? Yes.
 Commission based on a federal statute that creates a legal duty. No one, not even the President, may
break the law. Court has to protect vested legal rights or democracy will be undermined.
o Without enforcement, rights are just statements. Need a government of laws, not men because it
allows people to rely on legal rights and reduces the dangers of arbitrary and capricious
government.
o Is a distinction as to when the judiciary could afford relief: the judiciary could provide remedies
against the executive when there is a specific duty to a particular person, but not when it is a
political matter left to executive discretion.
 Can the Supreme Court issue the writ of mandamus? No.
 § 13 of the Judiciary Act of 1789 authorized mandamus on original jurisdiction.
 Art. III enumerated the cases in which the Court had original jurisdiction, and Congress could not enlarge
it. Original jurisdiction for suits “affecting ambassadors, other public ministers and consuls, and those in
which a State shall be a party.” Congress could not add to this list cases seeking a writ of mandamus.

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 o However, could view Art. III as a floor. SCOTUS would have original jurisdiction in the
enumerated class of cases AND those that Congress granted it original jurisdiction over. But, not
what Marshall concluded.
 Can SCOTUS declare laws unconstitutional?
 People have established rules in a written Constitution. This constitution meant to limit the power of each
branch of government. However, with limits there needs to be enforcement or they become meaningless.
 Also the suggestion that the Constitution says that courts have authority to adjudicate constitutional
matters. Thus, the courts should also have the authority to enforce the Constitution.
 If judges must decide constitutional questions, then they have the authority to interpret the law, they
must decide what it is and articulate it.
o Judges the best situated to interpret the law (though Marshall doesn’t give a reason).
 Finally, if legislature could interpret its own limits, there would be no check on its power, contrary to the
Framer’s intentions.
 The Constitution is the supreme authority of the United States. Congress cannot makes laws that
offend the Constitution and the Courts are bound to abide by it. Moreover, SCOTUS can declare an
act of Congress unconstitutional because it is the job of the judicial branch to say what the law is.
Thus, when there is a conflict of laws, the Constitution controls or it loses its special place.

Notes

 Why should the Constitution trump legislative enactments?

o System established by the people on a permanent basis. U.S. Constitution a written constitution
that confers power and limits authority.
o If the Constitution is permanent and vests power in Congress, then Congress can’t contradict it.
 Who should enforce Congress’s limits?
o Allowing Congress to do so would make them to be omnipotent.
o Court’s job is to apply the law to particular cases. Have to decide for one party or the other. In
making this decision, have to construe the Constitution.
o Currently, the Court gets to enforce the law, but still a debate over Constitutional interpretation.
 How do we limit the Court’s power?
o Court cannot declare law, must wait for an actual case or controversy to come before it.
o Court can’t just do as it will. Must have legal reasoning and precedent (hahahah righttttt….)
o Congress can alter the federal courts’ jurisdiction.
 Is a debate about whether the Framers intended to grant the Court the power of judicial review.
o Those that say they did offer debates from the time of ratification.
o Opponents argue that there is little evidence that commentators at the time believed in the judicial
invalidation of statutes.
 Hamilton in Federal No. 78 advocated for the Court to use judicial review to invalidate laws deemed
unconstitutional. He believed that it was the job of the Court to interpret laws and the Constitution is a
fundamental law. Thought that the Constitution should control when conflict arose because it
reflected the intention of the people rather than the intention of their agents.

Post-Marbury Decisions
 Court in Martin v. Hunter’s Lessee established that it could also review and declare state court’s judgments
unconstitutional. Affirmed in Cohens v. Virginia.
 Court in Dickerson v. United States held that the Supreme Court’s decisions are binding on the legislature,
though they could be overturned via Amendment.

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 McCulloch v. Maryland
Background
 Congress may act only if there is express or implied authority to act in the Constitution. States, however
may act unless the Constitution prohibits the action.
 The Articles of Confederation only delegated certain authorities to the federal government. Left the rest to
the states.
 The Constitution was more ambiguous.
 The federal government established the First Bank in 1791 because of worries that the American banking
system was underdeveloped.
o Hamilton argued that it was constitutional, Jefferson disagreed, claiming that the Convention
rejected the establishment of such a bank.
o Hamilton won.
 Madison allowed the bank to expire in 1811 because he questioned its constitutionality.
 Second Bank chartered in 1811 and Madison signed the bill.
 Local banks began to feel that the bank of the US was overreaching and states thought it to be too powerful.
o Thus, enacted laws to undermine the bank.

McCulloch v. Maryland (SCOTUS, 1819):

 McCulloch the cashier of the Baltimore branch of the US Bank. MD had begun taxing banks not
established by the legislature, such as the Bank of the US.
o Baltimore branch did not pay this tax, so MD went to MD courts to impose a penalty, which they
obviously did.
o US gov. arguing before the Court that the MD law was invalid because it conflicts with the
Constitution.
o MD said Congress had no power to establish the bank.
 Can Congress incorporate a bank? Four main arguments.
 Historical practice established the power of Congress to create the bank. That is, Congress in enacting the
first bank of the United States with executive approval demonstrated that it was constitutional.
 States do no retain ultimate sovereignty because they ratified the Constitution. It was the people who
ratified the Constitution and thus the people are sovereign, not the states.
o Constitution supposed to be construed to further the interests of the people, not the states.
 Marshall admitted that the Constitution does not enumerate a power to create a bank, but not dispositive.
Small nature of the document meant to establish a general framework, not be a legal code enumerating
every power. People needed to understand the document, so it had to be general. Also, not easy to amend
the Constitution, so it needs to be general to adapt with the changing times. Therefore, powers of Congress
not limited to those enumerated.
o Congress is not limited only to those acts specified in the Constitution to carry out its lawful
authority. Even though the Constitution does not mention a power to create a Bank of the
United States, Congress can create one as a means to carrying out many of its other powers.
 Construed the Necessary and Proper Clause to say: “Let the end be legitimate, let it be within the Scope
of the Constitution, and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the Constitution, are
Constitutional.”
o Necessary does not mean indispensably necessary. It is broader, something akin to useful.
 Was Maryland’s tax constitutional?
 Federal law is supreme when it conflicts with state law.

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  The power to create a bank includes the power to preserve its existence. However, the power to tax
“involves the power to destroy,” qne the power to destroy “may defeat and render useless the power to
create.”
 Taxation checked by voting. However, when a state taxes a federal entity this check does not exist because
one state’s constituents are levying a tax on the entire polity. Thus, an incentive to tax aggressively for
personal benefit.
o If allow the taxation of one federal entity, the floodgates will open and all federal entities could be
taxed. However, the Constitution not meant to make the people dependent on the states.
 States cannot impede in any manner, such as a tax, on Congress’s exercise of its constitutional
powers. Thus, the tax is unconstitutional.
 Congress has the Constitutional power to pass acts that further an end that the constitution grants it
the power to regulate. It may choose any means that reasonably do so. Further, states may not
impede upon the means chosen.

Hypo

 President Douche III thinks soldiers from traditional families are better soldiers, so makes a law prohibiting
divorce. Constitutional under the above reasoning?
 No specific right to divorce in the Constitution, so not violating it in that way.
 However, opinion requires that the means be plainly adapted to the ends. Thus, an argument that the means
here are not necessarily adapted to the ends. Problem with attenuated causation.
o Marshall seems to imply that the means chosen need to be directly tied to the ends.

Notes

 Is a debate whether sovereignty is located with the people, with the states, or with the people through the
states.
 Marshall seems to contend for the last as he doesn’t see the people as one mass, but also doesn’t see the
constitution as deriving power from the states.
 Compact theory – national power emanates from the states. This theory manifested itself when the
Southern States seceded, but still has continuing influence when states refuse to follow federal laws.

Necessary and Proper:

 No discussion during Constitutional Convention. Was concern in the states during ratification about what it
meant.
 Madison basically argued that such a clause was harmless since the powers required as means of executing
the general powers would have resulted to the government anyways.
 Immediately after ratification, it became a salient issue, especially during discussion of the first bank.
o Jefferson though it unconstitutional. Thought that the bank was not necessary. To allow a broad
interpretation of the clause would allow Congress to enact almost any non-enumerated power,
since there would always be a way to distort meaning. Wanted it restricted to indispensable acts,
not just those of convenience.
o Hamilton disagreed. Argued that necessary simply means what is needed. Accepting Jefferson’s
definition would allow Congress to create very few laws. The clause required that the ends of the
acts be within the enumerated powers and that the means clearly tie to that end. Further, the
Constitution restricted such acts, creating a question if they abridged a right of a state or
individual.

Dred Scott v. Sanford

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Scott v. Stanford (SCOTUS, 1857):

 Basis for federal jurisdiction was diversity and the cause of action was assault. However, if Scott not a
citizen, then no cause of action for assault. Thus, had to show that he was not a slave. Argued:
o That he and his family had been in the Louisiana Territory with their owner, which prohibited
slavery under the Missouri Compromise.
o That he returned with his owner to Missouri, where slavery was permitted, and that his owner
died, transferring Scott to Stanford.
o That Scott and his family had been freed by virtue of being taken into the Louisiana Territory.
 Slaves, even if freed, cannot be citizens of the United States, and thus no cause of action for assault.
 Court looks to the intent of the Framers and history:
o At framing, everyone understood that blacks were an inferior race, so no way that citizen in the
Constitution meant them and gave them the rights of citizenship.
o State laws showed that people at the time thought that blacks were an inferior class. Specifically,
MD and MA and English-type laws regarding slavery.
o Declaration includes language of equality, but written by smart men who would know that it
didn’t apply to blacks.
o Separation of whites and blacks existed at the time of ratification. Thus, the term citizen in it
meant to only include whites. Two specific provisions support this:
 Art. I Sec. 9 implies that the federal government won’t interfere with the institution of
slavery until 1808.
 Art. 4 Sec. 2: escaped slaves don’t gain rights and must be returned to their owners.
 These clauses could not exist if blacks were meant to have equal rights.
o Southern states would not have ratified the Constitution if blacks could become citizens because
under the Full Faith and Credit Clause blacks free in one state would be free in all other states with
the rights of whites, including the freedom to travel with guns (which would lead to slave rebellion
per Haiti obviously).
o Some states were proceeding to abolish slavery, but still not according blacks full rights because
they were not citizens, they were an inferior race.
o Congress just after ratification adopted laws showing that blacks not citizens:
 Naturalization laws only apply to free whites.
 Militia law only allowed whites to join the militia.
o Kreimer: Tawney ignoring that some states prohibited slavery and others allowed free blacks to
become citizens. Thus, focusing on only the intent of a few framers.
 Changes in times should not change the meaning assigned to the words of the Constitution. Doing so would
violate the judicial branch’s role as interpreter of the laws. Job of Amendments to change the Constitution.
o The Court must assign the same intent and meaning to the Constitution that the Framers
would. Otherwise, the Court would become victim to popular opinion and passions of the
day.
 No citizenship, so no jurisdiction. However, still considers whether the Missouri Compromise was
constitutional.
 The federal government cannot infringe on the rights of the people in acquired territory. An act of
Congress depriving someone of their property just because they entered a territory is a violation of
due process.
o Slaves are property, so taking slaves from owner a violation of due process.
 Decision shows that both original intent (discussion about whether blacks could be citizens) and
nonoriginalism (discussion about due process) can have negative consequences.
 Case overruled:
o 14A allows anyone born in the United States to become a citizen.
o 13A prohibits involuntary servitude.

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 Federalism
The Federalist Papers and Federalism
 No. 45: the federal government needs the state governments, while the reverse is not true. E.g. needs states
to elect a President.
o Federal government has few powers, the states have many.
 No. 46: people more naturally attached to their own state’s government.
o Further, states possess substantial power to oppose unfavorable federal legislation. States could
easily oppose a small army with millions of militiamen (hahahaha).
 No. 51: power divided in the US so that different governments will control each other, and different
branches of each will control itself.
o People will be broken into so many diverse groups that no threat of authoritarian rule.

Values Promoted by State Autonomy

 State and local governments can deal with problems that vary geographically by tailoring policies to fit
locally varying circumstances.
 State and local governments can compete for citizens and investment by offering varying policies to
accommodate diverse preferences and ideologies, enabling citizens to “vote with their feet” by choosing the
locale where they will be governed in the manner they prefer.
 State experimentation in social policy can yield new practices later adopted elsewhere in the nation.
 Smaller scale of government allows it to be closer to the citizenry, making it more responsive to citizen
preferences and needs while allowing citizens greater opportunity to participate in and in turn to influence
public policy.
 Particular federal powers may prove especially dangerous at the national level because they are subject to
particular abuse if one faction captures control.

Values Promoted by National Policymaking

 National regulation can respond to negative externalities by which activities in one states impose costs on
the residents of another state.
 National government can provide certain public goods that any state government, left to its own devices,
will under-produce because it is subject to free-riders and therefore cannot completely capture the benefits
of its investment.
 Because of its large scale and resources, the national government can provide better social insurance
against catastrophes that occur unpredictably and vary geographically in their incidence.
 The national government can redistribute resources among the populations of different states whose
citizens enjoy greatly unequal wealth and income.
 National regulation can prevent the destructive aspects of competition among the states.
 May have exaggerated the role of state experimentation in fomenting better solutions to universal problems,
as “individual states will have no incentive to invest in experiments that involve any substantive or political
risk, but will prefer to wait for other states to generate them.”

The Commerce Power

Art. I, § 8, cl. 3: Congress has the power to “Regulate Commerce with foreign Nations, and
among the Several States, and with the Indian Tribes.”
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  Has become a central basis for the assertion of federal regulatory authority.
 Often used to strike down national regulatory laws in the early 20th Century.
 After New Deal it became an expansive power.
 Decisions in Lopez and Morrison have sought to restrain the power from turning into a national police
power.

The Commerce Power before the New Deal

Gibbons v. Ogden (SCOTUS, 1824):

 Two men running steamboats. Under NY law, Ogden had a monopoly for running a steamboat in NY
waters. Gibbons ran a competing steamboat service between NY and NJ based on a federal license.
o Ogden argued that the federal statute authorizing the license was unconstitutional.
 Commerce is intercourse, it is commercial interactions between parties. That is, commerce includes
all phases of business.
o Navigation a phase of business.
 Commerce applies to external concerns of the nation, and to those internal concerns which affect the
states generally; but not those which are completely within a particular state, which do not affect
other states, and with which it is not necessary to interfere, for the purpose of executing some of the
general powers of the government.
o Basically, Congress can’t regulate intrastate commerce. Needs to be some effect on more than one
state.
 Two basic divisions, one between commerce and the general police power; and between intrastate
and interstate commerce.

Post-Gibbons
 Court controlled by laissez-faire justices who were strongly opposed to government economic regulation.
o Narrowly defined the meaning of commerce so as to leave a zone of power to the states.
Defined it as one stage of business, distinct from earlier stages such as mining,
manufacturing, or production. Based on this, only commerce itself could be regulated by
Congress, other areas left to the states.
o The Court restrictively defined among the states as allowing Congress to regulate only when
there was a substantial effect on interstate commerce. In all other areas regulation was left
to the states.
 In The Trademark Cases (1887), the Court invalidated the federal law that established a federal system for
registering trademarks. The Court concluded that the law was unconstitutional because it applied to wholly
intrastate business and business transaction and therefore “is obviously the exercise of a power not confided
to Congress.”
 The direct/indirect effect test. The case of E.C. Knight involved a sugar refiner who acquired 98% of the
sugar refinement capacity of the nation. Court said that the Sherman Antitrust Act did not apply because
interstate commerce was not involved. The Court reasoned that Congress could regulate activities that
directly affected interstate commerce, like transportation. However, control of the manufacturing of sugar
only indirectly affected interstate commerce, thus manufacturing primarily an area of state regulation.
 In In re Debs, railroad workers were striking, shutting down railroads. The Court granted an injunction
against the strikers. “As, under the Constitution, power over interstate commerce and the transportation of
the mails is vested in the national government, and Congress by virtue of such grant has assumed actual and
direct control, it follows that the national government may prevent any unlawful and forcible interference
therewith… The strong arm of the national government may be put forth to brush away all obstructions to
the freedom of interstate commerce of the transportation of the mails.”
o People messing with the railroad more directly affects commerce than monopolization of sugar
refinement.

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 o Congress could regulate non-commercial activities affecting commerce.
 The “substantial economic effects” test emphasized the practical physical or economic effects of the
regulated intrastate activities on interstate commerce. Court in The Shreveport Rate Case upheld a
Congressional regulation that stopped a Texas railroad from fixing rates to make it more expensive to ship
goods interstate, as opposed to intrastate, over comparable distances.
o Congress had the authority to regulate “these interstate carriers as instruments of interstate
commerce,” which meant “the right to control their operations in all matters having such a close
and substantial relation to interstate traffic that the control is essential or appropriate to the
security of that traffic, to the efficiency of the interstate service, and to the maintenance of
conditions under which interstate commerce may be conducted upon fair terms and without
molestation or hindrance.”
o “Whenever the interstate and intrastate transactions of carriers are so related that the
government of the one involves the control of the other, it is Congress, and not the state, that
is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the
exercise of its constitutional authority and the States, not the Nation, would be supreme within the
national field.”
 Court in Champion v. Ames (The Lottery Case) (1903) upheld Congressional regulation that prohibited the
interstate transportation of lottery tickets. Congress has the capacity to prohibit the interstate
transportation of goods for any reason.
 Likewise, Court in Hoke v. US upheld an act prohibiting the interstate transportation of women for immoral
purposes. Congress has the power over transportation between states and such power is complete.
o Court in Caminetti held that transportation of women to be mistresses could be regulated by
Congress.
 A difference between local and interstate commerce. Two questions:
o Does it involve commerce or primary productive activities? Commerce buying and selling
after manufacturing and Congress can regulate if not simply intrastate.
o If primary productive activity, Congress can only regulate if there is a direct effect on
interstate commerce. E.C. Knight, In re Debs.
 Congress can also regulate the channels of interstate commerce to prohibit certain items from
moving interstate if these items considered immoral. The Lotter Case, Caminetti.
 May also regulate the instrumentalities of interstate commerce, even if exclusively intrastate, so long
as substantial effect on interstate commerce. Shreveport Rate Cases.
 Distinction between direct/indirect never really clear. Court seems willing to regulate morality, but
not business practice.
 Can’t use the commerce power to try to reach into areas that are under the regulation of the states:

Hammer v. Dagenhart (SCOTUS, 1918):

 Challenge was to a law barring the transportation in interstate commerce of goods produced in factories
employing children under the age of fourteen or employing those between the ages of fourteen and sixteen
for more than eight hours a day or six days a week or at night.
 Court held that the Act was not enacted to regulate transportation among the states. Sought to standardize
the age at which children could be employed in mining and manufacturing within the states.
 Regulation of interstate transportation falls within the commerce power, but regulation over the
production of materials a local issue. Otherwise, all manufacturing would come under the authority
of the federal gov., with no power left to the states.
 States can have an unfair advantage in business conditions (e.g. no child labor laws when others have
them), however Congress lacks the power to equalize these conditions.
 Dissent: An act within constitutional limitations is constitutional no matter the indirect effects that it may
have. The act regulates interstate transportation of goods, so it is clearly within constitutional limits.

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  Useful point from other case to connect Shreveport and Hammer: “The pertinent point is that where the
subject of commerce is one as to which the power of the State may constitutionally be exerted by restriction
or prohibition in order to prevent harmful consequences, the Congress may, if it sees fit, put forth its power
to regulate interstate commerce so as to prevent that commerce from being used to impede the carrying out
of the state policy.”

The Commerce Power and the New Deal

 The Court in Railroad Retirement Board v. Alton Railroad Co. held that Congress lacked the power to
establish a compulsory retirement and pension plan for all carriers subject to the Interstate Commerce Act.
Roberts concluded that the law was not “in purpose or effect a regulation of interstate commerce within the
meaning of the Constitution.”
 Court in Schecter Poultry held that the National Industrial Recovery Act unconstitutionally delegated
legislative power and that the application to intrastate activities exceeded the commerce power.
o Not transactions in or affecting interstate commerce, about manufacturing.
o Worried about allowing the gov. to regulate the hours and wages within a state. True, it does
indirectly affect interstate commerce through prices, but allowing such regulation would open the
door for further regulation of things affecting prices, such as rent, number of employees, etc.
o “Activities local in their immediacy do not become interstate and national because of distant
repercussions.”
 Court in Carter v. Carter Coal Co. held an act unconstitutional because it sought to regulate production not
commerce. Production is purely a local activity. No part of production constitutes an action in or forms any
part of interstate commerce.
 Court seems focused on line between production and commerce.
 Then a change… FDR proposed the Court packing plan and…

The Commerce Power after the New Deal

NLRB v. Jones & Laughlin Steel Corp. (SCOTUS, 1937):

 D manufactured steel in PA, but had facilities and means of transportation in other states.
o NLRB found that D had engaged in unfair labor practices by firing 10 men for union-related
activity.
o D arguing that the National Labor Relations Act was unconstitutional because it regulated D in its
conduct of manufacturing.
 Labor relations regarding large, national firms fit within areas which Congress can regulate under
the commerce clause because a failure to allow the NLRA to regulate labor relations would create a
labor war that would significantly harm interstate commerce.
o Court looking at the effect on interstate commerce, not the source of the injury.
 Activities may be intrastate when considered alone, but if they have such a close and substantial relation to
interstate commerce that their control is essential or appropriate to protect that commerce from burdens and
obstructions, Congress cannot be denied the power to exercise that control.
 A move from direct/indirect, to measuring the degree to which an activity affects interstate
commerce.

United States v. Darby (1941):

 Darby alleging that the Fair Labor Standards Act was unconstitutional because it regulated hours and wage
of employees in local manufacturing activities. Issues:
o Whether Congress has the power to prohibit the shipment in interstate commerce of lumber
manufactured by employees whose wages are less than a prescribed minimum or whose weekly
hours of labor at that wage are greater than a prescribed maximum.

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 o Whether Congress has the power to prohibit the employment of workmen in the production of
goods “for interstate commerce” at other than prescribed wages and hours.
 Overruled Hammer. Why Congress enacts legislation is irrelevant, just has to have a significant effect
on interstate commerce. Also, Congress can choose the means by which it affects the ends of
regulating interstate commerce, even if those means affect some substantive right.
o Further turn from formalism of direct/indirect test and closer to matters of degree.
 Act trying to keep goods out of interstate commerce that were produced by people working below the
standards necessary to maintain one’s health and well-being, and prevent competition among the states
perpetuating this practice.
o Production of goods is not interstate commerce, but there shipment is. Congress has the power to
regulate interstate commerce so as to prevent it to be used to ship goods produced in substandard
labor conditions because such practices injure interstate commerce.
 10th Amendment not a restriction because a truism. If an Act fits within a constitutionally enumerated
power, 10A not a restriction.

Wickard v. Fillburn (1942):

 Fillburn exceed his agricultural production quota in wheat. Challenged the Agricultural Adjustment Act as
unconstitutional because he was growing wheat for home use, not engaged in interstate commerce.
 Court explicitly disavows old tests: “Even if appellee’s activity be local and though it may not be regarded
as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic
effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier
time have been defined as “direct” or indirect.””
 Aggregation principle: “his contribution, taken together with many others similarly situated, is far
from trivial.” Basically, aggregate actions of all people in similar situation and look at the effects on
interstate commerce.
 Home grown wheat causing severe market distortions. Thus, one man may not substantially affect interstate
commerce, but his behavior aggregated with others in a similar situation does. For this reason, Congress
may regulate it.

Quick Hypo

 President Sexist wants a statute to ban abortion. Argues that more kids means higher wheat production. Can
he use the commerce clause after Wickard?
 Problem is that there is much less data to show the link between less abortions and more wheat, whereas
substantial data in Wickard showing the adverse effects of homegrown wheat on the national market.
 Further, Wickard involved a man with a farm and his behavior, economic activity. Regulating abortion is
regulating someone’s personal life.

Other Cases

 Court in Maryland v. Wirtz (1968) upheld amendments to the Fair Labor Standards Act extending coverage
to every employee who “is employed in an enterprise engaged in commerce or the production of goods for
commerce” because, after NLRB and Darby, regulation of wages and collective bargaining fall under the
interstate commerce power.
o Looking still at substantial effect of an action on commerce.
 Court in Hodel v. Virginia Surface Mining (1981) upheld regulations on strip-mining, despite the fact that
the activity regulated was on private land wholly within a state. Reasoned that the commerce power extends
to regulation of environmental hazards that have interstate affects, especially given a legislative record
demonstrating these effects.
o Rehnquist’s concurrence argued that the Court’s opinion was too deferential:
 Regulated activity must have some nexus to interstate commerce and must substantially
affect it.

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  Congressional findings are not in themselves sufficient, must have a rational basis.

Title II Cases

 Court in Heart of Atlanta Motel v. United States (1964) upheld the Civil Rights Act’s prohibition on racial
discrimination in public accommodations based on an extensive record that demonstrated that racial
discrimination in hotels negatively impacted interstate commerce by discouraging blacks from traveling.
o The determinative test of the exercise of power by the Congress under the commerce clause
is simply whether the activity sought to be regulated is “commerce which concerns more
than one state” and has a real and substantial relation to the national interest.
 Court in Katzenbach v. McClung (1964) held that Title II, prohibiting racial discrimination in restaurants,
was constitutional because of the economic burden that racial discrimination imposed on restaurants by
causing less blacks to visit them and spend money.
o There was no evidence that interstate travelers visited the BBQ. In fact, evidence it would lose
business if not segregated. However, Court said the key is whether Congress had a “rational
basis for finding that racial discrimination in restaurants had a direct and adverse effect on
the free flow of interstate commerce.” That is, if Congress could rationally find a
detrimental effect on interstate commerce, it can regulate the behavior.
 Highly deferential standard only require a hypothetical reason. Don’t need
empirical proof.
o BBQ joint also purchasing food through interstate commerce.

Criminal Law

 Commerce power has been used to create a few criminal laws.

 Court in Perez v. U.S. (1971) upheld a federal prohibition on loansharking enforced by threats of violence.
Worried that such behavior was used to fund and support organized crime, which hindered interstate
commerce.
o Particularized findings not required, Congress just needed a rational basis for concluding that an
activity affected interstate commerce.
 Not one federal law passed under the commerce clause invalidated from 1942 till 1995.

Recap

 No longer a distinction between commerce and other stages of business, such as mining, manufacturing,
and production. Instead, Congress could exercise control over all phases of business.
 No longer did the Court distinguish between direct and indirect effects on interstate commerce; rather,
Congress could regulate any activity that cumulatively had an effect on interstate commerce.
 No longer would 10A limit congressional power. Instead, a federal law would be upheld so long as it was
within the scope of Congress’s power; and the commerce clause was interpreted so broadly that seemingly
any law met this requirement.
 Congress could regulate purely intrastate activities, including all aspect of business, when there is a
rational basis for believing that there is an interstate effect.

Era Description Example Cases

1880 Congress’ authority in this matter is limited by the Ogden, Shreveport
s practical impact on interstate commerce and
Congress’ good judgment
Pre- Conceptual distinction between commerce (buying, E.C. Knight, Shreveport
ND selling) and primary activity (manufacturing, mining
agriculture). Certain kinds of primary activities, if
they have direct effects on interstate commerce,

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 move into sphere of federal regulation.
Even in regulating interstate commerce, Congress Hamer v. Dagenhart
cannot seek to extend its authority into areas outside
its national sphere by leveraging commerce power to
exert state police powers.
Post- Court rejects idea that difference between NLRB v. JL, NLRB v. Fainblatt
ND production and commerce is crucial. Local activities
of small magnitude can be regulated for substantial
effect on interstate commerce.
Motive to improve production or enact police power U.S. v. Darby
behind regulation is irrelevant. 10th amendment a
truism.
Whether there is rational basis to find that actions, in Wickard v. Filburn
aggregate, have an impact on the interstate market
1960- To regulate local activity, Congress must have a Civil Rights Cases, Perez,
1995 rational basis on which to find that the activity will, Bass, Hodel, Maryland v.
in aggregate, have adverse impacts on interstate Wirtz
commerce.

A Change in the Nineties: The Contemporary Commerce Power

United States v. Lopez (1995):

 Challenge to the Gun-Free School Zone Act, which made it a federal offense “for any individual knowingly
to possess a firearm at a place that individual knows, or has reasonable cause to believe, is a school zone.”
 The government made two main arguments:
o Allowing guns in school leads to violent crime, which has two substantial economic effects:
 Costs of violent crime spread throughout the population through insurance.
 Violent crime reduces the willingness of people to travel to areas perceived as violent.
o Guns hamper education, which leads to a less-informed citizenry and harms the economy.
 Probably a rational argument that gun possession in the aggregate negatively affects education. However,
the Court still invalidated the Act.
 Three areas that the Court has allowed the commerce clause to regulate:
o The use of channels of interstate commerce. E.g. for lottery tickets.
o The instrumentalities of interstate commerce, or person or things in interstate commerce,
even though the threat may come only from intrastate activities. (Shreveport).
o Activities that have a substantial relation to interstate commerce. That is, can regulate
activities that substantially affect interstate commerce.
 Heightened degree after Lopez. Needs to substantially affect commerce, something closer
to a direct effect.
 No substantial effect on interstate commerce. Why?
o A criminal statute, which is traditionally a matter of state control.
o Statute doesn’t involve an economic enterprise, so distinguishable from cases like Wickard.
However, didn’t touch the ability of Congress to regulate the instrumentalities of commerce.
o Needs to be some limit on the commerce power or Congress can use it as a general police power.
 Structure of the Constitution (enumerated powers) implies there are areas that
Congress cannot act.

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 o No congressional findings, which are needed when the connection between a regulated activity
and commerce is not visible to the naked eye.
 Worry about too many logical inferences. Maybe moving back closer to the
indirect/direct test.
 Concurrence (Kennedy): some power needs to remain with the states:
o Allows experimentation on a smaller scale with new ideas.
o Ceding traditional state powers to the federal government creates problems with accountability as
citizens don’t know which government to hold responsible.
o States can allow for different liberties and people can vote where to live with their feet.
 Congress can regulate the economic sphere because of an integrated national market, however
regulation needs to directly affect the economic market.
 Concurrence (Thomas): substantial effect jurisprudence too far from the meaning of the commerce clause.
It essentially gives Congress a police power, which the Constitution did not intend.
o Rest of Art. I § 8 superfluous with broad reading of the commerce power.
 Dissent (Breyer): Commerce clause allows Congress to regulate activities that significantly affect interstate
commerce, not substantially. Court also failed to aggregate the activity.
 Dissent (Souter): the idea that courts defer to Congressional acts that have rational basis is critical to
judicial restraint. Congress has better resources to make these determinations.
 Dissent (Stevens): Guns are both articles of commerce and articles that restrain commerce. Congress may
thus prohibit their possession at any location because of their potentially harmful use.
 Note: Congress rewrote the statute to make it illegal to bring any gun on school grounds that had a part that
had traveled in interstate commerce (obviously applies to almost every gun).

Cases

 In U.S. v. Robertson (1995), the Court upheld a federal conviction of a California resident for investing
drug profits in a gold mine in Alaska. The Alaska mine was held to be engaged in interstate commerce
because it had purchased equipment in other states and it had obtained workers from other states.
 The Court in Reno v. Condon (2000) held that information contained in driver’s license applications was an
“article of commerce,” because the states often sold it, and therefore regulations forbidding any release of
such information by states came within the commerce clause.
 The Court in Cleveland v. U.S. (2000) construed a federal wire mail fraud statute to preclude prosecution
for making false statements in applying for a state video poker license, since the issues of the license was
an exercise of the state’s polices powers rather than a transfer of property.

United States v. Morrison (2000):

 Challenge to the the Violence Against Women Act, which allowed a federal cause of action for gender-
based violence. Court said unconstitutional under the commerce clause.
 Congress can regulate exclusively intrastate behavior that has substantial effects on interstate
commerce if that behavior is economic in nature.
o Court seeming to restrict activities based on the length of the but-for causal chain.
 Crimes based on gender do not involve economic activity.
 Plenty of Congressional findings about the effects that violent crime has on victims and their families, but
not alone sufficient to bring the regulation within the scope of the commerce clause.
 Court not wanting to allow Congress to exercise a general police power by showing a relationship
between a crime and interstate commerce no matter how attenuated.
 “The Constitution requires a distinction between what is truly national and what is truly local. The
regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or
goods involved in interstate commerce has always been the province of the states.”
 Note: portion of the act forbidding people from going across state lines to cause gender-based violence has
been held constitutional.

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  Rule seems to be that when Congress intervenes based on effect on interstate commerce in matters
that have traditionally been left to the States’ police powers, there needs to be a clear economic link
between the action to be regulated and interstate commerce.
 Dissent (Breyer): economic/noneconomic distinction difficult to apply.
 Note: Wickard set forth the principle of aggregation, which allows Congress to regulate activity that,
taken in isolation, does not substantially affect interstate commerce, on the ground that multiple
iterations of that same activity would substantially affect interstate commerce.
o Lopez and Morrison seem to limit the aggregation principle to cases of economic and
commercial activity.
 After Morrison, the Court has interpreted laws narrowly to avoid “constitutional doubts.” E.g. in Solid
Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001), the Court held
that the Army Corps of Engineers could not apply the federal Water Pollution Control Act to intrastate
waters based on the presence of migratory birds.
o Interpreted the statute to not apply to avoid “significant constitutional and federalism questions.”

Gonzales v. Raich (2005):

 Users of medical marijuana seeking to prohibit the enforcement of the Federal Controlled Substances Act,
to the extent that it prevents them from possessing, obtaining, or manufacturing cannabis for personal use.
 Court declined to prohibit enforcement. Congress has the power to regulate purely local activities that
are part of an economic “class of activities” that have a substantial effect on interstate commerce.

 Case similar to Wickard because home-grown weed has substantial effect on the supply and demand of that
product in the national market. “The activities regulated by the CSA are quintessentially economic. The
CSA is a statute that regulates the production, distribution, and consumption of commodities for which
there is an established, and lucrative, interstate market.”
 Court refused to strike down only those portions of the Act that hinder local activities because doing so
would undermine the entire act and its ability to regulate interstate commerce.
 Intrastate production of a commodity sold in interstate commerce is economic activity and thus
substantial effect can be based on cumulative impact.
 Concurrence (Scalia): The necessary and proper clause allows Congress to enact legislation that is
necessary and proper for the regulation of interstate commerce. It is not limited to laws governing
intrastate activities that substantially affect interstate commerce. Where necessary to make a
regulation of interstate commerce effective, Congress may regulate even those intrastate activities
that do not themselves substantially affect interstate commerce.
o Relevant question is whether the means chosen are reasonably adapted to the attainment of a
legitimate end under the commerce power.
 Here, Congress seeking to destroy the market for Schedule 1 substances, which the
commerce clause permits. The law a means to effectuate this objective, so constitutional.
 Dissent (O’Connor): Wants to preserve the ability of states to act as a laboratory for democracy. Ruling
destroys Cali’s ability to act as a laboratory for marijuana use.
o People here growing marijuana without anything resembling a commercial transaction. Small-
scale production not always economic and within the reach of Congress.
 Dissent (Thomas): Respondents using pot that has never been bought or sold, has never crossed state lines,
and which has no demonstrable effect on the national market.
o If Congress can regulate this, no longer a federal government of limited and enumerate powers.

Commerce Power after Lopez, Morrison, and Raich

 Congress may regulate, under the commerce clause:
o The channels of interstate commerce.

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 o The instrumentalities of interstate commerce and the persons or things in interstate
commerce.
o Activities which have a substantial effect on interstate commerce.
 Seem to need to be some sort of economic activity. May use aggregation.
 Court also wants a closer relationship to commerce. Direct/indirect coming back?
 In regulating noneconomic activities (those normally a part of a state’s general police power),
substantial effect cannot be based on cumulative impact.
 However, the intrastate production of a commodity sold in interstate commerce is economic activity
and thus substantial effect can be based on cumulative impact.

United States v. Comstock (2010):

 Issue of whether Congress has the power to enact a federal civil-commitment law.
 Court said yes. Congress under the necessary and proper clause has the power to enact a federal
statute if it constitutes a means that is rationally related to the implementation of a constitutionally
enumerated power.
 Concurrence (Kennedy): The necessary and proper clause “rational basis” test should be as exacting as it
has been in commerce clause cases. With the commerce clause, there needs to be a tangible link to
commerce, not just a conceivable rational relation. Rational basis under the commerce clause is link
in fact, based on empirical observation.
o Rational basis less exacting in other areas, just need conceivable basis.

NFIB v. Sebelius (2012):

 Whether the individual mandate of the ACA was constitutional.

Commerce Clause

 The commerce clause power allows Congress to regulate the channels of interstate commerce,
persons or things in interstate commerce, and those activities that substantially affect interstate
commerce.
o Power doesn’t allow Congress to compel activity. There must already be some sort of
commercial activity for Congress to regulate.
 Power to regulate commerce implies that there is already something to regulate. If it included the power to
create, then the rest of the Constitution would be superfluous.
 Individual mandate does not regulate commercial activity; rather, it compels individuals to become active
in commerce on the ground that their failure to do so affects interstate commerce.
o Allowing Congress to regulate individuals who are doing nothing via the commerce power would
give Congress substantial power. No longer have a limited federal government.
 Would seem to allow Congress to mandate that individuals buy a product.
 Dissent (Ginsburg): Goal of the ACA to lower premiums and healthcare costs, which requires a decrease in
the number of uninsured.
o Use individual mandate to incentivize people to buy insurance.
 Also want to forbid insurance companies from discriminating against people with preexisting conditions.
However, to avoid death spiral, need to bring more healthy people into the market. Individual mandate
again.
 Individual mandate key to Congress’s goal of lowering costs in the interstate health market.
 Not forcing people to engage in commerce because most will use the health-care system at some point.
Also no precedent for the activity/inactivity distinction.
o Congress won’t be able to compel purchases in any context. The health-care market is unique with
a unique free-riding problem.
 Other parts of the Constitution do allow the federal government to compel action.

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  Interestingly RBG cited Lopez and Morrison in her dissent. Seems that all members of the Court
agree that there should be some restraint on the commerce power.

Necessary and Proper Clause

 Clause allows Congress to enact laws that are derivative of a granted power.
 Individual mandate not necessary and proper to Congress’s ability to regulate commerce because no
preexisting activity to regulate.
 Court looks to external limits on the authority of the federal government and says that compelling activity a
great and substantive power that can’t be a part of the necessary and proper clause.
 Dissent: The necessary and proper clause empowers Congress to enact laws in effectuation of its
commerce power that are not within its authority to enact in isolation. Hence, a complex regulatory
program can survive a commerce clause challenge without a showing that every single facet of the program
is directly related to a valid congressional goal. It is sufficient that the challenged provisions are an integral
part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.
o ACA sought to lower costs in the interstate health-care market. A legitimate exercise of power, so
individual mandate, which is necessary to this program to avoid a death spiral, is also
constitutional.

Taxing Power

 Taxing power does not allow for direct taxes, which the Court has interpreted to be land and
capitation taxes.
 Individual mandate looks like a tax: enforced by the same measures, has similar limitations, and it produces
revenue for the government.
o Tax clearly to compel behavior (buying health insurance), but often the goal of a tax. E.g. tax on
cigarettes to get people to stop smoking.
 Dissent (Scalia): Clear difference between a tax and penalty:
o Tax is an enforced contribution to provide for support of the government.
o Penalty is an exaction imposed by statute as punishment for an unlawful act.
 Court has never held that a penalty imposed for the violation of a law was so trivial as to be called a tax.
Here, the exaction is imposed for the violation of the law. Thus, a penalty, not a tax.

Federalism Constraints
10th Amendment: “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.”
Pre-Usery Cases
 Court in Coyle v. Oklahoma (1911) invalidated a condition in the federal enabling act for admission of
Oklahoma to the union that had purported to specify the location of the state capital, holding that “the
power to locate its own seat of government [and] to change the same [are] essentially state powers beyond
the control of Congress.”
 Court in United States v. California (1936) upheld a penalty imposed on a state-owned railroad for
violation of the Federal Safety Appliance Act. “The sovereign power of the states is necessarily diminished
to the extent of the grants of power to the federal government in the Constitution.” No immunity for states
in areas in which they have traditionally engaged under the commerce power since authorized to the federal
government, which is supreme.
 Court in New York v. U.S. (1946) upheld the application of a federal tax to New York’s sale of bottled
water from state-owned springs because Congress can apply a general tax to a state.

17
 o Concurrence (Stone): applying a general tax is permissible, but the federal government may not
apply a discriminatory tax to a particular state. Also, there are some areas of state property and
activities (which the opinion did not define) which should be immune from federal taxation.
o Dissent (Douglas): state should not have to pay federal taxes for exercising its inherent power.
What powers are inherent to state sovereignty evolve over time.
 Case of Maryland v. Wirtz (1968) involved an act extending the minimum wage to hospitals and
schools, including those run by municipalities. The activity of these institutions affected interstate
commerce, so they were bound by the same rules as those that bind private entities.
 Court in Fry v. U.S. (1975) upheld the application of the Economic Stabilization Act to wage increases for
public employees as an emergency measure of limited scope. The 10th Amendment important in declaring
the policy that Congress may not exercise power to impair states’ ability to function effectively in the
federal system.

National League of Cities v. Usery (1976):

 The 1974 Amendments to the Fair Labor Standards Act extended the minimum wage and maximum hour
provisions to almost all public employees of the State and various local subdivisions. States challenged the
amendments as an imposition on state sovereignty.
 Amendments unconstitutional. Congress cannot enact laws that impede on the functions that are
essential to the separate and independent existence of the states.
o Is the governmental function integral or traditional?
 10A stands for the principle that Congress may not exercise its power in a fashion that impairs the integrity
of the States or hinders their ability to function. There are attributes of sovereignty attaching to every state
government which may not be impaired by Congress, not because Congress may lack an affirmative grant
of legislative authority to reach the matter, but because the Constitution prohibits it from exercising
authority in the matter.
 Labor practices undermine the employee-employer relationships that states have in areas such as law
enforcement, sanitation, etc. “If Congress may withdraw from the States the authority to make those
fundamental employment decisions upon which their systems for performance of these functions must rest,
we think there would be very little left of the States’ separate and independent existence.”
 Partially overturned Wirtz.
 Dissent (Brennan): sole restraint on the commerce power is the people, not the judiciary. 10th Amendment a
truism, not a restraint.
 Kreimer: the Constitution does presuppose the existence of states and that they will have certain activities.
What the activities are, however, is not entirely clear.
o Art. 6 implies that there will be state judges, legislatures, and executives.
o Art. 5 allows state conventions for Constitutional amendments.
o Art. 1: states will set the time, place, and manner of holding elections.
o Art. 4 guarantees states a republican form of government and includes the implication that states
will have criminal laws.
 Opinion seems to rely on these presuppositions, not precedent.
 Kreimer: problem is trying to figure out what functions are essential to the separate and independent
existence of the states.
o Is it what functions were essential at the time of framing? Probably not because things like
hospitals weren’t exclusive state functions at the time.
o Is it crucial government structures? Doubtful since parks hard to defend.
 Also, what kind of interference is impermissible?
o As an outside boundary, interventions on the basis of 13A, 14A, or 15A permitted because
adopted to allow Congress to interfere with state functions.

Post-Usery

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  Court in United Transportation Union v. Long Island Railroad (1982) upheld the application of the
Railway Labor Act to a state-owned railroad because there was no interference with “traditional state
functions” since operation of railroad has traditionally been a private industry function.
 Court in FERC v. Mississippi (1982) upheld a federal energy conservation measure that directed state
utility commissions to consider federal rate standards because Congress decided not to impose the scheme
on the states out of deference to them and the Court though it should respect this less intrusive means of
regulation.
 Court in EEOC v. Wyoming (1983) upheld the extension of the Age Discrimination Employment Act to
apply to state employees because the degree of intrusion was far less than in Usery and there was no
showing that the state’s ability to structure operations and set priorities was hindered by federal law.

Garcia v. San Antonio Metropolitan Transit Authority (1985):

 Court held that a municipal transit authority was properly subject to the minimum wage and overtime
requirements of the Fair Labor Standards Act.
 Overrule Usery because a judicial appraisal of whether a particular government function is integral
or traditional to separate and independent existence of the states proved unworkable. Role of the
states determined by the limitations to federal powers. “States’ sovereign interests are more properly
protected by procedural safeguards inherent in the structure of the federal system than by judicially
created limitations on federal power.”
o The political process ensures that laws that unduly burden the states will not be promulgated
because states are central to electing congressmen and the President.
 Dissent: States’ role in the federal system a matter of constitutional law, not legislative grace, and this
power is diminishing.
o Also, worries about the responsiveness of the central government to individual state’s interests and
concerns.
o States have interests that the federal government must respect even though its laws are supreme.
 Kreimer: Court had been trying to balance state and federal interests with Usery, but difficult. How do you
compare their magnitude? Do the interests change with the times? Which interests are most important?
o Difficult to apply, which is why the court abandons it.
o Idea of Garcia is that federal government and state governments are balancing their interest
through negotiations. If the people don’t like it, they can elect new officials.

South Carolina v. Baker (1988):

o South Carolina did not argue that it was deprived of any right to participate in the national political process
or that it was singled out in a way that left it politically isolated and powerless. Rather, argued that the
political process failed because the law was imposed by a vote of an uninformed Congress relying on
incomplete information.
o Court won’t interfere and second-guess substantive basis of congressional legislation. Only will
interfere where the political process operated in a defective manner.
 Court in Gregory v. Ashcroft (1991) held that the Missouri Constitution’s age limit on elected judges does
not violate the federal Age Discrimination in Employment Act because deciding qualifications for elected
office is an essential element of state sovereignty under 10A.
o Decision based on assumption of the Court that the Act did not include elected officials in its
definition of employee. Congress needs to be clear if it intends to interfere with traditional
functions of the States (e.g. judiciary).
o A federal law that imposes a substantial burden on a state government will be applied only if
Congress clearly indicated that it wanted the law to apply.
 Plain statement rule.

The Spending Power and the States

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Art. I, § 8, Clause I: Congress has the power “to lay and collect Taxes, Duties, Imposts,
Excises, and to pay Debts and prove for the Common Defense and Welfare of the United
States.”
United States v. Butler (1936):

 Agricultural Adjustment Act sought to stabilize farm prices by curtailing production. Allowed the
government to exchange benefit payments with a farmer for them to reduce their productive acreage.
 The power to tax is not unlimited. However, the confines to which it is subject are within the
spending clause itself, not the other enumerated powers.
o That is, Congress has the power to tax and spend for the general welfare.
 Congress may only set limits on how allotted money may be spent, it cannot use that money to coerce
a state into doing something that it could not otherwise get a state to do and which is not related to
the reason for the federal funding.
 Regulation and control of agricultural production is a matter beyond the powers delegated to the federal
government. Thus, the Act is unconstitutional because it invades the rights of the states.
 Dissent (Stone): Constitution requires that public funds be spent for a defined purpose, promotion of the
general welfare. Usually payment to individuals is conditioned on them using those funds for some
constitutionally defined purpose.
o Holding leads to absurd consequences. Congress can give, but not condition receipt.
o “If the expenditure is for a national public purpose, that purpose will not be thwarted because
payment is on condition which will advance the purpose. The action, which Congress induces by
payment of money to promote the general welfare, but which it does not command or coerce, is
but an incident to a specifically granted power, but a permissible means to a legitimate end.”

Notes

 Court in Charles C. Steward Machine Co. v. Davis sustained the unemployment compensation provisions
of the Social Security Act.
o Tax and credit combination of the act not weapons of coercion that destroyed autonomy of the
states since they can construct their own laws that satisfy what Congress established as a minimum
requirement.

 Court in Helvering v. Davis upheld the old age provisions of the Social Security Act.
o Must be a line between the general and local welfare, but the discretion belongs to Congress
unless it is clearly wrong.
o Here, the law clearly national in area and dimensions and states could adequately deal with it.

South Dakota v. Dole (1987):

 SD allowed people under 21 to buy alcohol. 23 U.S.C. § 158 allowed the Secretary of Transportation to
withhold funds from states if they allowed people under 21 to buy alcohol. Constitutional?
 Yes. Congress may use the spending power to further broad policy objectives relating to the general
welfare by conditioning receipt of federal funds. Limitations:
o Exercise of the spending power must be in pursuit of the general welfare.
 Statue wants to reduce the number of kids drinking and driving
o If Congress wants to condition the States’ receipt of federal funds, it must enable the States
to exercise their choice knowing the consequences. Must be choice; cannot be coercive.
 State would only lose small percentage of funds, so not coercive.
 State autonomy not in danger if they can say no to the federal condition. That is,
they can balance state interests against federal funds.

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 o Federal grants may be illegitimate if they are unrelated “to the federal interest in particular
national projects or programs.”
 Withholding funding reasonably calculated to decrease the number of drunk drivers by
pressuring states to enact higher minimum-age laws.
o Other constitutional provisions may provide an independent bar to the conditional grant of federal
funds.
 Dissent (O’Connor): Congress may condition grants under the spending power only in ways reasonably
related the purpose of the federal program.
o Establishing a drinking age of 21 not sufficiently related to highway construction.
o Wants Congress to only be able to condition the spending of federal funds on interests within the
enumerated powers. Allowing it to condition spending based on the general welfare would make
Congress a super legislature and destroy federalism.

Anti-Commandeering Doctrine
 States have the sovereign authority to make and apply law through legislative, judicial, and
administrative functions.
 Accordingly, the federal government may not compel:
o A state to enforce or enact a particular law. New York v. United States. Can encourage
adherence.
o A state/local official to perform federal administrative tasks. Printz v. United States.
o Except for generally applicable laws regulating the states itself (as if private entity) and not
forcing it regulate its citizens. Reno v. Condon.

New York v. United States (1992):

 The Low-Level Radioactive Waste Policy Amendments Act of 1985 required states to provide for the
disposal of such waste generated within their borders. It provided three incentives to induce compliance:
o Monetary incentives which allowed states with disposal sites to impose a surcharge on waste
received from other states.
o Access incentives which allowed states to increase the cost of access to their sites and then deny
access altogether to waste generated in states that did not meet federal deadlines.
o A take title sanction, providing that a state that failed to provide for the disposal of all internally
generated waste by a particular date must take title to the waste and become liable for the all
damages suffered by the waste’s generator or owner.
 The structure and spirit of the Constitution and federalism require the Court to intervene to prevent
Congress from commandeering state legislatures. The federal government may not “commandeer”
the state legislature through conditioning receipt of federal funds when the condition leaves the state
no rule choice but to follow the program. Can’t require a state to enact or enforce legislation, can
only incentivize.
o Congress can encourage a state’s compliance with a federal regulation using a monetary incentive,
but it cannot penalize a state for electing not to comply.
 Congress cannot force the state to take title to the waste (require state to enforce the law) because doing so
would commandeer state governments, nor can it tell the state to regulate the waste (enact legislation), it
can only provide incentives for the state to do so.
 Because the States have no real choice, the take-title provision is coercive and unconstitutional since it
commandeers the legislative functions of the States.
 Why is commandeering a problem?
o Historical foundations for the anti-commandeering doctrine:
 10th Amendment attributes certain powers to the states that the Constitution has not
conferred to Congress.

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  Framers debate: Articles of Confederation required states to approve legislation from
federal government. Virginia plan allowed the federal government to pass statutes that
directly control lives of citizens, but did not include federal cooption of state resources.
o Policy reasons:
 Federal government control of state political resources reduces political accountability.
Lack of clarity about who is in control and who is responsible for bad policy.
 Basically, Congressional commandeering of state political functions would
allow for Congress to regulate while insulated from accountability as the States
would be implementing the regulation and thus subject to the political fallout.
 This is why Congress may impose a law directly, thereby holding itself accountable, but
may not force a state to do so.
 Dissent (White): the Act the result of states bargaining among themselves and reaching a solution that
Congress approved. Court shouldn’t be involved.
 Dissent (Stevens): no reason that Congress does not have the power to tell state governments to implement
legislation enacted by Congress.
o 10A doesn’t restrict the powers delegated by Art. I.
o Structure of the Constitution and values of federalism don’t impose such a limit.
o Instead, the federal government often directs state governments.
 Anti-commandeering doctrine does not prohibit generally applicable exercises of federal commerce or
spending authority. I.e. federal government over individuals or states. However, federal government cannot
tell the states how to regulate the lives of their citizens.
 Why is the take-title provision unconstitutional but the other two are not?
o Other provisions providing incentives for state governments to regulate in a certain way.
o Take-title provision not offering an incentive, threatening a punishment for not cooperating.

Printz v. United States (1997):

 Held invalid portions of the Brady Handgun Violence Prevention Act, which required state and local law
enforcement officers to conduct background checks on prospective handgun purchasers.
 Case like NY v. US, except Congress conscripting state actors in their executive, rather than legislative,
functions. Congress cannot directly conscript a State’s officers to enact or enforce a federal
regulatory program.
 This would affect a major expansion of federal power, drafting state police officers into federal service.
Must allow the states to consent to enforce federal regulations.
o Federal government has its own officials to enforce federal programs.
 Two constitutional infringements:
o Have a system of federalism or dual sovereignty. Framers rejected a central government
that would act upon and through the states and instead created a system of concurrent
authority over the people. Thus, federal government cannot commandeer a state’s executive
power.
o Improperly delegating executive authority to enforce laws to federal officials. Power of the
President reduced if it could be delegated to the states.
 Dissent (Stevens): interesting holding since the Federalist Papers envisioned a federal government using
state officials to collect taxes. Not allowing the federal government to use state officials could force the
federal government to create expansive bureaucracies to enforce its laws.
o Rebuttal: autonomy of state officials acts as a check on government overreach.
 Dissent (Souter): Congress, when exercising a legitimate power, can use state officials to enforce it.
 Dissent (Breyer): Other countries allow local institutions to implement laws decreed by the central
government because they believe it interferes less with local autonomy.
 NY and Printz stand for the proposition that it is a violation of the Tenth Amendment for the federal
government to conscript state governments to enact or enforce federal legislation.

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Reno v. Condon (2000):

 Challenge to Driver’s Privacy Protection Act, a federal law that prohibited states from disclosing personal
information gained by DMVs.
 Congress can regulate states as states (especially if acting like a private entity), it just can’t conscript
states to regulate that State’s citizens, violation of sovereign authority.
o Basically, there is a violation of 10A when the federal government requires states to regulate
on behalf of the federal government, an affirmative obligation. However, Congress
necessarily must be able to force states to do certain things. Has this power so long as it is
regulating the states as states, not telling the states to regulate their own citizens (which is a
state’s sovereign authority).
 Act a prohibition of conduct on the part of a state, not affirmatively obligating a state to regulate its citizens
on behalf of the federal government.

Medicaid and the Affordable Care Act:

 Medicaid in 1965–States can opt in to the program to obtain a part of a pool of federal funds so long as the
state contributes to the fund, enacts mechanisms, and allocate funds to pay for medical care for disabled,
mothers with children living in poverty.
 All states opt in, 20% of state budgets at stake.
 Medicaid Bill includes clause that allows Congress to amend the parameters of the program. Evolution of
program:
o Expands to cover children up to 133% poverty. States continue to opt in.
o ACA: if a state wants to continue existing in program, it must participate in the additional
Congressional expansions to include childless adults with higher income. If states do not comply
with the federal amendments, Fed government will end funding for Medicaid in that state. Federal
government will pay 100% of additional funds for the first few years.
NFIB v. Sebelius II (2012):

 Can the federal government require states to participate in Medicaid expansion or lose eligibility to
participate in the old program? Or does this type of conditional funding cross the line from encouragement
to coercive considering the prospect of losing 10% of a state budget?
 Congress may use the spending power and federal funds to incentivize states to act according to
federal regulations. However, it cannot withhold such a substantial amount of funds that States have
no choice but comply. Ultimate test is whether a State can choose between the federal funds and
competing state interests.
o Worries about political accountability still present. If a State chooses to participate in a federal
program because of the federal government’s financial incentives, then it will be accountable for
that choice. However, if compelled to do so, federal government essentially commandeering the
state’s political functions and the people can’t hold the proper authority accountable.
o Also worried about giving Congress the power to bend the States to its will by withholding federal
funds, which make up over 1/3 of State budgets.
 In this case, the financial inducement Congress has chosen is much more than relatively mild
encouragement, it is a gun to the head.
o The threatened loss of over 10% of a State’s overall budget is economic dragooning that leaves the
States with no real option but to acquiesce in the Medicaid expansion.
 People in states rely on Medicaid. Not feasible to stop providing. Without federal funds, states would be
forced to raise taxes or cut spending from other programs. Thus, only operable political choice is to engage
in the Medicaid enlargement.
 Is a provision in Medicaid that allows Congress to amend it, however this a fundamental alteration, not an
amendment. Would change Medicaid from a program for the neediest into something akin to universal
healthcare.

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  Congress could offer additional federal funds to the States to engage in the change, but it cannot withhold
such substantial funds.
 Problems according to Kreimer:
o Frames as a commandeering issue. But, while there may be more pressure here than with other
programs, it is not requiring state officials to administer any new program. Nothing has changed
with Medicaid to construe the program as violating the anti-commandeering doctrine.
o Hard to answer the question of when incentives become so large as to shift from inducement to
coercion.
 Depends on internal politics of the state. Some more reliant on certain federal funds as
part of their budget than others.
 A normative judgment infused with political ideology.
 In what instances would Roberts’ opinion apply to say that federal condition on funds is coercive:
o When the funds are substantial.
o When it is a voluminous amount of prior funding threatened.
o Involves a major change to a program.
o When the threat affects citizens of every state.
 Lack of clarity in the opinion means that Congress needs to leave states room to make a
decision.
 Dissent (the notorious RBG): the spending power permits Congress to define the nature of the programs it
finances with federal funds.
o Congress could have repealed Medicaid and then enacted a new version with the same substance
as the enlargement. However, seems inefficient when Medicaid can simply be amended.
 Not a new program, still about providing health care to the neediest.
o States are not entitled to Medicaid, they are given it by the grace of the federal government.
Further, they have regularly had to comply with certain, changing conditions to remain eligible for
funding, they aren’t being forced to opt into a new program.
o Finally, no line to demarcate where the spending power becomes coercive and unconstitutional.

Recap of Different Methods of Structural Federalism

 Pockets of sovereignty/immunity from the federal government because of integral state functions.
o Usery: 10A recognizes state immunity from otherwise proper federal regulation when seeking to
regulate integral state functions.
o Garcia: Identifying integral state functions without textual/constitutional guidance is not the
Court’s job. Balancing of state and federal interests is for the political process, the interaction
between Congress and the states.
o SC v. Baker: where there is a failure of the political process to represent a state’s interests, then
the Court may intervene. However, even if a lone state targeted, no Court intervention without a
showing of the failure of the political process to protect the State’s interests.
o Gregg v. Ashcroft: when Congress intends to upset the federal-state balance, it must clearly
indicate that the change is intended so as to put states on notice.
 Taxing and spending clause debate at framing whether it is meant to only to provide for those purposes
delegated in the Constitution (Madison), or broader to encompass the general welfare (Hamilton).
o Butler: there is authority to spend funds for the general welfare, even if outside of enumerated
powers.
o SD v. Dole: giving a state money in exchange for compliance with a federal objective does not
violate federalism as long as the funding is for the general welfare, is unambiguous, has some
level of connection to the national interest, and is not barred by some other limitation.
 Anti-commandeering doctrine says the Court may intervene to prevent Congress from commandeering
state legislative or executive functioning (basically, requiring a state to regulate its individuals on the basis

24
 of some federal goal). The concern is a lack of accountability and undermining a system of dual
sovereignty.
o New York v. United States: Congress requiring a legislature to take title to waste or to enact
legislation commandeering the state legislative process.
o Printz: requiring local officials to enforce federal regulations commandeering a state’s executive
power.
o Condon: only those actions that interfere with state sovereignty (that require a state to act on its
people) constitute commandeering. Regulating a state as a state is not.

Privileges and Immunities

Basics of the Doctrine
 Constitution provides very few substantive individual rights.
o Body provides structure, form, and powers of government as the means by which people would be
free from tyranny of government.
o Side constraints on the exercise of power in the Bill of Rights, which mostly protect individual
liberty and property.
o Privileges and immunities of Art. IV has the most potential.
 Quick overview:
o Pre-civil war there were very few substantive limits placed on states.
 Dred Scott case: taking of property just because of crossing state lines “could not be
dignified with the name due process.”
o Reconstruction Era Amendments change the calculus:
 13A prohibits involuntary servitude.
 14A:
 Citizen of the US and state in which you live.
 No state can deny privileges and immunities of citizens of the United States.
 Equal protection of the laws.
 No state may deprive a person of life, liberty, or property without due process of
the law.
 Enforcement clause.

Pre-Civil War
Calder v. Bull (1798):

 Connecticut legislative act set aside a court ruling that would have made a will ineffective. Subsequent
hearing and the will deemed effective. The heirs who would have benefitted from the ineffective will
challenged the constitutionality of the law based on the Ex Post Facto Clause.
o Ex post facto law only applies to criminal cases the holding. The debate more interesting about
natural laws.
 Chase: there are certain natural rights that the legislature cannot impede upon because they are a
part of the social compact, even though not part of the Constitution. Any law in violation of these
rights is not law at all.
 The people established government for a certain set of ends – justice, liberty, and welfare. As long as the
government is carrying out these broad ends, it is fulfilling its side of the social compact, it is appropriately
adopting laws.
 To the extent that a legislature tries to pass a law that violates these natural ends of ordered government,
that act, like one that expressly violates the Constitution’s text, is no law at all.

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 o Limitations on the legislature arise out of the purposes for which the government was created
(“social compact”).
 Iridell: the only limits on the legislature are those embodied in the Constitution. No natural limits
because no one can agree on what those natural limits are.

Barron v. Mayor and City Council of Baltimore (1833):

 Guy owned a wharf. City did some things to make it less productive. He argued that the state’s actions
violated 5A’s guarantee that private property shall not be “taken for public use, without just compensation.”
o Q: does the Bill of Rights apply to the states?
 The limitations on the federal government contained in the Constitution and the Bill of Rights
protect against federal encroachment on individual rights, not state encroachment.
 The people ratified the Constitution to govern the federal government, not the individual states, which are
governed by their own popularly established constitutions.
 Art I, Sec 9, Cl 10 separates state and federal governments; passive sentence structure strongly suggests
that the Bill or Rights applies only to the federal government.

Article IV Privileges and Immunities

 The body of the Constitution has limited personal protections in magnitude and scope.
o Apply only to the federal government and mostly involve property rights.
 Potential of expansion through the privileges and immunities clause, which prohibits states from engaging
in certain types of discrimination against citizens of other states. Implicates the protection of fundamental
rights.
 Court in Corfield v. Coryell (1832) stated that the privileges and immunities clause is triggered only if a
state discriminates against citizens of other states with respect to interests that are sufficiently
“fundamental” to come within the purview of the clause.
o Protects the ability of citizens of other states to come to a state and exercise the privileges and
immunities that are fundamental and belong to all citizens of all free governments; protection,
right to acquire property, obtain opportunities to work, and to enter into contracts.
o Ability to take oysters is not a fundamental right, therefore not a privilege and immunity of
citizenship so it may be restricted from out of staters.
 Dred Scott (1857): depriving an individual of property simply for migration from slave to non-slave state
could not be dignified under the name due process.

Slaughterhouse Cases (1873):

 Louisiana had granted a butchering monopoly to one slaughterhouse. Butchers had to go there and pay a
fee to conduct their business. They challenged it alleging that it impeded on their right to freely exercise
their trade.
 Denied 13A claim that this monopoly reduced the butchers to a condition of servitude, claiming that 13A
meant to overturn the practice of slavery (meant to overturn Dred Scott).
 Denied 14A claim that the monopoly impeded on the fundamental right of obtaining work. Reasoned that
there is a difference between state citizenship and national citizenship.
o Art. IV protects the privileges and immunities of state citizenship, whereas 14A protects the
privileges and immunities of national citizenship.
 Privileges and immunities of Art. IV state citizenship, which only apply to out of staters,
included the rights to pursue a trade, to own property, and to travel freely in the state on
an equal basis with a state’s own citizens.
 On the other hand, the privileges and immunities of national citizenship, which receive
absolute protection under 14A, embrace the right to travel, the right to protection while at

26
 sea, the right to petition the national government, the right to habeas corpus, and the right
to protection of federal treaties.
 Because of this distinction, only the privileges and immunities of US citizens are
protected by the Constitution, not those of the states.
 States cannot abridge the rights of citizens that relate to the Constitution or
federal law, but other rights left to the states to determine.
 Denied the butchers’ equal protection clause claim because it was meant to prohibit discriminatory statutes
against African Americans that sought to return them to a subordinate position akin to slavery.
 Purpose of the Reconstruction Era Amendments was the “freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly-made freeman and citizen from the
oppression of those who had formerly exercised power.” Given this purpose, the Court is uncomfortable
upsetting the federalism balance by making the federal courts the ultimate arbiter of state police powers in
light of their impact on privileges and immunities.
o However, 14A was meant to upset this balance. The Civil War showed that the federal
government needed the power to step in and overrule states.
 Privileges and immunities clause only applies to those rights created by the federal government, its
structure, its Constitution, or its laws.
o Basically, says that explicit rights in the Constitution apply to all U.S. citizens. A very narrow-
reading.
 Dissent: State does have the police power to regulate the butcher industry. However, cannot deprive people
of the right to pursue a lawful and necessary calling by granting a monopoly.
o 13A meant to state that every man is a freeman in the United States. One way to ensure this
autonomy is with the ability to seek an independent profession and not be forced to be subordinate
to another person.
 Statute makes butchers’ autonomy subject to the monopoly.
o 14A supposed to mean that “a citizen of a State is now only a citizen of the United States residing
in that State. The fundamental rights, privileges, and immunities which belong to him as a free
man and a free citizen, now belong to him as a citizen of the United States, and are not dependent
upon his citizenship.” Basically, 14A assumes rights and privileges that States cannot abridge.
 If, as the majority asserts, 14A only conferred preexisting rights, then it would be
pointless. People already have these rights protected.
 Privileges and immunities that all citizens now have are “protection by the government;
the enjoyment of life and liberty, with the right to acquire and possess property of every
kind, and to pursue and obtain happiness and safety, subject, nevertheless to such
restraints as the government may justly prescribe for the general good of the whole.”
 Thus, 14A protects every citizen of the US against hostile and discriminating
legislation against him in favor of others. For this reason, states can set
regulations upon the pursuit of a calling, but the person must still be free to
pursue it. Statute here thereby unconstitutional.

Notes

 One of the architects of 14A is alleged to have said that 14A is meant to apply the Bill of Rights to the
States, which it had not previously done.
 When Congressed passed the Reconstruction Era Amendments, there were not Southern Reps. Also,
southern states were forced to ratify the amendments to regain admission to the union.
 Use of the privileges and immunities clause to strike down legislation has been rare.

Right to Travel and Art. IV

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  Presupposition of federalism that people can move to the states that match their tastes. If people do not like
the sovereign rule of the state, they have freedom of movement. Important as well to economic
development. National interest and structural commitment to the free interstate movement of people.
 Cases:
o Crandall v. Nevada (1868): a state cannot inhibit a person from leaving a state by taxing them.
o Edwards v. California (1941): strikes down an anti-okie law that prohibited the bringing of
indigent person into California. Reasoned that such a statute was inconsistent with the idea of a
unified country, and the special right to travel between states.
o US v. Guest (1966): right to travel is a privilege and immunity of citizenship that can be enforced
by the federal government against those seeking to violate it.
o New Hampshire Supreme Court v. Piper (1865): the opportunity to practice law is a “fundamental
right.” There is no substantial reason for denying nonresidents admission to the New Hampshire
bar and the discrimination does not bear a close relationship to the State’s objectives.
 Article IV also protects individuals of one state when they travel to another state from the prospect of being
disadvantaged by their non-citizenship. “Right to travel without being treated as an alien is recognized in
the Constitution.”
o For the few exceptions, there must be a substantial reason for not providing to non-residents the
same rights.
o Some rights may be limited to bona fide residents of the state.

Revival of the 14th Amendment Privileges and Immunities Clause

 Shapiro v. Thompson (1969): strikes down state statute prohibiting new entrants from recouping welfare.
The fundamental right to travel and the equal protection clause forbid a state from reserving welfare
benefits only for person that have resided in the state for a year. The act essentially penalizes the exercise
of the right to migrate, chilling travel.
 Maricopa Hosp. v. Maricopa County (1974): a statute requiring a one year residency as a condition to an
indigent’s receiving nonemergency care violates equal protection and impinges on the right to interstate
travel by denying newcomers basic necessities of life.
 Dunn v. Blumstein (1971): a Tennessee law requiring one year residency as a condition for voting is an
unconstitutional infringement on the right to travel.
 Vlandis v. Kline (1973): one year waiting period for lower tuition on public education is acceptable
discrimination on visitors.
 Sosna v. Iowa (1975): one year waiting period for divorce in Iowa courts is acceptable discrimination.
 Key seems to be whether the person can obtain that which is denied by the state. Can’t get welfare
easily, but can get a divorce in another state.

Saenz v. Roe (1999):

 Cali had a statute that restricted the maximum welfare benefits available to newly arrived residents. If a
person had been in the state for less than one year, then they could only receive equal benefits to those
provided by the state that they left.
o Congress passed a statute authorizing such action in 1996.
o Roe denied full benefits after moving to Cali, so challenged it as a violation of privileges and
immunities of citizenship.
 Court held the law unconstitutional reasoning that there is no such thing as degrees of citizenship. A
state cannot provide some citizens with benefits while denying others equal benefits based on how
long they had been in the state.
 Right to travel from state to state firmly embedded in Constitutional jurisprudence. Three parts:
o Protects the right of citizens to enter and leave another state.
o Protects the right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second state.

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 o For those who elect to become permanent residents of a new state, it protects the right to be
treated like other citizens of that state.
 Privileges and immunities clause of 14A means that “a citizen of the United States can, of
his own volition, become a citizen of any State of the Union by a bona fide residence
therein, with the same rights as other citizens of that State.”
 Roe a citizen of Cali and receiving less benefits because of the duration of her stay in that state.
o A state cannot discriminate between citizens on the basis of saving money, especially when it
could save money by cutting all benefits equally. May discriminate in instances where it appears
that the person is only in the state to take advantage of a benefit and leave.
 Congress cannot authorize a state to violate 14A and the protections of 14A apply to the national
government as well as the states through 5A.
 Decision based on the idea that the US is a single polity. Governments cannot impair the rights of
citizens to move by treating them differently.
 Dissent (Rehnquist): states may have a durational requirement prior to eligibility for benefits in order to
keep people from taking advantage of the state.

McBurney v. Young (2013): the Court has struck down laws as violating the privilege of pursuing a common calling
only when those laws were enacted for the protectionist purpose of burdening out-of-state citizens… The Court has
made clear that “the constitutional requirement is satisfied if the non-resident is given access to the courts of the
State upon terms which in themselves are reasonable and adequate for enforcing any rights he may have, even
though they may not be technically and precisely the same in extent as those accorded to resident citizens.”

A Note on Incorporation
 Court has used the due process clause of 14A to hold that some provisions of the Bill of Rights apply
to the states.
 Question has been “whether a right is among those fundamental principles of liberty and justice which lie at
the base of all our civil and political institutions, whether it is basic in our system of jurisprudence, and
whether it is a fundamental right, essential to a fair trial.”
 Provisions that have been incorporated:
o 1A’s establishment clause, free exercise clause, and protections of speech, press, assembly, and
petition.
o 2A’s right to bear arms.
o 4A’s protection against unreasonable search and seizures, and the requirement for a warrant based
on probable cause; also, the exclusionary rule, which prevents the government from using
evidence obtained in violation of 4A.
o 5A’s prohibition on double jeopardy, protection against self-incrimination, and requirement that
the government pay just compensation when it takes private property for public use.
o 6A’s requirements for a speedy and public trial, by an impartial jury, with notice of charges, the
chance to confront adverse witnesses and to have compulsory process to obtain favorable
witnesses, and to have assistance of counsel if the sentence involves possible imprisonment.
o 8A’s prohibition on excessive bail and cruel and unusual punishment.
 In some cases, the incorporated provision applies to the states in the same manner that it does to the federal
government.

Substantive Due Process

Basics

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  Court in the late 19th and early 20th Centuries began to entertain cases brought by economic actors that
legislative interventions that alter the terms of economic interactions constitute a deprivation of property
without due process of law.
 Slaughterhouse neutralized substantive guarantees of individual rights via the privileges and immunities
clause. Now, the Court uses a non-procedural, substantive reading of due process to protect a body of
individual rights.
 Justifications: the Constitution provides very few substantive guarantees of individual rights against state
power.

Lochner
 In the late 19th Century, the Court in a number of cases struck down substantive due process challenges to
government economic regulation. Yet, in dicta, these cases indicated that the Court would invalidate laws
as violating due process if they interfered with natural principles of justice.

Lochner v. New York (1905):

 Lochner convicted and fined for allowing an employee to work for more than 60 hours in one week, a
violation of a NY maximum hours law.
o Arguing that the law was unconstitutional because it burdened his right of contracting with
employee, violating 14A due process.
 Court agreed. While states have authority to regulate in the public interest, they do not have the
authority to interfere with liberty and property through illegitimate ends pursued through means not
reasonably and substantially related. Reasoning:
 As often stated by the Court at that time, the freedom to contract is a basic right protected as liberty and
property rights under the due process clause of 14A.
 The state could interfere with freedom of contract only to serve a valid police purpose: to protect the public
safety, public health, or public morals.
 The judicial role was to carefully scrutinize the legislation interfering with freedom of contract to make
sure that it served a police purpose.
o Court stated that many laws that purport to be exercises of the police power are in reality meant to
redistribute wealth or to help a particular group at the expense of others, which is not a proper end.
 Here, law disturbed the freedom of Lochner to contract with his employee.
o Law not serving a police purpose, public health, because the bakers themselves not working in
unhealthy conditions, and no tie between working less hours and the public health.
 Dissent (Harlan): Statute mostly based on idea that working 60 hours is detrimental to one’s health.
o There is room for debate about how long people should be working, and there is reason to believe
that this law has some justification. Should only be overturned if it is clearly unconstitutional,
otherwise should defer to legislative judgment.
o Room for debate is enough for the legislature to show that it has adopted a rational means to a
legitimate end.
o Legislatures are better at making substantive law than judges. Can gather evidence over time, not
bound by rules of evidence, not confined to making binary choices but can canvass a range of
options, are more responsible to the people, and laws can be changed in legislatures.
 Dissent (Holmes): no particular economic theory in the Constitution. Thus, can’t strike down a law because
it is based on an economic theory that the court does not agree with, it must conflict with the Constitution.
o 14A should only protect the fundamental rights of Anglo-American tradition. Legislature should
be able to adopt the ends in other circumstances.
 Significance:
o Synonymous with judicial activism, legislating from the bench.
o Fundamental disagreement about the Court’s scope of review of the appropriateness of a
government end.

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  Holmes: legislature should decide the end because it represents the people.
 Peckham: the judiciary can engage in substantive review of law because they are bound
by the Constitution.

Lochner Era:
 Lochner Era and line of cases has been repudiated. However, from 1905-1930, the Court invalided nearly
200 regulations on substantive due process grounds, especially regulations of prices, wages, and hours.

Labor

 Addair v. United States (1908): invalidated a law prohibiting employers from requiring employees to agree
to join labor unions as a violation of 5A due process.
o “Right of a person to sell his labor upon such terms as he deems proper is the same as the right of
the purchaser of labor to prescribe the conditions. The employer and the employee have equality
of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty
of contracts.”
 Coppage v. Kansas (1915): it is outside the scope of the state police power to prohibit employment
contracts that bar workers from joining unions.
o Freedom of contract included in the right to liberty and the right to personal property. Inequalities
would inevitably result, but a state could not create a law to indirectly remedy them.

Maximum Hour

 Muller v. Oregon (1908): upheld a labor law limiting women’s hours on the ground that a “woman’s
physical structure” created a legitimate moral end in infringing on her freedom of contract. Thus, not
unnecessary, unreasonable, or arbitrary because healthy women are needed for a healthy polity and the
limit on hours reaches that legitimate goal in the name of public welfare.
 Bunting v. Oregon (1917): upheld a 10-hour workday for both men and women. Attorney Brandeis
presented substantial evidence showing a nexus between ten hour workdays and public health benefits,
demonstrating that the government had a legitimate interest in limiting work hours.
o Different than Lochner because of the substantial evidence showing nexus between working hours
and public health, a legitimate end.

Minimum Wage

 Adkins v. Children’s Hospital (1923): imposing a federal minimum wage on employers for women was an
unconstitutional infringement on the liberty to contract without due process. Different than Bunting
because women had obtained the right to vote. Thus, Court held that differences between the genders,
politically, had been eliminated and women didn’t need as much protection.

Eugenics

 Buck v. Bell (1927): court upheld a state law that required the forced sterilization of persons deemed
imbeciles. Said that such regulation within the police powers of the state because it could conclude that
person with mental disabilities were a drain on state resources and that their children were a further drain.
o VA decided public welfare served by sterilization, so constitutional.

Relegating Lochner to the Dustbin of History

Nebia v. New York (1934):

 Challenge to a NY law that set the price of milk because the cost of production was exceeding selling
prices and milk vital to health and the economy.

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  Court upheld the act reasoning that legislatures can regulate business interest. “If the laws passed
are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied.”
 No absolute right to property or to freedom of contract because can’t have government if people use these
rights to harm others.
 Government can regulate businesses for the proper reasons.
 A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare,
and to enforce that policy by legislation adapted to its purpose.
o Courts do not have the job to override such legislation.
 Legitimate end because need milk for public health but farmers will not produce it if they are not making
money. Reasonable connection to the end because increased profits should be passed to farmers (however,
data actually disputed this). Just needs to be reasonable, substantial deference.
 Dissent: higher prices won’t do much. Businesses have the right to operate according to their own standards
and purchases have the freedom to buy goods.

West Coast Hotel v. Parrish (1937):

 Upheld a minimum wage law, thereby overruling Adkins, reasoning that the legislature could reasonably
believe that a minimum wage would alleviate the problem of exploitation that results from uneven
bargaining power and alleviates the problem of tax payers having to pay for welfare for workers who didn’t
have a living wage.
o Regulation is not an impermissible redistribution, it is the restoration of the balance of power
between employer and employee.
 “The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation
of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an
absolute and uncontrollable liberty. Liberty under the Constitution is necessarily subject to the
restraints of due process, and regulation which is reasonable in relation to its subject and is adopted
in the interests of the community is due process.”

United States v. Carolene Products (1938):

 Denied a due process challenge to a law banning the interstate shipment of “filled milks.”
 “Regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional
unless in light of the fact known or generally assumed it is of such a character as to preclude the
assumption that it rests upon some rational basis within the knowledge and experience of the legislators.”
o Only needs to be a rational basis between a government’s chosen ends and the means of
achieving it, and only has to be conceivable, doesn’t need to be actual intent.
 Footnote 4: There may be a narrower scope of operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition of the constitution, such as the
first ten Amendments, which are deemed equally specific when held to be embraced with the 14 th. It
is unnecessary to consider now whether legislation which restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more
exacting judicial scrutiny under 14A than are most types of legislation, e.g., restrictions upon the
right to vote; restraints upon the dissemination of information; interferences with political
organizations; and prohibition of peaceable assembly. Nor need we enquire whether similar
considerations enter into the review of statutes directed at particular religions, or racial minorities;
where prejudice against discrete or insular minorities may be a special condition, which tends
seriously to curtail the operation of those political processes ordinarily to be relied upon to protect
such minorities, and which may call for a correspondingly more searching judicial inquiry.
o Basically, the Court generally would presume that laws are constitutional. However, this deference
would be replaced by higher scrutiny when it is a law that interferes with individual rights, or a

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 law that restricts the ability of the political process to repeal undesirable legislation, or a law that
discriminates against a discrete and insular minority.

Substantive Due Process after the New Deal

Since 1937, not one state or federal economic regulation has been found unconstitutional as infringing liberty
of contract as protected by the due process clauses of 5A and 14A. The Court has made it clear that economic
regulations – laws regulating business and employment practices – will be upheld when challenged under the
due process clause so long as they are rationally related to serve a legitimate government purpose.

 The government’s purpose can be any goal not prohibited by the Constitution. In fact, it does not need to be
proved that the asserted purpose was the legislature’s actual objective. Any conceivable purpose is
sufficient.
 The means only need to seem a reasonable way of attaining the end; it does not need to be narrowly
tailored to achieving the goal.
o The reality is that virtually any law can meet this very deferential requirement.

Williamson v. Lee Optical Co. (1955):

 Oklahoma law made it illegal for any person not a licensed optometrist or ophthalmologist to fit lenses to a
face or to duplicate or replace into frames lenses or other optical appliances, except upon written
prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist.
 There need only be some rational basis for regulating a business, even if not the express reasoning of
the legislature, in order for such regulation to be constitutional.
o “The law need not be in every respect logically consistent with its aims to be constitutional. It is
enough that there is an evil at hand for correction, and that it might be thought that the particular
legislative measure was a rational way to correct it. The day is gone when this Court uses the Due
Process Clause to strike down state laws, regulating business and industrial conditions, because
they may be unwise, improvident, or out of harmony with a particular school of thought.”
o For the legislature, not the courts, to measure the utility of a law. Can choose its own ends.
 Also, legislature does not need to move to correct the evil in one attempt. Can do so in a piecemeal fashion.
 Here, legislature might have concluded that the frequency of occasions when a prescription is necessary
was sufficient to justify this regulation of fitting eyeglasses; it could have concluded that eye exams are
important to catch problems; or it could have concluded that it had to regulate both frames and lenses
together.

Notes

 Court in Ferguson v. Skrupa (1963) upheld a law prohibiting anyone from engaging in the business of debt
adjusting except as an incident to the lawful practice of law.
o Kansas free to decide for itself that the legislation was needed to deal with the business of debt
adjusting.
o Court would not sit as a super-legislature and weight the choices of the state.

Exceptions to the Minimum Rationality Review

 Punitive damages:
o Must be some proportional relationship that takes account of reprehensibility. Where does the
Court get the authority to say that certain jury verdicts are substantively inconsistent with the outer
limits on punitive damages?
 Unlike Lochner substantive due process because the Court is not intervening to overturn
a decision of the political process that can be overturned by that same process. Only
courts may overturn it.

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  Jury supposed to make decisions based on a limited set of facts. Court intervening to limit
the presentable set of facts. Court much more competent in this regard than questioning
legislatures.
 Punitive damages vary greatly. Some idea that similar cases should have similar
outcomes.
 No comparable similarity constraint in the legislative process.
 Intervention here constrained and not interfering with the legislature.
 Not questioning every economic regulation before it.
o A somewhat modern bubble of Lochnerism.
 Carolene Products Footnote 4: the Court should adopt a higher level of scrutiny and be prepared to
intervene akin to Lochner in the following categories:
o In cases where legislation appears to be within the specific prohibition of the Constitution
(first ten amendments). These are rights identified in the Constitutional text where previous
substantive due process right (economic) were political.
o Cases where there are political shortfalls. Court has consistently relied upon an unfettered
political process as a remedy to bad legislation (rather than substantive DP strikes). So the court
must protect against laws which might curtail the very political process that would bear the
responsibility of overturning the law.
 Restrictions on right to vote, political organization, peaceful assembly.
o Statutes directed at racial, religious minorities. Strong history of prejudice against these groups
may curtail political process, leading the majority to give inadequate weight to minority interests
in the political discussion.
 Insular and discrete minorities will not be able to make alliances to temper majoritarian
overreach.

Substantive Due Process and Bodily Integrity

Court confronts a problem with its deference to legislatures, eradication of substantive due process, limited
categories for judicial intervention, and piecemeal incorporation of the Bill of Rights when it comes to vicious
government assaults on bodily integrity

Rochin v. California (1952):

 Police had tip that Rochin was selling narcotics. They went to his house and found him near some capsules.
He proceeded to swallow them. The cops then arrested him and took him to a hospital, where they had his
stomach pumped.
o Capsules contained morphine and were primary evidence levied against Rochin to convict him.
 Rational basis: legitimate government interest in stopping the sale of narcotics and
pumping Rochin’s stomach to determine if he had morphine. But Court doesn’t use this
economic due process test.
 Due process of law is a summarized constitutional guarantee of respect for those personal immunities
which are so rooted in the traditions and conscience of our people as to be ranked as fundamental, or
are implicit in the concept of ordered liberty.
 Enforcement of due process imposes upon the Court an exercise of judgment upon the whole course
of criminal proceedings in order to ascertain whether they offend those canons of decency and
fairness which the notions of justice of English-speaking peoples demand.
o Notions of common decency and fairness change with the times.
 “Due process of law requires an evaluation based on a disinterested inquiry pursued in the spirit of science,
on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims,

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 on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of
change in a progressive society.”
 Conduct here shocks the conscience. Brutal to forcibly extract the contents of a person’s stomach.
 Kreimer: Brutal assaults on the body, that so shock the consciences, even when pursued to a
legitimate end, are incompatible with those fundamental rights presupposed by the Bill of Rights and
within 14A’s “due process” protection.
o Distinguishable from Lochner because bodily integrity more fundamental than economic rights.
 For instance, expressed at numerous places in the Bill of Rights.
 Also, economic rights are the function of a prior political situation. The body is pre-
political.
 Loss of bodily integrity a greater threat to democracy. That is, the government can act in
a more authoritarian manner when it can threaten our bodily integrity.
 Concurrence (Black): violation of 5A protection against self-incrimination when evidence is forcibly taken
via modern techniques.
 Concurrence (Douglas): can’t say the methods used to obtain evidence here shock the conscience of
civilized society when many states would permit this evidence.
 Things to look to in determining whether a right is fundamental:
o What is in the constitution.
o Think about the facts of the case and those that could come in the future.
o Must look to what the people view as common decency.

Bodily Integrity Doctrinal Development

 Two poles emerge when drawing side constraints from the constitution with regard to bodily integrity:
o Jacobson v. Massachusetts (1905): in scenarios where intrusion on bodily integrity is relatively
small compared to the benefit, the court will defer to the legislature (balancing approach).
Forced small pox vaccination permissible intrusions on bodily integrity in light of the
government’s compelling interest in stopping the spread of communicable diseases.
o Rochin: where the intervention is so extreme as to violate the fundamental right of bodily
integrity, or shock the conscience, the bodily intervention is unconstitutional.
 Post- Mapp v. Ohio incorporation of 4A to the states:
o While 4A is limited textually to searches and seizures, the Court extrapolates a basic right to
bodily integrity including the right to be free from force. Government interventions are
unreasonable when they involve disproportionate physical force.
o Shmerber v. California (1966): a state may extract blood from a person suspected of drunk driving
without violating due process because the magnitude of the bodily intervention is small.
o Tennessee v. Gardner (1985): balancing the magnitude of intervention (death) with that of
government interest (arrest), a law officer may only use deadly force to prevent a fleeing suspect if
he has probable cause to believe that the suspect poses a serious threat of death. Balancing
demonstrates need for constraint against the application of disproportionate force.
o Winston v. Lee (1968): where the government wants to remove a bullet to track ballistics, the
reasonableness is a question of balancing. Bullet has truth value, but the intervention is
disproportionate to the ends.
o Riggins v. Nevada (1992): government can impose anti-pyschotic medication on detainees if it can
demonstrate a need/appropriateness, and no other, less intrusive option.
o US v. Lanier (1997): freedom from physical/sexual assault is a fundamental right the violation of
which “shocks the conscience,” construing the intervention as a violation of 14A due process and
providing the basis for federal prosecution.
o Sacramento v. Lewis (1998): police hitting a bystander rather than the intended targets. Not a
violation of due process because a mistake does not shock the conscience.
 Post- Robinson v. California incorporation of 8A to the states:

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 o Prohibition of cruel and unusual punishment not only includes judicial imposition of torture as a
penalty but requires that where the government commits individuals to its custody, that the
custodians act with minimum decency. Violations can arise from deliberate indifference or
intentional and malicious application of force be jailers to their charges.
o Estelle v. Gamble (1976): refusal of medical treatment to a prisoner constitutes cruel and unusual
punishment. Certain decencies of civilized conduct must be applicable to prisoners.
o Bell (1979): question of what to do with conditions of confinement for someone who hasn’t been
convicted of a crime. Court held that can’t treat them worse than someone convicted. Thus,
minimum decency also applies to pretrial detainees.
o Brown v. Plata (2011): California has to provide levels of decent amenities to prisoners. An
assault is not a valid penological tool.
 Abuses of legal position:
o Lenier (1972): judge using the power to extract sexual favors. Use of power shocks the
conscience.
o Lewis (1998): person hit in course of a car chase and there was collateral damage. Question of
whether this shocks the conscience.
o Chavez (2003): man shot in the face. While waiting for medical care, the police questioned him.
Question of whether this shocks the conscience.
 Thomas says not because EMTs were en route. Kennedy says yes.
 Outside of custody cases:

O’Conner v. Donaldson (1975):

 Donaldson was civilly committed. Continuously alleged that he was not a danger to himself or others, was
not mentally ill, and that the hospital was not treating him. Alleging that he was being denied his
constitutional right to liberty.
o No evidence of Donaldson ever being a threat to himself or others.
o His confinement was custodial care, not treatment of his illness.
 A state cannot constitutionally confine, without more, a nondangerous individual who is capable of
surviving safely in freedom by himself or with the help of willing and responsible family members
and friends.
o “Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s
physical liberty.”
 Hamdi v. Rumsfeld (2004): since animosity cannot justify the deprivation of liberty,
association with Al Qaeda, without more, cannot be a basis for incarceration.
 Youngsberg v. Romeo (1982): Court held that an involuntarily-committed mentally retarded man had
constitutionally protected liberty interests in safety and in freedom of movement, as well as to minimally
adequate or reasonable training to ensure safety and freedom from undue restraint.
 However, in Kansas v. Hendricks, the Court sustained against a substantive due process challenge a statute
that provided for involuntary civil commitment, upon release from prison, of any person who had been
convicted of a sexually violent offense, reasoning that “an individual’s constitutionally protected interest in
avoiding physical restraint may be overridden by civil commitment statutes when they have couple proof of
dangerousness with the proof of some additional factor, such as mental illness or mental abnormality.”

Bodily Integrity and Medical Treatment

Cruzan v. Director, Missouri Department of Health (1990):

 Girl was in a vegetative state and was not going to recover, so her parents decided to discontinue her tubal
feeding.

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  A competent person has a right to decline medical treatment. However, when the person is
incompetent, states have the constitutional right to places safeguards on the exercise of this right by
surrogates.
 Missouri could require clear and convincing evidence that an incompetent person would want to
discontinue treatment before this action is pursued because of substantial state interests.
o Interest in protecting and preserving human life.
o Meant to guard against potential abuses.
 Concurrence (O’Connor): person has a protected liberty interest in refusing unwanted medical treatment.
 Concurrence (Scalia): federal courts should not be playing a role in these cases. States have the power to
prevent any form of suicide if they so desire.
 Dissent (Brennan): person has a liberty interest to be free of unwanted medical treatment. The state interest
is preservation of life, but it cannot be abstracted from the interest of the person living that life and it cannot
outweigh her choice to avoid medical treatment.

Washington v. Glucksberg (1997):

 WA had a law allowing doctors to remove life support from terminally ill patients with consent, and a law
essentially prohibiting assisted-suicide. 9th Cir. held that the assisted-suicide law was unconstitutional sine
the “Constitution encompasses a due process liberty interest in controlling the time and manner of one’s
death.”
 Two part approach to noneconomic substantive due process cases:
o Due process clause specially protects those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and tradition (so rooted in traditions and
conscience of the people as to be ranked as fundamental), and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.
o Substantive due process cases require a careful description of the asserted fundamental
liberty interests.
 Nation’s history, legal traditions, and practices thus provide the crucial guideposts
for responsible decisionmaking that direct and restrain exposition of the due process
clause.
 Different levels of scrutiny:
o If a right is fundamental, then there needs to be strong state interest narrowly tailored.
o If not, just needs to be rational basis.
 Law prohibiting assisted-suicide was constitutional.
 Most states have laws prohibiting suicide because Western thought has long condemned suicide.
o True even with changes in modern attitudes about dignity at the end of life.
o To allow suicide (and assisted suicide) would strike down centuries of traditions and the policy
choice of almost every state.
 Difference between refusing medical treatment when terminally ill and using a means to bring about a
faster death. Refusing treatment consistent with common law idea that forced medication a battery, whereas
no common law right to suicide.
 WA has legitimate interests in banning such a right:
o Interest in promoting and preserving life, which preventing suicide does.
o Protects the interests and ethics of the medical profession, which believes that assisted suicide is
inconsistent with a physician’s role as a healer.
o State has an interest in protecting vulnerable (those near end of life).
o Wants to protect against going down a slippery slope which could lead to involuntary euthanasia.
 Concurrence (O’Connor): no right to commit suicide, and states allow these people medication to ease their
pain. Thus, state interests in protecting those who are not truly competent or those not exercising voluntary
choice from choosing death outweigh competing concerns.

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 o Interest to refuse medical care more than just a common law interest, something more profound.
Also a dignity interest.
o “Avoiding intolerable pain and the indignity of living one’s final days incapacitated and in agony
is certainly at the heart of the liberty… to define one’s own concept of existence, or meaning, of
the universe, and of the mystery of human life.”
 Concurrence (Souter): citizens have a protection from the arbitrary restraint of their liberty. That is,
legislation restraining liberty needs to be for some legitimate purpose that outweighs the liberty interest.
o Two constraints on the Court when engaged in substantive due process review:
 A court is bound to confine the values that it recognizes to those truly deserving
constitutional stature, either to those expressed in the constitutional text or those
exemplified by the traditions from which the nation developed or revealed by contrast
with traditions from which it broke.
 Only when the legislation’s justifying principle is so far from being commensurate with
the individual interest as to be arbitrarily or pointlessly applied that the statute must give
way.
o No need to consider whether there is a fundamental right because state’s interests sufficiently
serious here. Worried about the slippery slope of physicians obscuring the line between the ill and
the dying and between responsible and unduly influenced because of their desire to aid their
patients to end their suffering.
 Concurrence (Breyer): is a right to control over a person’s manner of death, professional medical
assistance, and the avoidance of unnecessary and severe physical suffering.
o Not time to consider if the right to die fundamental because such a claim would require a showing
of unavoidable, extreme physical pain. Not the case here as people could purchase pain-killers.

Notes

 In Vacco v. Quill, the Court held that equal protection was not violated when a NY law prohibited assisted-
suicide, but permitted refusal of medical treatment.
o Clause requires states to treat like cases alike. However, a widely recognized difference between
someone refusing medical treatment and a physician aiding someone to end his own life.
 When a patient refuses medical care, he dies from an underlying illness. When he
chooses suicide, he is killed by prescribed medication.
 The intent of stopping treatment is to accede to a patient’s wishes and no longer
continues useless and futile or degrading things to the patient when they receive no
benefit. The intent of assisted-suicide is death.

Substantive Due Process–Noneconomic, fundamental rights

Three Tests:

1. “Shock the conscience”: substantive due process forbids laws that shock the conscience in their violation
of rights we value deeply.
a. Provided a distinction between economic regulations and interventions to bodily harm.
b. 4th Amendment: U.S. v. Lanier, Sacramento v. Lewis, Rochin
c. 8th Amendment: Bell v. Wolfish; Estelle v. Gamble
2. Balancing: balance the state interest against the magnitude of the right infringed to discern due process
a. 4th Amendment: Winston v. Lee
b. 8th Amendment: Youngsberg v. Romeo
3. Levels of scrutiny approach: rights deemed fundamental, rooted in the Constitution, history, or traditions,
are an aspect of the “liberty” protected in the due process clause.
a. (1) Is there a fundamental right?
i. Carolene Footnote 4: Judiciary will defer to the legislature unless there is discrimination
against (1) “discrete and insular” minority; (2) political process; (3) infringement of a
fundamental right.

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 ii. Originalists: fundamental rights are limited to those liberties explicitly stated in the text
or clearly intended by the framers.
iii. Holmes: Fundamental rights include those liberties that are deeply rooted in this Nation’s
history and tradition.
iv. Lochner, Chase: Natural law principles should decide what rights to protect as
fundamental.
b. (2) Is the right infringed?
c. (3) Is the government’s action justified by a sufficient purpose?
i. If fundamental, the government must present a compelling interest to justify an
infringement.
ii. If not fundamental, only a legitimate purpose is required for the law to be sustained.
d. (4) Are the means sufficiently related to the goal sought
i. For strict scrutiny, the law must be necessary to achieve the objective; that it cannot be
attained through any means less restrictive of the right.
ii. For rational basis, the means only has to be a reasonable way to achieve the goal.
Summary
 Arbitrary infringement of person or property never chill.
 Baseline is that there must be a rational basis between infringement and some government ends.
o No specific set of ends and Court doesn’t question if the end is achieved.
o But must be some rational connection.
 More stringent requirements for violating bodily integrity (reaching into body) or physical autonomy
(freedom to move).
 4A protects against unreasonable searches and seizures. So arrests, use of force to arrest, and searches must
be reasonable.
o Court uses proportionality test. Is the degree of intrusion proportional to achievement of some
government end?
 8A protects against cruel and unusual punishment. What this means changes with times and is based on
common conceptions of civil decency.
 Court also looks at assaults by government officials to see if they shock the conscience, taking into account
legal traditions and contemporary practices.
 When government deprives someone of physical liberty, must be due to something more compelling than
animosity.
 Conditions can’t be worse for someone in government custody, than those incarcerated for criminal
purposes.

Second Amendment
A well regulated militia being necessary to the security of a free state, the right of the
people to keep and bear arms shall not be infringed.
 As codified in the Bill of Rights, some form of gun ownership is, according to Footnote 4 in Carolene
Products, undeniably fundamental. The question has been one of interpretation:
o What fundamental right does the Second Amendment protect?
 An individual right to possess firearms or the collective right to possess firearms for
purposes of service in the militia?

District of Columbia v. Heller (2008):

 2A prohibits the federal government from infringing upon an individual citizen’s right to keep and
bear arms which are employed by a large portion of American society for a lawful purpose.

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 Textual arguments:
o Militia clause just prefatory, right to keep and bear arms is the operative clause.
o “Right of the people” also used in 1A and 4A, and understood to refer to individual rights, not
collective rights or rights that may be exercised only through participation in some body.
o Arm in 1793 meant weapons of offense, so no tie to military use.
o In numerous instance in the 18th century, to “bear arms” meant to carry weapons outside of an
organized militia.
 Understanding at the framing:
o Right to have arms was a fundamental right of English subjects.
o 2A meant to prevent the government from taking the people’s arms, which were meant to act as a
check on tyrannical government.
o States at the time adopted highly similar protections, and many emphasized that the purpose of
such protections was for self-defense. This shows that the founding generation conceived of the
right to bear arms as one of self-defense.
o Three important legal scholars in post-ratification commentary understood 2A to protect the right
of the people to possess firearms.
o 19th century case law indicates that 2A referred to an individual right unconnected to the militia: “a
citizen has a right to carry arms in defense of his property or person, and to use them, if either
were assailed with such force, numbers or violence as made it necessary for the protection or
safety of either.”
 Reconstruction Era:
o A number of people spoke about the restrictions on blacks carrying arms. Clearly not tied to them
carrying arms in a militia.
o SCOTUS in Cruikshank focused on 2A as if it was a protected individual right and not restricted
to militia service.
 Scalia construed Miller to mean that individuals have the right to keep and bear arms as long as those arms
have “some reasonable relationship to the preservation or efficiency of a well-regulated militia.”
 Scalia’s meaning of 2A:
o Not an unlimited right. There can still be restrictions on things such as carrying a concealed
weapon or on the ability of convicts to possess weapons.
o 2A about keeping arms for self-defense. The statute here bans handguns, an arm overwhelming
chosen by Americans for that lawful purpose, from being kept in the home. It is thus
unconstitutional.
 Dissent (Stevens): 2A about allowing citizens to keep arms so that they could form a militia and be
protected against a standing army of the government. Nothing from the Framers indicates that they
sought to limit the legislature’s authority to regulate private civilian use of firearms nor to enshrine
the common-law right of self-defense.
o Miller faithfully interpreted 2A to read that citizens can bear arms for certain military purposes,
but it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of the
weapons.
o Militia clause indicates that:
 The preservation of the militia was the purpose of 2A.
 That a militia is necessary to the security of a free state.
 And that a militia must be well regulated.
 Fits with state declarations at the time that enshrined the framers’ fears of
standing armies and their preference for militias.
 This preamble sets forth the object of the 2A and the meaning of the remainder
of the text.

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 o “Bear arms” means to “serve as a soldier, do military service, fight.” If the phrase was meant to
encompass civilian possession and use, the Framers could have used similar wording to state
constitutions that stated that civilians could keep arms for self-defense.
 Also, “keep” used to refer to the practice that militia members would store arms in their
homes for use in their militia service.
o Madison chose between two different formulations of 2A. One emphasized the right to keep arms
in order to keep the federal government from arming the militia. The other was more inclusive and
pertained to the right of citizens to possess weapons generally. Madison chose the former showing
that the framers did not mean 2A to be an individual right.
o Contrary to the majority’s assertion, the English Bill of Rights did not have an all-inclusive
protection of the right of the people to possess arms. The right was restricted to protestants of
adequate social and economic status, and it was only available subject to the regulation of
Parliament.
o “Unit today, it has been understood that legislatures may regulate the civilian use and misuse of
firearms so long as they do not interfere with the preservation of a well-regulated militia. The
Court’s announcement of a new constitutional right to own and use firearms for private purposes
upsets that settle understanding, but leaves for future cases the formidable task of defining the
scope of permissible regulations.”
 Dissent (Breyer):
o Laws at the time demonstrate what contemporaries felt were appropriate regulations on the
right to keep and bear arms. Many included regulation in urban areas, including regulations
that imposed obstacles to the use of firearms for the protection of the home.
 Many laws would have been problematic if the right to keep and bear arms pertained to
self-defense as they made it impractical to have arms for self-defense.
o Important interest on both sides of the constitutional equation. Thus, the Court should neither
presume laws to be constitutional or unconstitutional. Court should ask whether the statute
burdens a protected interest in a way or to an extent that is out of proportion to the statute’s
salutary effects upon other important governmental interests.
 Such examination would take account of the statute’s effect on the competing interests
and the existence of any clearly superior less restrictive alternative.
o Court has little experience with gun cases, so it should defer to the legislature.
 Substantial evidence of the links between handguns and crime. Don’t seem to be as
protective as the legislature makes them out to be. Law sought to address the problems
that arise from gun-related violence, of which handguns are a significant contributor.
 Also evidence that guns are useful in preventing crime.
 Legislature, not the Court, should be weighing this evidence.
o Slippery slope with the Court’s focus on the constitutionality of Americans keeping weapons
popular for self-defense in their homes. What if machines guns or a highly dangerous self-defense
weapon became popular before it could be banned?

Ideologically Strange Case

 Scalia, an originalist, could find the strongest evidence not at the time of the framing (which supports the
collective right), but as part of the evolving understanding of the polity and states. If he was to pick up the
living constitution, he could happily invoke the evolving understanding to include individual rights. But as
an originalist he is stuck manipulating adverse evidence.
 Stevens, believing in a living constitution, has to deal with the eradication of the collective right and the
evolving belief that there is an individual right.

Lingering Questions

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  Assuming that there is an individual fundamental right to keep and bear arms, what level of regulation is
allowed? What is the level of scrutiny?
o Scalia admits that there is a problem with gun violence in the US and that some regulation must be
allowed. However, he doesn’t establish a test. He only says that an outright ban from the home
would fail constitutional muster.
o He also admits that like most rights, the right secured by 2A is not unlimited. We can still limit
more “dangerous” guns or “concealed” weapons in sensitive places.
 However, there is no explanation for the varying degrees of permissible regulation.
 Which arms are protected?
o Those arms typically possessed by law-abiding citizens for contemporary purposes are protected
as a fundamental individual right.
o Sawed-off shotgun not permissible, but handguns are the quintessential weapons for modern self-
defense in the home.
o Kreimer: why use the contemporary understanding of proper weapons when the analysis relies on
an originalist understanding?
o Also, if the standard is the degree to which people possess weapon, then, if the government cannot
restrict use, suddenly a sawed-off shotgun becomes common use (infinite regress).
 What we know for sure: can’t ban the use of handguns in the home for any reason.
 In applying Heller, lower courts have diverged:
o Some have employed a proportionality test asking if the infringement of self-defense is justified
by the state interest.
o Others have tried to engage in a comparison between the regulation in question and regulation at
another period in time (either the framing or ratification of 14A).

McDonald v. City of Chicago (2010):

 Does 2A’s protection of the individual right to possess firearms apply to the states?
 2A is applicable to the states via the due process clause of 14A.
 Slaughter-house made clear that he privileges and immunities clause of 14A only protects those rights
“which owe their existence to the Federal government, its National character, its Constitution, or its laws.”
Other fundamental rights that predated the creation of the Federal Government and that the “State
governments were created to establish and secure” were not protected.
o Court declined to revisit this holding. However, Thomas seems to want to revisit it.
 Different formulations for describing the rights protected by due process:
o Immutable principles of justice which inhere in the very idea of free government and which no
member of the Union may disregard.
o Rights so rooted in the traditions and conscience of our people as to be ranked as fundamental.
o Those rights that are the essence of a scheme of ordered liberty and essential to a fair and
enlightened system of justice.
 Heller declared an individual right to keep and bear arms which the federal government could not infringe.
Question of whether this right also applies to the states. Court says yes, a right deeply rooted in the
Nation’s history and tradition.
 Congress when debating 14A made reference to the right to keep and bear arms as a fundamental right
deserving of protection. Also, many state constitutions had provisions protecting the right to keep and bear
arms, and some referenced this right as necessary for self-defense.
o Thus, framer and ratifiers of 14A felt that the right to keep and bear arms was among those rights
fundamental to our system of ordered liberty.
 Dissent (Stevens):
o Substantive due process is fundamentally a matter of personal autonomy. Court must ask whether
the interest is “comprised within the term liberty.”
 Court has never fully incorporated the Bill of Rights.

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  Court is to ask whether the allegedly unlawful practice violates values “implicit in the
concept of ordered liberty.”
 Textual commitments laid down elsewhere in the constitution, judicial
precedents, English common law, legislative and social facts, scientific and
professional developments, practices of other civilized societies, and above all
else, the “traditions and conscience of our people” are critical variables.
 Supposed to look at liberty, not history.
o There is a logical gap between saying that 14A protects a basic individual right of self-defense to a
conclusion that a city may not ban handguns. May be better means of achieving this purpose.
o Guns have long been recognized to be dangerous to the social order. Thus, restriction on their
usage imposes an acceptable burden on one’s personal liberty.
o Many means of self-defense. Thus, the ability to own a handgun does not appear to be critical to
leading a life of autonomy, dignity, or political equality.
o Also, other civilized countries impose far more stringent restrictions on the possession of firearms,
undermining the argument that this right is intrinsic to ordered liberty.
o The interest of Americans in firearm possession is “deeply rooted,” but it is also true that the
States have long regulated firearm possession. Not surprising since the ability to respond to social
ills associated with dangerous weapons goes to the very core of the State’s police powers.
 Many different social conditions. Hence, the Court should not create such a broad right
and should let localities experiment.
 Dissent (Breyer): Nothing about 2A suggests that keeping and bearing arms for private self-defense
purposes is a fundamental right.
o Historians largely agree that Blackstone’s description of the right of the people to keep and bear
arms for self-defense meant, at the time, for the purposes of taking part in the militia to defend
their political liberties. Thus, if the majority wants to focus on history, it seems that 2A only
protects the right to keep and bear arms for militia purposes.
o In cases like this where history is unclear, the Court needs to look at other factors in considering
whether a right is sufficiently “fundamental” to remove it from the political process of ever state.
Factors to consider:
 Nature of the right.
 Any contemporary disagreement about whether the right is fundamental.
 The extent to which incorporation will further other, perhaps more basic, constitutional
aims.
 The extent to which incorporation will advance or hinder the Constitution’s structural
aims, including its division of powers among different governmental institutions.
o 2A’s militia-related purpose is primarily to protect states from federal regulation, not to protect
individuals from militia-related regulation. Difficult to see how a right that has largely faded as a
popular concern would warrant incorporation.
o Also, no right to armed self-defense in the constitution and it is debated what the appropriate level
of such regulation should be.
o Incorporation of 2A does not appear to further any broader constitutional objective.
o Incorporation will work a significant disruption in the constitutional allocation of decision-making
authority:
 Recognizing and individual’s right to keep and bear arms would be a significant
incursion on a traditional and important area of state concern.
 Legislatures are better at deciding the constitutionality of a certain gun regulation because
need empirical information that they can better access.
 Major debated about the efficacy of firearm regulation, and it is better left to
legislatures to address this debate.

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 Equal Protection Overview
No State shall “deny any person within its jurisdiction the equal protection of the laws.”
Pre-Warren Court: single-tiered Warren Court: two-tiered Burger/Rehnquist Court:
rationality–rational relation to a approach–rational basis review
legitimate state objective. (light scrutiny, statute usually
upheld) OR strict scrutiny
(generally invalidated).
Rational Basis Review: generally applies to statutes that draw distinctions along economic/social lines.
Consistent with post-Lochner deference to legislature when reviewing economic legislation.
 Applies to all classifications that are not based on “suspect” classifications (race, national origin,
alienage), and do not impair a fundamental right.
o Socioeconomic, age, disability, and sexual orientation
 Classification/distinction along these lines in law will be upheld so long as the government comes
forward with proof that it bears a rational relation to a legitimate government objective.
 Broad reading of legitimate purposes (even administrative convenience) and classified means upheld
even with post-hoc rationalizations.
Intermediate Level Scrutiny: used for “quasi-suspect” classifications like gender.
 Statute drawn on the basis of gender will only be upheld if the means chosen are substantially related
to an important governmental objective.
 Need exceedingly persuasive justification.

Strict Scrutiny: Applies to any statute that draws distinctions based on a “suspect classification” including race,
national origin, or alienage.
 Classification upheld only if it is necessary to achieve a compelling state interest (“strict in theory, fatal
in fact.”)
 Applicable to suspect classes:
o 14th amendment marks race as an inherently “suspect classification”
o Some classifications have been added to a “suspect class” warranting strict scrutiny
o Class subjected to such history of purposefully unequal treatment or political powerlessness that
it commands extraordinary protection from the majority. Fear of re-subjugation/shadow
population.
o Carolene Footnote 4: “discrete and insular minority.”
o Immutable characteristics.
o Alienage, national origin added.
 Applicable to statutes impacting “fundamental rights” including right to vote, right to access courts,
right to interstate travel.
o Carolene F4.
o No fundamental right to necessities of life – food, shelter, and medical care can be distributed
unevenly without being subject to strict scrutiny.

Why the Normative Desire to Protect Equality?

 Want to treat similar cases in a similar fashion.

 Consistent with the idea that all persons are created equal and ought to be treated by the government
equally.
o Notions of inferiority are at odds with equal protection.
o Suggests that the government should be impartial; all person’s interests should be treated equally.

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  Philosophically, want people to act in a fashion that could be willed into universal law to establish a form
of fair governance.
 When intervention falls on a large share of the populous, then there are more people to oppose an activity.
o Generalizability a guard against arbitrary action.
o With intervention against a small group, we don’t get the same protection.

Federal v. State Challenges

i. Since Brown, Court has relied on the EPC as a key provision for combating invidious
discrimination odious to a free society and for safeguarding fundamental rights.
ii. State inquiry:
1. Located in the 14th amendment, EPC allows judicial review of laws that make
distinctions on the basis of characteristics.
iii. Federal inquiry:
1. No provision in the Constitution that says the federal government cannot deny the
equal protection of the laws.
2. Bolling v. Sharpe, equal protection applies to the federal government through the due
process clause of the 5th amendment.
iv. It is now well settled that the requirements of equal protection are the same whether the
challenge is to the federal government under the 5th amendment or to the state and local
actions under the 14th amendment.
b. Basic framework:
i. Is the government’s classification justified by a sufficient purpose?
1. Many government laws draw distinctions among people, giving rise to allegations of
violations of equal protection.
2. What constitutes sufficient justifications turns entirely on the type of discrimination.
ii. (1) What is the classification?
1. Classification exists on the face of the law, that is the law draws a distinction on the
basis of a particular characteristics.
2. Facially neutral, but there is a discriminatory impact or effect.
iii. (2) What is the appropriate level of scrutiny?
1. Strict scrutiny for discrimination based on race, national origin, or alienage.
2. Intermediate scrutiny for gender, nonmarital children.
3. Rational basis review for everything else. Burden is on challenger.
4. How to decide level?
a. Immutable characteristics warrant heightened scrutiny.
b. Ability of group to protect itself through political process.
c. History of discrimination.
d. Concern that the likelihood that classification reflects prejudice. Race
is virtually never an acceptable justification so thumb on scale of not
allowed while biological differences between men and women mean
that there are more likely to be instances where sex is a justifiable basis
for discrimination.
iv. (3) Does government action meet the level of scrutiny?
1. Supreme Court often focuses on the degree to which a law is underinclusive or over
inclusive.
2. A law is underinclusive if it does not apply to individuals who are similar to those to
whom the law applies.
3. Over inclusive if it applies to those who need not be included in order for the
government to achieve its purpose.
c. Principal Cases and Standards:
i. Slaughterhouse Cases (1872): the history of the 14th amendment discloses a clear purpose
and is exhausted by racial discrimination.
1. Only state laws within the purview of the EPC are those that discriminate against
African Americans.

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 2. 14th amendment, and equal protection clause, cannot be read apart from its highly
particularized context.
3. “In light of the amendments, we doubt that any discrimination not against Negroes
would come within the Equal Protection Clause.”
ii. Reasons to believe the 14th EPC extend?
1. Concurrent language: written in general terms, unlike the 15th which is expressly
targeted at slavery.
iii. What is the virtue of equal protection?
1. To deny arbitrary actions and distinctions among groups.
2. To deny distinctions that treat one group as less valuable than another.
3. To allow some distinctions that are justifiable to achieve a legitimate end;
differentiation made on the basis of relevant criteria.
4. To make sure that similarly situated individuals are treated in a similar fashion.
iv. Evolution of standards:
1. REA/Fritz: “rational basis” review – legitimate state end advanced by rationally
related means.
a. Post-hoc rationalization permitted
b. Initial justifications permitted
c. Low bar; challenges almost never succeed and burden is on the challenger.
d. 16 to have a license; rationally related to a legitimate state end.
2. Korematsu/Bolling: “strict scrutiny” – compelling state end advanced by a narrowly
tailored policy.
a. Strict in theory, fatal in fact; often will fall since the government will not be
able to satisfy its burden.
b. Why “suspect”
i. Not a chosen characteristic, immutable.
ii. Irrelevant to the moral worth of an individual.
iii. Discrete, insular minority lacking political clout to overcome
discrimination.
iv. Visible component of race is widely burdened by stereotypes;
classifications solidify those.
v. Feeds feelings of inferiority between the races (“when the gov’t
take off its color-blind glasses, so do its people”).
vi. Concern that classifications based on race are presumptively based
on a political distaste for a group; grounded in “animus.”
c. Facially neutral?
i. These are bad because they may reflect racial hostility, selective
affirmative indifference, and subtle work-around of equal
protection.
ii. Discriminatory impact is insufficient to prove a racial or gender
classification. If law is facially neutral, demonstrating a race or
gender classification requires proof that there is a discriminatory
purpose behind the law. (Arlington Heights, Washington v.
Davis, Hunter v. Underwood).
d. Strict scrutiny also applies to…
i. Alienage (Graham)
ii. Denial/infringement on fundamental rights (Skinner).
3. U.S. v. Virginia: “intermediate scrutiny”–substantial connection to an important
state end.
a. No post-hoc rationalizations.
b. No administrative efficiency justifications.
c. Why not strict?
i. Original intent of EPC:
1. Civil war fought for the freedom of African Americans,
not for women’s equality (Slaughterhouse reading).

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 2. Scalia: sex-based distinctions were not present in the 14th
amendment textually nor important to the framers.
a. Undercut by fact that 5th amendment doesn’t
have an EPC and he regards that it does.
b. He doesn’t have a problem applying strict
scrutiny to race in all cases, even when
protecting white people was not the original
intent of the EPC.
ii. Women are less discrete and insular (legislators have contact with
women); not a minority deprived of political clout.
iii. There are real differences; biological differences leave room for
justified distinctions in law. To the extent that impermissible
discrimination is to treat similarly situated individuals in a
dissimilar manner, women aren’t always similarly situated.
1. Separate men’s rooms.
2. Social differences do not ascribe a “badge of inferiority.”

Equal Protection and Rational Basis Review

Overview
 All government actions challenged under the equal protection clause must satisfy the rational basis test.
The baseline test.
 Requirements: rational relation between a classification and a legitimate government purpose.
o The government has a legitimate purpose if it advances a traditional police purpose: protecting
safety, public health, or public morals.
 Virtually any goal not conflicting with the constitution can be considered to be a
legitimate end.
 Court defers to the legislature. Will accept any conceivable, legitimate purpose even if
that was not what motivated the regulation.
 “A classification neither involving fundamental rights nor proceeding along suspect lines is accorded a
strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if
there is a rational relationship between the disparity of treatment and some legitimate governmental
purpose. Further, a legislature that creates these categories need not actually articulate at any time the
purpose or rationale supporting its classification. Instead, a classification must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis
for classification. A State, moreover, has no obligation to produce evidence to sustain the rationality of a
statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on
rational speculation unsupported by evidence or empirical data. A statute is presumed constitutional, and
the burden is on the one attacking the legislative arrangement to negative every conceivable basis which
might support it, whether or not the basis has foundation in the record.”

REA v. New York (1949):

 A NY law prohibited advertising on trucks unless you own the truck and advertise your own product.
Challenged as a violation of equal protection.
o Purpose of the regulation was to decrease the number of ads that could distract drivers.
o Challenge based on the argument that the distinction did not solve the problem because you could
have the same ad on two trucks, one on a truck that sells the product and one that doesn’t, and they
would have the same effect but the one on the truck not selling the product would be illegal.

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  For a regulation to be constitutional, there must be some rational relationship between a legitimate
state interest and a classification that treats like groups differently.
o Government has a legitimate purpose if it advances a traditional police purpose: protecting
safety, public health, and public morals.
 The end of reducing traffic hazards is legitimate.
 The ends are rationally related because NY may have concluded that those who advertise their own wares
on their trucks do not present the same traffic problems as those advertising other wares in view of the
extent or nature of the advertising that they use. Not for the court to question this rationale.
 Concurrence: the burden of due process should be heavy because it strikes down entire regulatory regimes
and leaves ungoverned that which people find objectionable. In contrast, use of the equal protection clause
does not disable a governmental body from dealing with the issue at hand. Rather, it means that the
regulation must have a broader impact.
o Should be more than rational basis for equal protection. “The equal protection clause ceases to
assure either equality or protection if it is avoided by any conceivable difference that can be
pointed out between those bound and those left free. This Court has often announced the principle
that differentiation must have an appropriate relation to the object of the legislation.”
o Need to protect minority groups because they lack the power to be able to throw the majority out
of office.

Notes

 REA typical of the deference that the Court gave to legislatures against equal protection claims starting in
the 1940s.
 Court in Lee Optical upheld a law against an equal protection claim, stating “Evils in the same field may
be of different dimensions and proportions requiring different remedies. Or so the legislature may
think. Or the reform may take on step at a time, addressing itself to the phase of the problem which
seems most acute to the legislative mind. The legislature may select one phase of one field and apply a
remedy there, neglecting others. The prohibition of equal protection goes no further than invidious
discrimination.”
o Basically, no guarantee that all classes will be treated equally if some rational reason related to a
legitimate state interest to treat them differently.
 In Morey v. Doud (1957), the Court held that an Illinois law specifically exempting one company from
regulation violated the equal protection clause by creating a closed class whose economic advantage bore
no reasonable relation to the purposes of the law.
 However, the Court in New Orleans v. Duke overruled Morey as an aberration and returned to a highly
deferential stance toward economic preferences.

Exceptions for Classifications based on “Animus”

 Court in US Dept. of Ag. v. Moreno (1973) departed from this deferential treatment by striking down a
portion of the Food Stamp Act that only allowed food stamps to go to households of related individuals.
o Purpose of the law was to raise nutritional levels among low-income households to increase
consumption of food so as to strengthen the ag. economy. Brennan found that the exclusion of
“unrelated persons” was clearly irrelevant to these purposes and thus without rational basis.
o Ends of a law cannot be to discriminate against one group, e.g. hippies. That is, a raw desire to
harm a politically unpopular group is a violation of equal protection. There is no rational
relation to a legitimate end.
 Court in New York Transit Auth. v. Beazer (1979) upheld the exclusion of all methadone users from
Transit Authority employment. The Court reasoned that the exclusionary policy was supported by the
legitimate inference that as long as a treatment program (or other drug use) continued, a degree of
uncertainty persisted as to whether the worker would be using drugs while working.
o Dissent said clear animus; meant to discriminate against former drug users.

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  Thus, rationality review, but discriminatory animus not a legitimate end.

Rationality Review with Bite

 Can be cases where there the Court fails to find a rational connection between a classification and a
legitimate end because of unimaginative lawyers or arbitrary government action.
 The case of Allegheny Pittsburgh Coal v. Webster County (1989) one of the few cases where the Court
could find no real connection between a statute and its purposes, even under rational-basis review.
o WV assessed property taxes proportionately to the property’s value. However, assessor valued
Allegheny Pittsburgh’s property tax on the basis of its recent purchase price, whereas others were
based on previous assessments. Thus, AP paying a much higher rate.
o Court said that the system violated equal protection because it undervalued other similarly-situated
properties.
 However, in Nordlinger v. Hahn (1992), the Court upheld a law that assess property tax rates based on the
price of the property at the time of acquisition. The Court distinguished Allegheny by concluding that the
unequal assessment could not plausibly achieve the benefits of an acquisition-value tax scheme, whereas
the Cali law in question did.

Discrimination against a Party of One

 Court in Village of Willowbrook v. Olech (2000), considered an equal protection claim that arose when a
city placed more onerous restrictions on Olech in connecting to a water supply. Olech alleged this was
because of animosity with the city, but the Court didn’t focus on this.
o Can have discrimination against only one person. “The purpose of the equal protection clause
of 14A is to secure every person within the State’s jurisdiction against intentional an arbitrary
discrimination, whether occasioned by express terms of a statute or by its improper execution
through duly constructed agents.”
o Requiring Olech to do more to connect to water supply than other residents a sufficient claim for
relief under 14A.
 However, class of one not available in employment situations. Engust (2008). Reasoning: need to make
individual employment decisions that could lead to discrimination against that person.
 Deferential standard of economic legislation under the equal protection clause: rational relationship
between means and ends, unless a sufficient showing that solely meant to discriminate against a
particular class.

U.S. Railroad Retirement Bd. v. Fritz (1980):

 Gov. needed to stop providing duel benefits to people who had worked both in and out of the railroad
industry. Thus, began changing the rules. Rule change denied benefits to qualified workers who were still
working, but not within the industry, while still giving them to those working within the industry.
 If there is a rational relationship between means and ends, then economic legislation that treats
different classes of persons differently does not violate equal protection, even if the proffered reason
may not have been the explicit reason for the legislation.
o Basically, almost anything a conceivable legitimate purpose unless it is entirely arbitrary or it
seeks to simply discriminate against an unfavorable class.
o Political processes chooses ends and purposes. Similar to baseline substantive due process.
 Equal protection applies to the federal government through 5A due process. Same analysis though.
 Here, Congress sought to phase out windfall benefits, a legitimate end to preserve the railroad retirement
system. It could properly conclude that those who had qualified for dual benefits while still employed
within the railroad industry had a greater equitable claim to those benefits than those who had qualified but
were no longer in the industry.
o Plausible reason for Congress’s actions, so inquiry is at an end.

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  Concurrence (Stevens): wants something more than a conceivable or a plausible explanation for the
unequal treatment. Should require a correlation between the classification and either the actual purpose of
the statute or a legitimate purpose that may reasonably be presumed to have motivated an impartial
legislature.
o If an adverse impact on a disfavored class is an apparent aim of the legislature, its impartiality
would be suspect.
o If, however, the adverse impact may reasonably be viewed as an acceptable cost of achieving a
larger goal, an impartial lawmaker could rationally decide that the cost should be incurred.
 Dissent (Brennan): must first ask the purposes the statute and then whether the classification is rationally
related to the achievement of those purposes.
o Here, the Act was meant to allow those who had already earned benefits to keep them. However,
the classification undermined this purpose.
o Three main errors:
 Court looked only at the plain language. However, only says what the classification is,
not what the purpose is that it is meant to serve or whether it is serving that purpose.
 A challenged classification should only be maintained if rationally related to the
achievement of an actual legitimate government purpose.
 Court did not analyze whether the challenged classification was genuinely relate to the
purpose identified by the Court.
 Kreimer: problems with this approach include that many different goals of laws
and hard to discern.

Notes

 Three theories offer potential bases for greater scrutiny within the framework of rationality standards:
o Heightened judicial concern for all minorities who have an inadequate say in the governmental
process whether or not the classification disadvantaging them is suspect.
o Second argues that it is impermissible to award opportunities to one group rather than another
simply on the basis of “naked preferences,” so that legislation must be justified by public values
rather than merely as compromises among private interests.
o Third, the Court should engage in more serious, less deferential review in order to discipline
legislatures and assure that the legislative means genuinely promote articulated government
purposes.
 Differences from substantive due process:
o SDP requires some deprivation of life, liberty, or property. EP applies to any differential treatment
between persons by the law.
o Question in EP is whether the distinction furthers a public purpose. SDP asks whether the program
as a whole furthers a public purpose.
o EP allows the government to regulate even after a regulation is struck down as unconstitutional if
it expands the scope of its regulation. If a violation of SDP, the government can’t regulate in this
area.

Alternative Approaches to the Rational Basis

 Need to show that the legislature actually chose the classification to further certain ends, not simply that it
COULD. A rejection of post hoc justifications.
o Problem is that the legislative process is about compromise. Usually many different goals.
Therefore, there would be lots of court interventions as difficult to show actual ends.

Equal Protection and Race

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Preview
 Racial classifications today must meet strict scrutiny. That is, they will be allowed only if the government
can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling
government purpose.
o The government must present an extremely important reason for the discrimination and it must
show that the goal cannot be achieved through any less discriminatory alternative.
o Applies both to racial classifications that disadvantage or help minorities.

Rational for Heightened Review

 Concerns about treating classes differently, stamping one with a badge of inferiority.
 Long history of racial discrimination makes it very likely that racial classifications will be based on
stereotypes and prejudices.
 Relative political powerlessness of these groups to combat discrimination; prejudice against discrete and
insular minorities tends to curtail the operation of those political processes relied upon to protect them.
 Race is an immutable trait; unfair to discriminate against people for a characteristic acquired at birth.

Strauder v. West Virginia (1880):

 West Virginia law limited jury service to “white male persons who are twenty-one years of age and who
are citizens of this state.” Black man indicted by an all-white jury and challenged the law.
 The law would survive a rational basis test since it would exclude recently freed persons, ignorant in the
ways of the world (people were so damn racist), from jury service, furthering the legitimate state goal of
having competent juries.
 Law prohibiting black citizens from serving on juries a violation of equal protection. Denies them the
ability to participate in the administration of the law, despite being qualified, solely because of race.
Reasons:
 Law based on prejudice and seeking to make them inferior by saying they are not good enough to sit on a
jury.
 Could prevent them from enjoying their rights and from protecting these rights. That is, hard to protect
black rights when they aren’t sitting on the juries that are making legal decisions based on these rights.
 A step back towards reducing them to a subject race.
 14A meant to protect black citizens from states seeking to encroach on their newly granted rights.
 Kreimer: court does not find problematic limitations against aliens and women.
o Not reason that 14A was ratified; do not carry the stigma of subordination of a racial group; do not
carry the same baggage of suspect by the Court.
o But, 14A phrased in universal terms and other populations may have stigmas attached to them.
 Not saying that there must be members of one’s own race on juries, just can’t be a law prohibiting them.

Yick Wo v. Hopkins (1886):

 Allegation that individuals of Chinese ancestry were not being granted permits under a San Francisco law
to run laundry businesses, and were being arrested for working without a permit, while whites were able to
acquire permits and work unmolested.
 No racial classifications on the face of the law. Trying to reduce fires in San Fran by requiring laundromats
in wood buildings to apply for permits. A rational means of achieving a legitimate state interest. However,
applied in a racially disparate manner.
 Provisions of 14A’s equal protection clause apply to all persons within a State’s jurisdiction (not just
citizens), “without regard to any differences of race, of color, or of nationality; and the equal
protection of the laws is a pledge of the protection of equal laws.”

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  If a law is race-neutral on its face, but is applied with “an evil eye and an unequal hand” to
discriminate on the basis of race, it is a violation of equal protection.
o More broadly, classifications based solely on racial hostility are a violation of equal
protection. Racially hostility is not a legitimate end.
 Hostility on the basis of race is odious to a free people and not justifiable in the eyes of the law.

The Supreme Court Fucks Up, Except Strict Scrutiny is Born

Plessy v. Ferguson (1896):

 Louisiana law required “equal but separate” sections on trains for black and white passengers, and
members of each race had to sit in their own section. Conductors enforced the statute.
o One of the first Jim Crow laws.
 A man who was only 1/8 black was told that he had to sit in the black section of the train, not the white. He
refused, so they kicked him off and arrested him.
 The separation of races is not unconstitutional if they are accorded the same legal rights and the
public welfare is promoted in some way (such as by reducing racial tension by keeping them apart).
14A and the Constitution are not in the business of creating social equality.
o Legislature may enact laws under its police power if it does so in good faith to promote the public
goods and not to oppress a particular class.
 14A only meant to apply the law equally to the races, not abolish distinctions or enforce social as opposed
to political equality.
 Laws separating the races existed at the time of ratification (Congress segregated DC schools) and still
prevalent (laws banning interracial marriage). Don’t imply inferiority. Inferiority only applies if the races
label themselves as such (such an outdated argument… Oh wait, See Rehnquist, Roberts, and Thomas).
 Defer to the legislature’s judgment that it is necessary to keep the races separated so that they don’t kill
each other.
 Social equality must arise naturally, not from the Constitution.
 Dissent (get em Harlan): statute here clearly trying to prevent blacks from associating with whites, it isn’t
about providing them equal accommodations.
o “In view of the Constitution, in the eye of the law, there is in this country no superior, dominant,
ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows
nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the
law.” Unfortunately the majority ignored this precept.
o Decision undermines the goal of the Reconstruction Era Amendments to provide racial equality
and is going to help to fuel race hate by treating blacks as an inferior class.
o “State enactments, regulating the enjoyment of civil rights, upon the basis of racecan have no
other result than to render permanent peace impossible, and to keep alive a conflict of races, the
continuance of which must do harm to all concerned.”

Problems:

 Court has a normative misread of the mandate of equal protection.

o Meant to undo Dred Scott and the norm of racial distinctions in total.
o Such distinctions are odious to a free people.
o Enforcing social equality with the law promotes legal equality.
 Precedent is mischaracterized.
o Segregationist policies of the past that have evolved since.
 No recognition of the social impact of exclusion.
o The real purpose is to prevent blacks from mingling with whites, not to keep white from entering a
black car.
o Hinges on equality, when exclusion can imply a badge of inferiority.

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 o Recognizes and facilitates racial hatred that is the presupposition of slavery.
o Practical effect misjudged: historically, the doctrine of separate but equal subordinated the black
class. Propagated outwards to education, hotels, courtrooms, theaters, parks, workplaces, voting,
and the armed service.

Hirabayashi v. United States (1943):

 An American citizen of Japanese ancestry was convicted of violating a Congressional act that forbade
disregarding restrictions made by a military commander by being outside of his home between 8pm and
6am. Challenged as discrimination based on race.
 The military command was constitutional because it was made in a time of war when the threat of
invasion was highly alarming. Meant to prevent Japanese subversion in the United States and not
enough time to separate persons of interest from those loyal to the United States, so restricted the
freedoms of all.
o Racial discrimination permitted in the chaos of war.
o Sort of ignoring the Constitution because of a crisis.

Korematsu v. United States (1944):

 K arrested after refusing to relocate to a Japanese internment camp. Was the order to intern persons because
they are Japanese unconstitutional?
 All legal restriction that curtail the civil rights of persons on the basis of race are immediately suspect
and subject to strict scrutiny. However, pressing public necessity may sometimes justify the existence
of regulations based on racial classifications, though pure racial antagonism never can.
 Here, the concerns about subversive activity in a time of war when Japan was sweeping across the Pacific
and SE Asia a legitimate reason to intern Japanese-Americans (epic fail America).
o Concerns about subversive behavior is especially problematic because of the limited amount of
time to determine persons of interest from those loyal to the United States.
 Undoubted hardship for Japanese-Americans, but war is hardship.
 Based on military needs, not racial prejudice (he says tendentiously).
 “Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst
emergency and peril, is inconsistent with our basis of governmental institutions. But when under conditions
of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate
with the threatened danger.”
 Kreimer: a good test poorly administered. Certainly a compelling state interest, but means of preventing
subversion not narrowly tailored as they were based solely on a person being Japanese-American. Absurdly
overinclusive.
 Dissent (Murphy): depriving someone of Constitutional rights only requires that the deprivation is
reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of
delay and not to permit intervention of ordinary constitutional processes to alleviate the danger.
o No immediate danger here. No evidence of subversive behavior, people just hated the Japanese.
 Problems (Kreimer):
 Allows for rational basis review of racial distinction; military could just get
better records to show a legitimate interest and rational reason to detain them.
 Such a standard would tolerate invidious discrimination.
 Dissent (Jackson): Shouldn’t be constraining military orders to the Constitution since acting in a pressure
situation, but must still be some limits.
o Military orders don’t outlast an emergency, but constitutional holdings do. A dangerous precedent
to allow racial discrimination.

Ex Parte Endo (1944):

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  Endo alleged that she was a loyal and law-abiding citizen of the US, that no charge had been made against
her, and that she had been unlawfully detained in an internment camp.
 Continued detention of a citizen who is loyal is unconstitutional. Military’s distinction a proxy of
loyalty, not community hostility towards race.
o Statutory construction, not equal protection.
 Detention order seeking to protect the US against subversion. Detention for another reason is not
permissible.
 Original detention was based on the ability to detain all Japanese-Americans since it couldn’t be
determined who was loyal. Once it was determined that they are, must be released.
o Detaining someone shown to be loyal would be a discriminatory act based solely on race.
 Free Weezy!

The Supreme Court gets it Shit Together

Early Challenges to the Equal Portion of “Separate but Equal”

 The NAACP began challenging legally instituted separation by attempting to show that the “separate but
equal” doctrine was vulnerable in the context of education.
o Didn’t challenge separate but equal doctrine initially, just tried to get institutions to enforce the
equal portion.
 In Missouri ex rel Gaines v. Canada (1938), Missouri denied a black applicant admission to law school
saying that it was constructing one for black persons. The Court concluded that the State was obligated to
furnish Gaines “within its borders facilities for legal education substantially equal to those which the State
there offered for persons of the white race, whether or not other Negroes sought the same opportunity.”
Without such facilities, Gaines was entitled to be admitted to the state school.
 The Court in Sweatt v. Painter (1950) required admissions of blacks to the University of Texas Law School
even though the state had a black law school. Held that there was no “substantial equality in the educational
opportunities offered white and negro law students by the state.”
o E.g. library better at UT, better faculty, etc.
o Also noted that the black school excluded whites, who made up much of the legal profession in
Texas. Thus, blacks would not have a chance to interact with the people they would be working
with. Court looking at intangible differences with lasting effects.
 In McLaurin v. Oklahoma Board of Regents (1950), a black student was admitted to a graduate program,
but was required to sit in separate sections in or adjoining the classrooms, library, or cafeteria. The Court
held that the restrictions impaired the “ability to study, to engage in discussions and exchange views with
other students and, in general, to learn his profession.”

Cosmic Shift

Brown v. Board of Education (1954):

 Black children sought admission to public schools on a non-segregated basis; a challenge to the legal
segregation of schools.
o Contending that segregated schools are not and cannot be made equal, and that they thus violate
equal protection.
 Separate but equal a denial of equal protection because inherently unequal.
 Began by saying that the original intent of the ratifiers of 14A not helpful because they themselves
disagreed on the meaning of the amendment and because public education was not universal at the time.
 Further, prior precedent not helpful because the schools at issue here were tangibly equal. New analysis
needed.
 Education in a modern society enormously important, the foundation of good citizenship. It is doubtful that
anyone could succeed in life without the opportunity to be educated.

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 o Where the state has provided an opportunity for education, it must be provided on equal terms.
o However, separate but equal deprives children of minority groups of educational opportunities.
 Separating minorities tells them that they are inferior, causing permanent harm.
 Causes them to feel less compelled to learn, undermining their education.
 Potential problems:
o A judgment that relies on social psychology relies on the whims of academics who tend toward
revision.
 Can also find studies that refute such findings. Thus, the decision vulnerable if future
research came to opposite conclusions.
o Narrowly confined to schools.

Bolling v. Sharpe (1954):

 5A challenge to the validity of segregation in the public schools of the District of Columbia.
 Racial classifications are subject to strict scrutiny because they are contrary to the traditions of a
free and liberal society.
 Racial classifications are arbitrary and oppressive. People are not different because of the color of their
skin, and judging them based on the color of their skin fails to treat them as individuals.
 Classifications offered based on racial hostilities are an inappropriate basis for public policy.
 Discrimination involving discrete and insular minorities less likely to be undone through political
processes. Thus, should question laws negatively affecting the interests of racial minorities more closely to
better protect those interests.

Notes

 After Brown, the Court found legally mandated segregation in public facilities unconstitutional in contexts
other than education. Finally, in Johnson v. Virginia (1963), the Court stated: “It is no longer open to
question that a State may not constitutionally require segregation of public facilities.”
 Four possible justifications for Brown:
o Color-blindness: race is never a permissible basis on which to distribute public benefits or
burdens.
o Caste: race is an impermissible basis for distributing public benefits and burdens when it has the
social and psychological effect of stigmatizing or subordinating a racial group.
 This interpretation does not prohibit all use of race, only uses that impose a racial
hierarchy or caste.
 Different than color-blindness because it could still be consistent with race-based
affirmative action.
o White supremacy: segregation laws were the impermissibly tainted products of white supremacy,
i.e. legislative processes in which white voters predominated and blacks were largely
disenfranchised.
o Integration: idea that integration could provide better education for black children, further social
welfare, or decrease racial separation more broadly.

Implementing Brown
Brown II (1955):

 Schools are to decide how to remedy the segregation problem and the courts are to determine if they made
a good faith effort.
 Schools are to take steps which are “necessary and proper to admit to schools on a racially
nondiscriminatory basis with all deliberate speed.”
 True equality and integration would not come about purely by removing legal obstacles:
o Local politicians stalled orders.

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 o End of de jure segregation does not end de facto segregation. Politicians could simply allow
students to choose the school that they wanted to attend and would get the same effects as
segregation.
 Question would become whether the government should only work to end odious discrimination, or has a
duty to effectuate integration in order to rectify the predictably unfair results of past discrimination.
o Bolling, Thomas, Scalia: 14A meant only to invalidate government discrimination, but cannot be
used to force integration as that involves racial distinctions. The Constitution is color-blind.
o Brown, Brennan, Marshall: separation, even if not established by law, imposes a brand of
inferiority. The social reality is the same whether the segregation is de jure or de facto. Must
eliminate historical racial discrimination “root and branch.”

Judicial power to impose remedies in desegregation cases: where there has been de jure segregation, school
districts are not required just to cease discrimination. Because of the lasting effects of historical
discrimination, they are required to affirmatively remove segregation “root and branch.”

 Court in Griffin v. Prince Edward County (1964) declared unconstitutional a county’s decision to close its
public schools and pay for children to attend segregated white academies.
 Court in Green v. County School Board (1968) considered whether a freedom of choice plan was consistent
with Brown. No white students had chosen to go to black schools and few black students had chosen to go
to white schools. The Court unanimously held the plan inadequate in complying with desegregation
requirements. Reasoning:
o Racial identification had remained complete and the ultimate goal of a nonracial system of public
schooling thereby undermined.
o Boards operating a dual system in the past had an affirmative duty to take whatever steps
necessary to convert to a “unitary school system in which racial discrimination would be
eliminated root and branch.”
 That is, school officials had a duty to take steps which promised realistically to convert to
a system without white and black schools, one of just schools.
 Court in Swann v. Charlotte-Mecklenburg Board of Education (1971) considered a desegregation plan
using geographic zoning with free transfers. About ½ of all black students transferred to white schools, the
remainder stayed in all black schools. The district court brought in an expert to develop a more effective
immigration plan, and the Court affirmed. Reasoning:
o Not every school must reflect the racial composition of the school district. However, in areas
with a history of segregation and schools disproportionate in their composition, presumption
is against the school.
o In order to produce a unitary system, courts had broad discretion to use “frank and
sometimes drastic gerrymandering of schools districts and attendance zones.”
 Can take race into account to develop means to undo segregation.
Desegregation in Areas without a History of De Jure Segregation: Must show some discriminatory motive or
system of discriminatory policies affecting a substantial proportion of the people in one area of the school
district.

 In Keyes v. School District (1973), Brennan set forth criteria that would facilitate a finding of purposeful
discrimination in areas without de jure segregation. Could have court orders for district-wide remedies if
there were findings of intentional discrimination in only part of the school district: “where plaintiffs prove
that school authorities have carried out a systematic program of segregation affecting a substantial
proportion of the students, teachers, and facilities, or where a showing of intentional segregation in one area
was probative as to intentional discrimination in other areas.”
o Rehnquist dissented on the basis that affirmative action to induce racial mixing was beyond the
power of the courts.

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 o In essence, schools only have to remove segregation root and branch where there is evidence
of previously used racial discrimination, or racially neutral policies implemented based on
segregative intent. Always needs to be a desire to segregate.
 De jure segregation allows the courts to intervene, de facto segregation does not,
unless discriminatory purpose can be shown.

Limiting Inter-district Remedies

 Court in Milliken v. Bradley (1974) reversed a lower court order requiring busing across district lines.
Reasoning:
o Can’t ignore such lines and treat them as administrative inconvenience.
o To impose an inter-district remedy, it must be shown that “racially discriminatory acts of the state
or local school districts, or of a single school district, have been a substantial cause of inter-district
segregation. Thus, an inter-district remedy might be in order where the racially discriminatory acts
of one or more school districts caused racial segregation in an adjacent school district, or where
district lines have been deliberately drawn on the basis of race.”
 Like Keyes, needs to be intent to segregate, not just effect. No remedy for de facto
segregation.

Limiting the Federal Courts’ Remedial Powers: Can’t force a state or locality to increase taxes or pay
employees higher wages.

 In Missouri v. Jenkins (1990), the Court limited the power of the federal courts, in implementing
desegregation, to impose fiscal burdens on states and localities. Overruled the plan of a district court that
required the state to raise property taxes. Reasoning:
o The order disregarded the principle of federalism that acted as a restraint on equitable remedies.
o Trial court could not order a tax increase directly, but it could have authorized or required the
district to levy property taxes at a rate adequate to fund the desegregation remedy.
 In Missouri v. Jenkins (1995), the Court held that federal courts did not have the power to order salary
increases and remedial education programs because of underachievement. Reasoning:
o Nature and scope of the remedy are to be determined by the violation, which means that the
decrees of federal courts must directly address and relate to the constitutional violation itself.
o A mandate for significant educational improvement, both in teaching and facilities, may have been
justified originally, but indefinite extension is not.

Terminating Long-Standing Decrees: After court order rescinded, school can make decisions with a
discriminatory impact so long as no discriminatory intent.

 In Board of Ed. of Oklahoma City v. Dowell (1991), Oklahoma City had a desegregation plan that it
complied with to great effect, so the federal court terminated its supervision. Then demographic changes
led the school system to reintroduce a neighborhood schools system. Court of Appeals held that the original
plan was still in force, so school couldn’t do this. SCOTUS overruled. Reasoning:
o Federal supervision of local school systems was intended to be a temporary measure to remedy
past discrimination. Injunctions in desegregation cases not meant to continue in perpetuity.
o Dissolving a decree after the authorities have complied for a reasonable period recognizes that
necessary concerns for the important values of local control of public school systems dictates that
a federal court’ regulatory control of such systems not extend beyond the time required to remedy
the effects of past intentional discrimination.
 Dissent argued that the effects of segregation had not been overcome just because it had
not been enforced in 13 years. Injunction only gone once the effects of segregation had
been overcome.

Two Approaches

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  Strouder/Brown: purpose of 14A was to disestablish slavery manifested in segregation. The aim of the law
should be to eliminate those policies whose OUTCOMES have the effect of branding groups as inferior
generating racial hostility, or constitute steps towards re-instilled subordination.
o Segregation a deeply rooted system, the OUTCOMES of which are still present and have the
quality of reducing African Americans to an inferior role. Therefore, the government must be
involved in affirmatively eliminating segregation “root and branch.”
 Yick Wo/Bolling: equal protection treats people in similar situations similarly and not the on the basis of
racial classifications. The evil is not the outcome of the DECISION but the METHOD in which it is made
(“evil eye, unequal hand,” Constitution is “color-blind”).
o Segregation ceases to be constitutional issue once Congress stops making DECISIONS through
the prism of race.
o This allows for a maintenance of the status quo and de facto segregation.
o Even in the absence of segregation in the North, a simple cessation boundary is to leave untouched
the social structures that were generated – integration will simply never materialize.

Facially Symmetrical Laws with a Racial Basis

 Racial classifications that exist on the face of the law but that burden both whites and minorities.
 Court in Anderson v. Martin (1964) considered whether or not the state of Louisiana could require
candidates to indicate their race on the ballot (applied equally to both black and white candidates). The
Court struck it down as impermissible because it places the power of the state behind racial classifications
that induce hostility, making race a significant government factor at the precipice of voting.
o Although the law applied to both races, it was clearly motivated by racial biases.
 Court in McLaughlin v. Florida (1964) invalidated a criminal adultery and fornication statute prohibiting
cohabitation by interracial unmarried couples as violating equal protection. Reasoning:
o 14A meant to eliminate discrimination emanating from the official sources of the state.
o Racial classification subject to strict scrutiny and almost never tied to any legitimate government
purpose.
o No reason to criminalize unmarried cohabitation when it is between people of different races, but
not when it occurs between members of the same race.

Loving v. Virginia (1967):

 Challenge to a Virginia law banning interracial marriage. State argued that it was constitutional because it
applied equally to all races.
 Strict scrutiny applied to all laws that classify individuals on the basis of race. Such laws will only be
upheld if they can be shown to be necessary to the accomplishment of some permissible state
objective, independent of racial discrimination.
o Central purpose of 14A was to eliminate all official state sources of invidious racial discrimination
in the States.
 No doubt here that the law was meant only to be discriminatory and maintain white supremacy.
 Court has constantly struck down measures that restrict the individual rights of citizens on account of race.
o Restricting the individual right to marry due to race thus a violation of equal protection.

Palmore v. Sidoti (1984):

 Challenge to a lower court ruling that divested a mother of the rights to her child because she had married a
person of a different race.
o Lower court thought that this reflected poorly on the mother’s decisionmaking.
 Racial classification are subject to strict scrutiny. To be constitutional, they must be justified by a
compelling government interest and be “necessary to the accomplishment of their legitimate
purpose.”

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 o 14A meant to do away with all government imposed discrimination based on race.
o Classifying a person based on race is more likely to reflect racial prejudice than legitimate public
concerns; the race, not the person, dictates the category.
 State has an important interest in protecting minors and considering their best interests. Also, no doubt that
the child of an interracial couple will be subject to pressure and stress not present if he/she were living with
a couple of the same race.
 However, “the Constitution cannot control such prejudices but neither can it tolerate them. Private biases
may be outside of the reach of the law, but the law cannot, directly or indirectly, give them effect.”

Johnson v. California (2007):

 California housing like races together in prison cells for a 60 day holding period while it determined their
threat level. Justified as necessary to reduce gang violence, which is often based on race.
 Strict scrutiny applies to laws or acts that classify on persons on the basis of race. The government
has the burden of proving that racial classifications are narrowly tailored measures that further
compelling government interests.
o Must be no other feasible means of achieving this goal other than racial classifications.
 Remanded to have strict scrutiny applied.
 There is a compelling interest in prison safety, but the administrators will have to demonstrate that any
race-based policies are narrowly tailored to that end.
o A worry here that segregation stigmatizes one group of people, especially concerning in the legal
system.
 Dissent (Stevens): policy here a violation of equal protection no matter the level of scrutiny. Little evidence
to link race to gang affiliation.
o Also, the policy is overinclusive since it applies to inmates with no proclivity for violence.
 Dissent (Thomas): conflicting precedent… strict scrutiny in all cases involving race v. relaxed standard of
review in all circumstances in which the needs of prison administration implicate constitutional rights.
o Major concern here about violent race-based gangs overcomes worries about sparing inmates the
indignity and stigma of racial discrimination.
 Housing inmates in double cells without regard to race threatens not only prison
discipline, but also the physical safety of inmates and staff.
o Segmentation reasonably related to a legitimate penological interest; alternative means of
exercising the restricted right remain open to inmates; racially integrating double cells might
negatively impact prison inmates, staff, and administrators; and there are no obvious, easy
alternatives.

Facially Neutral Law with a Discriminatory Impact or Discriminatory Administration

 How to deal with facially neutral laws that have a disparate impact.
 Why are we concerned about laws with a racially disparate impact?
o Could show intentional discrimination.
o Could also show unconscious bias.
o Could be embodying prior racial discrimination. That is, current rule could be tainted by prior
effect.
o Enough laws with disparate impact could accumulate to create something akin to de jure
segregation.
 Laws that are facially neutral as to race will receive more than rational basis review only if there is
proof of discriminatory purpose.
 Justifications:
o Equal protection clause is meant to prevent official conduct discriminating on the basis of race.

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 o Allowing disparate impact could invalidate a whole range of tax, welfare, public service,
regulatory, and licensing statutes that may be more burdensome to the poor and average black than
to the more affluent white.
 Problems:
o Hard to show discriminatory animus.
o The concern should be the results of government actions, not necessarily their motivations.
 Court in Palmer v. Thompson seemed to require a discriminatory effect, as well as discriminatory motive.
o Problem with only requiring motive is that the legislature could easily just repass the law without
the discriminatory motive.
 Ways to show discriminatory motive:
o Impact of the law may be so clearly discriminatory that there can be no other explanation
other than that it was passed for a discriminatory reason.
o Look to the history surrounding the passage of the law.
o Look to the legislative or administrative history of the law.
 If a plaintiff can show discriminatory motive behind a facially neutral law, the burden shifts to the
government to show that it would have passed the law even without the discriminatory reasons.
 If a law is racially neutral, a challenger must show a discriminatory purpose and a discriminatory
effect. If such proof is provided, the government has the opportunity to demonstrate that it would
have taken the same action regardless of race or national origin.
o If the Court accepts the government’s justification and rejects the claim of discriminatory
purpose, only rational basis review is used.
o If the Court is convinced that there is a discriminatory purpose, the law is treated as a race
classification and the law will be subject to strict scrutiny (likely invalidated since already a
showing of discriminatory animus).

The Initial Rise of Disparate Impact

 Yick Wo: facially neutral law declared unconstitutional because the facts established an administration
directed so exclusively against a particular class as to warrant and require the conclusion that whatever may
have been the intent of the ordinances, they deprived equal protection.
 Griffin v. Prince Edward: racially neutral law closing all public schools, but clearly meant to prevent
desegregation, discriminatory animus.
 Court has interpreted Title VI (institutions receiving public funds cannot discriminate on the basis of
race) and Title VII (employers engaged in interstate commerce cannot discriminate on the basis of
race) as allowing for strict scrutiny in cases of racially disparate impact. Griggs; Lau.
o Slippery slope concerns checked because the law requires a certain degree of disparate impact.

Guinn v. Beal (1915):

 Black voters challenged an Oklahoma law as denying them the right to vote. They were denied because
they were illiterate, however provisions allowed illiterate persons to vote if they or their ancestors had been
able to vote in 1866 (obviously only applied to whites; not so subtle Oklahoma).
 Law unconstitutional as the effects so clear that it could be inferred that there was a discriminatory
purpose behind the law.
o Meant to revitalize the conditions before 15A was ratified. No other reason to use 1866 as the
year.

In Griggs v. Duke Power Co. 401 U.S. 424 (1971), the Court interpreted Title VII of the 1964 Civil Rights Act,
which prohibited employment practices which "adversely affect" an employee's status "because of...an individual's
race, color, religion, sex or national origin." In an opinion by Chief Justice Burger, it unanimously concluded that
proof of intentional discrimination was not required to make out a violation of Title VII. Despite the absence of any
proof of intentional racial discrimination by the employer, the Court held that a requirement of high school

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graduation--which could be met by 34% of white job applicants and 12% of black applicants in North Carolina--
violated Title VII, where there was no evidence that the requirement "bears a demonstrable relationship to
successful performance of the jobs for which it was used.”

Hunter v. Erickson (1969):

 Did the city of Akron deny equal protection of the laws by amending the city charter to prevent the city
council from implementing any ordinance dealing with racial, religious, or ancestral discrimination in
housing without approval of the majority of the voters of Akron?
 Changed process only impacts minorities since a referendum can’t harm the majority (they could
easily pass it if they wanted; minorities couldn’t) and because only minorities would seek fair housing
ordinances. Disparate impact of change in political process sufficient to be unconstitutional.
 Further, not persuasive justification for the law. Could have instead subjected all proposed ordinances to a
referendum process, but didn’t.
 Adding this burden in cases of racial biases adds a hurdle for those seeking protection from racial
discrimination.
 14A prevents a facially neutral distinction the reality of which falls upon minorities but not the majority.

Lau v. Nichols (1974):

 Challenge to a school district for only providing some non-English speaking students with a supplemental
course in English.
 Denying non-English speaking person access to English lessons has a disparate impact and violates
Title VI of the Civil Rights Act, which bars publicly-funded institutions from enacting rules with a
racially disparate impact (does not need to be discriminatory animus).
 No equal treatment even with same textbook, teachers, and curriculum because students who didn’t speak
English were essentially barred from any meaningful education. Need to know English to have equal
educational opportunities.

Normative issues with pure impact analysis:

 Some distinctions are decidedly not unconstitutional.

 Equal protection clause is concerned with stopping discriminatory acts by the government, not bringing
about equal results.
 Countless laws may have some discriminatory impact given enormous inequalities (e.g. choosing to bail
out the banks rather than help the helping poor homeowners, largely minorities).
 Laws benefitting minorities would have to be overturned.
 Civil Rights statutes can, and often do, allow violations to be proved based on discriminatory impact
without evidence of discriminatory purpose.
 Worry about the Court evaluating the importance of every government end ala Lochner.
 Hard for a politician to figure out what is constitutional.

The Switch to Requiring Discriminatory Intent

Washington v. Davis (1976):

 Challenging a test to become a police officer that had a highly discriminatory impact on screening out black
candidates. No claim of intentional discrimination or purposeful discriminatory acts.
o Disproportionate amount of white officers on the force.
o Higher percentage of black candidates failed the test.
o Test had not been validated to establish its reliability for measuring subsequent job performance.
o However, evidence that the police department had actively sought to recruit black candidates.
 Government action is not unconstitutional simply because it has a racially disparate impact. Must
also be a showing that there was a racially discriminatory motive, that one may be inferred, or that a

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 racially neutral law was applied discriminatorily. Then government can rebut presumption by
showing that it would have enacted the law even without the discriminatory reason.
o If the court accepts the government’s argument, then only rational basis will apply.
o If the court believes there is discriminatory animus, then the law subject to strict scrutiny
and is most likely unconstitutional.
 Looked to Strauder, school desegregation cases, and rulings that racially discriminatory impact of social
security was not unconstitutional.
o Also read 14A as being meant to prevent official conduct discriminating on the basis of race.
 Here, insufficient evidence of discriminatory intent:
o Testing verbal skill, which are important in law enforcement.
o Other black candidates were scoring well on the test.
o The department was engaged in efforts to recruit black candidates.
 Concurrence (Stevens): the results can show the intent because an assumption that an actor intends what
results.
o Unrealistic to require the victim of alleged discrimination to uncover the actual subjective intent of
the decisionmaker or to invalidate otherwise legitimate action simply because improper motive
affected the deliberation of a participant in the decisional process.
o Not a clear line between discriminatory purpose and impact. Not a constitutional question every
time that there is a discriminatory impact, but where it is a massively discriminatory effect, it
doesn’t matter if one looks at effect or purpose.

4. Arlington Heights v. Metro Housing (1977): two-step test is the current method for
determining invidious intent for facially neutral laws with disparate impact.
a. Challenge to a city’s refusal to rezone a parcel of land to allow construction
of low and moderate-income housing. The plaintiffs alleged that this had a
discriminatory effect in excluding blacks from the city. Court outlined the
current standard for determining invidious intent; but upholds the
requirement of proof of discriminatory intent.
b. Housing board decision Constitutional.
i. (1) Is the discrimination racially motivated, or, is racial
discrimination a substantial or motivating factor behind the
law?
1. (A) First, the impact of the law may be so clearly
discriminatory as to allow no other explanation than that
it was adopted for impermissible purposes
a. Show a statistical pattern that can be explained
only by a discriminatory purpose…(Gomillion,
Yick Wo)
b. This category is going to be limited; such cases
are rare. Absent a pattern as stark as Gomillion
or Yick Wo, impact alone is not determinative
and the Court has to search elsewhere.
2. (B) History surrounding the government’s actions
a. Could reveal a history of official actions taken
for invidious purposes.
b. Shed light on purposes.
c. Guinn, Prince Edward County
3. (C) Legislative history
a. Contemporaneous statements by members of the
body, minutes of its meetings, or reports
b. SCALIA in Edward v. Aguillard (1987)  this
is an impossible task. Where do we draw from,
how do we even know this is the inquiry?
Statutes do not come equipped with purposes.

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 ii. (2) If racially motivated, burden shifts to government to prove
that it would have taken the same action without the
discriminatory motivation.
1. Version of strict scrutiny; government must come forward
with proof of a compelling interest greeted by a narrowly
tailored means.
Hunter v. Underwood (1985):

 Challenge to an Alabama law disenfranchising persons for committing any crime of moral terpitude
because of disproportionate effect on black citizens.
 Was sufficient evidence of the racial motivation to shift the burden to the government:
o Historical: testimony of experts all showed that the Alabama Constitutional Convention of 1901
was part of a movement to disenfranchise blacks.
o Legislative: president of the convention straight up said the purpose of it was to establish white
supremacy in the state (thank you Alabama circa 1900…).
 Then, sufficient evidence that the law was only enacted to harm blacks.
 Problem (Kreimer): all that the government had to do was show that there was some other motivation for
the law and hide these racist remarks. The rule seems to allow racism so long as it isn’t blatant.

Castaneda v. Partida (1977):

 Local jurisdiction was 79% Mexican-American and only 34% chosen for jury on a state procedure that
used “good character” as a distinction. Facially neutral.
 Gross statistical disparities constitute prima facie proof of discrimination, shifting the burden of
proof to the government to rebut the but-for claim.

Batson v. Kentucky (1986):

 Involved alleged racially motived peremptory challenges. Such challenges don’t have a purpose to achieve
and are facially neutral. However, peremptory challenges based on race or gender are often motivated by
discriminatory intent and have a discriminatory impact.
 Three part test:
o The challenging party must make a prima facie case of discrimination.
 Must show that he is part of a racial group that the one party has sought to exclude from
the jury.
o Burden then shifts to the other party to present a race-neutral reason for the peremptory
challenges.
 Must be a clear and reasonably specific explanation of his legitimate reasons for
exercising the challenges.
o The trial court must decide whether the race neutral explanation is persuasive or whether
the defendant has established purposeful discrimination.

Hernandez v. Elem (1991):

 DA shown to be striking Hispanic jurors. He said it was because they were bilingual and wouldn’t accept
the official translations.
 Court said that this was a sufficiently race-neutral explanation and deferred to the trial judge to determine
its credibility.
 (Kreimer): probably would have affirmed if the trial judge had said that the proffered reason was pretext,
demonstrating that judges involved with peremptory challenges have significant power to determine if a
practice is unconstitutional.

Kreimer Impersonates Katz

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  Med school has used the MCAT, which has some degree of predictive value, but which whites score
disproportionately well on compared to blacks. The MCAT B is just as predictive and whites and blacks
score equally proportionally well on it, but it is more expensive. How would you show the school’s choice
to stick with the MCAT was racially motivated?
o Look at statements of the decisionmakers.
o Look to what other colleges are doing.
 Suppose it is shown that the head of the admissions committee is racist, the burden would
shift to the school to show that it would have stuck with the MCAT without these racial
motivations.
 Then a judge would decide whether the proffered reason is mere pretext.
 If he decides yes, the strict scrutiny applies.
 If he decides no, then rational basis.
 Problems:
o Difficult to say that the entire program was based on discrimination based on just one
decisionmaker since people make decisions for a whole host of competing reasons.
o Method of thinking not a great check on discrimination. Can simply enact racially neutral laws
and shut your mouth about your racist intentions.
o Iqbal heightened standard of pleading makes it harder to show discrimination.
 Can’t just allege invidious purpose, need facts. However, can’t get access to these
facts without discovery.

Kreimer Wasting Time (Recapping)

 For all classifications made by the government, equal protection requires the government to justify
differentiations by showing a rational relation to a legitimate state end. REA/Fritz.
 Racial classifications, however, are subject to strict scrutiny (not necessarily fatal). Needs to be a
compelling state interest and the classification must be narrowly tailored to achieve this interest
(other alternatives not feasible).
 Facially neutral laws with a disparate impact fall between these extremes.
o First, plaintiff must show invidious intent behind the law.
 If he fails, rational basis applies.
 If he succeeds, the government must show that it would have chosen the law even
without the discriminatory intent, and the judge basically decides which side has the
better argument.
 If the judge believes it was racially motivated, strict scrutiny applies and
the law is going down since it was enacted for a discriminatory purpose, not
a legitimate state interest.
 If the judge believes the government, then only rational basis applies.
 Problems with this middle approach:
o Often difficult to discern hidden racially invidious motives. Thus, Court allows invidious intent to
be inferred from the facts.
o Proving intent not a great way to get beyond racial differences because you basically have to call
someone a racist.

Affirmative Action: Eradicating the Lingering Effects of Racial Discrimination (or not, if
you’re SCOTUS)
 Strict scrutiny is now used to evaluate all government affirmative action plans.
 Arguments for strict scrutiny in this context:
o Discrimination is discrimination is discrimination. It is all bad.
o Constitution meant to treat people as individuals, it is color-blind.

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 o Any racial classifications stigmatize and breed racial hostility.
 Arguments against:
o Major difference between the gov. using racial classifications to benefit minorities and using them
to harm minorities.
o Long history of racism and discrimination against minorities, but no similar persecution of whites.
o Achievement of social equality requires affirmative action at this point in American history. The
tremendous continuing disparities between blacks and whites in areas such as education,
employment, and public contracts necessitate remedial action, which strict scrutiny impedes.
o Not the suspicion when a racial majority disadvantages itself and gives advantage to minorities.
Unlikely for the white majority to disadvantage itself due to racial prejudice.
 What purposes for affirmative action programs can/cannot meet strict scrutiny?
o Affirmative action will be allowed if it is directed at entities that are proved to have engaged
in illegal discrimination and if it is limited to providing a remedy to those who are proven
victims of that discrimination. However affirmative action will not be allowed if it is based
on a desire to remedy the long history of racism throughout society.
o Colleges and universities have a compelling interest in creating a diverse student body and
they may use race as one factor, among many, to benefit minorities and enhance diversity.
o Providing role models not a compelling interest.
o Enhancing services provided to minority communities not a compelling interest because
other alternatives that don’t use race (e.g. monetary incentives).
 What are appropriate means?
o Numerical set-asides will allowed, if at all, only if needed to remedy clearly proven past
discrimination.
o May use race as one factor to enhance diversity. However, see Parents involved.
o Can’t deviate from a seniority system to benefit minorities.

The Beginning

Regents of Univ. of California v. Bakke (1978):

 UC Davis Med School reserved 16 of 100 spots for minority candidates and had a separate committee
administer the admissions program. Some entitled prat Bakke challenged this program when he was
rejected from the school and minority students who had lived their entire life at a social disadvantagewere
admitted.
 “When a State’s distribution of benefits or imposition of burdens hinges on the color of a person’s
skin or ancestry, that individual is entitled to a demonstration that the challenged classification is
necessary to promote a substantial state interest.”
o Any racial classification subject to strict scrutiny since odious to a free people.
 Diversity in higher education a compelling interest and race may be considered as one factor to
promote diversity. However, cannot simply use numerical set-asides.
o Should use economic, racial, or ethnic disadvantage as a means to tip the favor in the direction of
an admissible candidate. Race will sometimes play a role, but the bigger goal is to bring unique
perspectives. Further, candidates still compared against one another with race being a “plus.”
o Invalid ends:
 Reducing the historic deficit of minorities in med schools.
 Reducing the deficit of doctors in poor areas.
 Countering the effect of societal racism.
 Issues with allowing any sort of racial preference:
o Preference may not in fact be benign.
o Preferential programs only reinforce stereotypes holding that certain groups cannot achieve
success without special protection based on a factor not tied to individual worth.

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 o Inequity in forcing innocent persons like Bakke to bear the burdens of redressing grievances
not of their making.
 Dissent (Brennan and the liberals): Needs to be an important and articulated purpose for the racial
classification and must be substantially related to achievement of those objectives. However, must strike
any statute that stigmatizes any group or that singles out those least well-represented by the political
process to bear the brunt of the program.
o School’s goal to remedy past discrimination is sufficient to allow for race-conscious
classifications because a sound basis for concluding that minority underrepresentation is chronic
and that past discrimination is handicapping minority access to med school.
o Not stigmatizing Bakke as a member of an inferior group.
o No discrimination against a minority group because there is no cap on the number of minority
students.
o Can consider a wide array of ideas to understand where a person would be without the
discrimination.
o Worry about minorities being relegated to an inferior position because don’t have the protection of
the political system.
 Conservative justices want strict scrutiny:
o The constitution is color-blind.
o Race is inherently suspect and even benign classifications stigmatize blacks.
o Cannot use discrimination to cure discrimination.
o The equal protection clause protects against treating individuals as groups on the basis of race.
Will reinforce stereotypes and refuses to treat them as individuals.
o Immutability:
 Fine to draw distinctions for legacies, athletes, intelligence.
 But race is immutable and does not allow people to be treated by the content of their
character.
o The government can only remedy intentional past discrimination to put people in the place they
would be without that segregation.
 Needs to be clear that discrimination occurred and where the person would be.

A Brief Shift Left

Fullilove v. Klutznick (1980):

 Congress makes findings of racial discrimination in current the bidding process of the subcontracting
industry. Between 15 and 18% or contractors nationwide come from minority groups, but are only
employed at a rate of .15%.
o Racism implicit because contracts are awarded based on past performance. If you want a bid you
have to put up a bond, which needs to be insured. However, bonds are insured based on, again,
past performance.
 Minority groups don’t have the records of past performance because of discrimination.
 Court upheld a federal law that set aside 10% of public work monies for minority-owned businesses.
o Long history of discrimination in the construction industry and this is a remedy. That is, the goal
can be remedying discrimination in a field or industry with a history of discrimination.
o Affirmative action could be used to benefit a group of people subject to past discrimination, even
if the people benefitted were not themselves victims.

The Shift Right

Wygant v. Jackson Board of Education (1986):

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  Court declared unconstitutional a school system’s plan to lay off white teachers with more seniority instead
of minority teachers with less seniority. A rejection of the role-model theory.
o Role model theory allowed discrimination long past legitimate remedial purposes.
o There was past discrimination, but no direct relation between the adopted practice and the past
discriminatory practices. Could actually be used to justify less black teachers since lower
proportion of black students.
o The means here are too intrusive. Could adopt less intrusive means, like favoring diversity in
hiring practices, which would include race.
 “Societal discrimination alone is not sufficient to justify a racial classification. Rather, the Court has
insisted upon some showing of prior discrimination by the governmental unit involved before allowing
limited use of racial classifications in order to remedy such discrimination.”

Richmond v. J.A. Croson Co. (1989):

 Strikes down City of Richmond set-aside program declared valid in Fullilove.

 Richmond had instituted a set-aside since out of a ½ black population, only .67% of government contracts
went to minority businesses.
 O’Connor notes that Congress can identify and redress the effects of society-wide discrimination, but state,
cities, and universities cannot, distinguishing Fullilove.
 Race-conscious decisionmaking is only permissible where there has been a constitutional violation
against a race that permits no other solution.
 Means not narrowly tailored here.
o Benefited minority groups that had never been subject to discrimination in the construction
industry.
o Also, no consideration of race-neutral means to increase minority business participation in city
contracting.

Adarand Constructors, Inc. v. Pena (1995):

 Congress adopted an incentive-based system that provided highway construction contractors a payment if
they hired minority workers; more narrow than a set-aside.
 Incorporated Croson strict scrutiny and implied it to 5A equal protection.
 Said that it was unconstitutional because no evidence that persons in this class had suffered discrimination.
 Distinctions based on race are subject to strict scrutiny in federal or state laws. Strict scrutiny is not
fatal. States can undo the effects of past discrimination if its laws are narrowly tailored to meet
compelling interests.
 Seems that affirmative action in the business setting needs to be limited to remedying proven past
discrimination. Not enough to show societal discrimination.

Grutter v. Bollinger (2003):

 Could Michigan Law consider race as one factor in diversity during its admissions process?
 Strict scrutiny applies to all government imposed racial classifications. Such classifications are
constitutional only if they are narrowly tailored to further compelling government interests.
o Don’t have to exhaust all means to the end, but they must be considered.
o Classification must not unduly burden individuals not part of the favored ethnic and racial groups.
o Affirmative action policies must be limited in time because the goal of 14A is to eliminate all
government imposed discrimination based on race.
 One such interest is to rectify identifiable past discrimination.
 Racial diversity in HIGHER EDUCATION also a compelling state interest and considering race,
among other factors for diversity, a narrowly tailored means to achieve this end.
 Legitimate ends of diversity in higher education:

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 o Breaks stereotypes and provides opinions from different perspectives. Diverse views are important
in a global marketplace.
o Need leaders with legitimacy, so the path to leadership needs to be open to talented and qualified
individuals of every race and ethnicity.
 Narrowly tailored end:
o Not using a quota, using an individualized assessment of each candidate where race is only a
“plus” factor.
 Must analyze people individually and race cannot be the defining feature of an
applicant’s application.
o Narrow tailoring does not require exhaustion of all race-neutral alternatives, but they do need to be
considered.
o The classification here does not unduly burden individuals who are not a part of the favored ethnic
and racial groups because Michigan Law still admits nonminority candidates who can increase
student diversity over minority applicants.
 Concurrence (RBG): minority students encounter markedly inadequate and unequal educational
opportunities. The hope is that as these opportunities improve, affirmative action will no longer be
necessary.
 Dissent (Scalia): discrimination on the basis of race should be prohibited.
 Dissent (Thomas): constitution abhors racial classifications because they demean us all.
o May use racial classifications only when there is a threat of anarchy or if there is identifiable
history of racial discrimination that harmed that minority.
o Are race-neutral means of achieving a diverse student body, thus not narrowly tailored.
o Affirmative action programs stamp minorities with a badge of inferiority and create an attitude
that they are entitled to something.
o Use of race unfairly creates a question of whether a minority achieved their position because of
race, even those who achieved it completely based on merits.
 Rehnquist: doesn’t make sense that Michigan Law is admitting disproportionately more black candidates
than Latino or Native American candidates if seeking to create a critical mass of minority voices.
o Also, seems that the school is engaging in impermissible racial balancing and admitting a quota
since the number of admitted students from each minority group is close to the same every year.

Gratz v. Bollinger (2003):

 Challenge to Michigan’s undergraduate admission process, which awarded every applicant from an
underrepresented minority 20 of the 100 points needed to guarantee admission.
 For admissions’ criteria to be narrowly tailored to further the goal of diversity in higher education,
the selection process needs to consider an applicant as an individual, assessing all of the qualities the
individual possesses, and, in turn, evaluating that individual’s ability to contribute to the unique
setting of higher education.
 Assigning points to minority candidates fails to consider them on an individual basis.
 There may be administrative problems in considering all candidates individually, but that does not justify
the use of race.
 Concurrence (O’Connor): Distinguishable from Grutter because of the individualized analysis that
Michigan Law conducted. Considered candidates holistically with race being just on factor in
determining how a candidate would add diversity to the school. By contrast, the undergrad system
simply assigned point to all underrepresented minorities.
 Dissent (Souter): not using a quota system that keeps nonminority candidates from competing for seats.
Same seats available to all candidates and race just one factor in allotting them.
o Minority candidates are given default points just like other categories of people, e.g. Michigan
residents.

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  Dissent (RBG): not so far removed from a racially discriminatory past that equality of opportunity is
present for all races.
o Need to remove the stain of racial oppression, and one way is to keep minority students in higher
education through affirmative action.

Notes

 Bakke seemed to emphasize diversity in education for its own sake; the exchange of ideas and different
perspectives. Grutter seems to emphasize the value of diversity on outputs like professionalism, citizenship,
and leadership.
 Have been studies that show that whites fair almost equally under admissions that are race-neutral as
compared to those that are race-conscious.
 In response to affirmative action plans giving preference to race in admissions being struck-down, a
number of jurisdictions have begun using a percentage system that guarantees admission to a state school
for a certain percentage of each high school’s graduation class. Trying to overcome residential segregation.
Two criticisms:
o Does nothing to combat residential segregation.
o Unfair to schools that are better overall since the same percentage of top students are guaranteed
admissions at worse schools, despite potentially having more qualified candidates.

Schuette v. Coalition to Defend Affirmative Action (2014):

 Following Gratz and Grutter, Michigan voters adopted an amendment to the state constitution prohibiting
state and other governmental entities in Michigan from granting certain preferences, including race-based
preferences, in a wide range of actions.
 Voters may choose to prohibit giving racial preferences. Seems to only require a rational relationship
to a legitimate end, so long as the end is not to harm minorities.
o State action denies equal protection when it “has the serious risk, if not purpose, of causing
specific injuries on account of race,” or is either designed to be used or likely to be used to
encourage infliction of injury by reason of race.
 Distinguishes Hunter and Seattle because those measures were meant to harm minorities by banning laws
from being passed that would seek to prohibit disadvantaging minorities. The amendment here to ban laws
that give minorities preferential treatment. The Court seems to think equality of opportunity exists… laws
can’t harm or help, need to be neutral.
 Rational basis: voters could have considered that giving racial preferences stigmatizes the races and
perpetuates a system of racial tension and they thus could have enacted this law to overcome that problem.
 Concurrence (Scalia): cannot have discrimination on the basis of race under the equal protection clause.
Michigan voters simply adopted this proposition as their law.
 Concurrence (Breyer): constitution allows local, state, and national communities to adopt narrowly tailored
race-conscious programs designed to bring about greater inclusion and diversity. However, the ballot box
and not the courts should decide when to implement these programs.
o Hunter and Seattle inapplicable because they involved restructuring the political process. Here,
however, simply took power from unelected officials and placed it in the hands of voters.
 Dissent (Sotomayor): Michigan amendment changed the rules of the political process to harm minorities,
though not necessarily intentionally.
o Rule has been that the majority may not suppress minority rights to participate on equal terms in
the political process. Government actions deprive minority groups of equal protection when they
have a racial focus, targeting a policy or a program that primarily benefits minorities; and alters
the political process in a manner that uniquely burdens racial minorities’ ability to achieve their
goals through the political process.
 Here, race-sensitive admissions policies primarily benefit minorities.

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 o Michigan rarely amends its constitution through the initiative process, and racial minorities are
virtually incapable of getting a large enough coalition to do so (discrete an insular group).
o Plurality trying to ignore race when it still matters:
 Have a long history of racial discrimination.
 Have racial inequalities in society.
 Finally, still existing stereotypes and disparate treatment on the basis of race.
o “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject
of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of
racial discrimination.”
o Holding seems to prevent Michigan from achieving a diverse student body. Can’t even consider
race in admitting students and no other ways have yet worked.

Fischer (2013):

 Give deference to academic institutions to determine if diversity is important.

 Still must show no other means to achieve diversity without prohibitive administrative expense.
o Don’t defer to educators on the means because not experts.
 Why does the Court allow individual consideration of diversity, including race, but not racial quotas?
o Want the government to treat people as individuals. Ideally race would not be considered at all.
o But still need to address discrimination.
o Less offensive to do so through facially-neutral alternatives than explicit racial classifications.

Parents Involved v. Seattle (2007):

 Schools assigning students to schools based on race to ensure that the racial balance at the school falls
within a predetermined range based on the racial composition of the school district.
o Seattle allowing students to rank high schools to attend. If too many ranked the same school
highly, tie-breakers used. 1st tie-breakers is siblings at the school, then race (if one school had
greater than a 10% deviation from the white/non-white make-up of the school district, students
integrated to restore balance), then proximity.
o Seattle never operated legally segregated schools or was subject to court-ordered desegregation
using system to address racially identifiable housing patterns.
o Jefferson County in Louisville had operated segregated schools and was under a court-order until
2000. After 2000, had a voluntary plan ensuring a minimum of 15% black students at schools and
a maximum of 50%.
 When the government distributes burdens or benefits on the basis of individual racial classifications,
the action is reviewed under strict scrutiny (classification narrowly tailored to achieve a compelling
interest).
o Remedying intentional past discrimination, if specific enough, a compelling interest, and
diversity in HIGHER EDUCATION if done through individual analysis.
 No legitimate end:
o Neither plan meant to remedy past intentional discrimination. Seattle schools never segregated and
Jefferson County had “eliminated the vestiges associated with the former policy of segregation
and its pernicious effects” (achieved unitary status righting the constitutional harm).
o Not part of achieving a diversity of views since not engaging in an individualized analysis, just
using racial classifications in a formalistic manner.
o Not governed by Grutter because that case based on the expansive freedoms of speech and thought
associated with the university environment.
 Not narrowly tailored:
o Plans are directed only to racial balance, which is an illegitimate goal. Based exclusively on
demographics without any evidence that these demographics coincided with educational benefits.

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  Can’t allow racial balancing since it ignores the point of 14A to treat people as
individuals.
 Would allow race to remain a part of American life, when the goal is to eliminate it.
o Not really any effect from the plans as most student ended up where they wanted to be.
o Didn’t consider race-neutral alternatives.
 Can’t have different scrutiny for “benign” racial classifications because it suggests that courts can
somehow tell good from harmful government uses of racial criteria.
 Brown wants no differential treatment on the basis of race.
o That is just not a proper reading.
 The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
o Color-blind approach to the Constitution.
 Court’s holding: WE SOLVED THE PROBLEM OF RACISM
BITCHES!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! IT IS GONE AND NEVER
COMING BACK!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Concurrence (Thomas)

 Segregation is the deliberate operation of a school system to carry out a governmental policy to separate
pupils in schools on the basis of race. Racial imbalance is the failure of a school district’s individual
schools to match or approximate the demographic makeup of the student population at large. Racial
imbalance is not segregation.
 Classifications here are not benign as they exclude someone on the basis of race, causing them injury. Such
racial exclusion provokes racial tension and leads people to believe that the government has wronged them
on the basis of race.
 The only compelling interests that justify race-based classifications are “those measures the State
must take to provide a bulwark against anarchy or to prevent violence” and “a government’s effort
to remedy past discrimination for which it is responsible” (needs to be specific discrimination and
identifiable harm. Must put person back to where they would be if there was no discrimination,
which requires specificity about the discrimination and harm). Neither is applicable here. Calling for a
color-blind constitution.
o Where does he get this narrow reading?
 Not 14A since it says equal protection generally and has been read to call for affirmative
action to promote equal opportunity.
 Not original meaning since the ratifiers of 14A also had the Freedman’s Bureau, which
provided help to newly freed slave.
 Evolving understanding that distinctions on the basis of race are odious. Tough argument
as a textualist.

Concurrence (Kennedy)

 Strict scrutiny appropriate to all racial classifications.

 Diversity in schools a compelling interest (in line with dissent here), but neither program narrowly-
tailored as other means to achieve diversity without resulting to blatant racial classifications.
o E.g. can strategically locate new schools, allocate resources for special programs, etc.
o Do things with purpose to increase diversity, but don’t use racial classifications.
 Also compelling interests in ensuring equal opportunity for children and avoiding racial isolation.
o More open than majority to consider compelling interests that justify racial classifications.

Dissent (Breyer)

 Majority abandoning Brown because the plans approved post-Brown to integrate schools based on
compelling state interest similar to the ones declared unconstitutional here.

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 o Brown not saying don’t use racial classifications, saying to achieve integration through any means
necessary.
 Both areas had a history of segregation, whether overtly (Louisville) or more covertly (Seattle).
o Seems that Seattle school board using measures to keep the schools segregated.
 14A about forbidding practices that lead to racial exclusion. Drafters would understand the difference
between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and
the use of race-conscious criteria to further that purpose, namely bringing the races together.
o Measures here about bringing the races together.
 Judges should defer to the legislature’s judgment that a certain program furthered an important end
like ending racial isolation or achieving a diverse student body. The judge would then review the
details of the program to determine whether the use of race-conscious criteria is proportionate to the
important ends it serves.
 Three important interests at stake here:
o Trying to right the consequences of prior conditions of segregation that arose from legal or
administrative policies that facilitated racial segregation in public schools.
o Interest in overcoming the adverse educational effects associated with highly segregated schools.
o Interest in mirroring the pluralistic society that students will participate in.
 Narrowly-tailored:
o Choice, not race, the main part of the plans.
o Allows a broad range of limits on voluntary school choice plans. Thus, not burdensome since it
only affects a few students.
o The plans meant to overcome prior segregation, are based on local experiences, and use race-
conscious elements less than other integration plans.
 Color-blind plans ineffective at achieving integration, but the Court compels them.

Ricci v. DeStefano (2009):

 Had a firefighter test for promotions that whites did better on than blacks. City abandoned the test and
white and Hispanic firefighters who would have been promoted sued.
o City saying that it couldn’t certify the results or it would have violated Title VII by adopting a
practice with a disparate impact on black firefighters.
 Court considers only Title VII, not equal protection. The government may not promote racial
preferences under Title VII unless it can demonstrate a strong basis in the evidence that, had it not
taken action, it would have been liable under the disparate-impact portion of the statute.
 Title VII meant to rid the workplace of practices that are fair in form, but discriminatory in operation. Also
meant to prohibit employers from making adverse employment actions on account of race. Thus, the
strong-basis-in-evidence standard gives effect to both the disparate-treatment and disparate-impact
provisions, allowing violations of one in the name of the other only in certain, narrow circumstances.
 Employer cannot rescore an advancement test based on race, thus cannot completely disregard the test
absent a strong showing that the test was deficient and the result is necessary to avoid violating the
disparate-impact rule.
 Can consider before administering a test how to design that test to provide a fair opportunity to all
individuals, regardless of race. However, cannot just throw out a test that employees were relying on for
promotion without a clear showing that it would be subject to disparate-impact liability.
 Concurrence (Scalia): government forbidden from discriminating on the basis of race, thus cannot create
laws that allow other entities to discriminate on the basis of race. However, the disparate-impact rule of
Title VII often requires employers to evaluate the racial outcomes of their policies and make decisions
based on these outcomes.
o Disparate impact problematic because it equates disparate outcomes with racial motives without
allowing the offending party to rebut this presumption, even if it acted in good faith.

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  Dissent (RBG): Title VII states that selection criteria operating to the disadvantage of minority groups can
be retained only if justified by business necessity. Employers that reject criteria due to reasonable doubts
about their reliability can hardly be held to discriminate on the basis of race.
o Other tests employed that seemed to be a more reliable indicator of performance.

Current State of Benign Racial Classifications

 Conservative Justices:
o The constitution is color-blind and any racial classification are odious to a free people.
o Racial classifications to be subject to strict scrutiny.
 Liberal Justices:
o Want to prevent racial isolation and the creation of a caste system. Want to provide equal
citizenship and opportunity.
o Can use racial classifications to further inclusion.
o Evaluating race-based classifications should vary depending on the situation.

 Overview: the government has had a historical hand in discriminating against minorities,
so it should provide a remedy to those effected. Everyone agrees.
 What level of scrutiny should be used for racial classifications benefiting
minorities?
o Bakke: no majority opinion, but intermediate scrutiny rejected.
o Fullilove: no decision on appropriate scrutiny.
o Croson, Adarand, Grutter, Gratz: strict scrutiny for racial classifications
whether they be invidious or benign.
 What purposes for affirmative actions program are sufficient to meet the
level of scrutiny?
o Remedying past discrimination
 Fullilove: field or industry where there is proved
discrimination, even if not demonstrated that the particular
entity violated the law, or that the particular person suffered,
can be a compelling interest to remedy.
 Croson: cannot be an amorphous claim of past discrimination
in a particular industry that can justify racial quota.
 Adarand: poses the idea that benign classifications cannot be
justified where there is neither proof of discrimination by the
entity nor proof that the particular recipients’ rights were
violated.
 Court narrowing where past discrimination can be
remedied. Now, seems to require proof that the
targeted entity engaged in past discrimination and
that the person or group seeking affirmative
action was the victim of that discrimination
specifically.
o Enhancing diversity
 Bakke: diversity in education is compelling
 Grutter: for colleges and universities, diversity is a compelling
interest in creating a diverse student body.
 Parents involved: plurality nixed diversity as a compelling
interest in the context of elementary and high schools, but
Kennedy and the dissenters said a legitimate interest in
classroom diversity and in preventing racial isolation.
o Enhancing services provided to minority communities
 Bakke: rejected argument as not based in fact.

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  What techniques of affirmative actions are sufficient to meet the level of
scrutiny?
o Numerical set asides
 Bakke: quota not allowed
 Fullilove: quota allowed only if needed to remedy clearly
proven past discrimination.
 Croson: quota not narrowly tailored; non-racialized options
not explored.
o Race as one factor in decisions to help minorities
 Bakke: race as one criterion
 Grutter: race as one factor, among many, to benefit minorities.
 Gratz: no explicit points system.
 Diversity is a compelling interest in education and universities
may use race as a factor to ensure diversity, but quotas or
numerical quantification of benefits are not narrowly tailored.
 What should the remedy look like and can it include classifications based on race?
 Liberals (Brennan, Marshall, Blackmun, modern liberals)– Intermediate
scrutiny for benign ends.
o Racial distinctions rooted in hostility that tend to subordinate minority
groups, that have the quality of marking with stigmas, are subject to
strict scrutiny and can only be justified by extraordinary circumstances.
Nothing new.
o Government actions that distinguish on the basis of race, but do NOT
have the quality of subordinating, stigmatizing, and excluding, and are
directed to a legitimate and important goal (such as educational
diversity) that has been stymied by past discrimination should Not be
subject to the same level of inquiry and suspicion.
 Since the basis of strict scrutiny is suspicion that minority
groups cannot protect themselves in the political process, such
a fear no longer exists when the legislative action is to include
minority groups in ways that burden the majority.
 Still some concern because it is based on immutable
characteristic (race) that may stigmatize.
 Test: distinctions based on race to achieve benign results
should be acceptable only where an important and articulated
interest remedying past discrimination resulting in
underrepresentation.
 Conservatives (Scalia, Alito, Roberts, WHR, Stewart) strict scrutiny for
benign ends and diversity is not compelling
o Core meaning of the EPC is that the law should be the same for blacks
as for white; equal protection means that similarly situated individuals
should be treated in the same fashion.
o The harm of the 50s and 60s was the use of distinctions grounded in
race; to prevent going back to that we focus on constitutional
DECISIONS not progressive OUTCOMES.
 Race decisions are bad for the body politic.
 Gov. should be the role model of decision-making (once the
Constitution takes off its color-blind goggles, so do people).
 Discrimination, per se, is the root evil to be avoided (Thomas)
 The Constitution is “color-blind”
 “The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race.”
o A white man denied a benefit b/c of the color of his skin is entitled to
demand nothing less than a compelling state interest to justify his
differential treatment.

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  The only compelling interests to be entertained are (1)
imminent chaos (Korematsu); and (2) remedying targeted,
identified intentional discrimination (Brown, School Deseg
cases.)
 Moderates (Kennedy, Powell, O’Connor) strict scrutiny for benign ends but
some such ends (diversity) are compelling
o Strict scrutiny for race-based classification.
o Government may act on the basis of race to remedy past discrimination
where there is a “strong basis in evidence” that there has been past
discrimination. But, must be targeted, cannot be a remedy of
amorphous discrimination.
o Remedying past discrimination with diversity as a goal is compelling if
pursued narrowly. Diversity, robust exchange of ideas.
 Narrowly tailored means viewing people of race as individuals
and treating race as one of a multitude of factors to be
considered in weighing an applicant.
 Cannot be a quota system.
 Formalist distinction.
 Current state of play
o Strict scrutiny is used to evaluate all government affirmative action
plans. (Conservative).
o But, compelling government interests are not limited to imminent
threat
 Redress of clear, but no amorphous, past discrimination.
o Pursuit of diversity. Means must be necessary to achieve that
interest.
 Applicants as individuals not as race quotas.
 Plus minus factors, not quotas.

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Racial Liberals Example Cases Conservatives
Distinctions
The aim of law should be to Brown Bolling Equal protection requires
eliminate those policies Strouder Yick Woh treating people in similar
whose OUTCOMES have the situations similarly; the evil is
Basics interp. effect of branding groups as not the outcome but the
of 14th inferior, generating racial METHOD in which decisions
hostility, or constitute steps made. Only time where race
towards re-instilled may be present in a state
subordination.
Facially Racial distinctions must be Brown, Strouder, Yick Woh, Racial distinctions must be
discriminatory narrowly tailored to achieve Bolling narrowly tailored to achieve a
law on basis a compelling gov’t interest compelling gov’t interest
of race (strict scrutiny). (strict scrutiny). Equal
“Root and branch” with Swann, Keyes, “Root and branch” with
affirmative race-based McDaniel, Parents affirmative race-based
School
distinctions where de jure or Parents Involved distinctions for de jure
Desegregatio
de facto segregation (north Involved (Seattle) segregation (with stopping
n
or south). (Dissenters) point), not segregation arising
from de facto forces.
Facially Strict scrutiny for racial Loving, Palmore, Johnson, Strict scrutiny for any racial
symmetrical distinctions even when Anderson classification
race-based facially symmetrical
laws
Since EPC is concerned with Griffen, Washington, Since EPC is concerned with
Facially
the outcomes of Guinn, Arlington decision-making, not impacts,
neutral laws
government actions and not Hunter, Lau Heights, purposeful discriminatory
with a
just underlying motivations, Hunter intent needed.
discriminatory
disparate impact is sufficient
impact
to warrant strict scrutiny.

Intermediate scrutiny for Bakke Croson, Conserv: Moderates:

racial distinctions benefiting Liberals, Aderand, Strict scrutiny Strict
minorities Fullilove, Grutter/Gratz for all racial scrutiny but
Grutter/Gratz Conservatives classifications more
liberals be they potential
Racial invidious or compelling
classifications benign; only interests.
that benefit compelling
minorities interest (1)
imminent
chaos; (2)
remedying
identified
discrimination

Protection and Citizenship

Overview
 14A applies to aliens because it states that no “person” (not citizen) shall be denied equal protection of the
laws. Yick Wo: “The Fourteenth Amendment to the Constitution is not confined to the protection of

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 citizens…. Its provisions are universal in their application, to all person within the territorial jurisdiction
without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is
a pledge of the protection of equal laws.”
 Strict scrutiny applies to laws with alienage classifications. Why?
o Discrete and insular minority since they cannot vote and protect themselves.
o Long history of prejudice against aliens based on prejudice and economic protectionism.
 Two exceptions:
o Only rational basis review is used for alienage classifications related to self-government and
the democratic process.
o The federal government’s plenary power to control immigration requires judicial deference
and therefore only rational basis review is used if Congress has created the alienage
classification or if it is the result of a presidential order.

Back in Olden Times

 Dred Scott: only white people can be citizens of the United States.
 Federal immigration laws wholly occupy the field and preempt state efforts to regulate immigration.
 Constitution treats citizens different than non-citizens:
o Restricts their membership in the government.
o Art. IV privileges and immunities only applies to citizens.
o 14A, 15A, and 19A refer to citizens.
 However, the Constitution did not define citizenship.
o Art. 1 Sec. 8 grants Congress the power to naturalize citizens.
o 14A: “all persons born and naturalized subject to the jurisdiction are citizens of the United States.”
 Strouder: can exclude non-citizens from jury service.

Wong Wing v. United States (1896):

 Law punished Chinese descendants unlawfully in the US by sentencing them to not more than one year of
hard labor and then deporting them.
o Challenged based on 5A’s requirement that a capital or infamous crime requires indictment by a
grand jury.
o Challenged based on 6A’s requirement that the accused shall enjoy the right to a speedy and
public trial by an impartial jury of the State and district wherein the crime was committed.
 Congress has the power to exclude aliens from the US or to determine the terms and conditions of
how they may enter the country. Further, it can enforce its policies through executive officers
without judicial intervention.
 However, “all persons within the territory of the United States are entitled to the protection of [5A
and 6A], and even aliens shall not be held to answer for a capital or other infamous crime, unless on
presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due
process of law.”
o Anyone residing within the US has equal protection of the laws, which includes the Bill of
Rights.
 Congress could imprison aliens while determining whether to deport them. Could also punish them with a
fine or jail time.
 But, to subject a person to hard labor or deprive them of property requires a trial.
 Needed to be a trial here since hard labor is an infamous crime as it is involuntary servitude.
 Concurrence (Field): Alien has same protection of laws as a citizen because he must obey the laws of this
country.

United States v. Wong Kim Ark (1898):

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  Whether a child born in the US, of non-American parents residing in the US, is a citizen.
 If born within the US, you are a citizen under 14A, unless you are the child of a foreign diplomat,
born during hostile occupation, or belong to a Native American tribe. Reasoning:
 Children born in England to alien parents were citizens.
 In other European countries, the rule in 1789 was that citizens were those born within the jurisdiction of a
nation-state. Mere birth within this jurisdiction gave them the rights of a citizen, independent of their
parent’s origin.
 Nothing in 14A to indicate that a citizen was not the same as at common law.
 Statement by the ratifiers of 14a show that they intended any person born in the US to become a citizen,
regardless of race.
 Dissent (Fuller): holding of the majority would make person born abroad to American parents non-citizens,
while allowing an accident of birth to make people citizens.
o Need to be clear intent of parents to become citizens.

Initial Cases Allowing Discrimination

 Court had been deferential to discrimination against aliens so long as the discrimination related to a
“special public interest.”
o Special public interest included allocation of resources and opportunity to hold property. States
could reserve such resources to members of the polity.
 Truax v. Reich (1915): struck down an AZ law that required employers with more than 5 employees to hire
at least 80% qualified voters or native-born citizens. Court said that the law was arbitrary and that “no
special public interests could be shown to support the enactment.”
 But, otherwise, upheld distinctions involving citizenship which involved access to something that involved
being part of the resources of the public.

Emergence of Strict Scrutiny

 Graham v. Richardson (1971): can’t discriminate against non-citizens when providing welfare benefits.
Alienage classifications subject to strict scrutiny. Why?
o Discrete and insular minorities that have little legal protection. E.g. can’t vote or sit on juries.
o History of hostility and discrimination towards aliens.
o Citizenship somewhat a choice, but hard to change. Close to an accident of birth, but not quite as
immutable as race.
o Similarly situated to citizens (e.g. pay taxes, work, etc.), and classifications based on citizenship
say nothing about individual merit.
o Citizenship usually not relevant to any legitimate state interest. Rather, classifications based on
citizenship are often the result of prejudice.
 Sugarman v. Dougall (1973): to the extent that an office of the state includes exercise of civic duty, the
government is entitled to exclude non-citizens.
o “We recognize a state’s interest in establishing its own form of government, and in limiting
participation in that government to those who are within the basis conception of a political
community.”
o Flat out ban on aliens working in civil positions did not survive strict scrutiny because it had little
relation to the state’s compelling interest.

Exceptions to Strict Scrutiny: Self-Governance and the Federal Government

Cabell v. Chavez-Salido (1982):

 Cali law required public officers and peace officers to be citizens.

o Peace officers included assistant probation officers.

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  Two men were lawfully admitted permanent resident aliens of California. Denied works as assistant
probation officers because of the citizenship requirement.
 Citizenship not a relevant ground for the distribution of economic benefits, but is a relevant ground
for determining membership in the political community. States have an interest in establishing their
own form of government and limiting participation in that government to those who are within the
basic conception of a political community.
 Strict scrutiny when the classification between citizens and aliens affects economic interests.
 Rational basis scrutiny when the restriction serves a political function. Two part test:
o Specificity of the classification is examined: classifications that are overinclusive or
underinclusive tend to undercut the governmental claim that the classification serves a
legitimate governmental end.
o Classification may only be applied to persons holding positions that perform functions that
go to the heart of representative government.
 Must therefore inquire whether the position in question involves discretionary
decisionmaking, or execution of policy, which substantially affects members of the
political community.
 Here, classification sufficiently tailored. Defining characteristic of who is considered a peace officer is that
they make arrests and have training in their exercise of this power and in the use of firearms.
o Precedent says that a state may limit the exercise of the sovereign’s coercive police powers of the
community to citizens, so statute sufficiently tailored.
 Functions of the probation officers sufficiently partake of the sovereign’s power to exercise coercive force
over an individual that they may be limited to citizens.
o Broad powers over those under their care that may be exercised without supervision.
o Acting like a judiciary telling people how to live their lives and similar to the executive in making
sure that they do so.
 Dissent (Blackmun): classification not sufficiently tailored because a bunch of weird jobs qualify as peace
officers.
o Also, prohibiting aliens from being deputy probation officers is inconsistent with Cali’s tolerance
of aliens in other roles key to the criminal justice system. A criminal defendant in Cali could have
an alien attorney, judge, and appellate justice hear his case, and then have his probation overseen
by a county probation department headed by an alien.
 Thus, absurd that an alien is not entrusted to supervise his probation as a deputy
probation officer.

Mathews v. Diaz (1976):

 Whether Congress may condition an alien’s eligibility for participation in a federal medial insurance
program on residence for a five-year period and admission for permanent residence.
 Only rational basis scrutiny when the federal government makes classifications on the basis of
citizenship. Rationale:
o Decisions about citizenship and the benefits of it implicate issues of foreign relations, which is the
province of the executive branch.
o Need to have flexibility in the areas implicating international interests because of a fluid world.
o States are forbidden from denying welfare benefits to noncitizens because, in a similar vein, they
cannot deny benefits to citizens of another state. By contrast, separating citizens from noncitizens
is a regular part of the federal government doing business.
 Just because Congress provides welfare benefits for citizens does not require it to provide like benefits for
aliens, and it can offer different aliens different benefits depending on their status.
 There needs to be a line somewhere since benefits cannot be provided to everyone passing through the US.
Thus, chose aliens that are most like citizens.
o Rational relation to legitimate government end that the court did not want to question.

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Undocumented Aliens and Equal Protection
Plyer v. Doe (1982):

 School in Texas requiring an admission fee for undocumented children.

 Court said that illegal aliens are not a suspect class because their presence in this country is violating
the laws. Also, education not a fundamental right. However, the Court applied something more than
strict scrutiny to hold the law unconstitutional.
 Children blameless for their status; the fault of their parents.
 Further, would be unfair to deny education in this manner because it would create a permanent underclass.
o Would be a government barrier to advancement based on individual merit, a central goal of equal
protection.
o Stigmatizing and subordinating.
 No substantial government interest in either discouraging illegal immigration (belongs to the federal
government) or reducing burdens on schools.
 Concurrence (Blackmun): denial of education unique since it implicates the State in the creation of
permanent class distinctions. Lack of education relegates a person to second-class social status.
 Concurrence (Powell): can’t deny access to public education because of the decisions of one’s parents since
it would relegate these children to inferior status. Thus, needs to be a substantial state interest.
 Dissent (Burger): should be rational basis examination because no suspect class is involved and education
is not a fundamental right.

Equal Protection and Sex

Overview
 Classifications on the basis of sex are subject to intermediate scrutiny – they need to have an
exceedingly persuasive justification.
o Specifically, classifications on the basis of sex must serve important governmental objectives
and must be substantially related to those objectives.
 How sex is like race and therefore subject to heightened scrutiny:
o Astrictive immutable characteristic; not chosen and difficult to alter.
o Irrelevant to moral wealth and capabilities of individuals to contribute to society.
o Element of unfairness to penalize on the basis of average differences, if there are any, between
men and women.
o Women and men are similarly situated, and any goals to distinguish them will not be on the
individual, but on the group and will reflect stereotypes.
o A visual characteristic.
o History of hostility and discrimination.
o Also a history of subordination.
o A stigmatized class.
 How sex is unlike race and therefore not subject to strict scrutiny:
o Are different physical characteristics, “real differences.”
 These physiological differences may be relevant to legitimate state interests.
 Exclusion is not invidious, does not stamp females with a badge of inferiority.
o No constitutional hook with the ERA failing and 14A mentioning men.
o Not a discrete and insular minority since actually the majority.
 Two ways to prove a gender classification:
o Could be a distinction between the genders on the face of a law.

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 o If the law is facially sex neutral, proving a sex classification requires demonstrating that there is
both discriminatory impact to the law and a discriminatory purpose behind it.
 When are gender classifications benefitting women constitutional?
o Gender classifications benefitting women based on role stereotypes generally will not be allowed.
o Gender classifications benefitting women designed to remedy past discrimination and differences
in opportunity generally are permitted.
o Gender classifications benefitting women can be based on biological differences between men and
women.

Early Sex Discrimination

 The US Constitution is the only major Western constitution with a bill of rights that lacks a provision
explicitly declaring the equality of the sexes.
 In Bradwell v. State (1873), the Court held that the privileges and immunities clause did not extend do
women. Concurrence indicated that this was because women belong to an inferior sphere, subordinate to
men.
 Court in Minor v. Happersett (1874) denied that women had privileges and immunities, including the right
to vote in state elections. The Court suggested that women may be persons and even citizens within the
meaning of 14A, but that did not thereby entitle them to participate in a political or professional realm
reserved to men.
 Only 19A addresses women’s equality, granting women the right to vote.
o Construed narrowly to only protect the formal franchise, not other forms of sex discrimination.
 Court in Goesaert v. Cleary (1948) upheld a Michigan law preventing women from working as bartenders
unless they were the daughter or wife of the owner.
o Applied something akin to rational review. Michigan could conclude that the law was necessary to
minimize the hazards that could confront a female bartender.
 Court wouldn’t question the rationale of the legislature.

Heightened Scrutiny under Rationality Review

 Court in Reed v. Reed (1971) declined to find sex a suspect classification. The case involved state courts
sustaining a preference for men over women in the appointment of administrators of estates as a rational
method “to resolve an issue that would otherwise require a hearing as to the relative merits” of the
petitioning relatives.
o No rational basis for discrimination. Some legitimacy to trying to reduce the burden on the courts.
However, giving mandatory preference to one sex the sort of arbitrary legislative decision
forbidden by 14A.
 Around this time, Congress passed the Equal Rights Amendment, proposing that women be given equal
protection. However, states failed to ratify.
 Title IX: educational institutions receiving federal funds may not discriminate on the basis of sex.
 Title VII prevents sex discrimination by employers engaged in interstate commerce.
 1978: Pregnancy Discrimination Act.

The Failure to Adopt Strict Scrutiny

 The Court in Frontiero v. Richardson (1973) sustained an equal protection challenge to a federal law
affording male members of the armed forces an automatic dependency allowance for their wives, but
requiring servicewomen to prove that their husbands were dependent.
o Brennan wanted to treat gender classifications as inherently suspect, but could only obtain a
plurality. His reasoning:
 Long history of sex discrimination in the US that sought to relegate women to an inferior
position.

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  Had similar position as slaves since they could not hold office, serve on juries, or bring
suit in their own names.
 Sex characteristics immutable, so distinctions on the basis of sex would seem to violate
the basic idea that the burdens should bear some relationship to individual responsibility.
 Sex classifications bear no connection to an individual’s ability to contribute to society,
they are thus invidious and relegate women to an inferior position.
o Powell’s concurrence did not treat sex as a suspect classification. Wanted to wait on the outcome
of the pending Equal Rights Amendment (you done fucked up).

Intermediate Scrutiny
Craig v. Boren (1976):

 Oklahoma statute prohibited the sale of 3.2% beer to men under 21 and females under 18.
 Classifications by gender must serve important governmental objectives and must be substantially
related to achievement of those objectives.
 Goal of the statute traffic safety, an important end. However, distinction between genders does not closely
serve to achieve that objective.
o Only some empirical evidence showing the connection between sex and drinking tendencies.
 Concurrence (Powell): statistics do tend to support the classification. Even so, these facts and inferences do
not justify the classification given the three-year age differential between the sexes, especially one that is
easily circumvented.
 Concurrence (Stevens): the classification is objectionable because it is based on an accident of birth.
Question is whether the justification makes this otherwise objectionable classification acceptable.
o Classification is not irrational because there is evidence that more males than females in the age
bracket drive and also drink.
o However, not a great way to regulate traffic safety because it does not do a great job of restricting
access to a not-very-intoxicating beverage and does not prohibit its consumption.
 Dissent (Rehnquist): Two problems:
o No support for increased review.
 Only wants to apply rational basis.
o Males do not need extra-protection because not peculiarly disadvantaged, subject to systematic
discriminatory treatment, or otherwise in need of special solicitude from the courts.

Notes

 Court in Mississippi University for Women v. Hogan (1982) considered whether a school could deny
admissions to a male student because it was an all-female school. Court said no.
o Doesn’t matter if male or female challenging gender distinction.
o The party seeking to uphold a statute that classifies individuals on the basis of their gender
must carry the burden of showing an exceedingly persuasive justification for its
classification. The burden is met only by showing that the classification serves “important
governmental objectives and the discriminatory means employed are substantially related to
the achievement of those objectives.”
o Objective cannot be to protect one class of individuals because they are thought to be
handicapped or inferior.
o Require substantial relation so that there is reasoned analysis rather than mechanical application of
inaccurate assumptions about the proper roles of men and women.
o Not affirmative action. In limited circumstances, a gender-based classification favoring one
sex can be justified if it intentionally and directly assists members of the sex
disproportionately burdened, but such a benign justification requires searching analysis.

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  A state may establish a compensatory justification only if members of the gender
benefited by the classification actually suffer a disadvantage related to the classification.
 Not affirmative action because most nurses females, so not seeking to help them just
perpetuating a stereotype of them as females.
 Court in J.E.B. v. Alabama ex rel. T.B. (1994) held that peremptory challenges to jurors on the basis of
gender are unconstitutional. Needed to be exceedingly persuasive justification, but instead the argument
was simply that it was rational to conclude that male jurors would be more favorable to the father in
paternity actions and females would be more favorable to the mother.

United States v. Virginia (1996):

 Virginia Military Academy (VMI) a single-sex school.

o Lots of physical rigor and no privacy as everyone living together.
 Following suit, VMI established a female school at Mary Baldwin College.
o However, different academic offerings, methods of education, and financial resources.
 Q: Does VMI’s single-sex requirement violate equal protection?
 Parties who seek to defend gender-based government action must demonstrate an “exceedingly
persuasive justification” for that action.
 The state must show AT LEAST that the challenged classification serves important governmental
objectives and that the discriminatory means employed are substantially related to the achievement
of those objectives.
o The justification must be genuine, not hypothesized or invented post hoc in response to
litigation.
o And it must not rely on overbroad generalizations about the different talents, capacities, or
preferences of males and females.
o Also can’t be used to maintain the inferiority of women.
o Physical differences between men and women can be related to a legitimate government
interest, like helping people to live up to their full potential.
 No exceedingly persuasive justification for excluding women from VMI. Are benefits to diversity of
education that single-sex schools can provide, but VMI’s exclusion not meant to diversify educational
opportunities.
 VMI’s methodology could easily be applied to women and women could meet the physical demands.
 Remedial plan also insufficient since the women’s school does not offer the same experience and prestige.
 State saying that different needs of women and men, but just relying on stereotypes, which is
impermissible.
 Concurrence (Rehnquist): even if the state wanted to create educational diversity, it benefitted only one sex
because no equivalent for females. Had VA actually sought to create a comparable school, it may have
avoided equal protection problems.
o All that is needed is the same quality of education for women, the same overall caliber.
 Dissent (Scalia): has long been a tradition of having military academies for men as well as only sending
men to fight. People can change these policies through the political process, but can’t declare these
longstanding traditions unconstitutional.
o Sex-based classifications should only be subject to rational-basis review. Not a discrete and
insular minority that cannot use the political system since women are the majority of the electorate
and plenty of favorable legislation for them.
o Court wrongly declaring single-sex education unconstitutional when it is a means substantially
related to effective education, an important government interest.
 Kreimer’s understanding:
o Under equal protection principles, ”Gender classifications”  which “close a door or deny an
opportunity to women or men” are carefully  inspected  to see if the state can“ provide an
“exceedingly persuasive justification”

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 o “Gender classifications” however , are not “proscribed.”  “Inherent differences” between men and
women can provide the basis for  a justification, in at least three situations[and perhaps more]:
 Sex classifications may be used to  compensate women for particular economic
disabilities
 Sex classifications may be used  to  “promote equal employment opportunity”
 Sex classifications may be used to  “advance full development of  talent and capacities”
o But, sex classifications may not be used “ to perpetuate the legal, social and economic inferiority
of women”  [and elsewhere in the opinion, Ginsburg,J. notes that governments may not “exclude
qualified individuals based on  fixed notions concerning the roles and abilities of males and
females” or “stereotypes”].
   So, in situations where the distinction is rooted in “inherent differences”, VMI suggests that justification
may be available, as long as  the distinction does not “perpetuate legal social and economic inferiority of
women.”   What VMI doesn’t resolve is whether the three identified “inherent difference”  justifications are
exhaustive.

Facially Neutral Laws

Geduldig v. Aiello (1974):

 California administered a disability insurance system that paid benefits to persons in private employment
who were temporarily unable to work because of disability, but were not covered by workmen’s
compensation.
o Challenged since it excluded certain disabilities resulting from pregnancy.
 Facially neutral law, so no heightened scrutiny. Only will be heightened scrutiny for facially neutral
laws if there is invidious intent or the proffered reason is pretext. Not the case here as legitimate
reason in maintaining the fiscal integrity of the benefit program and not discriminatory intent since
the classification is pregnant/non-pregnant not men/women.
o The obvious problem with this logic is that only women can become pregnant.
 Women aren’t protected from something that men are and men aren’t protected from something that
women are. No invidious discrimination.
 Dissent: though facially neutral, this clearly targets women since the only people who can become
pregnant. Invidious discrimination that it not justified by CA’s fiscal argument.

Personnel Administrator of Mass. v. Feeney (1979):

 Challenge to a Mass. law giving hiring preferences in civil service jobs to veterans, 99% of whom were
male. A facially neutral law with a disparate impact.
 With laws that are facially neutral as pertains to sex, need purposeful discrimination to subject them
to heightened scrutiny (like Washington in the context of race).
o Disparate impact can be evidence of an invidious motive, but it is not sufficient to show an
equal protection violation.
 An important government end here of providing work to veterans.
 More importantly, the goal of providing work to veterans demonstrates that the law was adopted for this
reason, not to disadvantage women. Thus, no invidious purpose and the law satisfies rational basis.
 Also, too many men affected negatively as non-veterans to claim that this law was meant to advantage one
sex at the expense of the other.
 Legislature could have knowledge of the disparate impact, but this is not intent.
 Dissent (Marshall): where the impact is so disparate based on sex, the burden should be on the state to
show that sex-based discriminations played no role in enacting the legislation.
o Here, the statute originally excluded certain “female” civil service occupations, thereby reflecting
impermissible assumptions about gender roles.
o Other means to aid veterans without such a discriminatory impact.

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“Real Differences”

Michael M. v. Superior Court (1981):

 Upheld a Cali law that punished the male participant in sexual intercourse when the female was under 18
and not the male’s wife.
o Challenger a 17-year-old who had sex with a 16-year-old.
 Is intermediate scrutiny when gender-based classifications on the face of a law. The legislature cannot
make overbroad generalizations based on sex which are entirely unrelated to any differences between men
and women or demean the ability or social status of the affected class.
 However, equal protection does not require things that are different in fact to be treated as if they
were the same. Thus, statutes using gender-based classifications that realistically reflect the fact that
the sexes are not similarly situated in certain circumstances are constitutional if these laws were not
enacted with invidious intent, but rather just reflect these differences.
o If important state interest, sex-based classifications that reflect real differences can be
substantially related to achieving this interest.
 Here, a real difference between men and women. Women bear the burden of teenage pregnancy
disproportionately, so a statute that punishes males but not females a way to deter both sides, and deterring
teenage pregnancy is an important state interest.
 Could have a gender-neutral statute, but the State has argued that such a statute would frustrate its purposes
as females would be less likely to report violations if they could also be punished.
 Dissent (Brennan): law originally meant to prevent female chastity, thus based on antiquated stereotypes,
which is not permissible. The teenage pregnancy rational just devised to avoid litigation.
o A gender-neutral statute would have a better deterrent effect, even if less people were prosecuted,
because it would double the number of people possibly facing prosecution.
 Dissent (Stevens): statute here harms only half the parties engaged in risky behavior, impermissible sex
discrimination.
 Another problem: says that females don’t have the autonomy to make their own sexual choices before 18,
but men do.
 Kreimer: can use real differences if they aren’t based on some stereotype but seek to promote an
important state interest.

Rostker v. Goldberg (1981):

 Not unconstitutional to require males, but not females, to register for the draft.
 Raising and supporting armies an important government interest that the Court normally defers to.
 The classification is substantially related because the purpose of the registration is to ensure combat-ready
troops for future drafts. However, females are prohibited from combat. Therefore, only requiring males to
register is a classification substantially related to the important goal of having a combat-ready male
population.
o Congress not burdening one sex. Just recognizing the real difference that only men can
serve. The Constitution does not require “gestures of superficial equality.”
 Dissent (Marshall): no basis for concluding that excluding women from registration is related to an
effective defense. Could have combat-ready troops just as effectively by registering both men and women
as evidence that women would need to fill certain roles.
o Men and women similarly situated with regard to these auxiliary roles, so no reason to distinguish
between them.

Caban v. Mohammed (1979):

 Invalidated a NY law granting the mother but not the father of an illegitimate child the right to block the
child’s adoption by withholding consent.

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  The Court held that this was an overbroad generalization since there are no fundamental differences
between paternal and maternal relations. No showing that the distinction bore a substantial relationship
to the proclaimed interests of the State in promoting the adopting of illegitimate children.
 Dissent argued that the differences between mother and father are real and that the mother more likely to
have custody.

Nguyen v. INS (2001):

 Law made a child of a citizen-mother a citizen, but much more onerous to prove that a child of a citizen-
father was a citizen.
 Court held that there was a real difference between a father’s relationship to the potential citizen at the
time of birth and the mothers.
o Opportunity for a meaningful relationship between a child and a citizen-mother is present at the
time of birth because the mother knows the child is hers and has an initial point of contact.
o Not the same with the father because not always sure who the father is or that he even knows.
 Difference related to two important government interests:
o Assuring that a biological parent-child relationship exists.
o Ensuring that the child and citizen-parent have an opportunity to develop a relationship providing
a connection between the child and citizen-parent, and, in turn, the US.
 O’Connor in dissent said that the law was not narrowly tailored because it is pretty easy to determine with
modern means who the father of a child is.
o Instead, distinction based on the impermissible stereotype that mothers have a closer relationship
to their children than fathers.

Flores-Villar v. United States (2011):

 Reviewing a federal statute awarding citizenship to children of a U.S. citizen parent. If the parent is a
father, the father must have been physically present in the United States for at least five years before the
child’s birth. If the parent is a mother, the period is 1 year. The Court by equally divided vote affirmed a
lower court determination upholding the statute. Justice Kagan did not participate.

Affirmative Action
Permissible if Meant to Remedy past Discrimination and Provide Equal Opportunity

Kahn v. Shevin (1974):

 Upheld a state property tax exemption for widows, but not widowers.
 Court found that the law had a substantial relation to the subject of the legislation. The law was reasonably
designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for
which that loss imposes a disproportionately heavy burden.
 Said the law was meant to rectify past discrimination against women, which is constitutional, though
it seems simply to reflect stereotype that women are dependent on men.
 Dissent (Brennan): urged close scrutiny for all gender classifications, even benign (at odds with his position
in race-based affirmative action where he sought a lower standard).
o Recognized that rectifying past discrimination that led to employment imbalances was important.
However, the law was not narrowly tailored since it applied to all women, regardless of financial
status.

Califano v. Webster (1977):

 Held as constitutional a portion of the Social Security Act that allowed women to exclude from the
computation of her “average monthly wage” three more lower-earning years than a similarly situated male
wage earner.

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  Reduction in economic disparity between men and women owing to a history of discrimination an
important governmental objective. Kahn. However, a benign, compensatory purpose is not only
enough. Weisenfeld.
o Laws meant to compensate that actually harm are not constitutional. Goldfarb.
o Not constitutional if the act is not actually meant to compensate. Wiesenfeld.
 Law not based on outdated ideas that women need extra-protection, based on the previous discrimination
against women that has ongoing effects in the difference in wages. Law trying to compensate for this past
economic discrimination.
o Congress explicitly stated this as its purpose.

Schlesinger v. Ballard (1975):

 Court upheld a promotion system within the Navy that gave women longer tenure before mandatory
discharge for want of promotion.
o Meant to remedy past discrimination in the armed forces.
 Dissent (Brennan): argued for strict scrutiny but said that the law did not even pass the rational basis test
since no legislative history to show that Congress intended to compensate women for other forms of
disadvantage imposed by the Navy.

Impermissible if Based on Antiquated Stereotypes

Orr v. Orr (1979):

 Struck down a law that authorized the Alabama courts to impose alimony obligations on husbands but not
on wives.
 Compensating women for past discrimination during marriage a legitimate and important state interest.
 However, the means here not substantially related. There are already individual considerations of financial
need that can determine if women were discriminated against. No need to place the burden on the
husbands.
 Also gives financially solvent women an advantage over their husbands, although they were less likely to
be the victims of discrimination.
 Must be careful with benign classifications because they could reinforce the outmoded idea that women are
in need of special protections.

Weinberger v. Weisenfeld (1975):

 Social security provision allowed the benefits of a father to pass to his wife and minor children, but benefits
of a mother could only pass to her minor child.
 Court struck it down since it hampered the ability of women to protect their families and reflected the old
idea of men as bread winners.
 The Court rejected a benign classification defense since it was not the actual purpose of the legislation.

Califano v. Goldfarb (1977):

 Declared unconstitutional a federal benefits program under which survivors’ benefits were based on the
earnings of a deceased husband covered by the Act were payable to his widow, but benefits on the basis of
the earnings of a deceased wife were payable to a widower only if he “was receiving at least one-half his
support” from his deceased wife.
 Like Weisenfeld, hampered the ability of a wife to protect her family and reflected that idea of male
breadwinners.
 Dissent wanted deferential treatment in regard to benign sexual classifications.
o Discrimination against men should not be subjected to heightened scrutiny; should only apply to
distinctions to disadvantage women since they were the ones who had been subject to unfair
treatment in the past.

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Wengler v. Druggists Mutual Ins. Co. (1980):

 Struck down a Missouri worker’s compensation law that provided that a widow qualified for death benefits
without showing dependence, but that a widower had to show dependence or mental or physical incapacity
to earn wages.
 Court found that it discriminated against both men and women.
o Women because they could expect less benefits to go to their husband in case of a work-related
death.
o Men because had to prove incapacity or dependence.
 Couldn’t justify based on the assumption that women are more dependent. Also, presuming such is more
administratively efficient than case by case analysis, but still a violation of equal protection.

The Court invalidates preferences for females that reinforce traditional “archaic or overbroad stereotypes” that
women are typically more fragile or financially dependent on men, but upholds those preferences for females
that compensate women who have undertaken traditionally male roles for past disadvantage – including societal
disadvantage such as differential average pay for women and men in the private sector.

Kreimer Rant

 RBG in VMI: need exceedingly persuasive justification for sex-based classifications. They need to
serve an important governmental interest and the means need to be substantially related to the
achievement of this interest.
o More rigorous than rational basis.
 Permissible uses of sex classifications:
o To compensate women for economic damages that they have suffered.
 Important government interest, though maybe not compelling.
o To encourage equal employment opportunities and further the capacity of women.
o To provide women full citizenship, which can include treating women differently based on
real differences.
 Can thus have single sex schools to further human capital.
 Classifications cannot be used to perpetuate legal, social, or economic inferiority (be invidious). E.g.
can’t be based on outdated stereotypes.
o Must look at the effect of the classification on women.
 Takes court down a path of trying to determine what an advantage and disadvantage
is.
 Court seems to allow classifications based on physical differences. Seems to only strike down if the
classification done with invidious intent.
o That is, classifications based on physical differences are prima facie legitimate.

Equal Protection and Other Classifications

Court often looking at four things in deciding what the level of scrutiny for a classification
should be:
 The history of invidious discrimination against the class burdened by the legislation.
 Whether the typical characteristics of the members of the class indicate the ability of
members of that class to contribute to society.
 Whether the distinguishing characteristic is immutable or beyond the class’s control.
 The political power of the subject class.

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Illegitimacy
 Intermediate scrutiny is applied in evaluating laws that discriminate against illegitimate children. Clark v.
Jeter.
 Why heightened scrutiny?
o Not their fault. Unfair to punish children because of the action of their parents.
o Immutable and astrictive characteristic.
o Says nothing about individual parents.
o Social stigma attached to being the child of unmarried parents.
 Differences from race and gender:
o Not easy to identify, so no obvious badge.
o Discrimination against them has never been nearly as bad as against blacks or women.
 Lucas (1976): need to be important state interest and the classification on the basis of illegitimacy
must be substantially related to achievement of this interests.
 Three principles from the Court’s decisions:
o Laws that provide a benefit to all marital children, but not non-marital children, always are
declared unconstitutional.
o Laws that provide a benefit to some non-marital children, while denying the benefit to other non-
marital children, are evaluated on a case-by-case basis under intermediate scrutiny.
o Laws that create statutes of limitations for the time period for evaluating paternity must provide
enough time for those with an interest in the child to present his or her rights and must be
substantially related to the state’s interest in preventing false claims.

Age
 Rational basis review used.
 There is a history of discrimination against the elderly and it is a characteristic that is immutable in the
sense that a person cannot voluntarily change it and it is visible. So why rational basis?
o Haven’t experienced a history of purposeful unequal treatment or been subjected to unique
disabilities on the basis of stereotyped characteristics not truly indicative of abilities.
o Further, not a discrete and insular minority since everyone will get old at some point and thus have
their interests represented.
o Age is related to state interests because of physical and mental abilities.

Drug Use
 Beazer (1979): NY transit authority could refuse to employ former drug users who were in rehab.
o Only need rational basis.
o Here potential relation to legitimate state goal of ensuring public safety.

Wealth
 Poverty not a suspect classification and discrimination against the poor should only receive rational
basis review.

San Antonio Independent School Dist. v. Rodriguez (1973):

 Challenge to a school financing system in Texas, which relied largely on local real estate taxes and resulted
in radical disparities between the amount of educational expenditures in the richest and poorest districts.
 Only need rational basis for classifications based on wealth. No rigid scrutiny:
o No disabilities.
o Not the subject of a history of unequal treatment. Right………..

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 o Not relegated to a position of political powerlessness, so no need to protect this class from the
majoritarian political process.
 Dissent (Marshall): no strict v. rational basis scrutiny, a spectrum that depends on the constitutional and
societal importance of the interest adversely affected and the recognized invidiousness of the basis upon
which the particular classification is drawn. That is, a spectrum balancing the importance of the adversely
affected interest and the hostility in making the classification.
o Discrimination on the basis of wealth should be closely scrutinized:
 No relation of local district wealth to the interest of Texas school children in the
opportunity to be educated.
 All have the same interest.
 Discrimination on the basis of group wealth discriminates against individuals on basis of
something which they cannot control.
 Lack political protection because they would have to go up against the interests of the
more well-off factions.

Disability
 The Court has used a more searching rational basis when analyzing classifications based on
disabilities.

City of Cleburne v. Cleburne Living Center (1985):

 City denied a special use permit for the operation of a group home for the mentally challenged, acting
under a municipal zoning ordinance.
o The ordinance allowed for multiple people to live in a home, such as frats, hospitals, and nursing
homes. However, did not allow homes for the insane or “feeble-minded.”
o Challenged as violating equal protection since there could be a home if the people didn’t suffer
from mental disabilities.
 Mental disability is not a quasi-suspect classification, only subject to rational basis scrutiny.
o Members of this group can’t fully function in the world and the level of functioning among
members differs. For the legislature to determine how deal with this diverse class.
o Legislatures already taking action to protect this class, so the courts don’t need to get involved.
 Have representation of this class’s interests in the legislatures, as shown by all the laws
passed in their favor. They may not be in positions of power, but interests still
considered.
o Slippery slope would make classes with other immutable disabilities who can claim some degree
of prejudice applicable for quasi-suspect classification. E.g. the aging.
o Will still be Constitutional correction of invidious discrimination. However, looking for a
legitimate government interest sufficient to root out this discrimination.
 Court applied rational basis, but found the ordinance unconstitutional.
 Classification not justified by potential hostility of neighbors because hostility not a legitimate government
interests. Moreno.
 Fact that the home located on a 500 year flood plain and may be difficult for occupants with mental
disabilities to escape not sufficient as the argument could be applied to people in nursing homes.
o Court seems to find discriminatory animus in the application of this law to a specified group
with a history of prejudice. Because of presumption of animus, shifted burden to the government
to present some reason, but it couldn’t.
 Skepticism accompanies classifications with a history of invidiousness, regardless of
the level of scrutiny the Court is purporting to use.
o Under rational basis, this argument probably works since not irrational and legislature doesn’t
have to perfectly address the interest.

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  Concurrence (Stevens): no truly defined levels of scrutiny. Really all about rationality: could an impartial
lawmaker believe that the classification serves a legitimate public purpose that transcends the harm to the
members of the disadvantaged class? Questions to determine if there is a rational basis:
o What class is harmed by the legislation, and has it been subjected to a tradition of disfavor by our
laws?
o What is the public purpose served by the law?
o What is the characteristic of the disadvantaged class that justifies the disparate treatment?
 Concurrence/Dissent (Marshall): rational basis would have allowed this law, so majority not following it.
Wants to use his spectrum of looking at the importance of the adversely affected interest and the
invidiousness of the classification. The more important the interest, or the more invidious the classification,
the more important the government interest needs to be and the closer the tie between the classification and
the interest.
o Mentally challenged have a fundamental interest in establishing a home since a fundamental
liberty.
o Long history of discrimination and prejudice against the mentally disabled. Ordinance that places
them in the same class as the insane, but not the elderly, fails to overcome the suspicion that the
ordinance rests on impermissible assumptions or antiquated stereotypes.
 Political powerlessness and immutable traits are important in determining if heightened scrutiny should
apply on insofar as they show that there is social and cultural isolation of this group, meaning that there
interests will not be addressed. A history of unequal treatment is critically important because people are
socialized at a young age, so hard to break old stereotypes and prejudices.
o Mentally challenged subject to a long history of unequal treatment, thus heightened scrutiny
appropriate.

Sexual Orientation
 Court has yet to hold that classifications on the basis of sexual orientation are subject to strict
scrutiny.
 Reasons for heightened scrutiny:
o There is a long history of discrimination against members of the LGBTQ community.
o Laws discriminating on the basis of sexual orientation normally reflect prejudices and stereotypes,
rather than actual differences.
o Sexual orientation is immutable and not a matter of individual choice.

Early Decisions

 Bowers v. Hardwick (1986): upheld sodomy law. Said no fundamental interest in being able to engage in
homosexual practices.
o Such practices outlawed when 14A was ratified.
o Since not a fundamental right, there only needed to be rational basis for the law.
 People thought that homosexual acts were immoral, and morality within the police power
of the state. Therefore, a legitimate state interest and a ban on sodomy a rational means to
prevent homosexual acts.

Summary from Cleburne

 14A meant to treat similarly situated people similarly. Plyler.
 Rational basis the default, and highly deferential to social or economic legislation, relying on the
democratic process.
 Heightened review based on race, sex, and illegitimacy because these characteristics area often immutable
and astrictive, there is a history of discrimination against these groups, often lack political protection, and

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 these characteristics do not reflect on individual merits and are thus often used as a proxy for discrimination
based on outmoded stereotypes.
 No heightened review for classifications based on age, however, because no history of unequal treatment
and not subject to disabilities due to having characteristics stereotyped that are not truly indicative about
abilities.
 Where a group has characteristics relevant to interests the State has the authority to implement, the court
have been reluctant to closely scrutinize legislative choices as to whether, how, and to what extent those
interests should be pursued.
Romer v. Evans (1996):

 Colorado constitutional amendment denied protected status to gays. State arguing that it puts them in the
same position as all other persons. However, Colorado Supreme Court read the amendment to repeal
existing laws that barred discrimination on the basis of sexual orientation.
 Court held that the law was unconstitutional as it was motivated by animus against an unpopular
group, which is not a legitimate end. Just trying to deny gays and lesbians the same use of the
political process available to everyone else.
o More searching rational basis.
 Deprives gays and lesbians the protection of general laws and policies that prohibit arbitrary discrimination
in governmental and private affairs.
o Literally a violation of equal protection by saying that gays and lesbians don’t have it.
 Denied use of the political process because need to get a majority to pass a constitutional amendment or
helpful laws with general applicability.
 Amendment too narrow and too broad to be constitutional. It identifies persons by a single trait and then
denies them protection across the board. Implication of animus.
 Classification not to make gays and lesbians equal, meant to make them unequal.
 Dissent (Scalia): regulation of morality within the police powers of the state. Here, law is not to harm gays
and lesbians, it is to protect traditional sexual mores against a powerful minority.
o The constitution says nothing about homosexuality, so issue should be left to the democratic
process, not the courts.
o Can’t hate certain people, but can find certain behavior reprehensible, like murder.
 This in only moral disapproval of homosexual conduct, no biggie.
 Problem is that the law targets gays and lesbians as a class, not their conduct.
Moreno and Cleburne don’t allow animosity towards a group of people to be a
legitimate state end.
o Law to prevent the deterioration of sexual morality, a rational means to a legitimate end.

Notes

 Romer seen to be a violation of equal protection because it denied homosexuals equal protection of the
laws (allowed them to be discriminated against) and it was meant to make homosexuals unequal to
everyone else (targeting one group), which is an illegitimate end. Other justification:
o Based on the principle forbidding the government from designating any social group as
untouchable, whether the group is normally entitled to some form of special protections or not.
 Homosexuality difficult because it straddles the line between conduct and status.
o Often discrimination based on homosexual behavior. Conduct is better protected by substantive
due process.
o On the other hand, can also be based on who homosexuals are, which is better protected by equal
protection.
 Seems that SCOTUS has been hesitant to use heightened scrutiny in cases involving homosexuality
because it could lead to challenges to state anti-gay-marriage laws.
 Possible challenges to bans on same sex marriage:

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 o Substantive due process: fundamental right to marriage, which includes choosing whom one
marries.
o Equal protection: discriminating against gays and lesbians.
 No rational basis, just targeting a politically unpopular group, which is prohibited under
Moreno, Cleburne, and Romer.
 Should be heightened scrutiny:
 Immutable characteristic.
 Characteristics of the class say nothing about individual merits.
 History of discrimination.
 Political powerlessness.
o Significant state interest in promoting marriage, but banning gay
marriage not substantially related as it wouldn’t prevent people from
being married.
o Equal protection: violation of sex discrimination.
 Telling people who they can marry on the basis of sex.
 Unconstitutional since based on outmoded stereotypes that men marry women, and that
women are meant to procreate, which requires a man.

U.S. v. Windor (2013):

 Challenge to portion of DOMA defining marriage as between a man and a woman.

 It is the province of the states to determine whether to recognize same sex marriages. The federal
government must abide by this classification. DOMA unconstitutional because it seeks to treat same-
sex-couples who are lawfully married as an inferior class.
 State laws defining and regulating marriage must respect the constitutional rights of persons, but the
regulation of domestic relations is an area that is exclusively the province of the states.
o The definition of marriage is the foundation of the state’s broader authority to regulate domestic
relations with respect to offspring, property interests, and the enforcement of marital
responsibilities.
 State here chose to recognize gay marriages, but DOMA impedes on this traditional state right by defining
marriage.
 Also, laws cannot be meant to harm an unpopular political group. Evidence of this may be discriminations
of an unusual character.
o DOMA deviating unusually from the tradition of recognizing and accepting state definitions of
marriage and operates to deprive same-sex-couples of the benefits and responsibilities that come
with the federal recognition of marriage. This is strong evidence of a law having the purpose and
effect of disapproval of a class.
 Purpose and effect are to impose a disadvantage, separate status, and sow a stigma upon
all who enter into same-sex marriages made lawful by the unquestioned authority of the
states.
o DOMA meant to impede the dignity of same-sex marriages and to deter states from recognizing
these marriages.
 Treating same-sex marriages as second class marriages, humiliating gays and lesbians.
 Also, writing inequality into the US code.
o Finally, statements made by legislature show that DOMA meant to disapprove of homosexual
conduct and promote heterosexual relations.
 Dissent (Roberts): stability and uniformity motivated Congress to define marriage as a heterosexual
endeavor, Congress not homophobic.
 Dissent (Scalia): Constitution does not forbid the government to enforce traditional moral and sexual
norms. Nothing in it says we must approve of or deny same-sex marriage.

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 o DOMA meant to avoid difficult choice of law issues by giving a standard definition for marriage.
Now these issues will arise.
o Protecting traditional marriage is not meant to demean same-sex marriage.
o Court seems to be moving towards protecting same-sex marriage when it should be left to society
and the democratic process.
 Dissent (Alito): no traditional right to same-sex marriage, but the Court is moving one step at a time
towards recognizing that right. However, should be for the people to decide as nothing in the Constitution
forbids recognition of same-sex marriages.
o Court should not be in the debate.

Equal Protection and Fundamental Interests

 Traditional equal protection jurisprudence has looked at the level of analysis to be applied to the group of
people targeted by the government classification.
o Usually, equal protection is used to analyze government actions that draw a distinction among
people based on specific characteristics or traits such as race, gender, and disability.
 Sometimes, equal protection is used if the government discriminates among people as to the exercise of a
fundamental right.
 The use of equal protection to safeguard these fundamental rights was, in part, based on the Court’s desire
to avoid substantive due process in the wake of Lochner. However, the effect is the same whether a right is
deemed fundamental under the equal protection clause or under the due process clause: government
infringements are subject to strict scrutiny.

Skinner v. Oklahoma (1942):

 Oklahoma had a law that allowed the government to sterilize persons convicted of two or more crimes
amounting to felonies involving moral turpitude.
 Strict scrutiny appropriate when examining laws that can restrict the ability of a person to procreate
since such laws could be used with invidious intent against socially unpopular groups, thereby
denying them equal protection.
o Marriage and procreation a fundamental right, and critical to the very existence and survival of the
race.
o Power to sterilize very dangerous, e.g. could be used to wipe out an unpopular group.
 Clear concern here about what the Nazis were doing in Europe.
o Don’t want to inadvertently accept a law that discriminates against certain classes. Moral turpitude
had been used in other contexts to discriminate against blacks (Hunter v. Underwood).
 Law unconstitutional because it treated those who had committed virtually the same crime differently by
sterilizing one not the other. Denial of the fundamental right to procreate on this basis akin to invidious
discrimination based on race or nationality.

Right to Vote
In the Constitution

 Art. I § 2 allows states to determine who can vote.

o Reflected the fact that states had different voting restrictions at framing.
 14A says that person born or naturalized in US are citizens, guarantees equal protection and says that if a
state denies the right to vote to a 21-year-old male inhabitant, the state will have representation reduced
proportionately, except for reason of treason or other crimes.
 15A explicitly prohibits denial or abridgment of the right to vote on account of race.

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  17A allows for election of senators based on qualifications required to vote for members of the largest
house of the state legislator.
 19A prohibits denial of the right to vote on the basis of sex.
 24A says that states cannot use a poll tax to deny the right to vote for federal elections.

Lassiter v. Northampton County Board of Elections (1959):

 Challenge to a literacy test.

 State elections are bound by the equal protection clause, but qualifications on the franchise are
constitutional so long as they are rationally related to a legitimate end. Literacy tests or other measures of
race-neutral qualifications are rationally related to the legitimate end of intelligent ballot use.
o Problem is that literacy tests used to disenfranchise black voters.
 Now banned by the Voting Rights Act.

Harper v. Virginia State Board of Elections (1966):

 Challenge to a poll tax. Can’t use 24A because doesn’t apply to state elections.
 Classifications that impede the right to vote are subject to heightened scrutiny because it is a
fundamental interest.
o Fundamental because the means of protecting all other civil rights.
 Once the franchise is granted to the electorate (doesn’t have to be), can’t make right to vote contingent on
the affluence of the voter or the payment of any fee.
o No relation between wealth and voter qualifications.
 The requirement of a fee to obtain a ballot an invidious discrimination that violates equal protection.
 Dissent (Black): poll tax can reasonably, without invidious purpose, be found to rest on a number of state
policies:
o State’s desire to collect its revenue.
o Its belief that voters who pay a poll tax will be interested in furthering the State’s welfare when
they vote.
 Instead, Court seeming to substitute its own judgment for that of the legislature.
 Dissent (Harlan): should only be rational basis review, and easy for poll tax to satisfy as it could be a way
to ensure that people truly care to vote.
o Poll tax may not accord with contemporary notions of equality, but not for the Court to adopt the
political doctrines popularly accepted at a particular moment in history and declare all other
irrational or invidious.

Reynolds v. Sims (1964):

 Alabama had voting districts apportioned according to the 1900 census. Meant rural districts with fewer
people had same number of representatives in the state legislature. Challenged as violating equal
protection.
 Diluting the weight of votes for a state legislator is an unconstitutional violation of equal protection.
Needs to be nearly equal population in the districts.
 Right to vote fundamental because the means of protecting other civil rights. Thus, allocation of
fundamental interests subject to strict scrutiny.
o Restrictions to political process undermine the legitimacy of government. Needs to be fair
representation.
o Persons denied the right to vote not accorded equal respect. Brands some as inferior.
 Just as unconstitutional to dilute the weight of votes as it is to deny the vote altogether.
 Even district drawing approved by popular referendum that weighs votes differently is unconstitutional.
o Individual rights may not be infringed because the majority says that they shall be.

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  Dissent (Harlan): history of 14A does not support the conclusion that equal protection limited the power of
the states to apportion their legislatures as they see fit. In fact, seemed to intentionally leave this power
undisturbed in order to get it ratified.
 Dissent (Stewart): representative government about accommodating group interests through democratic
institutional arrangements. Apportionment should seek to ensure effective representation, but sometimes
population factors must be subordinated to others in order to achieve fair representation.

Kramer v. Union Free School District No. 15 (1969):

 Challenge to a law that only allowed residents to vote in a school district election if they owned (or leased)
taxable real property within the district, or were the parent (or had custody of) children enrolled in the local
public schools.
 Laws regarding who may vote given exacting examination because distributing the franchise
constitutes the foundation of representative democracy. Laws denying some the right to vote must be
necessary to promote a compelling state interest.
o Any unjustified discrimination in determining who may participate in political affairs or in
the selection of public officials undermines the legitimacy of representative government.
o Laws granting the franchise on a selective basis always pose the danger of denying some
citizens an effective voice in governmental affairs which substantially affect their lives.
 NY arguing that law meant to restrict voters to those primarily interested or primarily affected by school
affairs. Court didn’t touch this issue and concluded that the means were not narrowly tailored as both under
and overinclusive.

Notes

 Court in Cipriano and Phoenix struck down restrictions that only allowed property owners to vote. Stated
that differences between those who did and those who did not own property were not sufficiently
substantial to justify excluding the latter from the franchise.
o Court less than receptive to voting classifications based on wealth.
 However, in Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. (1973), the Court sustained an
election scheme for a water storage district under which only landowners were permitted to vote and in
which votes were proportioned according to the assessed valuation of the land.
o District said the main purpose was to assure water for farming, and that project costs were
assessed upon the land in proportion to benefits received.
o Other cases not controlling because a special purpose here and mostly affecting landowners.
 Court in Richardson v. Ramirez (1974) upheld restrictions on the right of felons to vote.
o Said that the reduced representation sanction of § 2 of 14A affirmatively allowed denials of the
vote for participation in crime.
 In Crawford v. Marion County Election Bd. (2008), notwithstanding Harper, the Court upheld a statute
which required voters who wished to vote in person to present government issued photographic
identification that was not easily available to the poor or elderly voters.
o Plurality (Stevens): restrictions, applied to all, that protect the integrity of the electoral process are
not invidious. Needed to use a balancing test in such situations to weigh the interests.
 Here, state had a legitimate interest in preventing voting fraud and maintaining
confidence in the system, which outweighed the hardship on the voters.
o Concurrence (Scalia): facially neutral laws are not unconstitutional just because they have
discriminatory impact, especially when not applied to a suspect class.
o Dissent (RBG): impact of law going to fall disproportionately hard on poor voters.

Enforcement of the Civil War Amendments

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Basics
 The three Reconstruction Era Amendments contain provisions that empower Congress to enact civil rights
legislation (enforcement clauses).
 What is the scope of Congress’s power under these amendments? Is Congress limited to providing
remedies for violations of Constitutional rights recognized by the Supreme Court; or may Congress use its
power under these amendments to adopt an independent interpretation of the Constitution, even overruling
Court decisions?
o Nationalist perspective: Congress may use its enforcement authority to expand the scope of rights.
o Federalist perspective: Congress cannot create new rights, can only act to prevent or remedy
violations of the rights, and such laws must be narrowly tailored.
 At the least, everyone agrees that Congress has the power to remedy violations of the Civil War
Amendments.
 Cases till City of Boernes employed the nationalist perspective. Followed McCulloch test: if end within one
of the Civil War Amendments and means of achieving that end plainly adapted, then Congress has the
power.
o Could enlarge scope of the rights under these amendments beyond what the Court had recognized.
 Federalist perspective in play now. Congress can only enact legislation that is congruent and proportional
to addressing a violation of one of the Amendments.

Thirteenth Amendment
Jones v. Alfred H. Mayer Co. (1968):

 Complaint that a man refused to sell another man land because he was black. Issue of whether § 1982,
which bars racial discrimination in transactions involving land, applies to private entities as well as public
entities.
 § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the
statute, thus construed, is a valid exercise of the power of Congress to enforce 13A.
 13A abolished slavery, and established universal freedom. Also, gave Congress the power to pass all
laws necessary and proper for abolishing all badges and incidents of slavery.
o Congress thus has the power to rationally determine what are the badges and incidents of
slavery, and the authority to translate that determination into effective legislation.
 McCulloch like test: ends of abolishing badges of slavery and only need means plainly
adapted to these ends.
 Congress’s determination that discrimination in real estate transactions an incident of slavery not irrational
because one of the central features of slavery is the denial of fundamental rights, including the right to own
property.
 Congress has the authority to prohibit private racial discrimination as part of its authority to eliminate the
badges and incidents of slavery.

Fourteenth Amendment
 Civil Rights Cases held that § 5 enforcement power only applies to governments, not private actors.

Nationalist Dominance

Ex Parte Virginia (1880):

 Prosecution of a judge who refused to sit African Americans on his jury in violation of the Jury Exclusion
Act.
 State argues that the act is unconstitutional because it interferes with sovereign prerogatives and federalism.
Additionally, 14A does not address juries, therefore, Congress lacks authority.

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  Held: 1875 Jury Exclusion Act enacted per § 5 is constitutional.
o The standard for how much power Congress may exercise in the name of enforcing a Civil War
Amendment is judged under McCulloch: whatever legislation is appropriate, and plainly adapted
to carry out the mandates of 14A, is brought within the domain of federal power.
o Allays federalism concern by noting that every addition to federal power necessarily takes powers
from the states. 14A expressly carved power from state sovereignty on purpose.

Katzenbach v. Morgan (1966):

 Portion of the VRA prohibited local governments from barring a person from Puerto Rico with a sixth-
grade education in a language other than English from voting because couldn’t read or write English.
o NY challenged this law since it interfered with enforcement of NY’s election laws.
 Congress’s enforcement power under 14A is akin to is power under the necessary and proper clause.
Just need an end protected by 14A and the means must be plainly adapted to that end.
o A positive grant of legislative power authorizing Congress to exercise its discretion in
determining whether and what legislation is needed to secure the guarantees of 14A.
 Congress can interpret 14A without a judicial ruling as if it is one of the other enumerated
powers. Seems to allow Congress to interpret 14A if it has rational basis to believe there
is some violation. Even somewhat overruled Lassiter as Lassiter said that literacy tests
are constitutional.
 14A prevents discrimination by national origin in public services. Congress could conclude that
enfranchising Puerto Ricans would make the government less likely to discriminate against them in public
services, which is unconstitutional.
 14A also prohibits invidious discrimination in voting. Congress could believe that the NY law was rooted
in prejudice, so enacted legislation to remedy this violation.
 Dissent (Harlan): Congress may remedy the wrongs when a state violates federal constitutional standards.
However, a question for the courts whether the action that Congress seeks to remedy is an infringement of
the constitution, which is necessary before Congress may act.
o If Congress can use § 5 to interpret the Constitution, it could conceivably use this authority to
dilute or even negate constitutional rights.
o Can use its power to determine substantive scope of 14A and reach into areas that it otherwise
could not.

Brennan’s Concurrence in U.S. v. Guess: § 5 authorizes Congress to make laws that it concludes are reasonably
necessary to protect a right covered and arising under 14A.

 Not limited to correcting the effects of prohibited state laws because such a reading would leave 14A’s
enforcement solely to the judiciary.
 Instead, it is a positive grant of legislative power, authorizing Congress to exercise its discretion in
fashioning remedies to achieve civil and political equality for all citizens.
o Congress may define what violates 14A and seek to remedy it.

Federalist Shift: Congruent and Proportional Test

 General idea: Congress may not use its enforcement powers to expand the scope of rights or create new
rights.

Employment Division v. Smith (1990):

 Oregon law prohibited the consumption of peyote. Native Americans challenged this law claiming that it
infringed free exercise of religion because their religious rituals required the use of peyote.

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  The Court changed former precedent and held that free exercise clause cannot be used to challenge neutral
laws of general applicability. Oregon law deemed neutral because it was not motivated by a desire to
interfere with religion and it was a law of general applicability because it applied to everyone.
 In 1993, Congress adopted the Religious Freedom Restoration Act with a goal to overturn Smith and
restore the test of strict scrutiny.

City of Boerne v. Flores (1997):

 RFRA prohibits the government from substantially burdening a person’s exercise of religion even if the
burden results from a rule of general applicability unless the government can demonstrate the burden is in
furtherance of a compelling government interest and it the least restrictive means of furthering that
compelling government interest.
 § 5 gives Congress the power to enact deterrent or remedial legislation if the legislation is related to
and proportional to the underlying violation of 14A. Cannot say substantively what the clause
protects however, that is the province of the Court.
o Congruent: what the Court has defined as unconstitutional.
o Proportional: relationship between the injury and the means adopted to remedy it.
 Why does Congress lack the power to say what a violation of 14A is?
o History of § 5 shows that it was meant to be remedial, not substantive.
o If Congress could defines its own powers by altering 14A’s meaning, the Constitution would no
longer be a superior paramount law, but would be on par with other legislative acts. Would be no
limit on Congressional powers.
 Court distinguished preventative laws passed to target racial discrimination because a much longer history
of racial discrimination. Not the same history of religious bigotry.
 RFRA unconstitutional because it is legislation changing the meaning of the free exercise clause as the
Court has come to understand it (applied to the states through 14A), not enforcing it. Thus beyond
Congress’s § 5 power, incongruent.
o Big emphasis from Marbury that the Court interprets the law.
 Also not proportional. Has no limits – no termination date, geographic restrictions, or egregious predicates.
o RFRA applies strict scrutiny when a law substantially burdens a person’s free exercise of religion,
but most laws do so and would thus fail this test.

U.S. v. Morrison (Redux) (2000):

 Challenge to a law providing civil remedies to victims of gender-motivated violence. Congress found that
state justice systems were biased against victims of gender violence based on extensive evidence.
Stereotypes often resulted in insufficient investigation and lenient punishment of perpetrators. Act meant to
remedy this denial of equal protection.
o Much more evidence of past discrimination than City of Boernes.
 Incongruent because directed at addressing sex biases in state justice systems, but not targeting any state or
state actor, targeting individuals who have committed criminal acts motivated by gender bias.
o 14A doesn’t reach private parties.

14A and Suits against State Governments

 The principle that has emerged is that Congress can authorize suits against states for unconstitutional
actions and also has much broader authority to legislate if it is a type of discrimination or a right that
receives heightened scrutiny (because more actions violate this right so more recognized violations for
Congress to regulate). But if it is a type of discrimination or a claim that receives only rational basis review,
Congress’s ability to legislate under § 5 is very narrow.

University of Alabama v. Garrett (2001):

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  Title I of the Americans with Disabilities Act prohibits covered employers from discriminating against a
qualified individual on account of the disability, requires covered employers to make reasonable
accommodations to the physical or mental limitations of otherwise qualified disabled workers except in
cases of undue hardship, and makes available money damages for violations.
o Because application of the ADA damages provision against state employees required abrogation
of the states’ Eleventh Amendment immunity, the provision could only be sustained if it was
within Congress’s 14A powers.
 Held unconstitutional. Court said that Congress had not identified a pattern or history of unconstitutional
employment discrimination by the states against disable persons adequate to show that the state had
engaged in irrational discrimination. ADA Title I not congruent.
 Concurrence of Kennedy agreed that there was little evidence of discrimination against persons with
disabilities.
 Dissent (Breyer): Congress reasonably could have concluded that the remedy constituted an appropriate
way to enforce the equal protection requirement, which is all the Constitution requires.
o Had a record documenting society-wide discrimination against persons with disabilities. Believe
that state discrimination against employees could be inferred from this.

Tennessee v. Lane (2004)

 Case involved a paraplegic who had to climb up two flights of stairs to attend court since it had no
elevators.
 Issue of whether Title II of the ADA constitutional. Reads: “No qualified individual with a disability shall,
by reason of such disability, be excluded from participation or denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
 Classifications based on disability unconstitutional if they lack a rational relationship to a legitimate
government purpose. Title II seeks to enforce this prohibition on irrational disability discrimination, but it
also seek to enforce other basic constitutional guarantees, infringement of which are subject to more
searching judicial review, e.g. Confrontation Clause of 6A.
 Title II enacted against a backdrop of unequal treatment in the administration of services and programs.
Meant to address the shortcomings of laws protecting persons with disabilities, of which there is substantial
evidence. Congruent.
 Title II addresses a wide array of official conduct in order to enforce a wide array of constitutional
guarantees.
 Clearly legitimate for Congress to prevent discrimination in the accessibility of judicial services, so need
not consider other areas under Title II. As-applied review.
o Recognizing that the failure to accommodate persons with disabilities could be equal to exclusion,
Congress required states to remove barriers to access to judicial services. Proportional.
 Modifications only have to be reasonable; not seeking to alter the nature of the services.
 Dissent (Rehnquist): no evidence of due process violations against persons with disabilities, majority
focusing on societal discrimination.
o Appropriate if considering the constitutionality of Title II as a whole, but not in the narrow “as-
applied” approach used by the Court.
 Dissent (Scalia): congruence and proportionality test not a good idea. Courts must regularly check
Congress’s homework to make sure that it identified sufficient constitutional violations to make its remedy
congruent and proportional.
o Would limit Congress under § 5 to remedying conduct that itself violates a provision of 14A.

United States v. Georgia (2006)

 Court considered whether an inmate could sue a prison under Title II of the ADA alleging cruel and
unusual punishment, incorporated via 14A due process.

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  Unanimous Court said that Congress has the power to enforce the provisions of the Amendment by
creating private remedies against the states for actual violations of those provisions. Thus, insofar as
Title II creates a private cause of action for damages against the states for conduct that actually
violates 14A, Title II validly abrogates state sovereign immunity.
o Congress can remedy any clear violation of the Civil War Amendments.

Nevada Department of Human Resources v. Hibbs (2003)

 Upheld part of FMLA that sought to prevent gender discrimination by making it possible for parents of
either gender to take a leave of absence to care for a sick family member based on the belief that, without
such a provision, women would normally be forced to leave work more than men and would suffer adverse
employment consequences.
 Court held that statute properly tailored to prevent gender discrimination in the workplace.
 Clear evidence of state laws discriminating against women, including evidence that employers relied on
gender stereotypes in the administration of leave benefits. Congruent.
o Not constitutional for states discriminate based on stereotypes such as this, so legitimate for
Congress to pass legislation to prevent it. Evidence of identified violation.
 Different than disabilities cases since disability only invokes rational basis scrutiny, thus
need more evidence of discrimination. Here, heightened scrutiny so less evidence needed.
 Narrowly targeted at the line between work and family where overgeneralization has been and remains
strongest. Also only affects one aspect of the employment relationship. Proportional.
 Dissent (Scalia): not all states should be held responsible for gender discrimination because of the actions
of a few states and subject to this part of the FMLA.
 Dissent (Kennedy): not enough evidence that states had engaged in unlawful practices to subject them to
liability. Need something more than a recitation of the history of discrimination against women.

Coleman v. Court of Appeals of Maryland (2012)

 Court struck down portion of FMLA that allowed employees to take a leave of absence from work to treat
their own illnesses.
 Legislation enacted under § 5 must be targeted at conduct transgressing 14A’s substantive provisions, and
there must be a congruence and proportionality between the injury to be prevented or remedied and the
means adopted to that end.
 No evidence here of state constitutional violations in allowing sick leave. Not congruent.
 Concurrence (Scalia): congruence and proportionality test requires the Court to evaluate the evidence
before Congress, which it should not do.
o Would limit Congress’s § 5 power to the regulation of conduct itself violating 14A. Failing to
grant leave to employees doesn’t come close.
 Dissent (Ginsburg): substantial evidence of sex discrimination and the self-care provision particularly
relevant for pregnancy and maternity issues, a sex-based concern. Thus, Congress’s concern was solidly
grounded in workplace realities and a legitimate interest to support the legislation.

Congruent and Proportional Test

 Congressional act needs to be enforcing constitutional norms falling within the Civil War
Amendments.
o Must be related to a constitutional issue that the Court has decided. How related it must be
is unclear. Do need some evidence in the record showing a violation of a recognized
protection (seems to be less evidence the higher the scrutiny).
 However, can’t be changing a constitutional ruling or creating new rights.

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  The remedy must be proportional to the violation. What this means is unclear.
o Court has looked to overall class that Congress sought to protect and an act’s effect on them.
o Has also looked at the act’s application in the present case (as-applied).
o Has not yet considered the effects of an act on all of society.

The Fifteenth Amendment

Background

 Prior to the 1965 Voting Rights Act, congressional legislation directed against racial discrimination in
voting was clearly remedial. Case by case challenges to certain laws.
o Resulted in a type of “whack-a-mole” in which a court would grant an injunction only to have a
state legislature come up with another means to deny the vote to minorities.

South Carolina v. Katzenbach (1966):

 Upheld the constitutionality of the § 5 of the VRA, which empowered the attorney general to suspend
literacy tests and other restrictions on voting in those states where less than 50 percent of the citizens had
voted or were registered to vote.
o In addition, once those findings were made, the state could not adopt any new standards with
regard to voting without obtaining preclearance from the attorney general.
 “Congress may use any rational means to effectuate the constitutional prohibition of racial
discrimination in voting.” Language of 15A meant to mirror the necessary and proper clause. Thus,
only need a legitimate end and a plainly adapted means.
o Despite this broad language, the Court focused on the proven violations of 15A.
 Congress found that the case-by-case litigation was not stopping the practice of discrimination in voting,
and the specific remedies in the act were an appropriate means of combatting this evil.
o The areas covered were appropriate for new remedies because of substantial evidence of actual
voting discrimination in these areas.
o Tests and devices relevant because often used to discriminate. Low voting rate pertinent because it
reflected large disenfranchisement.

Rome v. United States (1980):

 Rome, Georgia under § 5 of the VRA. Determined that city commissioners would be elected at large and
made a number of annexations to its territory.
 AG blocked the plan since the city predominantly white and voted along racial lines. Thus, black citizens
would be unable to elect their candidate.
 Under § 5, the AG could only approve the voting plan if it did “not have the purpose and will not have the
effect of denying or abridging the right to vote on account of race or color.” Looking at effect here.
 § 2 gives Congress the power to prohibit state action, though itself not violative of 15A, if it
perpetuates the effects of past discrimination.
o Seems to imply Congress can say what violates 15A.
 The narrow reading of the cases sees it simply as approving a remedy for violations of
voting rights; allowing proof of discriminatory impact to show a violation of the Act was
meant as a remedy for proven history of denial of voting rights.
 The broad reading sees it as authorizing Congress independently to interpret the meaning
of 15A and even to adopt a view contrary to the Court.
 § 5 of the VRA constitutional because Congress could rationally have concluded that, because electoral
changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the
risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.
 Dissent (Powell): Congress can only act under §2 to remedy past violations of voting rights.

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  Dissent (Rehnquist): Majority’s holding essentially allows Congress to say what is and what isn’t
constitutional under 15A. This is more power than the ratifiers sought to give Congress and it undermines
the power of the judiciary to interpret and enforce the Constitution.

Northwest Austin Municipal Utility District No. 1 v. Holder (2009):

 Court avoided the constitutional issues, but stated in dictum that the VRA had made substantial progress as
differences between white and black voters as turnout differences in the single digits, and in some state
black voters had a better turnout rate. However, the VRA still allowed substantial intrusion into the states
by suspending all changes to voting laws in certain areas until given clearance from DC.
o Also treating states differently based on old data.

Shelby County v. Holder (2013):

 Challenge to § 5 of the VRA.

 VRA departs sharply from principles that normally states regulate elections and that states are equal to one
another. Does so because of a long history of denying the blacks the vote and the failure of case-by-case
injunctions to correct this systematic denial of a fundamental right.
 But things have changed dramatically, largely thanks to the VRA.
o Voter turnout and registration rates are approaching parity between whites and blacks, few
instances of blatant discrimination (what about discrete?), and minority candidates hold more
offices than ever before.
 Despite these changes, VRA still in full effect.
 If Congress is going to treat states differently in exercising their sovereignty to enforce 15A’s
protection of the right to vote for black citizens, it must do so based on current evidence of
discrimination, not outdated evidence. Therefore, § 5 of the VRA unconstitutional.
o Court looking to the spirit of the Constitution to say that states must be treated equally. If going to
treat them differently, need some legitimate reason substantiated by current evidence.
o Wouldn’t be able to pass the VRA today based on same indicators of discrimination.
o Tried to warn Congress, but they didn’t do shit (there’s a shocker).
 Dissent (Ginsburg): Congress extended § 5 of the VRA to protect the gains made and prevent backsliding.
It was rational to do so and 15A charged it to do so.
 15A meant to mirror necessary and proper clause: need legitimate ends and plainly adapted means.
o Standard has been that Congress may use any rational means to effectuate the constitutional
prohibition of racial discrimination in voting. Three reasons legislation reauthorizing an existing
statute is especially likely to satisfy the requirements of rational-basis review:
 Already record justifying the initial legislation.
 A temporal limitation built into the Act, which is why reauthorization is required anyway.
 Current record will be less stark because requiring it be as stark would create problem as
the success of the act would not allow it to be reauthorized since not as star of a record.
 Remedy should remain because still preventing many changes in voting laws that appear to have some
racial component.
o Litigation an insufficient substitute to preclearance since it only occurs after the fact, after the
voting scheme has been put in place and individuals have been elected under it, thereby gaining
the advantage of incumbency.
 Congress kept the coverage formula because the VRA had successfully blocked constitutional violations in
these areas.
o More successful suits in covered areas than elsewhere.
o More racial polarization in the covered areas, so need to protect minorities.
 Classifications aren’t rigid. Can bail out and other areas be brought in.
 VRA properly applied to Shelby County because of the numerous problems with voting laws being passed
in the state to disadvantage minority voters and racist comments by state senators.

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  Not clear where the principle that states must be treated equally came from since regularly not the case.

Open questions:

 Is there a congruence and proportionality test under 15A? Shelby County didn’t use one.
 How far does the principle of equal sovereignty extend? Interesting question since Congress often treats the
states differently.
 Test of congruence and proportionality of 14A normally applied to discriminations against the group
involved in the case. However, Shelby County had recent issues of discrimination. Thus, Court’s holding
based on the broader impacts of the law on the states, not only on Shelby County.
 Court focused on the spirit of the Constitution (which it has also done under the Commerce Clause and
anti-commandeering doctrine to limit federal intrusions on state autonomy). What else does the spirit of the
constitution apply to?

Fundamental Rights Redux

Child-Rearing and the Family
Meyer v. State of Nebraska (1923):

 Teacher convicted under a Nebraska law that banned education in any language but English until a child
had graduated from eighth grade.
o Based on a fear that educating children in another language would make the sentimental to another
country and would not fully assimilate them into American culture.
 Substantive due process not only about freedom from bodily restraint, but also has been used to identify the
right to contract, to engage in the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates of one’s own conscience,
and generally to enjoy those privileges long recognized at common law as essential to the pursuit of
happiness of free men.
o Rights cannot be interfered with by legislative action which is arbitrary or without reasonable
relation to some other purpose within the competency of the State to effect.
 Parents have a fundamental right to control the upbringing of their children.
o Education recognized as important and promoted.
 Desirable to have people integrated within the American society, but cannot do it through prohibited
means.
 Dissent (Holmes): desirable to have all Americans speaking a common tongue and the means adopted are
reasonable to that end. Kids learn language while young. If speaking another language at home, it is
reasonable to require them to speak only English at school.

Pierce v. Society of Sisters (1925):

 Act required parents to send their children to public school.

 Parents and guardians have a liberty interest in how they raise their children and the states may not
infringe upon it without a compelling interest.
 Liberty interests prohibits a state from trying to standardize children by forcing them to get an education
from public teachers only.

Loving v. Virginia (1967)

 Struck down ban on interracial marriage.

 Argued that freedom to marry one of the vital personal rights essential to the pursuit of happiness of
free men. A basic civil right fundamental to our very existence and survival.

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Zabolocki v. Redhail (1978)

 Struck down a law on equal protection grounds that required someone paying child support to get court
approval to marry.
 Right to marry fundamental, so interference needed to be critically examined.
o Right to marry part of the fundamental right of privacy in the due process clause.
 Wouldn’t make sense to recognize a right to privacy with respect to other areas of family life, but not the
foundation of family life, marriage.
 Interference with the right to marriage needs substantial state interests and law needs to be narrowly
tailored to achieve those interests.
o Less intrusive means of getting child support.
 Powell’s concurrence worried that heightened scrutiny could invalidate restrictions states placed on
marriage, like for gays and lesbians.
 Stevens said that there could be direct and substantial restraints on marriage, but here just discrimination
against the poor.

Turner v. Safley (1987)

 Struck down a law requiring prisoners to get approval before marrying.

 Marriage a fundamental right.
 Rights restricted in prison context, but still important reasons to give inmates the right:
o Marriages an expression of emotional support and public commitment.
o Many religions recognize marriage as having spiritual significance.
o Most inmates release, so expect to be able to consummate marriage.
o Marriage required for many government benefits, property rights, etc.

Household Composition and Extended Family Relationships

Moore v. East Cleveland (1977)

 Invalidate zoning ordinance limiting occupancy of a dwelling to members of a “single family,” narrowly
defined.
 Using heightened scrutiny to government intrusions on family living arrangements: “must examine
the importance of the governmental interests advanced and the extent to which they are served by
the challenged regulation.”
 Ordinance failed because only loosely related to preventing overcrowding and parking congestion.
 Constitution protects the sanctity of family because it is deeply rooted in nation’s history and
traditions. And, family not just nuclear family.
 White in dissenting worried about widening due process too far.
 Stewart in dissent said that extending due process too far because case not like decisions to marry and raise
children.

Belle Terre v. Boraas (1974)

 No privacy rights involved in a family-oriented zoning restriction prohibiting unrelated persons from
living together.
o Line seems to be blood relatives.
 Marshall in dissent argued that the choice of household companions on intimate decision protected by the
right to privacy.

Troxel v. Granville (2000)

 Overturned a decision granting grandparents visiting rights over the objections of a child’s mother as
violative of substantive due process.

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  Parents have fundamental rights regarding the care, custody, and control of their children. If a
parent adequately caring for child, no reason for the state to interfere.
 Stevens in dissent argued not just a struggle between the parents and the state. Child should also be
concerned, so can’t simply defer to the parent.
 Scalia dissented because no enumerated right of a parent in child-rearing. Thus, didn’t think it was his job
to overturn state decisions.

Family Relationships and the Role of Tradition

Michael H. v. Gerald D. (1989)

 California law presumed that a child born to a wife is a child of marriage, difficult to rebut. Non-husband
was likely the father, but still denied paternity by a court.
 Interest needs to be fundamental and traditionally recognized by society.
 Great historic respect for the unitary family. Father here not part of the unitary family, and unitary family
has, in fact, often been protected against claims like those made by him.
 Scalia wanted to rely on the most specific level of tradition available
o Concurrence of O’Connor disagreed with this.
 Brennan dissented that tradition just as malleable as the concept of fundamental.
o Focusing on tradition would have led to different results in cases like Griswold.
 Focus on tradition prevents rules from changing as society changes.

Thoughts

 Court protecting familial interests and decisions from state regulation unless a compelling interest.
o Often restricted to historic notions of what constitutes the family.
 How do these rights survive when Lochner fails?
o Lochner deemed redistribution to be illegitimate. It adopted a specific view of legitimate interests
tied to an economic perspective.
o Family affairs are deeply rooted in our history to a greater degree than laissez-faire economics.
More of a traditional basis for support.
 Many interventions by the state during Lochner were new, demonstrating that they were
not deeply rooted issues.
 However, Loving struck down a miscegenation statute, which have traditionally
existed. Thus, Court may look to history in light of current developments in
thought.
 Liberty interests on a continuum. Protected from all arbitrary and purposeless restraints.
o Fundamental rights are not absolute. Government is entitle to regulate but only when a compelling
state interest.

Privacy in Intimate Relationships and Decisions

Griswold v. Connecticut (1965):

 Connecticut law fined persons for purchasing contraceptives and also punished anyone assisting them.
 A fundamental right to privacy in marital relations and decisions because an association that
furthers self-development and intimacy. Need self-growth for a flourishing democracy.
 Certain constitutional provisions have penumbras that create zones of privacy:
o 1A right of association.
o 3A prohibition on quartering.
o 4A protection against unreasonable searches and seizures.
o 5A allows a person to create a zone of privacy that the government can’t compel a person to
violate.

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 o 9A says rights outside of the Constitution.
o 4A and 5A described as protecting against governmental invasions of the sanctity of home and the
privacies of life.
 An intimate relationship that the law is impeding. Wouldn’t allow someone to enter a marital bedroom to
see if contraceptives being used.
 Goldberg (Concurrence): marital right to privacy. Privacy in the right to marriage is basic and fundamental
and deeply rooted.
o Are fundamental rights outside of the Constitution, and 9A further proof as it is meant to remind
people of this.
 Harlan (Concurrence): wants to use traditional substantive due process review. Prohibiting married couples
from using contraceptives is an intolerable and unjustifiable invasion of privacy in conduct of the most
intimate nature.
o America build on a compromise between liberty and organized society.
 Liberties a rational continuum which includes freedom from all substantial arbitrary
impositions and purposeless restraints, and that recognizes that certain interests require
careful scrutiny of the state needs asserted to justify their abridgement.
o Is a traditional interest in regulating morality, but the manner in which it done must be considered.
 State here trying to insert its moral judgment. However, the privacy of the home is too
important, thus need strict scrutiny.
o This is an invasion of the home. Worry about the home because it is the seat of the family and the
whole private realm of family life.
o Intimacy key to marriage and already a protection of marriage.
 Concurrence (White): is an important interest in marital privacy, but not the end of the analysis. Must also
consider whether there is a legitimate and substantial state interest.
o Is a legitimate state interest: seeking to deter premarital and extramarital relations.
o But banning married couples from buying contraceptives does not stop illicit sexual relationships.
 Dissent (Black): idea of privacy is too broad. Government may invade privacy unless the constitution
explicitly states that it cannot.

Notes

Eisenstadt v. Baird (1972):

 Overturned a conviction of an unmarried person under a law banning the distribution of contraceptives.
Court did not explicitly state whether the fundamental right recognized in Griswold extended beyond
married couples to unmarried persons. Said:
o “It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet
the marital couple is not an independent entity with a mind and a heart of its own, but an
association of two individuals each with a separate intellectual and emotional make-up. If the right
of privacy means anything, it the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting person as the
decision whether to bear or beget a child.”

Carey v. Population Services, International (1977)

 Struck down NY prohibition of the sale or distribution of contraceptives to minors.

 Strict scrutiny required for restrictions on access to contraceptives because such access is essential to
exercise of the constitutionally protect right of decision in matters of childbearing.
 Said that desire to discourage sexual activity of minors not sufficiently significant, and doubted whether the
statute would actually do much.
 White concurred because state didn’t show that the measure deterred minors.

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  Stevens concurred because state should not increase the risk of pregnancy and sexually transmitted diseases
in order to discourage underage sex.
 Powell concurred because measure interfered with the ability of parents to give contraceptives to children,
interfering with their interest in child-rearing.

Kreimer’s Understanding of Fundamental Rights (Different Modes of Analysis)

 Rehnquist in Glucksburg: rights must be so deeply rooted in tradition and history such that it is considered
fundamental AND implicit in the concept of ordered liberty.
o A tension here between the two ideas. One looking to the past while other looking to see if a right
is essential to liberty in a democracy.
 Douglas in Griswold: don’t use substantive due process ala Lochner, look to penumbras of certain
constitutional provisions.
o There are ancillary protections that derive from these larger rights.
o Privacy penumbral to a variety of amendments.
o However, analysis similar to Lochner as also rights to contract and property in the constitution,
which the Court in Lochner era often used to strike down labor regulations.
 Harlan concurring in Griswold and Souter in Glucksberg: a continuum of liberties.
o Look to the balance struck between liberty and organized society over history of America.
 May look to traditions that have developed during American history as well as those we
broke from.
o Court and society are recognizing rights and placing them on the continuum.
o Marriage recognized as important for a long while. Don’t allow violations into this privacy.
 Criminalizing couples for using contraception doesn’t fit with the idea of privacy in the
marital bedroom.
 Goldberg in Griswold added to this analysis: 9A points beyond the text of the Constitution to suggest that
there may be unenumerated rights.
o Court may look to the entire text and purpose of the Constitution when inquiring whether a certain
right is fundamental.
o Purpose of the Constitution supports the right to marital privacy and raising children since the
family is a counterbalance to the state. Need the family for individual development, which is a
prerequisite to self-governance.
 Don’t have just one description of what constitutes a fundamental right.

An Issue with no Political Importance: Abortion

Roe v. Wade (1973):

 Challenge to a Texas law banning abortion except to save the mother’s life.
 14A sufficiently broad to encompass the right to terminate pregnancy. Only a compelling state
interest narrowly tailored may overcome this rights. Blackmun’s reasoning:
o Didn’t use to be bans on abortion. However, evidence weak since a move since the 19th century to
ban abortion.
o Great harm to women in requiring them to carry pregnancy to term:
 Physical and medical harm from pregnancy.
 Stress and mental toll of birth and raising a child.
 Problem of bringing an unwanted child into a home that can’t care for.
 Stigma of being an unwed mother.
 Post-hoc justifications:
o Bodily integrity an important interest. Major consequences physically of carrying a child and
birth.

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  However, this line of cases didn’t require a compelling state interest, just and important
one.
o Court had protected important familial decisions, such as choosing to have or beget children.
Having children an important part of personal identity.
o Impact of the law falls exclusively on women and supports the idea that a woman’s proper place is
as a mother. Problematic because abortion bans force women to assume traditional roles, which is
a form of sex discrimination.
 However, right to terminate pregnancy is not absolute. State has important interests in “safeguarding health,
in maintaining medical standards, and in protecting life.” The factors grow in importance as the pregnancy
progresses, and at some point these factors sufficiently important to allow regulation of abortion.
o Court doesn’t define life since not good definition. Instead, says state has a compelling interest in
promoting life after viability. An arbitrary line though.
 Trimester system:
o No interference during the first trimester. Free choice of the mother and her physician.
o Health of the mother compelling after the first trimester. Thus, a state may regulate abortion after
the first trimester to preserve and protect maternal health.
 E.g. can regulate things like who may perform abortions and where.
o Fetus can live on its own during the third trimester (viable), so states may protect that life by
prohibiting abortion, except when necessary to protect the health of the mother.
 Concurring (Stewart): Eisenstadt recognized the right of individuals to be free from unwanted government
intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
o Necessarily encompasses the right to terminate a pregnancy.
 Dissent (White): neither history nor language of the Constitution indicates a right to terminate pregnancy.
Court making it up and overturning most state laws on the matter.
 Dissent (Rehnquist): there are liberties beyond the Bill of Rights, but normally may be deprived on a
rational basis.
o No rational basis if the law banned all abortions, but it doesn’t since it allows them if the mother’s
health is in danger.
o Can’t justify the Court’s used of a trimester system under rational basis.

Government Regulation of Abortion Post-Roe

 Waiting periods for adult women’s abortions not permitted. City of Akron v. Akron Center for Reproductive
Health, Inc.
 State may require informed consent to abortions as with other medical procedures. Danforth.
 Court in City of Akron also said that it was unconstitutional to require certain information to be presented to
women seeking an abortion that had the purpose of dissuading them.
 Court has generally upheld laws that require the reporting and recording of information concerning
abortions so long as the information is protected as confidential.
 Most laws regulation how doctors actually perform abortions struck down before Casey.
 Court has held that state governments do not have to subsidize abortions even if they are paying for
childbirth.
o A constitutional right does not require government to subsidize that right.
 State cannot require either spousal consent or spousal notification as a prerequisite for a married woman’s
obtaining an abortion.
 Court has held that a state may require parental notice and/or consent for an unmarried minor’s abortion,
but only if it creates an alternative procedure where a minor can obtain an abortion by going before a judge
who can approve the abortion by finding that it would be in the minor’s best interest or by concluding that
the minor is mature enough to decide for herself.
o Compromise between intimate choice of potential minor and the interest of the parents in
controlling their child’s upbringing.

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Planned Parenthood v. Casey (1992):

 Challenge to a PA law instituting a mandatory 24 hr. waiting period before a woman could receive an
abortion and requiring notification to husbands.
 Roe reaffirmed and viability still the line. State may not prohibit a woman from making the decision to
terminate her pregnancy before viability, and a state can regulate and even ban abortion after viability. The
abortion cases stand at the convergence of different lines of cases in which intimate and personal choices
central to human dignity have generated a pattern of protection from which the court understands not a
series of isolated points, but a rational continuum.
o Issues of bodily integrity protected.
o An area peculiarly affecting women.
o Constitutional protections for personal decisions relating to marriage, procreation, contraception,
family relationships, child-rearing, and education.
 Involve the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy.
 Suffering of women going through pregnancy and childbirth too intimate for the
state to insist, without more, upon its own vision of women’s roles.
 However, institutes the undue burden test.
 To protect the central right recognized in Roe while at the same time accommodating the State’s profound
interest in potential life, Court should employ undue burden analysis.
o An undue burden exists, and therefore a provision of a law is invalid, if its PURPOSE OR
EFFECT is to place a substantial obstacle in the path of a woman seeking an abortion before
the fetus attains viability.
 Rejection of the trimester framework. To promote the state’s profound interest in potential life, throughout
pregnancy the state may take measures to ensure that the woman’s choice is informed, and measures
designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman
to choose childbirth over abortion. These measures cannot be an undue burden on the right.
o Trimester system problematic because it failed to give sufficient weight to the state’s interest in
fetal life by banning all regulation of abortion prior to viability.
 The state may enact regulations to further the health or safety of a woman seeking an abortion.
Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a
woman seeking an abortion impose an undue burden on the right.
 Actual issues:
o Constitutional for PA to require information to be given to a woman 24 hrs before she may have
an abortion because if furthers the goal of protecting the life of the unborn by promoting an
informed decision. Not an undue burden based on the record before the Court (though it likely
would be to the poor).
o Portion of the law requiring spousal notification invalid because it would impose an undue burden
on abused women in exercising their right. Would allow an abusive husband to veto the decision.
 Don’t look at all women, look at the class of women affected by the law and see if an
undue burden.
 Here, the wives who wouldn’t consult their husbands likely abused.
 Stevens and Blackmun in concurrence wanted to stick with Roe and not adopt the undue burden
framework.
 Dissenters wanted to overturn Roe:
o Not the same as other protections for intimate decisions since terminating a potential life.
o Not historical tradition of allowing abortions.
o A controversial issue that should be left to the legislature, not 9 Justices.

What constitutes an undue burden?

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  Test combines three questions:
o Is the fundamental right to abortion infringed?
o Is the infringement justified by a sufficient purpose?
o Are the means sufficiently related to the end sought?
 State cannot act with the purpose of creating obstacles to abortion and that it can act with the purpose of
discouraging abortion and encouraging childbirth. Goals in tension.
 Court seems to be saying that an undue burden only applies when it would keep someone from obtaining an
abortion.
 How many women must be affected by a law for it to impose an undue burden?

Stenberg v. Carhart (2000):

 Struck down a Nebraska law prohibiting late-term “dilation and extraction” abortions without providing for
exceptions to preserve the mother’s health.
o Substantial evidence that banning this particular abortion dangerous to women’s health.
 Stevens argued in concurrence that no reason under Roe for a state to tell a doctor what abortion procedure
to use. Should be based on physician’s judgment as to which will best protect the woman.
 Kennedy argued in dissent that the Nebraska law sought to promote life, which is permissible, and didn’t
deprive a woman of the ability to obtain an abortion.

Gonzales v. Carhart (2007):

 Congress passed a law banning dilation and evacuation abortions. Slightly different than procedure in
Stenberg, but not much.
 Question of whether an act, ON ITS FACE, imposes a substantial obstacle to a woman seeking a pre-
viability abortion. Deferring to findings of the legislature.
 On the face of this law, no substantial burden.
 Government can show preference for life. Act here meant to prevent killing a fetus just prior to the birth.
o Casey does not stand for allowing doctors to choose the method of abortion they want.
 Competing evidence about whether such a ban is detrimental to maternal heath. When ambiguity, Court
defers to the legislature.
 Still other means for abortion.
 Dissent (RBG): state must avoid subjecting women to health risks not only where the pregnancy itself
creates danger, but also where state regulations force women to resort to less safe methods to get an
abortion.
 Act doesn’t further an interest in promoting fetal life since still other means to get an abortion.
 Rationale of the Court that women shouldn’t be able to choose this method because doctors don’t want to
talk about it and women could come to regret their decision the sort of antiquated stereotypes about women
that are impermissible under 14A.
 Challenges to regulations of abortion are not seeking privacy, they are arguing for a woman’s
autonomy to make her own life choices and fully enjoy citizenship.
 More support from reputable sources that this form of abortion is safer. Appears that the congressional
record wrong about medical opinion.

Consensual Homosexual Relations

Bowers v. Hardwick (1986):

 Court upheld state ban on sodomy. Justice White framed the issue as whether there is a fundamental right
to homosexual conduct. Said no.
 “No connection between the family, marriage, and procreation on the one hand and homosexual activity on
the other.” Homosexual conduct not a traditional right.

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  Overturned in…

Lawrence v. Texas (2003):

 Challenge to a law prohibiting sexual conduct between two persons of the same sex. Struck down. Gays
and lesbians have a fundamental interest in engaging in consensual sexual intercourse.
 History and tradition the starting point of the inquiry about whether there is a fundamental right.
However, subjecting to evolving understandings about what liberty means and the interests that it
protects.
 Prior decisions show greater liberty protection for adults to conduct their private lives. Protection for
decisions relating to marriage, procreation, contraception, family relationships, child-rearing, and education
involve “the most intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy.”
o Gays and lesbians may seek autonomy to make these choices the same as anyone else.
 Emerging understanding is that moralistic intervention in consensual sexual intercourse is not permissible.
o MPC rejected criminal punishment for consensual sexual relations conducted in private.
o Only 13 states with sodomy laws, of which 4 enforce them exclusively against gays and lesbians.
o Many states interpreted their own constitutions as prohibiting sodomy laws and many other
countries also allow gays and lesbians to engage in consensual sexual intercourse.
 Didn’t want to invalidate on equal protection grounds because states could draft around this while the
stigma of the laws would remain.
 Just because a governing majority views a particular practice as immoral is not a sufficient reason to
uphold a law prohibiting that practice.
 Concurrence (O’Connor): equal protection, not due process, should apply.
o Desire to harm an unpopular group not a legitimate interest. When a law exhibits this desire,
subject to a more searching review than rational basis.
o Moral disapproval not sufficient to justify a law preventing homosexual conduct but not
heterosexual sodomy. Equivalent to a bare desire to harm.
 Also, moral disapproval without something more not a sufficient rationale under equal
protection.
 Dissent (Scalia): many judicial decisions and legislative enactments have relied on the ancient proposition
that a governing majority’s belief that certain sexual behavior is immoral and unacceptable constitutes a
rational basis for legislation.
o Court saying that not a legitimate end for a state to say that certain forms of sexual behavior or
immoral or unacceptable. Calls into a number of laws.
o Social change best through the democratic process.
 Note: could be the basis for striking down bans on same sex marriage because it denies the moral
disapproval of homosexuality as a legitimate state interest, which seems to be the only state interest in
banning same-sex marriage.

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